D.Y. Chandrachud, J.
1. The Plaintiff carries on the business of manufacturing razor blades and employs about 1,260 employees in its factories situated in the Mumbai and Thane regions. Some of the employees of the Plaintiff are stated to be members of the Mumbai Mazdoor Sabha while others are employees of the Vidyut Metallics Employees Union (VMEU) which was formed in 2001. There is a third trade union by the name of Maharashtra Rajya Kamgar Sabha which is stated to claim a representation of about 18 employees. The Maharashtra Rajya Kamgar Sabha is the First Defendant to these proceedings.
2. The case of the Plaintiff is that the First Defendant has indulged in violent activities including cases of alleged assault on the workmen. Some time in the year 2004, the Plaintiff instituted a complaint of unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 in which an interim order was passed by the Industrial Court at Thane on 30th January, 2004. On 2nd February, 2006 a settlement was entered into by the Plaintiff with VMEU in respect of the service conditions of the employees. The First Defendant is stated to have alleged that the union which had signed the settlement had produced bogus letters of the workmen.
3. The cause of action for the institution of the suit is the allegation of the Plaintiff that the First Defendant has indulged into criminal and disruptive activities which have no connection with legitimate trade union activity. It has been alleged that the union has been terrorizing the employees and the management by resorting to violence, issuing threats, assaulting employees and taking recourse to coercive activities, The Plaintiff has inter alia made a claim for damages, as explained hereinafter, and it was alleged that the claim is based upon the actions of the Defendants which have no connection with trade union activities. The workmen owing allegiance to the First Defendant are alleged to have caused losses by providing production lower than the agreed norms of production. It is alleged that on 24th March, 2007 workers abstained from work due to the activities of the First Defendant. On 31st March, 2007, it is alleged, the First Defendant and its members blocked the entry and exit of all the employees including the managerial staff and prevented them from reporting for work. The Plaint contains a description of incidents which are alleged to have taken place on 29th June, 2007, 18th July, 2007, 8th August, 2007, 9th August, 2007 and 21st January, 2008. It was alleged that the workmen owing allegiance to the First Defendant engaged in acts of assault and violence resulting in a cumulative loss of production and damage to property. At Exhibit E to the Plaint is a statement containing the summation of losses alleged to have been caused to the Plaintiff. Besides this, it has been alleged that due to the acts of the First Defendant and the loss of production, the Plaintiff has been unable to cater to the demands of the international market resulting in a loss of goodwill and reputation associated with the Plaintiff in the domestic and international markets. The loss of reputation and goodwill is estimated at Rs. 50 Crores.
4. At the present stage, it may not be necessary for the Court to set out in further detail a reference to all the individual incidents of assault and violence that are alleged to have taken place. The Plaintiff has stated that it instituted a second complaint of unfair labour practices before the Industrial Court, being Complaint (ULP) 154 of 2007, in which by an order dated 9th July, 2007 the application for interim relief was rejected on the ground that an order of interim relief continued to hold the field in the earlier complaint. The Plaintiff has alleged that there has been a resultant loss of man hours, loss of efficiency of workers, loss of export orders, damage to property and a reduction in productivity. A loss of Rs. 47.68 Crores is estimated due to reduced productivity.
5. The relief that has been claimed in the suit can be divided into two parts. The first part relates to a claim for damages viz. (i) a claim of Rs. 47.68 Crores for loss of business due to reduced productivity and (ii) a claim in the amount of Rs. 50 Crores on account of a loss of reputation and goodwill. The second part of the relief is injunctive relief. The Plaintiff inter alia claimed an injunction restraining the Defendants from-
(i) carrying out any violent protests on the Plaintiffs premises;
(ii) entering upon the Plaintiffs premises with intent to carry out any disruptive activities and/or impede the production activity of the Plaintiff;
(iii) indulging in any acts of violence, assault and/or threat to assault any of the Plaintiffs employees at the Plaintiffs premises and/or at the residence of the Plaintiffs employees;
(iv) preventing ingress and egress of Plaintiff s employees and material;
(v) interfering with the carrying out of the Plaintiffs business, impeding the transportation of the Plaintiffs machinery and/or preventing the Plaintiffs employees from reporting for duty; and/or (vi) interfering with the administration, functioning and affairs of the Plaintiff.
