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PETITIONER: HINDUSTAN LEVER LTD.

       Vs.

RESPONDENT: ASHOK VISHNU KATE & ORS.

DATE OF JUDGMENT15/09/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) RAY, G.N. (J)

CITATION:  1996 AIR  285            1995 SCC  (6) 326  JT 1995 (6)   625        1995 SCALE  (5)400

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T MAJMUDAR. J:      Leave granted.      By consent  of learned  advocates of  the parties,  the appeal is  finally heard  and is  being disposed  of by this judgment.      The short  question involved  in  this  appeal  centers round the jurisdiction of the Labour Court functioning under the Maharashtra  Recognition of  Trade Unions and Prevention of Unfair  Labour Practices  Act, 1971 (hereinafter referred to  as  ‘the  Act’  for  short)  regarding  entertaining  of complaints filed  under Section 28(1) of the Maharashtra Act in connection  with contemplated  discharge or  dismissal of the employees  alleged to  be resorted to by the employer by way of  unfair labour  practice, as  mentioned in  Item 1 of Schedule IV  of the  Maharashtra Act.  The Labour  Court  in which the  complaints were  filed took  the view  that  such complaints were  not maintainable  as the  actual orders  of discharge or  dismissal were yet not passed by the employer. The learned  Single Judge of the Bombay High Court confirmed that view, but the appellate Bench of the High Court allowed the writ  appeal filed  by the respondent-workmen and took a contrary view. That is how the employer is before us in this appeal. BACKGROUND FACTS ----------------      A few  relevant facts  are required  to be noted at the outset. The  predecessor of  the present  appellant-company, Hindustan Lever  Limited, the Tata Oil Mills Company Limited served chargesheets  on Respondent  Nos.1 to  9 for  certain alleged  misconduct.   Respondent  Nos.1   to  9  instituted Complaint (ULP)  Nos. 90  to 98 of 1989 before the Presiding Officer, First Labour Court, Bombay, alleging therein, inter alia, that  the appellant’s  predecessor company had engaged in commission of unfair labour practices referred to in Item

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1 of  Schedule IV of the Maharashtra Act. It was the case of the respondents  in the said complaints that in pursuance of the show-cause notices, inquiry was being conducted and they apprehended that  their services  would be  terminated.  The respondents also filed applications for interim relief under Section  30(2)   of  the  Maharashtra  Act  seeking  interim injuction restraining  the employer-company  from continuing the  unfair   labour  practices   complained  of   and  from terminating the  services of  the  respondents.  The  Labour Court  passed   an  ex   parte  injunction  restraining  the employer-company  from   terminating  the  services  of  the respondents.      The employer-company  filed its  written statements  in these complaints  and among  others it  was  contended  that complaints  themselves   were  not   maintainable  and  were premature and  the  Labour  Court  had  no  jurisdiction  to proceed with  such complaints  as jurisdiction of the Labour Court could  not be  invoked under  Item 1 of Schedule IV of the Maharashtra  Act as long as the proceedings commenced by the  employer-company  were  not  terminated  by  orders  of discharge or  dismissal of  the concerned  respondents.  The employer-company also resisted the complaints on merits.      The Labour  Court by  its order  dated August 10, 1989, upheld the preliminary objection of the employer-company and held that  the complaints  were  not  maintainable  at  that stage. The Labour Court followed the decision of the learned Single Judge of the High Court sitting at Nagpur in the case of Divisional Commissioner, M.S.R.T.C. vs. Presiding Officer Industrial Court  of Maharashtra,  Nagpur &  Anr. (1989 Mah. L.J. 798), which had taken a similar view.      The respondent-workmen  filed Writ Petition No. 2286 of 1989 under  Article 226  of the  Constitution of  India. The learned Single  Judge of  the High Court summarily dismissed the same on August 21, 1989.      The respondents  carried the matter before the Division Bench of  the High  Court in appeal, being Appeal No. 952 of 1989. The  Division Bench consisting of M.C. Pendse and S.N. Kapadia, JJ.  allowed the  said appeal by its decision dated March 6,  1992, wherein Pendse, J. speaking for the Division Bench, took  the view  that the respondents’ complaints were not premature  and the  Labour  Court  had  jurisdiction  to entertain such  complaints filed before the actual orders of dismissal or  termination were  passed by  the employer. The order  dated  August  10,  1989,  passed  by  the  Presiding Officer, First  Labour Court,  Bombay, was set aside and the proceedings were  remitted back  to the  First Labour Court, Bombay for disposal of the complaints on merits.      The employer-company  filed Special  Leave Petition (C) No. 9740  of 1992  in this  Court challenging  the aforesaid decision of the Division Bench of the High Court. During the pendency of  this special  leave petition,  by I.A. No. 4 of 1995, the present appellant-company i.e. the Hindustan Lever Limited, applied  to be substituted in place of the original petitioner, the  Tata Oil  Mills  Company  Limited,  on  the ground that  the original  petitioner had  merged  with  M/s Hindustan Lever  Limited. The said I.A. was allowed and that is how  the present  appellant-company has  prosecuted  this appeal by  special leave. The Employer’s Federation of India accompanied by  M/s Blue Star Limited, also filed I.A. No. 3 of 1992 seeking permission of this Court for intervention as they were interested in supporting the petitioner-company in the   special   leave   petition.   That   application   for intervention was  also allowed.  The intervenors  have filed their written  submission in  support of  this appeal.  They have also  appeared through  their learned  counsel who  was

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heard in this appeal. RIVAL CONTENTIONS -----------------      Shri Pai,  learned Senior  Counsel, appearing  for  the appellant-company  and   the   learned   counsel   for   the intervenors contended  that the  Division Bench  of the High Court was  in error  in taking  the view that the complaints filed by the respondent-workmen were maintainable even prior to the  passing of the dismissal or discharge orders, as the case may  be, and  that the Labour Court had no jurisdiction under the  Maharashtra Act  to proceed  with such  premature complaints.  In   this  connection,   the  learned   counsel submitted that  a mere  look at  Item 1 of Schedule IV shows that the  complaints of unfair labour practice in connection with the  activities mentioned  therein on  the part  of the employer  necessarily   contemplated  final   discharge   or dismissal orders.  They submitted  that Section  28(1)  lays down the  period of  limitation for filing complaints before the Labour  Court. The  said period has to run from the date of alleged  occurrence and,  therefore, the  alleged  unfair labour practice  must occur by way of dismissal or discharge before such  complaint can  be filed.  It was next contended that though  the Act  deals with prevention of unfair labour practices, nowhere  in the  body of  the Act  in any  of the sections the  word ‘Prevention’  is mentioned.  According to the learned  counsel, the  Division Bench  of the High Court was in  error in taking the view that unfair labour practice is not  a penal  offence under  the Act.  Section 48  of the Maharashtra Act made such unfair labour practice penal. That the Labour  Court under Section 30(2) could pass appropriate interim order  restraining the  employer from  enforcing  on calling  upon  the  employer  to  withdraw  temporarily  the alleged unfair  labour practice of dismissal or discharge of employee and  it was not as if after discharge or dismissal, such interim  relief could  not be granted in an appropriate case by  the Labour  Court. Reliance  was also placed on the decision of  this Court  in the  case of  Chanan  Singh  vs. Registrar, Co-operative  Societies, Punjab  & Ors. (1976 (3) SCR 685)  for submitting  that even  though a chargesheet is served by  the employer  on the concerned employee, there is still a  possibility that it may not actually culminate into any discharge or dismissal and, therefore, complaint against proposed dismissal or discharge would be premature.      On  the   other  hand,  the  learned  counsel  for  the respondent-employees   vehemently    submitted   that    the Maharashtra Act  itself is  enacted for prevention of unfair labour practices,  as enumerated  in the  Schedules and such labour practices  on the  part of the employers or the trade unions of  employees, as  mentioned in Schedules II, III and IV, could be prevented in appropriate cases by the concerned Courts functioning  under the  Maharashtra Act,  which would necessarily mean  that such  complaints could be filed prior to the  actual commission  of the  final act  of the  unfair labour  practice   complained  of.  The  submission  of  the appellant’s counsel would make the very scheme of preventing unfair labour  practice  inoperative  and  otios.  That  the relevant  provisions   of  the   Maharashtra   Act   clearly contemplate filing  of complaints not only against the final act of  discharge or dismissal of employees by way of unfair labour practice, but even at stages prior to the final stage where the employer completes such an exercise. That such was the  view  taken  years  back  by  the  Full  Bench  of  the Maharashtra Industrial  Court and  which was followed by all Courts in Maharashtra functioning under the Maharashtra Act. That the  view taken by the Division Bench of the High Court

