Indian Express Newspapers (Bombay) Limited Vs. Brihan Mumbai Union of Journalists and ors. - Court Judgment

Excerpt:
labour and industrial - voluntary retirement scheme - sections 28 and 30 (2) of maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 - complaint filed by respondent union challenging transfer orders passed by petitioners transferring and proposing to transfer 20 workmen - interim order was passed by industrial court under sections 30 (2) and 28 - aggrieved by impugned interim orders petition filed - petitioner-company introduced voluntary retirement scheme (vrs) is not disputed - management introduced vrs reflects that there is no work available - work was available at another place where vrs was not introduced - it would not prejudice petitioner at all - there was no element of exigency of work established by petitioners - held, interim orders not to be interfered. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - i may mention here that the petitioners did clearly understand and proceeded on the basis that the complaint of unfair labour practices was filed on behalf of 20 workmen named in the complaint including ms. from the record and pleadings there is no manner of doubt in my mind that the petitioners were very well aware of the fact that the aforesaid two workmen had also challenged their transfer orders. i may also mention that the petitioners have not annexed in this petition the complete copy of the complaint including its annexures for the reasons best known to them. 8. the industrial court in its very well reasoned and detailed order has found a strong prima facie case in favour of the workmen on the basis of the documentary evidence and the legal position discussed by the industrial court. i do not find any infirmity in the strong, prima facie view of the learned member of the industrial court.r.j. kochar, j.1. the petitioners are aggrieved by the impugned interim order passed by the industrial court under section 30(2) read with section 28 and items 3, 9 and 10 of schedule iv of the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 (mrtu & pulp act), in the complaint filed by the complainant union, the respondent herein, challenging the transfer orders passed by the petitioners transferring and proposing to transfer 20 workmen enlisted with complaint, on and from september 30, 2000 as averred in the complaint.2. the petitioners had strongly opposed the complaint and denied the allegations of unfair labour practices.3. both the parties filed their documentary evidence. i may mention here that the petitioners did clearly understand and proceeded on the basis that the complaint of unfair labour practices was filed on behalf of 20 workmen named in the complaint including ms. suman sarswat and mr. jain, who are presently contesting the petition. from the record and pleadings there is no manner of doubt in my mind that the petitioners were very well aware of the fact that the aforesaid two workmen had also challenged their transfer orders. this fact is also borne out from the averments made in the petition. there is therefore no merit in the contention of shri cama, the learned counsel for the petitioners, that there was no mention of the names of these two workmen in the complaint, and therefore, the whole order of the industrial court is vitiated. both the parties understood and proceeded on the basis that the transfer of 20 workmen including ms. sarswat and mr. jain was under challenge. i may also mention that the petitioners have not annexed in this petition the complete copy of the complaint including its annexures for the reasons best known to them. but from the annexures it becomes clear on whose behalf the complaint was filed and which were the impugned orders of the transfers.4. in construing the pleading the supreme court has cautioned to keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. in the judgment of sayed dastgir v. t.r. gopalkrishnasetty reported in : air1999sc3029 , the following observations of the supreme court must he always borne in mind.'in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. unless statute specifically require for a plea to be in any particular form, it can be in any form.'5. in the case of santokh singh and anr. v. mahant iqbal singh reported in : air2000sc3155 , supreme court has again cautioned against the adoption of hyper-technical approach while construing the pleading of the parties. the following observations are relevant and extremely instructive for our purpose in the present matter involving a case of specific relief: -'it is correct that such a declaration should have been sought. normally, in the absence of such a declaration, such a suit would not be maintainable. however, in this case we find that even though there was no prayer to the effect that the lease deed was not valid and/or void and/or are not binding, the necessary averments are there in the plaint. the appellants thus knew that the lease deed was being challenged. they met the challenge in their written statement. thereafter, issues namely, issue nos. 4 and 5 had been framed. evidence was led by the parties on those issues. arguments were advanced on those issues. therefore, this question has been agitated by the parties in all the courts. thus even though there was no formal prayer asked for, no prejudice has been caused to the appellants inasmuch as he has not been prevented from leading evidence on this aspect and has not been precluded from raising contentions in this behalf. in our view, all that was necessary to cure the defect was an amendment by incorporating one prayer. this could have been done at any stage. in this view of the matter, and particularly, in view of the fact that we are in agreement with the findings that the property is a trust property and that the lease in question was not for consideration or for legal necessity, we see no reason to interfere.'i, therefore, do not find any merits in the submission of shri cama on the point ofpleadings.6. shri cama has fairly made a statement that as far as the transfer of ms. sarswat is concerned she being a pregnant lady she will not be transferred until for six months after her delivery.7. shri cama however, is aggrieved by the impugned order of the industrial court in respect of shri jain. according to the learned counsel, transfer was a condition of service and since there was no work available at mumbai in view of closure of the daily hindi jansatta at mumbai, he was ordered to be transferred as per the appointment order and under the exigency of work. shri cama submitted that there was no case of mala fides made out by the union and shri jain.8. the industrial court in its very well reasoned and detailed order has found a strong prima facie case in favour of the workmen on the basis of the documentary evidence and the legal position discussed by the industrial court. he has given cogent reasons to come to the conclusion of prima facie findings of mala fide transfer in the guise of following management policy. besides, shri jain has been working as a correspondent for delhi publication of jansatta from mumbai for maharashtra. he sends maharashtra news to delhi publication. the news reports shown to me in the name of shri jain have proved this fact. prima facie, itis further clear that shri jain has been continuing to the work as a delhi correspondent from mumbai for maharashtra and there is no case of any exigency of work to actually and physically push him out from mumbai on the plea that there was no work available for him as a result of closure of hindi jansatta from mumbai.9. while considering the interlocutory relief application the supreme court has laid down the following guidelines in the case of colgate palmolive (india) ltd. v, hindustan lever ltd. : air1999sc3105 .'generally the interlocutory remedy by way of a grant of an order of injunction is intended to preserve and maintain in status quo the rights of the parties and to protect the plaintiff, being the initiator, of the action against incursion of his rights and for which there is no appropriate compensation being quantified in terms of damages. the basic principle of the grant of an order of injunction is to assess the right and need of the plaintiff as against that of the defendant and it is a duty of incumbent on to the law courts to determine as to where the balance lies. considerations which ought to weigh with the court hearing the application or petition for the grant of injunction are as below:- (i) extent of damages being an adequate remedy; (ii) protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor; (iii) the court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others; (iv) no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case the relief being kept flexible; (v) the issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case; (vi) balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.' applying the aforesaid tests in my opinion the order passed by the learned member of the industrial court deserves to be accepted. the fact that the petitioner company has introduced voluntary retirement scheme at delhi is not disputed. it is another thing that no employee at delhi has accepted the scheme. the very fact that the management had introduced the vrs undisputedly reflects a fact that there is no work available there at delhi necessitating the management to reduce the work force. on the contrary work is available for shri jain at mumbai in hindi jansatta as a correspondent to cover the news from all over maharashtra. it is pertinent to note that if someone is required to cover the news from maharashtra for the delhi publication of hindi jansatta the services of shri jain are necessary and required, and therefore, it would not prejudice the petitioners at all and further in my opinion, prima facie, there is no element of exigency of work established by the petitioners. according to me, therefore, the balance of convenience in the present matter would be in favour of shri jain.10. i do not find any good and valid reason to interfere with the well reasoned interim order in exercise of the extraordinary jurisdiction of this court under article 226 of the constitution of india. i do not find any infirmity in the strong, prima facie view of the learned member of the industrial court. hence i reject this writ petition in limine.