Ahmedabad Municipal Transport Service Vs. HisamudIn Dosumiya Shaikh - Court Judgment

Excerpt:
- - noticed that the action of the management in accepting the duty list prepared by the union for the drivers as well as conductors is wholly unjustified and inconsistent with the award of the industrial tribunal passed in reference (i. in spite of the aforesaid situation, like that, the grant of the leave by the union and preparation of the duty list in prior consultation with the union, the in-charge manager of the a. (2) to put such drivers and conductors on the new buses who had a tract record of bringing good income to the a. it is clearly observed by this court relying on the decisions of this court and the apex court that ex-parte interim order or injunction could be granted only under exceptional circumstances. (3) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; (5) the court would expect a party applying for ex-parte injunction to show utmost good faith in making the application; (7) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court even at that stage. apart from the question whether the tribunal had jurisdiction to pass an interim order like this without making an interim award, (a point which was considered and left open by this court in the management, hotel imperial v. therefore, when a tribunal is considering a complaint under section 33-a and it has finally to decide whether an employee should be reinstated or not, it is not open to the tribunal to order reinstatement as an interim relief, for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal. we are of opinion that such an interim relief, for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under section 33-a. we, therefore, allow the appeal, set aside the order of the high court as well as of the tribunal dated may 16, 1957, granting interim relief. is bad in law being violation of the provisions of section 9-a and section 33 and the settled practice and usage.j.n. bhatt, j.1. rule. service of rule is waived by learned advocate mr. h.k. rathod for respondent nos. 1 to 6 and by learned advocate mr. m.b. gandhi for respondent nos. 7, 8 & 9. upon joint request and considering the element of urgency involved in the petition, this matter is taken up for final hearing forthwith.the petitioner, ahmedabad municipal transport service (a.m.t.s.), which is a part of the functioning of the ahmedabad municipal corporation has assailed the ad interim (ex-parte) order recorded by the industrial tribunal at ahmedabad, dated 5-12-1996, by filing this petition under articles 226 and 227 of the constitution of india. by virtue of the impugned ad interim order, the industrial tribunal granted ad interim injunction in terms of para 7(b) of the complaint filed by the respondents under section 33-a of the industrial disputes act, 1947 (i.d. act) against the circular no. 62 dated 30-11-1996, issued for and on behalf of the a.m.t.s. in view of the ad interim injunction, the petitioner-a.m.t.s. is restrained from preparing the duty list in accordance with the decision rendered by the industrial tribunal in complaint no. 9 of 1989 and confirmed in special civil application no. 8885 of 1989 by the division bench of this court dated december 29, 1989.2. according to the case of the petitioner, the existing practice of a.m.t.s. was that the duty list was prepared by the union which was accepted by the transport manager. the in-charge transport manager and commissioner of the municipal corporation when took over the charge of the functioning of the a.m.t.s., the petitioner-a.m.t.s. noticed that the action of the management in accepting the duty list prepared by the union for the drivers as well as conductors is wholly unjustified and inconsistent with the award of the industrial tribunal passed in reference (i.t.) no. 62 of 1962 and the decision of a division bench of this court. it is, therefore, contended on behalf of the petitioner that the impugned circular no. 62 dated 30-11-1996 came to be issued for the purpose of preparation of the duty list on the basis of the settlement, award and the decision of this court. a further circular came to be issued on 30th november, 1996 to the effect that it was not the function of the union to grant leave to the workers.3. the respondents herein, thereafter, approached the industrial tribunal by filing a complaint under section 33-a of the i.d. act contending that there was breach of the provisions of section 33-a of the i.d. act in view of the pendency of industrial dispute in reference no. (i.t.) 433 of 1992. the respondents submitted an application for ex-parte order and the industrial tribunal passed ex-parte interim order in terms of para 7(b) of the complaint under section 33-a. the effect of the ex-parte (ad interim) order is that the duty list for the drivers and conductors of the a.m.t.s. would be prepared by the union and that the management is obliged to grant the leave as of right as per the recommendations of the union according to their quota. the petitioner, therefore, has inter alia, contended that the impugned ex-parte (ad-interim) order is illegal and without jurisdiction and therefore, it should be quashed.4. the petitioner has also contended that it was the duty of the industrial tribunal to issue notice before granting the impugned ex-parte interim order at the instance of the respondents staying the circular no. 62 dated 30-11-1996 of the petitioner.the respondents have, inter alia, contended that item no. 17 of the settlement which was recorded on 7-5-1963 was with respect to the duty of traffic and workshop staff and pursuant to that duty lists for the drivers and conductors of the a.m.t.s. used to be prepared. however, the incharge manager, a.m.t.s., who is the commissioner of the municipal corporation disturbed the said long practice evolved in view of the settlement. it is also contended on behalf of the respondents