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was in  consonance with the scheme of the Act and fructified the said  scheme. That  it is  a social  legislation hence a liberal interpretation should be placed on the scheme of the Act,  with   a  view  to  subserve  the  purpose  for  which Maharashtra Act  was enacted.  That the  provisions  of  the Industrial Disputes  Act fell  short of  the achievement  of goal of  prevention of  unfair labour  practices.  This  was sought to  be achieved  by the  Maharashtra  Legislature  by enacting  the   provisions  of   the  Maharashtra   Act  and consequently the interpretation placed by the Division Bench of the  High Court on the relevant provisions of the Act and the final  conclusion to  which it  reached  deserve  to  be upheld. OUR CONCLUSIONS AND THE REASONS FOR THE SAME --------------------------------------------      Having given  our anxious  consideration to  the  rival contentions,  we   have  reached  the  conclusion  that  the decision of  the Division  Bench of  the Bombay  High  Court taking the  view that  complaints  could  be  filed  by  the workmen apprehending discharge or dismissal by way of unfair labour practice  as contemplated  by the relevant clauses of Item 1  of Schedule IV of the Maharashtra Act, even prior to the actual  passing of  orders of  discharge or dismissal is well sustained  on the  scheme of the Act. We now proceed to elaborate our reasons for the aforesaid conclusion.      Before we  deal with  the relevant  provisions  of  the Maharashtra Act,  it would  be necessary to note that in the State  of   Maharashtra,  prior   to  the   passing  of  the Maharashtra Act,  two Acts  governing the  relations between the employers  and the  employees in industries were already holding  the  field.  One  Act  was  the  Bombay  Industrial Relations Act,  1946 (‘B.I.R.  Act’ for short) which applied to  certain  notified  industries  under  the  Act.  Various protections were  given under  the B.I.R. Act to the workmen covered  by  the  said  Act.  But  there  was  no  provision regarding prevention  of unfair  labour practices  either on the part  of the  employers or  on the part of the unions of employees. There was also a Central Act, Industrial Disputes Act, 1947  (‘I.D. Act’  for short)  applicable to industries which were not covered by the B.I.R Act. The Maharashtra Act was passed  by the  legislature on  February 1,  1972, being Maharashtra Act  1 of  1972. By  that time  industries which were covered  by the I.D. Act, which was a Central Act, also did  not   have  the  benefit  of  any  provision  regarding prevention of  unfair labour  practices. Under  the I.D. Act provision  was   made  for   reference  by   an  appropriate Government of  any industrial  dispute between the employers and the  employees for  adjudication of competent Industrial or Labour  Court,  as  the  case  may  be.  The  "Industrial Dispute" as defined by Section 2(k) of the I.D. Act could be referred for  adjudication to the competent authority as per Section  10,   if  the   persons  applying   for   reference represented majority  of each  party as laid down by Section 10(2). "Industrial  Dispute" as  defined by  Section 2(k) of the I.D. Act, 1947 provides as under :-      " ‘Industrial Dispute’ means any dispute      or  difference   between  employers  and      employers,  or   between  employers  and      workmen, or between workmen and workmen,      which is  connected with  the employment      or  non-employment   or  the   terms  of      employment or  with  the  conditions  of      labour, of any person; " Only with  effect from  1.12.1965, Section 2(A) was inserted in the  I.D. Act  wherein even  an individual  workman could

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raise an industrial dispute in connection with his discharge or dismissal  or otherwise  termination of  service. For all other types  of industrial  disputes, a  majority of workmen had to support the dispute before the appropriate Government could refer it for adjudication of competent Court. However, in either  case, reference of such industrial dispute had to be made  by the  appropriate Government  under Section 10 of the I.D.  Act. There  was no  provision for reference of any industrial dispute under the Central Act, for preventing any unfair labour  practice, by the time the Maharashtra Act saw the light  of the  day. It  is, of  course, true  that by an amendment to  the Industrial  Disputes Act  Chapter V(c) was added w.e.f.  August 2, 1984, which deals with unfair labour practice. The  "Unfair Labour  Practice" as  defined by  the I.D. Act  in Section  2(ra)  means  ‘any  of  the  practices specified in  the Fifth Schedule’. When we turn to the Fifth Schedule to  the I.D. Act, we find the cataloguing of unfair labour practices  on the  part of  the employers,  the trade unions of  the employers  and on the part of the workmen and trade unions  of workmen,  which are almost parimateria with lists  of  unfair  labour  practices  on  the  part  of  the employers, on  the part  of the  trade  unions  and  general unfair labour  practices on  the part  of the  employers  as found in  Schedules II,  III and  IV of the Maharashtra Act. However, even  the aforesaid  amended provisions of the I.D. Act concerning  unfair labour  practice nowhere  provide for any reference  of industrial dispute in connection with such unfair labour  practice on  the part  of the employers which can entitle  the workmen  or a  body of  workmen to  seek  a reference for  adjudication or  for its  prevention  by  any competent court  under the  I.D. Act, and all that a workman can do  is to  wait till the order of discharge or dismissal is passed and then he can raise a dispute under Section 2(A) in connection  with his  dismissal or  discharge and if such dispute  is  referred  by  the  appropriate  Government  for adjudication of  the  Labour  Court  which  is  entitled  to adjudicate upon  such dispute as per the residuary Item 6 of Schedule II  to the  I.D. Act, then in such a dispute it can be shown  by  the  workman  that  his  actual  dismissal  or discharge was  a result  of unfair  labour practice  as laid down by clause 5 of part 1 of the Fifth Schedule to the I.D. Act. However,  there is  no  provision  for  preventing  any proposed discharge  or dismissal  by way  of  unfair  labour practice on  the part  of the  employer as per the statutory scheme of  the I.D. Act, even after the insertion of Chapter V(c) in  that Act.  On the  other hand,  more than  a decade before the  aforesaid amendment was brought in the I.D. Act, which fell  short of  providing  for  prevention  of  unfair labour practice,  the Maharashtra Legislature as early as in 1972  enacted   the  Maharashtra   Act  providing  for  such prevention. Similarly as noticed earlier the B.I.R. Act also did not  offer any  remedy to the workmen to raise a dispute regarding prevention  of any  unfair labour  practice on the part of  the employer  who had  set in  motion machinery for discharging or  dismissing workmen  by way of alleged unfair labour  practice.  Thus,  in  the  background  of  the  then existing lacuna  both under  the Central  Act, i.e. the I.D. Act  and   the  B.I.R.   Act  regarding  any  provision  for prevention of  unfair  labour  practice,  we  will  have  to examine the  scheme of  the Maharashtra  Act which  seeks to provide a  remedy  for  prevention  of  such  unfair  labour practices and  to find  out how  it supplies  the lacuna and tries to achieve its goal. SCHEME OF THE MAHARASHTRA ACT -----------------------------

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The preamble of the Act lays down as under :-      "An Act  to provide  for the recognition      of   trade   unions   for   facilitating      collective   bargaining    for   certain      undertakings; to  state their rights and      obligations; to confer certain powers on      unrecognised  unions;   to  provide  for      declaring certain  strikes and lock-outs      as illegal  strikes  and  lock-outs;  to      define and provide for the prevention of      certain  unfair   labour  practices;  to      constitute   courts    (as   independent      machinery) for carrying out the purposes      of according recognition to trade unions      and   for   enforcing   the   provisions      relating to  unfair  practices;  and  to      provide for  matters connected  with the      purposes aforesaid.           WHEREAS, by  Government Resolution,      Industries and  Labour  Department,  No.      IDA.   1367-LAB-II,   dated   the   14th      February   1968,   the   Government   of      Maharashtra appointed a Committee called      "the   Committee    on   Unfair   Labour      Practices"    for    defining    certain      activities of  employers and workers and      their  organisations   which  should  be      treated as  unfair labour  practices and      for suggesting  action which  should  be      taken against  employers or  workers, or      their  organisations,  for  engaging  in      such unfair labour practices;           AND  WHEREAS,   after  taking  into      consideration   the    report   of   the      Committee Government  is of opinion that      it  is  expedient  to  provide  for  the      recognition   of    trade   unions   for      facilitating collective  bargaining  for      certain  undertakings;  to  state  their      rights  and   obligations;   to   confer      certain powers  on unrecognised  unions;      to provide for declaring certain strikes      and lock-outs  as  illegal  strikes  and      lock-outs; to define and provide for the      prevention  of   certain  unfair  labour      practices;  to   constitute  courts  (as      independent machinery)  for carrying out      the purposes or according recognition to      trade   unions    and   for    enforcing      provisions relating to unfair practices;      and to  provide  for  matters  connected      with  the   purposes  aforesaid;  It  is      hereby enacted in the Twenty-second Year      of the  Republic of  India as  follows:-      ............."      The preamble  of the  Act clearly  indicates  that  the Maharashtra Act  is brought  on the  statute book  with  the avowed purpose  of regulating the activities of trade unions and for  preventing certain  unfair labour practices both on the part of unions of employees as well as the employers. As laid down  by Section  2(3) of the Act, the Act has to apply to the  industries to  which B.I.R.  Act, for the time being applies and also to any industry as defined in clause (j) of Section 2  of the  I.D. Act and also to the State Government which in  relation to any industrial dispute concerning such