6. An application was made in the suit for the grant of protective interlocutory orders in a Notice of Motion. An affidavit in reply was filed to the Motion in which the maintainability of the suit was sought to be questioned with reference to the bar contained in Section 60 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ('the Act'). In view of the defence to the maintainability of the suit, the following preliminary issue came to be framed under Section 9A of the Code of Civil Procedure, 1908:
Whether this Court has jurisdiction to entertain and try this suit in view of the provisions contained in Section 60 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
7. Both the learned Counsel have stated before the Court that the preliminary issue raises a question of law and parties do not desire to lead any oral evidence thereon. Submissions have accordingly been urged and this judgment will govern the preliminary issue which has been framed. On behalf of the Plaintiff, the learned Counsel urged that the definition of the expression 'unfair labour practices' under Section 2(16) is exhaustive because the expression is defined to mean unfair labour practices as defined in Section 26. Under Section 26 unfair labour practices are those which are listed out in Schedules II, III and IV. Essentially, three submissions have been urged on behalf of the Plaintiff:
(1) The claim in the suit insofar as it relates to the payment of compensation or damages is one as to which the Labour Court or the Industrial Court has no jurisdiction, Section 30(1)(b) provides for the payment of compensation only to an employee and not to an employer;
(2) Item 2 of Schedule III of the Act constitutes an unfair labour practice where employees are coerced in the exercise of their right to self organization. Both Clauses (a) and (b) thereof deal with the situation of a strike. Clause (a) refers to picketing so as to debar physically non-striking employees from entering the work place while Clause (b) refers to workmen indulging in acts of force or violence or holding out threats of intimidation in connection with a strike against non-striking employees or against managerial staff. Item 5 of Schedule III, it was urged must be construed together with Item 2 and the unfair labour practices in the context of Item 5 must therefore be construed in the context of the conduct of workmen in relation to a strike. The coercive action referred to therein must be construed, it was urged, in the context of Item 2.
(3) Prayer Clause (c) of the suit contains a prayer for injunctive relief and the unfair labour practices on the part of unions have to be construed strictly with reference to entries in the Third Schedule. Unless a particular act or conduct is constituted to be an unfair labour practice under Schedule III, the Industrial Court would have no jurisdiction and consequently a civil suit would not be barred.
8. In considering the tenability of the three submissions urged on behalf of the Plaintiff, it would be necessary at the outset to refer to some of the provisions of the Act which would have a bearing on the question before the Court. The expression 'unfair labour practices' is defined in Section 2(16) to mean unfair labour practices as defined in Section 26. Under Section 5, the jurisdiction of the Industrial Court is to decide complaints relating to unfair labour practices except those which fall in Item 1 of Schedule IV. Section 26 of the Act provides that unfair labour practices mean any of the practices listed in Schedules II, III and IV. Section 28 enunciates the procedure for dealing with complaints relating to unfair labour practices. Section 30 enunciates the powers of the Industrial and Labour Courts and it would be material for the purposes of the present case to extract Sub-section (1) thereof, which is as follows:
30. Powers of Industrial and Labour Courts. - (1) Where a Court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice, it may in its order-
(a) declare that an unfair labour practice has been engaged in or is being engaged in by that person, and specify any other person who has engaged in, or is engaging in the unfair labour practice;
(b) direct all such persons to cease and desist from such unfair labour practice, and take such affirmative action (including payment of reasonable compensation to the employee or employees, affected by the unfair labour practice, or reinstatement of the employee or employees with or without backwages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act;
(c) where a recognised union has engaged in or is engaging in, any unfair labour practice, direct that its recognition shall be cancelled or that all or any of its rights under Sub-section (1) of Section 20 or its right under Section 23 shall be suspended.