that in the light of the settlement for a spell of about three decades there was smooth functioning with the duty lists fixed and prepared in accordance with item no. 17 of the settlement. a demand was raised to change the duty list every month for conductors and for every three months for drivers which is pending in a reference (i.t.) no. 433 of 1992. therefore, it was not open for the petitioner who was in-charge of a.m.t.s. in absence of the manager to pass the impugned circular and disturb the long pending and settled practice. the duty lists were prepared by the union and the management jointly as contended by the respondents. it is also the case of the respondents that the said duty lists were prepared of conductors on 30-10-1996 and of drivers on 30-5-1996. after the preparation of the said lists, the petitioner-management had issued circular no. 47 dated 1-11-1996 and in that circular, the first item was 'next duty list of conductors would come into operation from 1-1-1997'. likewise, for drivers, circular no. 13 dated 1-6-1996 was published wherein the first item was that 'the next duty list of drivers would come into operation from 1-1-1997'. it is, therefore, the contention of the respondents that the duty lists prepared in joint consultation with the union and the management were very much in force when the impugned circular came to be issued by the in-charge manager of the a.m.t.s.5. the respondents have also placed reliance on a writing by the management prepared on 16-7-1976. it is contended on the basis of the said writing that the union was granting the leave as per the quota so as to see that the work of transport activities of the a.m.t.s. does not suffer and in turn the public at large. in spite of the aforesaid situation, like that, the grant of the leave by the union and preparation of the duty list in prior consultation with the union, the in-charge manager of the a.m.t.s. issued circular no. 62 dated 30-11-1996. it is, in this context, it is the case of the respondents that the said circular is totally in violation of the settlement and therefore, the legal remedy by filing a complaint no. 232 of 1996 in reference (i.t.) no. 433 of 1992. therefore, it is the case of the respondents that the impugned ex-parte interim order recorded by the industrial tribunal was justified and the challenge against it by filing this petition is meritless and requires to be rejected.6. the petitioner-a.m.t.s., by filing affidavit-in-rejoinder has, inter alia, contended that the settlement was misused and wrong practice had crept in abrogating the management by the unions which resulted into drop in productivity and cash loss to the management everyday. it is also the case of the petitioner that the accumulated loss has reached to a staggering figure of rs. 110 crores and the a.m.t.s. is registering a cash loss of rs. 2 lacs on each day. it is, therefore, the case of the petitioner that the practice of preparing the duty list for drivers and conductors of the a.m.t.s. by the union and not by the management was improper and contrary to the settlement. it was, therefore, felt necessary by the in-charge manager of the a.m.t.s. to prepare a fresh duty loss following the principles of management and then consult the unions before finalising the list. it is stated in the affidavit-in-rejoinder that the following criteria were kept while preparing the fresh duty list:(1) to put new buses on the routes where the revenue generation was higher;(2) to put such drivers and conductors on the new buses who had a tract record of bringing good income to the a.m.t.s.(3) not to put the drivers and conductors on the fixed duties who were not found upto the mark in performance of their duties and who were habitually in remaining absent, etc.(4) to put new buses on the routes where there is only a single bus on the route;(5) to the extent possible allot the duties to the drivers and conductors closer from their place of residence.having prepared such a duty list, the unions were called for consultation on 7th december, 1996 but they refrained from making any suggestions to carry out changes in the duty list, instead they insisted for the continuance of the existing system of preparing the duty list for the conductors and drivers.7. the further case of the petitioner is that it is not a rigid convention that the duty list shall remain in force for six months in case of drivers and 2 months in case of conductors. it is highlighted in the affidavit-in-rejoinder certain instances wherein the time frame for continuance of the duty lists was not adhered to. in short, it is stated that the duty lists of the drivers have been changed on completion of four months in the year 1993 and even continued upto eight months in the year 1992. on one occasion, it continued even for 23 months under the order of the court. similarly, in case of duty lists of conductors made for two months have also continued for 12 months in the year 1995. it is, therefore, the case of the petitioner that its decision to make a fresh duty list of drivers and conductors before the expiry of the existing duty list which were not prepared following any management norms, as contended, cannot be considered to be violative of any settlement or understanding with the unions.8. the petitioner has also contended that it is competent for the transport manager to vary the list in the interest of administrative exigencies. the existing list which was prepared by the union was required to be changed as it was necessary to prepare the duty list following the principles of the sound management and consult the union before finalising it. therefore, the representatives of the unions were invited, but they had not attended. in short, the petitioner has contended that the transport manager has prepared the duty list as per the true spirit and content of the settlement taking into account the professional