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industry is the appropriate Government under that Act. Thus, the Act  sought to  supplement and cover the field for which the concerned  industries governed  by the then I.D. Act and B.I.R. Act  did not  get any  coverage and  that  field  was obviously amongst  others the field pertaining to prevention of unfair labour practices as defined by the Act.      "Unfair labour  practices" as  per Section  3(16)  mean unfair labour  practices as  defined in  Section 26. When we turn to  Section 26,  we find  that it  occurs in chapter VI dealing with  unfair labour  practices. It  provides that in this Act,  unless the  context requires  otherwise,  "unfair labour practices"  mean  any  of  the  practices  listed  in Schedules II,  III and  IV. That  takes us  to the concerned Schedules.      Schedule  II  of  the  Act  deals  with  unfair  labour practices on  the part of the employers. Schedule III of the Act deals  with unfair  labour practices  of trade unions of employees and  then  comes  Schedule  IV  which  deals  with general  unfair   labour  practices   on  the  part  of  the employers. As  we are  directly concerned  with  Item  1  of Schedule IV  of the  Act, it  is necessary  to reproduce the said item with all its clauses at this stage.                  SCHEDULE IV           General Unfair  Labour Practices on           the Part of employers      1. To discharge or dismiss employees-           (a) by way of victimisation ;           (b)  not  in  good  faith,  but  in      colourable exercise  of  the  employer’s      rights;           (c)  by   falsely  implicating   an      employee in  a criminal  case  on  false      evidence or on concocted evidence;           (d) for patently false reasons;           (e)  on   untrue  or   trumped   up      allegations of absence without leave;           (f)  in   utter  disregard  of  the      principles of  natural  justice  in  the      conduct  of  domestic  enquiry  or  with      undue haste :           (g) for  misconduct of  a minor  or      technical character,  without having any      regard to  the nature  of the particular      misconduct or the past record of service      of the  employee, so  as to  amount to a      shockingly disproportionate punishment."      A mere  look at  Item 1  of Schedule  IV shows  that it would be a general unfair labour practice on the part of the employer to  discharge or  dismiss employees  on any  of the grounds mentioned  in clauses  (a) to  (g) of  this Item. On this aspect  there is  no dispute  between the  parties. The moot question is whether the sweep of the item can cover any of the  alleged general  unfair labour practices on the part of the  employer, before  the  employer  concerned  actually discharges or  dismisses the  employee on any of the grounds enumerated  in   clauses  (a)   to  (g).   Let  us  take  an illustration to  see how  this item operates. If an employer discharges or  dismisses an employee by way of victimisation it would be a complete unfair labour practice on his part as contemplated by  clause (a)  of Item 1 of Schedule IV. As we have seen  above, the  Act is enacted with a view to prevent such  unfair   labour  practice.   Therefore,  the  question squarely arises  as to how such an unfair labour practice of discharge  or   dismissal  of   an  employee   by   way   of victimisation can be prevented. If it is to be prevented, it

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has to be prevented from taking effect or getting completed. Therefore, the  intervention of  the  Labour  Court  can  be sought where the concerned general unfair labour practice on the part of the employer to discharge or dismiss an employee by  way   of  victimisation   has  not   resulted  into  its culmination but  it is  in pipeline  or process.  Under  the standing orders  governing the  concerned industries, before an employee  can be discharged or dismissed on the ground of any  misconduct,   departmental  enquiry  has  to  be  held. Consequently, taking  the initial step towards the direction of discharging  or dismissing  of any employee on the ground of any misconduct by issuing a chargesheet can be said to be the first action taken by the employer towards such ultimate discharge or  dismissal of  an employee. It can then be said that the  process of  alleged unfair  labour practice on the part of  the employer to discharge or dismiss an employee on ground (a)  mentioned in Item 1 of Schedule IV is started or has got initiated or is triggered off by the employer. If an employee  can  make  out  a  strong  prime  facie  case  for interdiction of  such a  process, he can legitimately invoke the jurisdiction  of the Labour Court for preventing such an unfair labour practice from getting fructified or completed. In his  connection, it is necessary to note that the general unfair labour  practice on  the part  of  the  employers  as mentioned in  Item 1  of Schedule  IV pertains  to different types of  objectionable actions  based on  grounds which are indicative of  unfair labour  practices and any action based on such  grounds with  a view  to discharge  or  dismiss  an employee is  considered by  the Act  to be  an unfair labour practice on the part of the employer.      The Division  Bench of the High Court for coming to its conclusion has  heavily relied  upon the words "to discharge or dismiss  employees" as found in Item 1 of Schedule IV. We find that  the term  "to discharge or dismiss" does indicate even attempted  action towards  such discharge or dismissal. In this  connection, we  may profitably refer to the meaning of the  term "to"  as found  in various  dictionaries as the said term is not defined by the Maharashtra Act.      In Concise  Oxford  Dictionary,  New  Seventh  Edition, Oxford University  Press, at  page 1124, one of the meanings of the word "to" is mentioned as under:-      "In the  direction  of  (place,  person,      thing, condition, quality, etc.; with or      without implication  of intention  or of      arrival..."      In Collins English Dictionary, at page 1525, one of the meanings of the word "to" is as under:-      "used to indicate the destination of the      subject  or  object  of  an  action:  he      climbed to the top."      In Words and Phrases, Permanent Edition, Volume 41A, at page 418,  one of the meanings of the word "to" is amplified as under:-      "The word "to" means indicating anything      regarded as a terminal point or limit in      the direction of which there is movement      and at  which there is arrival or in the      direction of  which there is movement or      tendency without arrival."      In Stroud’s Judicial Dictionary, 5th Edition, volume 5, at page  2646, one  of the  meanings of  the  word  "to"  is mentioned as under:-      "(3) "To"  wills often  mean  "towards."      The plaintiff  effected a marine policy,      subject to  rules one  of which was that

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    ships were  not to sail from any port on      the east coast of Great Britain "to" any      port in  the Belts  between December  20      and February  15. The plaintiff’s vessel      sailed on  February 8  for a port in the      Belts, and was lost; held, that the rule      in question  was a  warranty and  not an      exception; and that the word "to" in the      rule meant  "towards" and  not "arriving      at" (Colledge v. Harty 6 Ex. 205)      (4) "To  or towards": see R. v. M’Carthy      [1903] 2 Ir. R. 156, cited INTIMIDATE."      It becomes,  therefore,  obvious  that  general  unfair labour practice  on the part of the employer to discharge or dismiss the employee on any of the grounds listed in clauses (a) to  (g) of  Item 1 of Schedule IV would include any step towards  or  in  the  direction  of  ultimate  discharge  or dismissal of  the employee  on that  ground and  even before such discharge or dismissal is finally arrived at. It is not possible to accept the contention of the learned counsel for the appellant  that discharge  or dismissal  of any employee would only  mean the confirmed act of discharge or dismissal on any  of these grounds and not a penultimate step taken by the employer  concerned in  that direction  on that  ground. Therefore, on  the express language of Item 1 of Schedule IV the general  unfair labour  practice  on  the  part  of  the employer "to" discharge or dismiss an employee on any of the listed grounds would include both the final act of discharge or dismissal  of employee on any of these grounds as well as any penultimate  step taken  towards  that  destination  and object by  starting the  process of  disciplinary enquiry on giving the  chargesheet to the employee and/or suspending an employee pending or in contemplation of such enquiry and all further steps during such departmental enquiry about which a complaint can be made on permissible grounds.      It was next vehemently contended by the learned counsel for the  appellant that  if the  very attempt on the part of the employer by initiating departmental proceedings is tried to be  covered by  a complaint by the employee on any of the grounds mentioned  in clauses  (a)  to  (g)  of  Item  1  of Schedule IV,  then, some  of the  clauses  themselves  would contra-indicate such  a construction  as they can be applied only at the final stage where such discharge or dismissal of the employee  takes place.  Clause (g) of Item 1 of Schedule IV was  pressed in  service by  way of  illustration. It was submitted that before this clause can apply it must be shown that the  punishment given is shockingly disproportionate to the charge  and that  such an  eventuality would  arise only when the  punishment in question has already been inflicted. Now it  is obvious  that at the stage when such a shockingly disproportionate punishment  is  given,  this  clause  would certainly get  attracted, but  that does  not mean  that  it could not  be demonstrated  even earlier, if there are facts available in  a case,  that for  a trifle  or mere  minor or negligible misconduct, the employer proposes to discharge or dismiss the employee.      The learned  counsel for  the respondents  has  rightly given an  example where  clause (g) of Item 1 of Schedule IV can apply  even prior  to the  final order  of discharge  or dismissal of  an employee.  It was  submitted  that  if  the chargesheet itself  alleges that the worker-employee did not get up  when the  Officer entered his office and, therefore, it was proposed to discharge the employee, even mere reading of the  chargesheet can be pressed in service for submitting that the  proposed enquiry  is  for  imposing  a  punishment

