JUDGMENT
B.N. Srikrishna, J.
1. These two writ petitions arise under the same set of circumstances and raise common issues of fact and law. Hence they can be conveniently disposed of by a common judgment.
2. The petitioner in each writ petition is an ex-employee of the First Respondent concern. The First Respondent is a small concern which was carrying on initially the business of hacksaw cutting activity in its factory on plot No. 151 in S-Block at Bhosari, Pune. Some time in 1980 the First Respondent also started heat treatment operations. Since the place in Plot No. 151 was inadequate for carrying out both hack-saw cutting activity and heat treatment operations, the First Respondent requested the adjoining factory, by name Trinity Forge, to permit the hack-saw cutting operations to be carried out on the adjoining plot No. 152 belonging to Trinity Forge. It is not disputed that there were some, business connections between the First’ Respondent (Trinity Udyog) and the said Trinity Forge. There was a dispute between the workman of the First Respondent and the First Respondent on the issue of the quantum of bonus to be paid for the Accounting Year 1984-85. There was industrial unrest and the work of the Hack-saw operations came down considerably to about 35 per cent of what it originally was. The industrial agitation reached such a pitch that the First Respondent decided to close down its Hack-saw operations. By a notice dated May 28, 1986, the First Respondent closed down its Hacksaw Department and terminated the services of all workmen in the Hack-saw Department with effect from May 29, 1986. Simultaneously, the workmen were offered amounts equivalent to notice pay and retrenchment compensation, apart from other legal dues. The workmen refused to accept the same. The Petitioners in the two petitions raised industrial disputes with regard to their retrenchment and the said disputes came to be referred to the Labour Court at Pune vide Reference (IDA) No. 377 of 1988 (in Writ Petition No. 162 of 1992) and Reference (IDA) No.378 of 1988 (in Writ Petition No.302 of 1992). The Labour Court tried the references and held that the references were not maintainable as an earlier complaint (ULP) No.220 of 1986 had been filed on behalf of the workmen of the First Respondent before the Industrial Court at Pune in which the cause of action and the relief sought were identical and, therefore, the reference under the Industrial Disputes Act was barred by Section 59 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. On merits, the Labour Court took the view that there was sufficient cause to close down the Hack-saw Department and no malafides on the part of the First Respondent were proved. It also held that the First Respondent had complied with the provisions of the Industrial Disputes Act by contemporaneously offering notice pay, closure compensation which was equivalent to retrenchment compensation under Section 25-F, wages in lieu of accumulated leave and all other dues in accordance with law. In these circumstances, the Labour Court took the view that the Petitioner was not entitled to any relief and rejected the reference. Hence these writ petitions.
3. Shri Dharap, learned Advocate appearing for the Petitioner in each petition, has strenuously attacked the findings of the Labour Court in the impugned. A ward on the issue of maintainability as well as on merit. He urges that the earlier complaint filed by the Union on behalf of the Petitioner workmen, i.e. Complaint (ULP) No. 220 of 1986, was a complaint invoking the provisions of Item 1 (a) and (b), 4(f) of Schedule II and 1(a), (b) and (d), 8 and 10 of Schedule IV of the Act wherein the contention was that there was an unfair labour practice on the part of the First Respondent and it was incidentally contended that the termination of services of the petitioner workmen was a consequence of the said unfair labour practice. He further contends that in the references before the Labour Court: the issue that was directly referred was the industrial dispute with regard to the illegal and improper termination of services of the Petitioner workmen. In the submission of the learned Advocate the parameters of the jurisdiction of the two fora were different, the causes of action as well as the final reliefs sought were different and, therefore, the fact that the relief of reinstatement of the Petitioner workmen incidentally sought in Complaint (ULP) No.220 of 1986 would not bar the complaints of the present writ Petitioners wherein substantive relief of back-wages and continuity in service were sought. Shri Dharap brought to my notice several judgments of this Court on the issue, which need to be considered to decide the controversy.
4. In Maharashtra State Road Transport Corporation v. Present and etc. 1985 Lab.I.C. 1012, a Division Bench of this Court had occasion to consider the bar under Section 59 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. In that case the Employer Corporation had initiated proceedings under Section 33(2)(b) of the Industrial Disputes Act for approval of the orders of termination passed against some of the Employees. Simultaneously the Employees moved the Industrial Court under Section 28 of the MRTU & PULP Act. It was contended that the proceeding under the MRTU & PULP Act was barred since the proceedings under Section 33(2) of the Industrial Disputes Act were pending at the material time. The Division Bench overruled this contention by pointing out:
“The Bar under Section 59 of the Maharashtra Act is not an absolute one not impervious, impregnable wall to all manner of sorts of proceedings – but a sieve through which certain type of proceedings can permeate. It only prohibits duplicating of proceedings if some, in respect of matter which falls within the purview of the Maharashtra Act, are already pending under the I.D. Act.”
5. Shri Dharap placed great emphasis on a judgment of another Division Bench of this Court in Consolidated Pneumatic Tool Co. (I) Ltd. v. R.A. Gadekar and Ors. 1986 I C.L.R. 322 where, interpreting the word “institute” used in Section 59 of the MRTU & PULP Act the Division Bench said :
“The Word “institute” as used under Section 59 of the MRTU & PULP Act can be taken as meaning “setting on foot an enquiry” which means something more than mere filing of a complaint. Where the applicant does nothing more than filing a complaint under the Act, and withdraws it before any effective steps are taken, then the provisions of Section 59 of the Act will not apply. The Industrial Tribunal was wholly right in taking a view that the present proceedings under the Industrial Disputes Act are not barred by the provisions of Section 59 of the MRTU & PULP Act.”