Section 32 provides that notwithstanding anything contained in the Act, the Court shall have the power to decide all matters arising out of any application or a complaint referred to it for the decision under any of the provisions of the Act. Schedule II of the Act provides for unfair labour practices on the part of employers, Schedule III for unfair labour practices on the part of trade unions and Schedule IV for general unfair labour practices on the part of employers. For the purposes of the present case, it would be material to refer to the provisions of Items 2 and 5 of Schedule III which have formed the subject-matter of the submissions before the Court. Items 2 and 5 of Schedule 3 are as follows:
2. To coerce employees in the exercise of their right to self-organisation or to join unions or refrain from joining any union, that is to say-
(a) for a union or its members to picketing in such a manner that non-striking employees are physically debarred from entering the workplace;
(b) to indulge in acts of force or violence or to hold out threats of intimidation in connection with a strike against non-striking employees or against managerial staff.
5. To stage, encourage or instigate such forms of coercive actions as wilful 'go-slow' squatting on the work premises after working hours or 'gherao' of any of the members of the managerial or other staff.
9. As already noted earlier, the first part of the relief that has been claimed in the suit is an award of damages. Damages have been claimed on the ground that the violent activities of the Defendants and such other activities as were unrentable to legitimate trade union activity have resulted in a loss of business and a loss of reputation and goodwill. The power of the Labour Court or, as the case may be, the Industrial Court under Sections 28 and 30 of the Act is to enquire into whether a person named in the complaint has engaged in or is engaging in any unfair labour practice. Following that determination, the Court is empowered to declare that an unfair labour practice has been engaged in or is being engaged. Under Clause (b) of Sub-section (1) of Section 30, the Court is empowered to pass a cease and desist order and to direct the taking of such affirmative action as may be in the opinion of the Court necessary to effectuate the policy of the Act. The affirmative action which the Court may order may include the payment of reasonable compensation to the employee or employees affected by the practice or the reinstatement of the employee with or without backwages or the payment of reasonable compensation.
10. The first question before the Court is as to whether a claim for damages by the employer on the ground that there has been a loss of business or a loss of reputation or goodwill can be maintainable in a complaint of an unfair labour practices. In considering this question, it must be now regarded as a settled position in law, following judgments of the Supreme Court, that the Act provides a summary remedy against the commission of an unfair labour practice. In its decision in Cipla Limited v. Maharashtra General Kamgar Union 2001 (I) CLR 754 the Supreme Court noted that the object of the Act is, amongst other things, the enforcement of provisions relating to unfair labour practices. Section 32 of the Act confers upon the Court the power to decide all actions arising out of any application or complaint. The Supreme Court held that the provisions of the Act are summary in nature and consequently precluded an elaborate consideration of the question as to whether the relationship of employer and employee exists. The judgment in Cipla holds that the Labour or the Industrial Courts under the Act would have no jurisdiction unless the relationship of employer and employee is undisputed or indisputable. The important aspect of Cipla which has a bearing on the present case is that the Supreme Court has held that the provisions of the Act are summary in nature. The jurisdiction of the Industrial Court or, as the case may be, the Labour Court must be confined to those areas where such jurisdiction has been conferred upon those Courts by the legislature. The judgment in Cipla has been followed by the judgment of the Supreme Court in Sarva Shramik Sangh v. Indian Smelting and Refining Co. Ltd. 2003 (III) CLR 949 (paragraph 24 page 959). The basic postulate therefore is the summary nature of the proceedings under the Act.
11. In Mc Gregor on Damages, there is the following elaboration on the meaning and scope of the concept of damages:
Damages are the pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum which is awarded unconditionally.... This definition covers the usual and strictly correct meaning of the terms 'damages' and excludes claims for money other than those which are for compensation for a tort or breach of contract. Accordingly there are four types of cases in which pecuniary satisfaction is gained by success in an action and which are yet outside the present definition : actions for money payable by the terms of a contract, actions in quasi-contract, actions in equity and actions under statutes where the equitable or statutory right to recover is independent of any tort or breach of contract. (p.3).
The Learned author then states:
Before damages can be recovered in an action there must be a wrong committed, whether the wrong be a tort or a breach of contract. Even if a loss has been incurred, no damages can be awarded in the absence of a wrong: it is damnum sine injuria. Therefore the preliminary question to be answered, before any issue of damages can arise, is whether a wrong has been committed.... At the other end of the scale from damnum sine injuria is injuria sine damno. Even if no loss has been incurred, nominal damages will be awarded if a wrong has been committed.... The object of an award of damages is to give the plaintif compensation for the damage, loss or injury he has suffered. The heads or elements of damage recognised as such by the law are divisible into two main groups; pecuniary and non-pecuniary loss. The former comprises all financial and material loss incurred, such as loss of business profits or expenses of medical treatment. The latter comprises all losses which do not represent an inroad upon a person's financial or material assets, such as physical pain or injury to feelings.
