JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally, by the consent of the parties. 2. By this petition, the petitioner-hospital for children seeks to challenge the judgment and order dated 06/01/2020 delivered by the learned Industrial Court, Mumbai, vide which, Complaint (ULP) No.305 of 2016 filed by the complainants has been allowed and the petitioner is restrained from evicting respondent Nos.2 and 3 from the premises occupied by them. 3. The petitioner has put forth prayer Clause 27(a) as under: “27. The Petitioners, therefore, pray: a] that this Hon'ble Court be pleased to issue a Writ of certiorari or any other appropriate Writ, order or direction calling for the records and proceedings of the Complaint [ULP] No. 305 of 2016 and after going into the legality, veracity and propriety of the impugned Judgment dated 06.01.2020 passed by the Learned Member of the Industrial Court of Maharashtra at Mumbai, be pleased to quash and set aside the Judgment dated 06.01.2020 and be pleased to dismiss the Complaint [ULP] No. 305 of 2016.” 4. The respondents have preferred the ULP complaint before the Industrial Court on the premise that the petitioner has committed unfair labour practices (“ULP”, in short) under items 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (“the 1971 Act”, in short). By the impugned order, the Industrial Court has held that the petitioner has committed ULP under item 5 of Schedule IV. The complaint to the extent of items 9 and 10, has been dismissed. 5. Respondent Nos.2 and 3 are the employees, who were issued with a notice dated 6/08/2016, calling upon them to vacate the quarters occupied by them, within a period of about two months, to be specific, on or before 30/09/2016. These two employees approached the Industrial Court on 30/09/2016, i.e. the last day of the period granted to them to hand over the possession of the quarters. The Industrial Court directed status qua to be maintained and, such relief continued till the delivery of the impugned judgment on 06/01/2020. 6. Item 5 of Schedule IV of the 1971 Act reads as under: “SCHEDULE IV General Unfair Labour Practices on the part of employers. 5. To show favouritism or partiality to one set of workers, regardless of merits.” 7. 6. Item 5 of Schedule IV of the 1971 Act reads as under: “SCHEDULE IV General Unfair Labour Practices on the part of employers. 5. To show favouritism or partiality to one set of workers, regardless of merits.” 7. It is, by now, well settled that an employee or a union invoking item 5 has to establish that the employer has shown favouritism or partiality to one set of workers, regardless of merits. There is no dispute that there is no recognized Union in the petitioner-establishment. Respondent No.1-Union, which espoused the cause of the two employees by preferring the ULP complaint at issue, had preferred proceedings under Section 11 of the 1971 Act for seeking recognition of it’s Union. The Industrial Court has dismissed the said complaint and has refused to accord recognition to the said Union. 8. It is equally well settled that the complainant, upon invoking item 5, has to specifically set out the details of the particular persons or employees, who constitute a particular privileged set of workers. The pleadings must indicate the existence of such a set of workers. The pleadings must further indicate that the employer is showing favouritism or is indulging in partiality in favour of such a set of workers, which is regardless of the merits inter se between the complainant and such set of workers. 9. The learned counsel for the original complainants has strenuously canvassed that the Union and the employees have succeeded in identifying a particular set of workers, who were being favoured, regardless of merits. With the assistance of the learned counsel for the respondents, I have perused the entire pleadings in the complaint. Barring paragraph 3(n), there are no pleadings to satisfy the ingredients of item 5. Paragraph 3(n) reads as under: “3(n) The Complainants submit that the service quarters allotted to the Complainants No. 2 and 3 are from servant quarters chawl, which consists of total 36 rooms out of which 24 rooms are vacant as on today. And if it is the contention of the Respondent that they are recruiting new staff for the expansion of the Hospital, there are ample number of service quarters vacant in the said servant quarters chawl. Annexed hereto and marked as Annexure 'W' is a chart showing the occupied and vacant rooms in the servant quarters chawl of the Respondent. And if it is the contention of the Respondent that they are recruiting new staff for the expansion of the Hospital, there are ample number of service quarters vacant in the said servant quarters chawl. Annexed hereto and marked as Annexure 'W' is a chart showing the occupied and vacant rooms in the servant quarters chawl of the Respondent. The Complainants further submit that there are separate service quarters for highly placed staff members and still separate service quarters for Doctors. This clearly shows that the Complainant No. 2 and the Complainant No. 3 are illegally discriminated and they have been asked to vacate the service quarters by 30/09/2016 or in case they fail to vacate the same, it will be charged penal rent without any sufficient cause.” 