parameters for preparing the duty list. an opportunity was given to the recognised unions for the purpose of consultation before finalising the list and bringing the same into operation from 9th december, 1996 but the same was not availed of by the unions.9. it is also the case of the petitioner that the new duty lists prepared by the in-charge manager have been accepted by large number of employees with great sense of satisfaction as it has a nexus with the productivity and public purpose. it is further stated that on an average an increase in income of rs. 41,000/- has been registered per day during the past one week and this daily income is likely to go up steeply in the coming days and will serve the cause of public with higher degree and satisfaction. it is, therefore, submitted that the impugned ad interim order recorded by the industrial tribunal restraining the petitioner from operating and implementing the new duty lists and the impugned circular no. 62 is not only unjust, but is illegal.clause 17 of the settlement which is the linchpin of the controversy between the parties incorporated in the settlement dated 7-5-1963 in relation to the duties of the traffic and the workshop staff reads as under:duties of the traffic and the workshop staff shall be arranged according to the necessity arising from time to time. the duties for the traffic line staff shall be arranged as per the traffic requirements of the city. this shall be done after consulting the recognised union.there is no dispute about the fact the settlement in which clause 17 came to be incorporated became effective from 1-4-1964. the award of the industrial tribunal dated 18-12-1989 in complaint (a.r.b.) no. 9 of 1989 is placed on record wherein also the said term no. 17 of the settlement is examined and interpreted. it is very clear from the said award and the term no. 17 of the settlement that the duties of the traffic and the workshop staff shall be prepared according to the necessity arising from time to time. the duties for the traffic and workshop staff shall be prepared as per the tranffic requirements of the city after consulting the recognised unions. there is no dispute about the fact that the respondent nos. 3, 6 & 9 are the recognised unions. the award of the industrial tribunal, inter alia, also directed the a.m.t.s. to see that while arranging the duty lists, no injustice is done to senior persons. it was, therefore, observed that a.m.t.s. should use its discretion before finalising the duty list. in special civil application no. 8885 of 1989 filed at the instance of one of the unrecognised unions and for its members came to be decided by a division bench of this court on 29th december, 1989. after examining and interpreting the said clause, this court made following observations:that the said clause means that while fixing duties for the traffic lines staff, meaning thereby, drivers who have to drive the a.m.t.s. buses, traffic requirements have to be kept in view and this fixation of duties has to be done after consulting recognised union.it was contended on behalf of the petitioners in that petition that many irregularities were being committed while fixing duty lists and that clause 17 which was in focus before this court in that petition gave unchartered power to the transport authorities to pick and choose drivers and to make arrangement of duty lists. this court, rejecting the said contention observed that it was not possible to agree with that contention. it was also observed that settlement is an old settlement which has stood the test of time and it was arrived at in conciliation and it would be binding to all the employees. however, the settlement nowhere indicates that any arbitrary exercise of power is permitted to the transport authorities. the court further observed that 'it goes without saying that exercise of power would be a bona fide exercise so far as consultation aspect is concerned, the recognised union may have a say by way of recommendations to the a.m.t.s. authorities when they fix the duty list'. it is further observed that 'it is not as if that consultation is concurrence. duty list will have to be fixed by the a.m.t.s. authorities themselves. if there are individual grievances regarding fixation of duty list, they can be examined in proceedings before appropriate forum moved by the drivers, but it cannot be said that entire term 17 would be arbitrary or obnoxious'.10. it is in the aforesaid factual matrix the impugned ex-parte interim order recorded by the industrial tribunal is required to be tested and examined coupled with the relevant proposition of law governing the grant of ad interim injunction.11. there is no dispute about the fact that there is no specific statutory provision for passing ad interim or interlocutory orders in so far as the labour court or industrial tribunal authorities are concerned unlike the provisions of order 39 rules 1, 2 and 3 of the code of civil procedure 1908. it is also not in dispute that the labour court or the industrial tribunal, as the case may be, is competent to pass appropriate interlocutory injunctions or orders. therefore, the only question which requires to be examined and adjudicated upon at this juncture in this petition is whether the impugned ex-parte interim order recorded by the industrial tribunal, restraining the petitioner-a.m.t.s. from operating the new duty lists pursuant to circular no. 62 is justified, legal and valid or not.a plain perusal of the impugned order shows that no reasons or grounds are mentioned for the grant of the impugned order. it is simply stated that after having read the relevant papers and considering the same and after hearing the learned advocate for the complainant, ad interim ex-parte order is granted in terms of para 7(b) of the complaint under section 33-a. the principles which are required to be borne in mind while exercising the