1. The third respondent is the same as the second respondent and, therefore, second respondent is deleted at the request of the petitioner. Amendment to be carried out within ten days.
2. The petitioner had filed a complaint under Section 28 read with Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the Act') against the respondents, inter alia challenging, as an unfair labour practice, a Tender Notice dated March 17, 1992, issued by respondent Nos. 1 and 2 calling for tenders for sale of land and buildings to 'improve the working of the mills'. The complaint proceeds on the footing that the textile mill known as Apollo Mills, owned by the third respondent, is likely to be closed down within a few years. It is also alleged in the complaint that the third respondent, a Government Company constituted for taking over nationalised sick textile undertaking under to the Sick Textile Undertakings (Nationalisation) Act, 1974, has neither money to run the mill nor is it in a position to raise requisite finance. The mainstay of the complaint was that over a period of years there would be several employees who would demit their services and become entitled to terminal dues such as gratuity and that the third respondent would not be in a position to meet its liability on this count.
Further allegations are also made in the complaint that the third respondent, which is a public body, is acting arbitrarily in trying to effect the sale of the land and buildings in question.
3. The Industrial Court has dismissed the complaint on two footings. Firstly, it has held that the petitioner-Union not being a representative Union under the Bombay Industrial Relations Act, 1946 or recognised union under the Act, was not entitled to maintain the complaint under the Act. Secondly, the Industrial Court has held that there was no case of unfair labour practice within the meaning of Item 9 of Schedule IV of the Act made in-as-much as it was not disputed that not a single paisa was outstanding as on the date of complaint to any of the employees represented by the Petitioner-Union.
4. In my view, the Industrial Court is right on both the counts. As to the first point, the Industrial Court has sought support from the Judgment of the Division Bench of this Court in the case of Shramik Utkarsha Sabha v. Raymond Woollen Ltd. and others 1992 (1) CLR 273. As to the second point, I am on agreement with the view of the Industrial Court that, as on the date of the complaint there being no outstanding amount due to any workman or employee represented by the petitioner, the case of 'failure to implement award, settlement or agreement' within the meaning of Item 9 of Schedule IV of the Act was not made out. Merely because the employees apprehend that in future there may be a breach of the terms of the contract of employment, there is no jurisdiction vested in the Industrial Court, in praesente, to entertain a complaint under Item 9 of Schedule IV of the Act.
5. Shri. Gonsalves made, what appears to me to be a last ditch and desperate argument. He contends that the advertisement issued by the respondents on March 17, 1992 was for the avowed purpose of 'modernisation' and that such a modernisation cannot be effected under the provisions of Bombay Industrial Relations Act, 1976 without a notice under Section 42 thereof. No such notice has been given by the respondents and, therefore, they are in breach of the provisions of the statute which must be incorporated in the terms of employment under the principles of law laid down by the Supreme Court in the case of S.G. Chemical and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Trading Ltd, and another, : (1986)ILLJ490SC and therefore, there is unfair labour practice made out under Item 9 of Schedule IV of the Act. I am unable to accede to this argument. At the moment, all that has been done is that an advertisement has been issued inviting tenders for sale of land and buildings. This, per se, does not require any notice under Section 42(4) of the Bombay Industrial Relations Act, 1946. The argument is, therefore, misconceived and is rejected.
6. In my view, the remedy resorted to by the petitioner before the Industrial Court was entirely misconceived. The Industrial Court was justified in dismissing the complaint.
7. There is no merit in this Writ Petition which deserves to be and is hereby dismissed.
8. Shri Gonsalves prays that some reasonable time may be granted to the petitioner to carry the matter in appeal.
9. Shri Naik for the respondents states that though the date for opening the sealed tenders received has expired, they have not been opened on the due date on account of a gherao resorted to by the employees of the mill. The fresh date for opening the tenders is not yet fixed. By merely processing the tenders, the interest of the employee is not likely to be prejudiced. The respondents may open the tenders and process them, but they shall not communicate acceptance of any tender nor shall they execute any agreement till June 12, 1992.
10. Certified copy of the order be expedited.