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shockingly disproportionate to the misconduct alleged in the chargesheet.  Therefore,  it  is  not  as  if  when  such  a grievance is made, the Labour Court cannot be approached for preventing such  an  unfair  labour  practice  from  getting culminated and  that  the  workman  is  to  wait  till  such shockingly disproportionate  punishment actually comes to be imposed. Then  there would  be nothing left to be prevented. It would  be like  bolting the doors of the stable after the horses have  fled. We,  therefore, hold  that on the express language of Item 1 of Schedule IV complaint can be filed for the alleged  unfair labour  practice which  is in the offing and towards  which a  firm step is taken by the employer. It is in  the light  of the  aforesaid  scheme  of  Item  1  of Schedule IV  that we  have to turn to the remaining relevant sections of the Act.      Section 27 lays down as under:-      "No employer  or union  and no employees      shall  engage   in  any   unfair  labour      practice." Thus there  is total  embargo on the unions of the employees as well  as the  employees  and  also  on  the  employer  on engaging in  any unfair  labour practice.  Once it  is found that Item  1 of  Schedule IV  covers general  unfair  labour practices on the part of the employer consisting of not only final discharge  or dismissal  of employee  on  any  of  the grounds mentioned  in Item  1 but  also any  action taken by initiating the  process towards  such ultimate  discharge or dismissal of the employee, Section 27 of the Maharashtra Act gets attracted even at a prior stage when such unfair labour practice is  sought to  be resorted  to by  the employer  by engaging himself in such an unfair labour practice. In other words, to  take an illustration, if it is alleged in a given case that  the employer  seeks to  discharge or  dismiss  an employee  by   way  or   dismiss  an   employee  by  way  of victimisation and  for that  purpose he  has  initiated  the process of  departmental enquiry  by issuing the chargesheet to  the  employee  concerned,  the  employee  concerned  can legitimately urge that the employer is guilty of such unfair labour practice  in which  he seeks  to engage  himself and, therefore, the  prohibition enshrined  in  Section  27  gets squarely attracted against him. It is not as if that in such a case  the employer  can be said to have engaged himself in any unfair  labour practice of discharging or dismissing the employee by  way of  victimisation only  after the  ultimate stage is  reached and  the order  of discharge  or dismissal sees  the   light  of   the  day.  The  prohibition  against engagement in  any unfair  labour practice  as mentioned  in Section 27  will cover  all stages from the beginning to the end, when  the process  which is  initiated by the concerned employer or  the union in connection with the alleged unfair labour practice starts and ultimately terminates.      The next  Section which is relevant is Section 28(1) of the Maharashtra  Act. Section  28 was  pressed in service by both the  sides for supporting their respective contentions. Section 28(1)  contemplates types of complaints which can be filed under  the Act.  So far  as Item  1 of  Schedule IV is concerned, the  competent Court  as per Section 7 of the Act will be  the Labour  Court as the said section provides that it  shall  be  the  duty  of  the  Labour  court  to  decide complaints relating  to unfair labour practices described in Item 1  of Schedule  IV and to try offences punishable under this Act,  and the  complaints regarding  the  rest  of  the unfair labour  practices can be dealt with by the Industrial Court under Section 5.      As  per  Section  28(1)  any  complaint  regarding  the

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general unfair  labour practice  on the part of the employer to discharge or dismiss employee on the grounds mentioned in Item 1  of Schedule IV can be filed before the Labour Court. Such a  complaint can cover both types of grievances against the employer;  (1) that  he has engaged in any unfair labour practice and  (2) or  he is  engaging in  any unfair  labour practice. The  learned counsel  for the  appellant submitted that though  the Act  is enacted with a view to prevent such unfair labour  practices, there  is no  whisper  about  such prevention in any of the operative sections of the Act. This submission cannot  be accepted  in the  light of the express language of  section  28(1)  and  the  types  of  complaints contemplated by  it, as  aforesaid. As  per Section 28(1) of the Maharashtra Act an employee can file a complaint against the employer  on the ground that the employer has engaged in unfair labour  practice to  discharge or dismiss employee by way of  victimisation etc.  For the purpose of illustration, we may  take clause  1 of Item 1 of Schedule IV to highlight the scheme of this section. If an employee files a complaint before the  Labour Court  alleging  that  the  employer  has engaged in  unfair labour  practice to  dismiss or discharge him  by   way  of  victimisation,  it  would  contemplate  a completed act,  namely, an  order of  discharge or dismissal that might  have been passed, because the term "has engaged" represents a  present  perfect  tense,  meaning  thereby  an action which  has got  completed in  presenting. The learned counsel for the appellant could have submitted with emphasis that the  complaint could  be filed on the ground of alleged unfair labour  practice on the part of employer to discharge or dismiss  an employee  by way  of victimisation only after the action  was completed and the discharge or dismissal was effected  on   that  ground  if  Section  28(1)  would  have contained only  the words "has engaged". But the legislature has conferred  jurisdiction on the Labour Court to entertain the complaints  also  on  the  additional  ground  that  the employer is  engaged in  any unfair  labour  practice.  This clearly indicates a present continuous action as it reflects a present  continuous tense.  That would include a complaint regarding the  employer, who  at present  is engaging in the alleged unfair labour practice by way of victimisation. That would  indicate   actions  which  are  contemplated  and  in pipeline but  which are  still not finally completed. If the learned counsel  for the  appellant is  right that  only the final act  of discharge  or dismissal  can be covered by the sweep of  Section 28(1),  then the  terminology used  by the Legislation "or  is engaging  in any unfair labour practice" would be  rendered totally  redundant and  otios, as  such a completed action  would already stand covered by the earlier phrase "has  engaged in any unfair labour practice". Similar words are  found in Section 30(1) which deals with powers of the Courts  and provides  that where  the Court decides that any person  named in  the complaint  has engaged  in, or  is engaging in, any unfair labour practice, it may by its order give relief as mentioned in clauses (a), (b) and (c) of that sub-section. A conjoint reading of Section 28(1) and Section 30(1) clearly  shows that  complaint can  be filed  for  the alleged unfair  labour practice as contemplated in Item 1 of Schedule IV on any of the grounds mentioned therein, both at the stage  where such final orders of discharge or dismissal are passed  on the concerned alleged grounds and also at the stages prior  to such  final orders,  once the  employer  is shown to  have taken  a  firm  step  in  that  direction  by initiating departmental  enquiries with a view to ultimately discharge or  dismiss the  employee on  any of  the  alleged grounds and  such enquiries are presently in progress or are