discretionary power in passing ad interim or interlocutory orders would be analogous to the provisions of order 39, rules 1, 2 & 3 of the code. this court, time and again, has highlighted the principles of law relating to the grant of interlocutory injunction. what are the grounds and what are the circumstances which compelled or prompted the labour court to exercise its discretion in grant of ad interim order even without issuance of notice for a day have not been manifested from the record. when an order is subject to the judicial scrutiny by the higher forum, it is incumbent upon the authority while exercising power in granting the interim order, if not in meticulous detail, at least in a short compass to give reasons so that the higher forum when such an order is challenged could examine whether the exercise of power and that too discretionary is just, proper, legal, valid or not.12. this court in a decision rendered in civil revision application no. 1392 of 1996 dated 21-9-1996, had an occasion to consider the principles governing the grant of ex-parte interlocutory injunction wherein the principles are enumerated and highlighted. it is clearly observed by this court relying on the decisions of this court and the apex court that ex-parte interim order or injunction could be granted only under exceptional circumstances. the factors which should weigh with the court in grant of ex-parte order or injunction are highlighted and they are as follows:(1) whether irreparable or serious mischief will ensue to the parties who has sought ad interim order;(2) whether the refusal of ex-parte injunction would involve greater injustice than the grant of it would involve;(3) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;(4) the court will consider whether the plaintiff had acquiesced for some time and in such circumstances it will not grant ex-parte injunction;(5) the court would expect a party applying for ex-parte injunction to show utmost good faith in making the application;(6) even if granted, the ex-parte injunction would be for a limited period of time;(7) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court even at that stage.it would be appropriate at this stage to refer to a decision of the apex court in assistant collector of central excise, west bengal v. dunlop india : 1985ecr4(sc) , wherein a caution is sounded by the hon'ble supreme court that ordinarily, the court should not grant injunction against the public interest. unfortunately, this court is not in a position to know as to what was the compelling circumstance or material or element which required for the industrial tribunal to pass the ex-parte (ad-interim) order without even issuing notice for a day. in view of the principles laid down in the aforesaid decisions and also the principles laid down by this court in appeal from order no. 12 of 1996 decided on 26-7-1996, the impugned order granting ex-parte interlocutory order is vulnerable and unsustainable.13. the apex court in delhi cloth & general mills v. rameshwar dayal : (1960)iillj712sc also laid down the principle for the grant of interlocutory order during the pendency of an inquiry under section 33-a of the i.d. act. the observations of the supreme court in the said case in para 7 are very relevant. they are as under:the same two points which were raised in the high court have been urged before us. we are of opinion that it is not necessary in the present case to decide the first point because we have come to the conclusion that the interim order of may 16, 1957 is manifestly erroneous in law and cannot be supported. apart from the question whether the tribunal had jurisdiction to pass an interim order like this without making an interim award, (a point which was considered and left open by this court in the management, hotel imperial v. hotel workers' union : (1959)iillj544sc we are of the opinion that where the tribunal is dealing with an application under section 33-a of the act and the question before it is whether an order of dismissal is against the provisions of section 33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did not take the workman back in its service as an interim measure. it is clear that in case of a complaint under section 33-a based on dismissal against the provisions of section 33, the final order which the tribunal can pass in case it is in favour of the workman, would be for reinstatement. the final order would be passed only if the employer fails to justify the dismissal before the tribunal, either by showing that proper domestic inquiry was held which established the misconduct or in case no domestic inquiry was held by producing evidence before the tribunal to justify the dismissal: see punjab national bank ltd. v. all india punjab national bank employees' federation : (1959)iillj666sc where it was held that in an inquiry under section 33-a, the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of section 33 by the employer. after such contravention is proved it would still be open to the employer to justify the impugned dismissal on the merits. that is a part of the dispute which the tribunal has to consider because the complaint made by the employee is to be treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under section 33-a. therefore, when a tribunal is considering a complaint under section 33-a and it has finally to decide whether an employee should be reinstated or not, it is not open to the tribunal to order reinstatement as an interim relief, for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal. the interim relief ordered in this case was that the workman should be permitted to work; in other words he was ordered to be reinstated; in the alternative it was ordered that if the management did not take him back they should pay him his full wages. we are of opinion that such an interim relief, for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under