In my judgment, this decision of the Division Bench is of no avail to the Petitioner workmen. In complaint (ULP) No. 220 of 1986 not only had the Union filed the complaint but had also moved an application for interim relief which was heard by the Industrial Court and rejected. In these circumstances, it is not possible to say that the complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act had been ‘merely instituted’ without no further ado. As pointed out by the Division Bench in Consolidated Pneumatic Tool it was a situation where there was not only “institution” of proceedings, but something in addition thereto.
6. Shri Dharap then relied on the Judgment of Daud J. in All India Labour Union v. Jeewanlal (1929) Ltd. and Anr. 1986 II C.L.R. 296. This was also a case where the proceedings were pending in conciliation and a reference had not been made. In the meanwhile a complaint was presented to the Industrial Court under Section 28 of the MRTU & PULP Act. Relying on the judgment of the Supreme Court in Valldbh Das v. Dr. Madanlal and Ors. 1971 Supreme Court Reports 211, the learned Judge took the view that the contents and the subject matters of the two proceedings and the reliefs sought were totally different and, therefore, the bar under Section 59 of the MRTU & PULP Act did not apply. This case is also distinguishable on facts, as the proceedings instituted under the Industrial Disputes Act were merely at conciliation stage, where there could not have been any relief and. therefore, there was also a possibility of the reference not being granted.
7. Shri Dharap brought to my notice another judgment in Daji Murarrao Surve v. I.T.C. Ltd. Bombay and Anr. 1990 Maharashtra Law Journal 1117 which takes a somewhat contrary view to the view taken by Justice Daud in All India Labour Union (Supra). It is unnecessary to dilate on this as, according to me, the law has been clearly laid down by a judgment of the Division Bench (V.A.Mohta and B.G. Deo JJ.) in Shri Shivaji Agricultural College, Amravati v. Mukhtyar Ahmed s/o Haji Mian Sheikh and Anr. 1987 Maharashtra Law Journal 646. It is unfortunate that the decision of the previous Division Bench was not brought to the notice of Their Lordships who decided Mukhtyar Ahmed case. Nonetheless, considering the somewhat cautious manner in which the judgment of the earlier Division Bench in Consolidated Pneumatic Tool (supra) case proceeded, leaving the issue to be decided on the facts and circumstances of the case, I am of the view that the law laid down by the Division Bench in Mukhtyar Ahmed case is the correct law which is to be applied. After considering Section 59 of the Act, the Division Bench in Mukhtyar Ahmed case observed :
“Use of the word “instituted” is significant specially when it is contrasted with the use of the word “entertained” in that very Section. In India, institution means presentation of the matter. That is the first stage, second being its entertaining, the third being the trial and the fourth being the decision. In the instant case, even the fourth stage was over. If bar operates even if the first stage is reached, it is difficult to see how it will cease to operate only because at the last final stage, the matter is decided only on limitation. It is wrong to assume that Section 59 is based only on the principles of res judicata. Legislative policy seems to restrict the choice of remedy and forum. The Act of 1971 on the one hand and the I.D. Act and the BIR Act on the other have many overlapping provisions and hence legislature mandated to choose at the very threshold any one of the remedies for such overlapping matters. Once a choice is made and the matter is presented, the other remedy is lost and proceedings under the other set of Acts cannot be “entertained”.
The learned Judge of the Labour Court has correctly followed the law laid down in Mukhtyar Ahmed (supra). He has rightly held that the reference under the Industrial Disputes Act in the cases of two writ petitioners were barred by the provisions of Section 59 of the Act. The first contention of Mr. Dharap is, therefore, rejected.
8. Though Shri Dharap vehemently contended that the findings made by the Labour Court in both the impugned Awards were not based on evidence, the situation appears otherwise. Shri Bhanage, learned Advocate appearing for the First Respondent, brought to my notice several documents placed on record of the Labour Court in both the trials. In the case of the Petitioner in Writ Petition No. 162 of 1992, the office copy of the notice of retrenchment issued to the workman was shown to me. The office copy was accompanied by a statement of the notice wages, retrenchment compensation and all other dues that were payable to the Petitioner workman. He was advised by the notice dated May 28, 1986, that he was being paid all his statutory dues such as notice pay and other dues in accordance with law and advised to accept the same. On the said office copy the Writ Petitioner has made an endorsement in Kannada, presumably his mother tongue, “I have received the letter, but I do not accept the money”. He has also endorsed the date and time when he received the said letter. Similarly, in the case of Writ Petitioner in Writ Petition No.302 of 1992 the endorsement made by him on the office copy of the notice dated May 28, 1986, which was identically worded says in Marathi language, “Received letter, do not accept the money”.
9. In the circumstances, I am of the view that the findings of the Labour Court in both impugned awards that the workmen had refused to accept the statutory dues offered to them by the Employer is right and liable to be upheld. There are no other circumstances shown to vitiate the orders of termination. The factual findings of the Labour Court made after full trial are not liable to be interfered with in Writ jurisdiction. Hence, even on merits, both writ petitions must fail.
10. In the result, I find no substance in these two writ petitions. Both writ petitions are hereby dismissed. Rules granted therein are discharged with no orders as to costs.