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presently in  offing. Then  the employer  can be  said to be presently engaging  in any  such unfair  labour practice. It becomes obvious  that the twin phrases ‘has engaged’ and ‘is engaging in’  indicate not  only the  finished, complete  or continuous action but also an incomplete continuous action.      In this  connection, we  may profitably look at what is said in  Black’s Law  Dictionary, 6th  Edition, at page 528, about the term "Engage", which reads as under:-      "To employ  or involve  one’s  self;  to      take part in; to embark on."      In Stroud’s  Judicial Dictionary,  5th Edition, at page 847, the  term "engaged  in discharging" has been dealt with as under:-      "A  lighter  or  craft  is  "engaged  in      discharging" ballast or goods, within an      exemption from dock dues, if she goes to      the place  of discharge in the dock with      the real intention of discharging there,      although, from  the  place  getting  too      full to  take the  ballast or goods, the      vessel has  to depart without making any      discharge (London  & India  Docks Co. v.      Thames Steam  Tug, etc., Co. (1909) A.C.      15)"      It becomes,  therefore, obvious  that if an employer is alleged to  be engaged in discharging any employee then even before the  actual order  of discharge  is passed  he can be said to  be engaged in such discharge if it is shown that an attempt is  made towards  such a discharge with an intention to ultimately discharge the employee.      We may  also refer to Section 28(3), which empowers the concerned Court  on receipt  of the  complaint under Section 28(1) to  cause an  investigation into the said complaint to be made  by the  investigating officer, if thought necessary and direct  that a  report in the matter may be submitted by him to  the  Court,  within  the  period  specified  in  the direction. Therefore,  it is  not as  if that  the moment  a complaint is filed the Labour Court can mechanically pass an order  intercepting  the  proceedings  of  any  departmental enquiry.  It   can  in   appropriate  cases   even  cause  a preliminary enquiry about the correctness of the allegations in the complaint through the investigating officer.      Before parting with Section 28(1) an argument submitted by the  learned counsel  for the appellant is required to be noted.  It   was  submitted   that  limitation   for  filing complaints under  Section 28(1) is to start from the date of occurence  of  unfair  labour  practice  and  that  date  of occurrence of  the alleged  unfair labour  practice could be only  the  date  when  the  final  orders  of  discharge  or dismissal are  passed by  the employer and are challenged on any of the grounds mentioned in Item 1 of Schedule IV. It is not possible  to agree  with this  contention.  As  we  have already seen  earlier, Item  1 of Schedule IV would cover in the sweep  of general  unfair labour practice on the part of the employer  even the  initiation of  proceedings or taking any other  firm step  like suspension,  towards discharge or dismissal of the employee concerned, which can be challenged on the  grounds mentioned  in Item  1 of  Schedule IV.  Such initiation of  proceedings or firm steps themselves would be the occurrence  of the  alleged unfair  labour practices and would give  a cause of action to the complainant to file the complaint  under   Section  28(1)   within  the   period  of limitation as  laid down  therein. It  is not as if that the occurrence of  unfair labour  practice can  be only  of  one type, that  is, the final order of discharge or dismissal as

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assumed by the learned counsel for the appellant. The nature of the  order which  the Court can pass on such complaint is indicated by  clauses (a),  (b) and  (c) of  Section  30(1), which read as under:-      "30.(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 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      back wages, 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." Even this  provision when  read with  Item 1  of Schedule IV shows that  after adjudication  the Labour Court can declare that the  concerned employer  not only has engaged in unfair labour practice,  but is being engaged in such unfair labour practice and  such  engagement  in  unfair  labour  practice continues and  has not  ended. This  also clearly  indicates that the complaint can be made regarding the alleged actions of the  employer which amount to unfair labour practice, but which have  not yet  finally culminated into ultimate orders but are  in the pipeline or are being attempted to be passed and proceedings  are initiated  for  passing  such  ultimate orders which  are alleged  to  be  contrary  to  Item  1  of Schedule IV of the Maharashtra Act.      Sub-section (2)  of Section  30 of  the Maharashtra Act lays down:-      "In any  proceeding before it under this      Act, the  Court, may  pass such  interim      order (including any temporary relief or      restraining order)  as it deems just and      proper  (including   directions  to  the      person  to   withdraw  temporarily   the      practice  complained  of,  which  is  an      issue in such proceeding), pending final      decision :           Provided that, the Court may, on an      application in  that behalf,  review any      interim order passed by it." The learned counsel for the appellant submitted that even if the final  order of  discharge or dismissal is passed by the employer by way of victimisation as alleged by the employee, the Labour Court in the complaint regarding such final order can pass  interim orders  of temporary relief or restraining

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order. Still  it would  not rule  out the possibility on the part of the Labour Court of passing an interim order pending the domestic enquiry if any of the grounds mentioned in Item 1 of  Schedule IV  is effectively  pressed in service by the employee against  the employer.  It is obvious that when the final order of discharge or dismissal is passed and if it is found to  be a result of unfair labour practice as mentioned in clauses  (a) to (g) of Item 1 of Schedule IV, it is to be quashed and  reinstatement  is  to  be  ordered  by  way  of mandatory relief.  In such a case there would be no occasion of granting  interim relief by way of prohibitory order or a restraining order,  as contemplated  by sub-section  (2)  of Section 30. Such a restraining order can be passed in a case where the  complaint is  filed at  a stage  where the  final orders of  discharge or  dismissal are  not passed on any of the grounds  mentioned in  Item 1  of Schedule IV. If such a complaint is ruled out the provisions of Section 30(2) would be rendered  redundant and  otios. When  we keep in view the fact that  as per  Section 7 of the Maharashtra Act, all the complaints pertaining  to Item 1 of Schedule IV can be filed only  before   the  Labour  Court  and  no  other  complaint regarding unfair  labour practice  can be  filed before  the Labour Court,  and once the Labour Court is given the powers in  appropriate   cases  of   passing  interim   relief   of restraining orders  as per  Section 30(2)  it would  clearly indicate the legislative intention that complaints regarding the proposed  dismissal or  discharge on  any of the grounds mentioned in Item 1 of Schedule IV could be filed before the Labour  Court.  In  such  complaints  the  Labour  Court  in appropriate cases,  in exercise  of its powers under Section 30 (2)  can issue  interim orders  with a view to preventing such alleged  unfair practices from getting fructified. Thus Section 30(2)  also highlights  the  legislative  intent  of providing an effective machinery to prevent the finalisation of the  alleged unfair  practices which  are required  to be nipped in  the bud. If the orders of the Court whether final on interim  are not  complied with by the party against whom such orders  are passed,  it can  be prosecuted  under  sub- section (1) of Section 48, which lays down as under :      "48.(1) Any  person who  fails to comply      with any order or the Court under clause      (b) of  sub-section (1)  or  sub-section      (2) of  Section 30  of this Act shall on      conviction,     be     punished     with      imprisonment which  may extend  to three      months or  with fine which may extend to      five thousand rupees."      Having seen  the aforesaid  relevant provisions, we may now consider  the main  contentions canvassed by the learned counsel for  the appellant.  It was  vehemently submitted by the learned  counsel for  the  appellant  and  also  by  the learned counsel  for the intervenors that the High Court was in error  when it  took the view that unfair labour practice is  not  punishable  under  the  Maharashtra  Act.  In  this connection, our attention was invited to Section 25-U of the Industrial Disputes Act which reads as under:      "Penalty for  committing  unfair  labour      practices. -  Any person who commits any      unfair   labour    practice   shall   be      punishable with  imprisonment for a term      which may  extend to  six months or with      fine which  may extend  to one  thousand      rupees or with both." Our attention  was also  invited  to  Section  25-T  of  the Industrial Disputes Act which reads as under :

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    "Prohibition of  unfair labour practice.      - No  employer or  workman  or  a  trade      union,  whether   registered  under  the      Trade Unions  Act, 1926 (16 of 1926), or      not,  shall  commit  any  unfair  labour      practice."      When we  keep the relevant provisions of the Industrial Disputes Act  concerning unfair labour practices in view and compare  these   provisions  with   the  provisions  of  the Maharashtra Act, a clear difference becomes obvious. Section 25-T of the Industrial Disputes Act prohibits an employer or workman or  a trade  union from committing any unfair labour practice. While  so far as Section 27 of the Maharashtra Act is concerned,  it prohibits an employer or union or employee from engaging  in any  unfair labour  practice. Consequently the prohibition under the Industrial Disputes Act is against the commission  of unfair  labour practice which may include the final  acts of  such commission. While Section 27 of the Maharashtra Act  prohibits the  concerned  party  even  from engaging in any unfair labour practice. The word ‘engage’ is more  comprehensive  in  nature  as  compared  to  the  word ‘commit’. But  even that  apart, Section  25-U provided  for penalty for  committing unfair  labour practice and mandates that whoever  is guilty of any unfair labour practice can be prosecuted before the competent court on a complaint made by or under  the authority  of an  appropriate Government under Section 34(1)  read with  Section  25-U  of  the  Industrial Disputes Act.  So far  as the  Maharashtra Act is concerned, there is  no direct  prosecution against  a party  guilty of having  engaged  in  any  unfair  labour  practice.  Such  a prosecution has first to be preceded by an adjudication by a competent court  regarding such  engagement in unfair labour practice. Thereafter,  it should  culminate into a direction under Section  30(1)(b) or  it may  be a  subject matter  of interim  relief  order  under  Section  30(2).  It  is  only thereafter that  prosecution can  be initiated  against  the concerned party  disobeying such  orders of the Court as per Section 48(1).  Consequently, it  cannot be  said  that  the Division Bench  of the  Bombay High Court was not right when it took  the view  that the  act of  engaging in  any unfair labour practice  by itself  is  not  an  offence  under  the Maharashtra Act  while  such  commission  of  unfair  labour practice itself  is an offence under the Industrial Disputes Act. However,  this aspect is not much relevant for deciding the controversy with which we are concerned.      As we  have discussed above, the legislation intends to prevent commission  of unfair  labour practices  through the intervention of  the  competent  court  and  for  that  very purpose, the  Act is  enacted. This  is clearly reflected by the provisions  of Section  28(1) and  Section 30(1)  of the Maharashtra Act.      As already  discussed earlier,  it is trite to say that if  ‘to   discharge  or   dismiss  an  employee  by  way  of victimisation’ is  a general  unfair labour  practice on the part of  the employer  as laid down by Item 1(a) of Schedule IV and  if such an unfair labour practice is to be prevented then action for such prevention has to be taken prior to the ultimate commission  of such  unfair labour  practice. It is difficult to  agree  with  the  contention  of  the  learned counsel for  the appellant  that such prevention can be made only after the actual order of discharge or dismissal of the employee is  passed. At  that stage  there is no question of preventing the  commission of  such unfair  labour practice, but it  would be  a case  of setting  aside or quashing such already committed unfair labour practice. It is difficult to