section 33-a. as was pointed out in hotel imperial's case : (1959)iillj544sc ordinarily, interim relief should not be the whole relief that the workman would get if they succeeded finally. the order, therefore, of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must, therefore, be set aside. we, therefore, allow the appeal, set aside the order of the high court as well as of the tribunal dated may 16, 1957, granting interim relief.14. reliance is also placed in the said decision on the earlier decision of the apex court in hotel imperial's case : (1959)iillj544sc . the ratio propounded in the said decision is also squarely attracted to the facts and circumstances of the present case. in m/s. anup engg. ltd. v. shreenarayan kanaiyalal 1995(1) glh 345, the apex court has propounded the material principles in relation to the grant of interim relief or order in case of proceedings under section 33-a of the i.d. act. in the said case, it is observed that during the pendency of the proceedings under section 33-a of the i.d. act, order directing payment of wages to the workman cannot be passed on an interim application. interim relief cannot be granted by deciding the main issue at interlocutory stage when the main issue is required to be decided finally in the pending proceeding. in the present case, in complaint under section 33-a, the main grievance which was voiced was that the preparation of the new duty list making a departure from the past settled practice in pursuance of circular no. 62 issued by the petitioner-a.m.t.s. is bad in law being violation of the provisions of section 9-a and section 33 and the settled practice and usage. the industrail tribunal, while exercising its discretionary power in grant of ad interim order, granted the relief which is the main relief in the complaint under section 33-a. therefore, the principles evolved and explained in the aforesaid decision of the supreme court in the case of m/s. anup engineering ltd. (supra) are directly applicable to the facts and circumstances of the present case.15. it is true that the jurisdictional scope and sweep and parameters under the writ jurisdiction against the interlocutory order are very much circumscribed. this court is in agreement with the learned advocates mr. rathod and mr. gandhi that ordinarily this court should not interfere with the interlocutory order recorded in purported exercise of discretionary power by the court below. there cannot be any quarrel about the principles propounded and relied on by both the advocates of the respondents. nonetheless, the principles enunciated in the aforesaid two decisions of the apex court and two other decisions of this court pertaining to the powers of the court for grant of interlocutory orders or injunction are also required to be borne in mind while exercising the discretionary powers of grant of interlocutory injunction. since the main controversy is pending in the complaint under section 33-a of the i.d. act and the interlocutory order after hearing the other side is required to be recorded and for which the date fixed as stated at the bar is 23rd december, 1996, this court does not deem it expedient and desirable to divulge all other disputed factual aspects. it would not, therefore, be appropriate to deal with and decide other contentions relating to the factual aspects. however, suffice it to say that the impugned order recorded by the industrial tribunal at the interlocutory stage, ex-parte, prima facie, radiates an imprint of non-application of mind not only to the vital facts, but also to the vital principles of law governing the grant of interlocutory injunction. as observed hereinabove, no any reason whatsoever is stated which prompted the industrial tribunal to record the impugned order and exercise the discretionary power in favour of the respondents-complainants. since no reasons are assigned, it could be said that it is not a speaking order and there appears to be non-application of mind to the vital aspects. these two factors are efficient and sufficient to allow the petition while quashing and setting aside the impugned interlocutory ex-parte order restraining the petitioner from implementing and operting the new duty lists pursuant to the settlement and more so in view of clause 17 of the settlement which has been confirmed by the industrial tribunal in a reference and by a division bench of this court.16. in circumstances, this court is left with no alternative but to quash the impugned interlocutory ex-parte order granting ad interim relief in terms of para 7(b) of the complaint under section 33-a of the i.d. act. with the result, the petition is allowed and the impugned order is quashed and set aside. rule is made absolute accordingly. however, in the facts and circumstances, there shall be no order as to costs. since the main application in the complaint is pending, a caution may be sound that the industrial tribunal shall decide the merits of the interlocutory application after hearing both the parties in accordance with law uninfluenced by the factual observations made by this court hereinbefore as the same are made at the interlocutory stage prima facie.17. in view of the peculiar facts and special circumstances emerging and obtainable in the present case and the element of urgency wherein not only more than 5,000 employees of the a.m.t.s. but the public at large are interested, it would be just and proper to direct the industrial tribunal to deal with and decide the interlocutory application for interim order after hearing both the parties as expeditiously as possible. it is, therefore, directed that the industrial tribunal shall accord priority and adjudicate upon and decide the application on merits in accordance with law after hearing both the parties within a period of six weeks. it is hoped that both the sides will co-operate with the tribunal in disposal of the said dispute.