Lord Blackburn in Livingstone v. Rawyards Coal Co. (1880) 5 AC 25 defined the measure of damages as 'that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation'.... The loss for which the plaintiff will be compensated is cut down by a variety of factors. Thus he cannot recover damages for that part of the loss due to his contributory negligence, nor for such loss of which the defendant's conduct is not the cause, nor for such loss which is not within the scope of the protection of the particular tort or contract, nor for loss which he should have avoided, nor for loss which is too uncertain, nor for some past and prospective losses. These factors are all given extended consideration: many of them are frequently grouped under the compendious term 'remoteness of damage'.... The term 'remoteness of damage' can be distinguished from the term 'measure of damages,' the former referring to the consequences and losses for which the plaintiff can recover compensation, and the latter referring to the method of calculating the compensation for the particular consequence or loss, (at pages 6, 8, 10)
12. Now as a matter of first principle, a claim for damages is one in respect of which an adjudication on the basis of evidence is warranted. Damages either by way of loss of business or on account of a loss of reputation or goodwill have to be proved. As a matter of first principle, it is not possible to subscribe to the view that an employer who has a claim for damages on account of a loss of business or a loss of reputation or goodwill can avail of the remedy under the Act by filing a complaint of unfair labour practices before the Industrial Court. An employer who complains of an unfair labour practice under Schedule III may seek a cease and desist order under Section 30(1)(b) or require a direction to the workmen to take such affirmative action as may in the opinion of the Court be necessary to effectuate the policy of the Act. However, the empowering words of Section 30(1)(b) allowing the Court to direct that affirmative action be taken by the workmen, in the context of a complaint under Schedule III, would not warrant an adjudication into a claim for damages. A claim of damages for tortious acts or a claim which sounds in damages under the general law is founded on the enforcement of civil law remedies. The jurisdiction to award such a claim will vest with the ordinary civil Courts. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union : (1976)ILLJ274SC the Hon'ble Supreme Court held as under:
We are unable to imagine a tort liability or a compensation claim based on loss of business being regarded as an industrial dispute as defined in the Act, having regard to the language used, the setting and purpose of the Statute and the industrial flavour of the dispute as one between the management and workmen.
13. The next aspect of the matter which must be considered is whether the injunctive relief that has been sought in prayer Clause (c) of the Plaint can be granted by the Court in a civil suit. Item 5 of Schedule III constitutes an unfair labour practice in staging, encouraging or instigating such forms of coercive action as those specifically spelt out. The actions which have been specially spelt out are wilful go slow, squatting on the premises after the working hours and gherao of the managerial or other staff. The expression 'such forms of coercive actions' is indicative of the fact that the coercive actions which are listed in Item 5 are illustrative and not exhaustive. The word 'such' followed by the word 'as' furnishes intrinsic evidence of a clear legislative intent not to prescribe an exhaustive elucidation of all forms of coercive actions.
14. Section 60 of the Act provides that no civil Court shall entertain any suit which may form the subject matter of a complaint to the Industrial Court or the Labour Court under the Act or which has formed the subject matter of an interim or final order of the Industrial Court or Labour Court under the Act. The construction of Item 5 of Schedule III fell for determination before a Learned Single Judge of this Court in Nichani Hotels Corporation v. Bombay Labour Union 1981 M.L.J. 711 : 1981 (42) FLR 340. Mr. Justice C.S. Dharmadhikari who delivered the judgment of the Court held that for deciding the question as to whether the jurisdiction of the Civil Court is barred or not to entertain any particular suit, it will have to be seen as to whether the averments made in the suit can form the subject-matter of a complaint or an application to the Industrial Court or Labour Court under the Act. The Learned Judge held that the coercive actions which are listed out in Item 5 of Schedule III are merely illustrative since it was not possible for the legislature to envision all forms of unfair labour practices involving the practice of coercion. In that context, the Learned Judge held as follows:
The forms of 'coercive actions' are merely enumerated in this entry and the list is not exhaustive. Obviously it is not possible for anybody to give exhaustive list of such coercive actions because of the ingenuity of the employees to invent new forms of coercive actions every day and this is the reason why the legislature in its wisdom has used the expression 'as' before enumerating some of the coercive actions. Therefore, apart from the forms of coercive actions enumerated in the said entry, the entry takes, in its import other forms of coercive actions also and the word 'as' if read in its context only means 'such as' and is not exhaustive in nature. The key or basic words are 'Forms of coercive action'.