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appreciate how  a discharge  or dismissal  of an employee by way of  victimisation can  be prevented after such discharge or dismissal  has already  taken place.  Once such an unfair labour practice is completed and if final order is to be set aside it  would amount  to curing  the  melody  rather  than preventing it. As the saying goes ‘prevention is better than cure’, and  that is the very purpose of the Act. Or in other words,  prevention  of  commission  of  such  unfair  labour practice is  the heart  of the Act. The interpretation tried to be  put by  the learned  counsel for the appellant on the relevant provisions of Item 1 of Schedule IV would result in stultifying the very purpose and scope of the Act.      We may  also keep  in view  the fact that prevention of unfair labour  practice, as  per the  Act, is aimed not only against the  employers, but  also against  the employees and their trade unions, if they are alleged to engage themselves in any  of the  unfair labour practice mentioned in Schedule III. Let  us take illustrations of unfair labour practice on the part  of the  trade unions as mentioned in Items 5 and 6 of Schedule III which read as under:      "5. To  stage,  encourage  or  instigate      such  forms   of  coercive   actions  as      willful "go  slow" squatting on the work      premises after working hours or "gherao"      of any  of the members of the managerial      or other staff.      6.   To  stage   demonstrations  at  the      residences  of   the  employers  or  the      managerial staff members." It becomes  obvious that  if an  employer files  a complaint before the  Industrial Court  under Item  5 or 6 of Schedule III that  the  Union  is  seeking  to  stage,  encourage  on instigate such  forms of  coercive actions  as  willful  ‘go slow’ or  seeks to demonstrate at the residence of employers and if  such an action is to be prevented a complaint has to be filed  before the  actual demonstration  takes  place  or actual ‘go  slow’ policy is resorted to. Once such an action takes place  there would  remain no occasion to prevent such an action  in good  time. Consequently, on the same lines it cannot be  said that  unfair labour  practice on the part of the employer also cannot be prevented till the actual unfair labour practice  gets committed by him. We have also to keep in view  that  the  Maharashtra  Act  is  a  social  welfare legislation and  in interpreting such a welfare legislation, such  a  construction  should  be  placed  on  the  relevant provisions which  effectuates the  purpose  for  which  such legislation is  enacted and does not efface its very purpose of prevention of unfair labour practice.      In  this  connection,  we  may  usefully  turn  to  the decision of  this  Court  in  Workmen  of  American  Express International Banking  Corporation v. Management of American Express International  Banking Corporation (1985 (4) SCC 71) wherein Chinnappa Reddy,J., in para 4 of the Report has made the following observations:      "The     principles     of     statutory      construction  are  well  settled.  Words      occurring in  statutes of liberal import      such as  social welfare  legislation and      human rights  legislation are  not to be      put in  Procrustean beds  or  shrunk  to      Liliputian  dimensions.   In  construing      these  legislations   the  imposture  of      literal construction must be avoided and      the prodigality  of  its  misapplication      must be  recognised and  reduced. Judges

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    ought to  be  more  concerned  with  the      ‘colour’,   the    ‘content’   and   the      ‘context’  of  such  statutes  (we  have      borrowed    the    words    from    Lord      wilberforce’s  opinion   in   Prenn   v.      Simmonds).  In  the  same  opinion  Lord      Wilberforce pointed  out that law is not      to be  left behind  in  some  island  of      literal interpretation but is to enquire      beyond the language, unisolated from the      matrix of  facts in  which they are set;      the law  is not to be interpreted purely      on internal  linguistic  considerations.      In one  of the  cases cited  before  us,      that is, Surendra Kumar Verma v. Central      Government   Industrial    Tribunal-cum-      Labour Court we had occasion to say.           Semantic luxuries  are misplaced in      the interpretation of "bread and butter"      statutes.  Welfare   statutes  must,  of      necessity,     receive      a      broad      interpretation.  Where   legislation  is      designed to  give relief against certain      kinds of  mischief, the  Court is not to      make  inroads   by  making  etymological      excursions."      Francis  Bennion   in  its  ‘Statutory  Interpretation’ Second Edition,  has dealt  with the Functional Construction Rule in  part XV  of  his  book.  The  nature  of  purposive construction is dealt with in Part XX at page 659 thus:      "A   purposive    construction   of   an      enactment is  one which  gives effect to      the legislative purpose by -      (a)  following the  literal  meaning  of      the enactment  where that  meaning is in      accordance with  the legislative purpose      (in this  Code called  a  purposive-and-      literal construction), or      (b)  applying a  strained meaning  where      the literal meaning is not in accordance      with the  legislative  purpose  (in  the      Code  called   a  purposive-and-strained      construction)." At page  661 of the same book, the author has considered the topic of  Purposive Construction  in contrast  with  literal construction. The learned author has observed as under:      "Contrast  with   literal   construction      Although     the     term     ‘purposive      construction’ is not new, its entry into      fashion  betokens   a   swing   by   the      appellate  courts   away  from   literal      construction. Lord Diplock said in 1975:      ‘If  one   looks  back   to  the  actual      decisions of  the [House  of  Lords]  on      questions of statutory construction over      the last  30 years one cannot fail to be      struck by  the evidence  of a trend away      from  the  purely  literal  towards  the      purposive  construction   of   statutory      provisions’. The matter was summed up by      Lord Diplock in this way-      "... I  am  not  reluctant  to  adopt  a      purposive construction  where  to  apply      the literal  meaning of  the legislative      language  used  would  lead  to  results

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    which would  clearly defeat the purposes      of the  Act. But in doing so the task on      which a  court  of  justice  is  engaged      remains one  of construction, even where      this involves reading into the Act words      which are not expressly included in it."      Following   the   aforesaid   rule   of   construction, therefore, we must hold that the interpretation of Item 1 of Schedule IV  of the  Maharashtra Act  as  canvassed  by  the learned counsel  for the appellant and the intervenors would frustrate the  very scope  and ambit of the Maharashtra Act, in effectuating  the prevention of the alleged unfair labour practice. While on the other hand, if a wider interpretation is placed  on the  relevant provisions of Item 1 of Schedule IV, as  discussed earlier,  apart  from  not  straining  the language which  even may  become permissible  on the rule of purposive construction, the said construction would fructify the very purpose for which the Maharashtra Act was enacted.      Before concluding  this discussion, we may refer to the judgment of  this Court  in Chanan  Singh’s case  (supra) on which strong  reliance was placed by the learned counsel for the appellant.  Sh. Pai  submitted that  when merely  a show cause  notice   is  issued  for  taking  action  against  an employee, if  it is  challenged in  the Court, it would be a premature challenge. We fail to appreciate how the aforesaid decision can  be pressed  in service  by the learned counsel for interpreting  the  relevant  provisions  of  Item  1  of Schedule  IV  of  the  Maharashtra  Act.  In  the  aforesaid decision, this  Court held  that when a show cause notice is issued against  punishment, a  writ petition  under Articles 226 and  227  would  be  premature  as  there  would  be  no grievance of  punitive action which can be ventilated in the Court. This decision was based on the general principle that against mere  show cause  notice,  writ  petition  would  be premature. The  ratio of  that decision  cannot  be  of  any assistance for  interpreting the  express language of Item 1 of Schedule  IV of  the Maharashtra  Act read with its other relevant  provisions,   which  are   meant  to  prevent  the commission  of   unfair  labour   practice  by   arming  the appropriate Courts  with  jurisdiction  to  look  into  such complaints. For  all these  reasons, therefore,  it must  be held that the Division Bench of the High Court was perfectly justified in  taking the view that a contemplated action for dismissal or  discharge of an employee on any of the grounds mentioned in  Item 1  of Schedule  IV of the Maharashtra Act could be  made the  subject-matter of  complaint before  the Labour Court  under Section 28(1) of the Maharashtra Act. We have to keep in view the fact that the Maharashtra Act is in the field  since more than two decades and even a Full Bench of  the  Industrial  Court,  Maharashtra  by  its  unanimous decision dated  September 28,  1984 had  taken the same view and on  that basis  numerous complaints  were entertained by the Labour  Courts in  Maharashtra over decades. It was only when a  learned Single  Judge of  the High  Court sitting at Nagpur, by  his decision  dated  April  27,  1989  struck  a discordant note  that the present controversy cropped up. In our view,  no fault  can be found with the reasoning adopted by  the   Division  Bench  of  the  Bombay  High  Court  for overruling the  said contrary decision of the learned Single Judge of  the Bombay  High Court  sitting at  Nagpur in Writ Petition No. 2607 of 1988.      Mr. Pai, learned senior counsel for the appellant, also argued that Item 1 of Schedule II refers to the threat given by the  employer to  discharge or  dismiss the  employees if they join the union. Thus, even a threat is considered to be

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an unfair  labour practice  as per  this  Item.  While,  the unfair labour  practice mentioned  in Item  1 of Schedule IV does not  cover any  threat but actual order of discharge or dismissal. It  is not  possible  to  agree.  The  reason  is obvious. A  mere threat  to discharge or dismiss an employee if he  joins a  union by  itself may  be  an  unfair  labour practice as  per Item  1(a) of Schedule II though the threat might not  have been  translated into  any  attempt  in  the direction of  discharge or  dismissal. Still,  such a threat would  constitute  unfair  labour  practice,  which  can  be prevented  by   filing  appropriate   complaint  before  the Industrial Court  under Section  5 read  with Section 28(1). But  if   the  employer   takes  a   concrete  step  towards discharging or  dismissing an employee on any of the grounds contemplated by  Item 1 of Schedule IV, then it would not be in the  realm of mere threat but would be translated into an actual action  of taking  a  calculated  step  towards  such alleged  contemplated  unfair  labour  practice  by  serving chargesheet and starting departmental enquiry and/or putting the employee  under suspension  with the  ultimate object in view. Act  that stage  the alleged unfair labour practice of engaging in  discharging or  dismissing the  employee on the grounds contemplated in Item 1 of Schedule IV can be said to have taken  place. It  is obvious that if an employer merely threatens  the   employee  to   discharge  him   by  way  of victimisation etc.  and such a threat is not followed by any attempt by  way of  starting departmental  enquiry or taking any other  concrete step  as aforesaid,  such a  simplicitor threat would  not get  covered by  Item 1 of Schedule IV. It would also not be covered by Item 1(a) of Schedule II, as it is not  a threat  to discharge  or dismiss an employee if he joins a  union. For  the purpose  of attracting  Item  1  of Schedule IV, apart from mere threat, some concrete step like starting  departmental  enquiry  has  to  be  taken  by  the employer before  such an  action can be brought in challenge by the concerned employee on any of the grounds mentioned in Item 1  of Schedule  IV. Consequently,  merely  because  the legislature has  not repeated the terminology of mere threat while enacting  Items of  Schedule IV it would not mean that before the  final order  of discharge or dismissal is passed on any of the grounds contemplated by Item 1 of Schedule IV, and only  first step  is taken in that direction, the unfair labour practice to discharge or dismiss such employee on any of these  grounds mentioned  in Item 1 of Schedule IV cannot be said  to have taken place, or on that basis the complaint would be premature, as submitted by Shri Pai, learned senior counsel for the appellant.      At this  stage, we  may also  briefly note  some of the additional contentions  found  in  the  written  submissions filed on behalf of the appellant and the intervenors. In the written submissions filed on behalf of the intervenors it is contended that  the infinitive "to", as mentioned in various clauses of  Item 1  of Schedule IV and in other Items of the same Schedule  and also  in other  Items of Schedules II and III, would  indicate  only  completed  action  done  by  the concerned party.  It is  not possible  to  agree  with  this contention. As  we have  discussed earlier,  the  word  "to" would include  any action  towards the  final  goal  of  the action. Schedule  IV, as  noted earlier,  speaks  about  the general unfair  labour practice  on the  part of  employers. Therein barring  Item no.  9, everywhere we find the user of the Infinitive.  Same  is  the  case  with  the  wording  of Schedule II  barring Item  No. 6 and the wording of Schedule III. While  dealing  with  this  aspect,  a  Full  Bench  of Industrial Court of Maharashtra, in its decision in Revision

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Application (ULP)  No.  2  of  1983,  speaking  through  its learned Member  Gawande, has made the following observations in paras 11 to 13, which we wholly approve:      "....The  Infinitive   with  or  without      adjuncts may  be used, like a Noun. When      the infinitive  is  thus  used,  like  a      Noun,   it    is   called   the   Simple      Infinitive.  To   discharge  or  dismiss      merely names  the action  denoted by the      Verb discharge  or dismiss,  and is used      without  mentioning   any  subject.  The      expression is, therefore, not limited by      person and  number as  a Verb that has a      subject, and  is, therefore,  called the      Verb Infinite, or simply the Infinitive.      The Infinitive  is a  kind of  noun with      certain features of the Verb, especially      that of  taking an object (when the Verb      is transitive) and adverbial qualifiers.      In short,  the Infinitive is a Verb-noun      (and is  called a  Gerund). A  Gerund is      that form  of the  Verb which  ends in -      ing, and  has the  force of a Noun and a      Verb; it  is a  Verbal Noun. The word to      is frequently  used with the Infinitive,      but is  not as essential part or sign of      it. The  Infinitive  may  be  active  or      passive. When  active,  it  may  have  a      present and  a  perfect  form,  and  may      merely name the act, or it may represent      progressive or  continued  action.  Then      comes the question of Tense. Here I wish      to elaborate  by taking  an illustration      thus : (1) I speak - The Verb shows that      the action  is mentioned simply, without      anything   being    said    about    the      completeness or  incompleteness  of  the      action.  Here   the  Tense   is  Present      Indefinite. (2) I am speaking - The Verb      shows that  the action  is mentioned  as      incomplete or  continuous, that  is,  as      still  going   on.  Here  the  Tense  is      Present Continuous.  (3) I have spoken -      The  Verb   shows  that  the  action  is      mentioned  as   finished,  complete   or      perfect at  the time  of speaking.  Here      the Tense is Present Perfect. (4) I have      been speaking  - The Verb shows that the      action is going on continuously, and not      completed at  this present  moment. Here      the Tense is Present Perfect Continuous.      12.  Against the background of the above      when we  read Item  1 of  Schedule IV to      the Act,  text of which has been already      reproduced, it becomes evident that Item      1 starts  with the phrase - To discharge      or dismiss  employees. Thereafter we get      as many  as seven  sub-items (a) to (g).      If we  were  to  put  only  the  Literal      Construction on  the entire  wording  of      Item 1  of Schedule IV, it becomes clear      that in  a given  case  if  the  alleged      unfair  labour   practice  is   that  of      discharge or  dismissal of  the employee      under all the sub-items i.e. from (a) to

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    (g) or  either of them, the Labour Court      has jurisdiction  to  entertain  such  a      complaint under  Section 28  of the Act.      In adverting to the Literal Construction      and  in   accepting  the  interpretation      flowing therefrom, it becomes clear that      the action  contemplated on  the part of      the employer  here is an action complete      in  itself.   In  other  words,  if  the      employer were to discharge or dismiss an      employee under  all the  aforesaid  sub-      items or  either  of  them,  the  Labour      Court has  jurisdiction to  entertain  a      complaint. Implicit  in this is the fact      that the  employer-employee relationship      is severed  by an  order of discharge or      dismissal, before  the  lodging  of  the      complaint. That  such a  complaint  will      lie, that  such a complaint is competent      and   that    the   Labour   Court   has      jurisdiction   to   entertain   such   a      complaint are points in respect of which      the contenders  before us  do  not  join      issue.      13.  However, the question posed for the      determination of the Full Bench is wide.      After  taking   into  consideration  the      interpretation-aspect   as    also   the      grammer-aspect, I am of the view that it      will not be proper to put a mere Literal      Construction on the wording of Item 1 of      Schedule IV  to the Act. I have no doubt      in my  mind in  observing that  here the      language is not plain. It does not admit      of but one meaning. Therefore, one would      be  justified   in  adverting   to   the      Mischief Rule also the Golden Rule while      interpreting the words appearing in Item      1 of  Schedule IV. I may further observe      that in  doing  so,  if  the  choice  is      between   two    interpretations,    the      narrower of  which would fail to achieve      the manifest purpose of the legislation,      we should  avoid  a  construction  which      would   reduce    the   legislation   to      futility. In  such a situation we should      rather accept  the  bolder  construction      based on  the view  that the legislature      would legislate  only for the purpose of      bringing  about   an  effective  result.      Further,  as   observed  earlier,  where      alternative  constructions  are  equally      open, that  alternative is  to be chosen      which will be consistent with the smooth      working of  the system which the Statute      purports  to  be  regulating;  and  that      alternative is to be rejected which will      introduce   uncertainty,   friction   or      confusion  into   the  working   of  the      system. Lastly,  it cannot  be forgotten      that the  Statute shall  have to be read      as a whole."      The aforesaid  observations in  Full Bench  judgment of Maharashtra Tribunal are well sustained on the scheme of the Act, which  we have  discussed earlier.  Consequently, it is