Therefore, depending upon the facts and circumstances of each case if demonstrations are carried out by the trade union in such a manner which results in coercion so as to adversely affect the safety or trade or business by the employer, then depending upon the nature and gravity as well as the form of demonstration it can be held that it is one of the form of coercive action which could be covered by Entry 5 of Schedule III. Stopping supplies of essential material or taking out finished products will also be covered by the said entry if it is adopted or used as a coercive action. Nothing will turn on the label attached to an action and it is the nature and the effect of the action which will be a decisive factor for coming to the conclusion as to whether it is a form of coercive action covered by Entry 5 of Schedule III. It is not the label or mere averment but the substance of the action which will have to be taken into consideration coupled with the surroundings and attending circumstances, for deciding the said question.
15. A similar view came to be reiterated in a judgment of Mr. Justice P.B. Sawant (as the Learned Judge then was) in Blaze Advertising Private Limited v. Blaze Advertising and Allied Co.'s Employees' Union 1985 L.I.C. 1015. The Learned Judge held there that the three coercive actions which are specifically mentioned in Item 5 are of a disparate nature and effect, although they belong to a wider genus of coercive action. The Learned Judge held that the legislature had in mind only the said forms of action and no others and the three forms that were listed were specifically named because they happened to be the most common forms of protests resorted to when the legislation was drafted. Human ingenuity knew no limits in evolving new forms of protest or coercion and the list in Item 5 could therefore not be regarded as complete or exhaustive.
16. The submission which has been urged on behalf of the Plaintiff is that Item 5 of Schedule III must be read in the context of the unfair labour practices listed out in Item 2. As a matter of first principle, this submission does not commend itself for acceptance. To read Item 5 in the context of Item 2 would completely defeat the object and purpose of the legislature in enlisting various unfair labour practices. Item 2 as it reads covers the coercion of employees in the exercise of their right of self-organization and, both Clauses (a) and (b) thereof advert to a situation involving a strike. On the other hand, Item 5 does not postulate that the forms of coercion listed out therein must be only in relation to a situation involving a strike. Undoubtedly the entries in Schedule III are not water tight compartments and in certain situations they may overlap. However, it would not be permissible by a process of interpretation to curtail the scope of one entry by reading it in the context of another entry. Item 5 would govern all forms of coercive actions whether or not involving a strike situation and it would be impermissible to restrict the ambit of Item 5 by requiring that it should be read in the context of Item 2 of Schedule III. Such a process of construction would be impermissible.
17. Section 60 of the Act would have a direct bearing on the question as to whether a suit for an injunction of the nature claimed in the present proceedings would be maintainable. The injunction that has been sought is against the carrying out of violent protests on the premises of the Plaintiff, entry upon the premises with an intent to carry out disruptive activities or to impede production; indulging in any act of violence and assault; preventing the ingress and egress of the Plaintiffs employees and material; and interfering with the business, including the transportation of machinery and the reporting of employees for duty. Each one of the actions which is sought to be prevented is a form of coercive action relatable to Item 5 of Schedule III. In fact, it would be important to note that two complaints of unfair labour practices were instituted by the Plaintiff in the Industrial Court at Thane, both of which are still pending. The first complaint, Complaint (ULP) 33 of 2004 was instituted with reference to the provisions of Items 5 and 6 of Schedule III. In that complaint, an order was passed by the Industrial Court on 31st January, 2004 in the following terms:
Till the next date the Respondents Union, its office bearers, servants, agents supporters, members are hereby restrained from assembling in the company premises and within the vicinity of 200 mtrs. stating conducting violent demonstration, gherao, giving slogans in vulgar and indecent language or squatting in and around the factory premises preventing, obstructing supervisors, Managerial staff, officers, visitors, customers, suppliers, employees intended to report as the duty preventing obstructing any kind hindrances for ingress or egress of man and material.
18. It is common ground before this Court that the aforesaid order continues to hold the field. Following this complaint, a second complaint was instituted again under Items 5 and 6 of Schedule III, being complaint (ULP) 206 of 2007. An application for interim relief was moved in the complaint but it came to be dismissed on 14th August, 2007 since the interim order which held the field in the earlier complaint sufficiently safeguarded the interest of the parties. This therefore is a case where the Plaintiff has already elected to seek injunctive reliefs by instituting two complaints of unfair labour practices under Items 5 and 6 of Schedule III. The relief which is sought in prayer Clause (c) of the suit is a relief which forms and which can legitimately form the subject-matter of a complaint of unfair labour practices. In these circumstances, the bar under Section 60 would stand attracted insofar as the prayer for injunctive relief is concerned and the preliminary issue would have to be answered by holding that the Court would have no jurisdiction insofar as prayer Clause (c) is concerned.
19. The question as to whether a civil Court would have jurisdiction to entertain a suit in a matter which relates to a right or entitlement under industrial legislation is not res Integra. The principles were summarized in the judgment of the Supreme Court in The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke : (1975)IILLJ445SC as follows:
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.
20. The issue came to be revisited in a subsequent judgment in Rajasthan State Road Transport Corporation v. Krishna Kant 1995 (II) CLR 180 where the Court held as follows:
(1) Where the disputes arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an 'industrial dispute' within the meaning of Section 2(k) or Section 2A of the Industrial Disputes Act, 1947.
(2) Where, however, the disputes involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
(3) Similarly, where the disputes involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946, which can be called 'sister enactments' to Industrial Disputes Act - and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2A of Industrial Disputes Act or where such enactments says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.
(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex-facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex-facie frivolous, not meriting an adjudication.
(5) Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e., without the requirement of a reference by the government - in case of industrial disputes covered by Section 2A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Order) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to 'statutory provisions'. Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein.
(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternate dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in circumstances for putting an end to an industrial dispute.
21. The essential test which must be applied therefore is as to whether the dispute that is sought to be raised is one which arises under the general law of contract or whether the dispute is one that would involve recognition, observance or enforcement of rights or obligations created under industrial legislation. For the reasons that have been already indicated, the claim for damages is one which arises under the general civil law and is not one that is relatable to industrial legislation. On the other hand, the injunctive relief that is claimed is relief which directly relates to and arises out of the provisions of Schedule III of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. In the State of Maharashtra, the legislature has made elaborate provisions in regard to unfair labour practices on the part of employers and trade unions. Where an unfair labour practice falls within the scope and purview of Schedules II, III and IV of the Act, recourse to the remedy of a civil suit for the grant of injunctive relief would be barred.
22. In these circumstances, the preliminary issue is answered by holding that this Court would have no jurisdiction to entertain the suit insofar as the claim for injunctive relief viz. prayer Clause (c) of the suit is concerned. This prayer is directly governed by the provisions of Item 5 of Schedule III and as a matter of fact recourse has already been taken by the employer to the remedy of two complaints of unfair labour practices which are pending. This Court would have jurisdiction to entertain and try the suit insofar as the claim for damages in prayer Clauses (a) and (b) is concerned. However, it is clarified that insofar as the question of damages is concerned, that issue has been addressed at the present stage as a preliminary issue only from the perspective of Section 60 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and all the other defences which are open to the Defendants would be considered when the suit is set down for trial. The preliminary issue shall accordingly stand answered.
In view of the decision on the preliminary issue, Notice of Motion 429 of 2008 shall stand disposed of. Relief in terms of prayer Clauses (a) and (b) of the Notice of Motion cannot be granted at the interlocutory stage since it must await adjudication at the trial. In view of the answer to the preliminary issue, relief in terms of prayer Clause (c) cannot be granted. The Motion is accordingly disposed of.