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not possible  to agree with the written submission on behalf of  the   intervenors  that   only  completed   actions  are contemplated by  the concerned clauses of Item 1 of Schedule IV. They,  on the  contrary, suggest  that complaint  can be filed not  only when the final act of unfair labour practice is committed,  but even  at a stage where any firm action is taken towards  reaching the  final goal  of  discharging  or dismissing an  employee on  any of  the grounds mentioned in clauses (a)  to (g)  of Item 1 of Schedule IV. So far as the other items of Schedule IV are concerned, it is difficult to appreciate how  a complaint cannot be filed if the concerned employer has  taken a  firm step towards the ultimate object of  completing   the  alleged   unfair  labour  practice  as mentioned in Items 2 to 10 of the said Schedule.      Reliance  placed   on  the   Whisper   University   Law Dictionary defining  the term  "dismiss" also is of no avail as though  the word  "dismiss" may indicate performance of a completed action,  any unfair labour practice to dismiss, as discussed earlier,  would include  any firm  step or attempt made towards  the ultimate  goal of dismissing the concerned workman.      Submission made  on the  scheme of Section 30(2) to the effect that  interim order  can be passed in connection with the practice  complained of  also cannot advance the case of the appellant  for the  simple reason  that if  the practice complained of  is of  any firm  step taken  by the  employer towards the ultimate object of dismissing or discharging the employee on any of the grounds covered by clauses (a) to (g) of Item  1 of  Schedule IV, interim relief can be granted in connection with  such practice  complained of  and would not mean that  till the  practice gets fructified and translated into final  act of  dismissal or discharge, the Labour Court cannot pass  appropriate interim relief orders under Section 30(2) as submitted in the written submissions.      We may  also briefly  refer to the summary of arguments by Shri.  G.B. Pai  on behalf  of the  appellant as filed on 4.9.1995. Most  of the  submissions  contained  therein  are already dealt  with by  us  in  the  earlier  part  of  this judgment. However, some additional aspects mentioned therein are required  to be  considered. In  paragraph IV  (i) it is submitted that  the term  "unfair labour practice" denotes a habitual practice  by the employer, and not isolated events. For that  purpose, emphasis  is  placed  on  the  dictionary meaning  of   the  word   "practice"  which   means   often, customarily  or   habitually.  It  is  true  that  the  word "practice" cannotes repeated events but that will not affect the construction  to be  placed on  the words "unfair labour practice to  dismiss or  discharge" as  implied in Item 1 of Schedule IV.  When a  contemplated action on the part of the employer to  dismiss or  discharge an employee on any of the grounds mentioned in that item is firmly taken, the employee can as well show that this type of action on the part of the employer is  a habitual  action  or  by  way  of  a  general practice. But  even apart  from such  a general practice, it can  be  alleged  and  demonstrated  that  the  employer  is following such  a practice  at least for the complainant. It is not as if a practice which is not repetitive in character can  never   amount  to   an  unfair   labour  practice   as contemplated by  Schedule IV,  Item 1. In fact, whether such an alleged  practice should be based on repetitive acts or a single  act  is  strictly  not  relevant  for  deciding  the question whether  an attempt  towards commission  of such  a practice, when the final order of dismissal or discharge has not been passed, can be made subject-matter of the complaint under the Maharashtra Act.

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    Similarly, contention  found in  paragraph IV(ii)  that the words  "discharge or  dismissal" mean the final order of sending away  or removing  a person  also cannot  be of  any assistance to  the appellant  for the  simple reason that we are not concerned with the connotation of the words "dismiss or discharge".  The question  is whether  an attempt towards ultimate dismissal or discharge by way of taking a firm step towards it  can be  the subject-matter  of a complaint under the Maharashtra  Act. For  deciding that question the entire scheme of  the Act  becomes relevant including its preamble, as discussed earlier. No conclusion can be based only on the meaning of the words "discharge or dismissal" as tried to be suggested. Similarly,  contention in  sub-paragraph (vii) of paragraph IV  relying on  a decision of this Court in Bharat Iron Works  vs. B.B.  Patel (1976 (2) SCR 280) is also of no assistance to  the appellant  as the said decision refers to the nature  of proof  required for proving the allegation of mala fide  or victimisation.  That stage would come once the complaint on  the ground  of victimisation  is taken  up for consideration on  merits at  final hearing stage or at stage of interim relief, as the case may be.      The  submission   made  in   paragraph  V(i)   on   the construction of  the words  "is engaging  in"  as  found  in Section 28 also cannot be countenanced for the simple reason that even  in the  said paragraph, it is mentioned that some of the  unfair labour  practices may be of continuing nature and for that purpose emphasis is placed on some of the items mentioned in  Schedules II,  III and  IV. However, even from the scheme  of the  schedules  it  becomes  clear  that  any present continuous  act of  engaging in  the alleged  unfair labour practice  would be  covered by  the term "is engaging in".  We  have  already  discussed  in  detail  the  correct connotation of  these words  in the  earlier  part  of  this judgment. For  the reasons  recorded  by  us  therein,  this submission is  found to  be devoid of any substance. In sub- paragraph (iii) of paragraph V, it is submitted that the aim of prevention is achieved by :      (a) directing the employer as an interim      measure   to   withdraw   the   practice      complained of  and if  the complaint  is      proved, in  the final  order of quashing      the order of dismissal, and also      (b)  by   prescribing  a  penalty  which      penalty is  to act  as a  deterrent  and      prevent the  commission of unfair labour      practice. We fail  to appreciate  how this  will  affect  the  correct connotation of  the word "prevention". If the alleged unfair labour practice  of discharge or dismissal of an employee is to  be   prevented,  then  as  discussed  earlier,  it  must necessarily contemplate  an intervention  of  the  competent Labour Court  at a  stage prior  to the actual commission of such unfair labour practice.      Reference made  in paragraph  VI  to  the  Bombay  High Court’s judgments  also cannot  be of any avail as they were based on  the view  which was accepted by the learned Single Judge of  the High  Court of  Bombay  at  Nagpur  which  has rightly been  overturned by the Division Bench of the Bombay High Court  in  the  judgment  under  appeal  on  a  correct interpretation  of  the  relevant  provisions  of  the  Act. Therefore, the  earlier view  taken by  the  learned  Single Judges of  the Bombay  High Court cannot be said to be well- sustained. For all these reasons, the appellant has made out no case for our interference in this appeal.      Before parting  with this case, however, we must strike

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a note of caution, as has been done by the Division Bench of the Bombay  High Court.  It could  not be  gainsaid that the employers have  a right  to take disciplinary actions and to hold domestic  enquiries against their erring employees. But for doing  so, the  standing orders governing the field have to be followed by such employers. These standing orders give sufficient protection  to the  concerned  employees  against whom such departmental enquiries are proceeded with. If such departmental   proceedings    initiated   by    serving   of chargesheets are brought in challenge at different stages of such proceedings  by the  concerned employees  invoking  the relevant clauses  of Item  1 of Schedule IV before the final orders of  discharge or  dismissal are  passed,  the  Labour Court  dealing   with  such  complaint  should  not  lightly interfere with  such pending  domestic enquiries against the concerned complainants.  The Labour  Court concerned  should meticulously scan  the allegations  in the  complaint and if necessary, get the necessary investigation made in the light of such  complaint and  only when  a very strong prime facie case is  made out  by the  complainant  appropriate  interim orders intercepting  such domestic  enquiries in exercise of powers under  Section 30(2)  can be  passed  by  the  Labour Courts. Such orders should not be passed for mere askance by the Labour  Courts. Otherwise,  the very  purpose of holding domestic enquiries  as per  the standing  orders  would  get frustrated.      In the  result, this appeal fails and is dismissed with costs.