10. Even while leading oral evidence, the respondents have not pointed out as to who are those workers, who constitute the privileged set and, in what manner or circumstances is the employer showing favouritism or partiality towards such set of workers, causing prejudice to the complainants, who themselves would form the deprived set of workers. Insofar as discrimination is concerned, the only averment on behalf of the complainants is that only two employees have been chosen to vacate the accommodation. 11. I also find from the complaint that the element of prejudice or bias against the respondents has nowhere been pleaded. It is not averred in the complaint that these two workers are the officer bearers of the Union or a charter of demands is pending or an agitation is undertaken. It is orally submitted, on instructions, that these two employees are active members of the Union and they are leading the Union. This is a general or bald statement. However, it is conceded that neither of these two employees were instrumental in preferring the application for seeking recognition of the Union or are signatories to the charter of demands or that they are members of a committee, which is spearheading the demands with the employer. 12. In the above premises, it is apparent that there are neither pleadings nor evidence to indicate or even remotedly suggest that the employer has a bias against these two employees or has developed antipathy against them. 13. 12. In the above premises, it is apparent that there are neither pleadings nor evidence to indicate or even remotedly suggest that the employer has a bias against these two employees or has developed antipathy against them. 13. The learned counsel for the respondents has drawn my attention to the two similar agreements signed by these two employees with the petitioner-management for the purpose of occupying the quarters. She draws my attention to Clauses I, II(q), IV and V, which read as under: “I. The Hospital do hereby allow the Allottee the use of the allotted premises from 15th Dec. 2010 subject however to the terms and conditions of the Agreement for use of the allotted premises for personal residence during the tenure of employment for himself/spouse dependent parents and unmarried dependent children. II. The Allottee hereby agrees with the Hospital that he shall observe and perform the following terms and conditions upon which the said allotment has been made:- q. To remove all persons using the allotted premises with all their belongings on revocation or determination of the Agreement and to deliver vacant and peaceful possession of the allotted premises to the Hospital on revocation or determination of the Agreement. IV. It is agreed that this Agreement shall stand revoked or determined on the Allottee committing breach of any of the terms and conditions hereof without any formal revocation or determination on the part of the hospital. V. The Allottee hereby irrevocably guarantees and undertakes, on termination of this Agreement by the Hospital under Clause 4 hereof or in the event of cessation of his service with the Hospital due to any reason whatsoever, including, without prejudice, termination, dismissal, retirement, resignation or any other reason whatsoever, to handover vacant and peaceful possession of the allotted premises to the Hospital within one calendar month from the date of cessation of your service.” 14. Considering the above clauses of the agreement, which is similar in relation to both the employees, it is vehemently submitted that the petitioner-employer has not projected a case of breach of agreement or has terminated the agreement. None of the two employees are terminated or dismissed from service. Unless the agreement is terminated, the employees cannot be called upon to surrender the premises. 15. The learned counsel for the petitioner-management draws my attention to Clause XII of the said agreement, which reads as under: “II. None of the two employees are terminated or dismissed from service. Unless the agreement is terminated, the employees cannot be called upon to surrender the premises. 15. The learned counsel for the petitioner-management draws my attention to Clause XII of the said agreement, which reads as under: “II. The Hospital shall at any time be entitled to terminate this Agreement by giving one-month's notice or to allot any other alternative accommodation to the Allottee, whereupon the Allottee shall give vacant and peaceful possession of the allotted premises or as the case may be, shall shift from the allotted premises to alternate premises, and such alternate premises shall be used by the Allottee upon the same terms and conditions, mutatis mutandis, contained herein.” 16. He then points out one of the similar undertakings given by each of these employees, in pursuance to the said agreement, by which it is undertaken as under: “I, the undersigned VIVEK KALU MORE, employed as Head Office Peon under your kind control and orders, in your Bai Jerbai Wadia Hospital for Children Administrative Office, hereby agree and acknowledge (on behalf of my own self and my heirs and legal representatives) that you have given me for my use, as a residence, Room No.15 in the Servant’s Quarters situated in Acharya Donde Marg, Parel, Bombay, free of rent or any kind of payment and only for the reasons of my being in your service and for the better discharge of my duties. 2. I shall not claim any kind of interest in the said room. If for any reason whatsoever I cease to be in your service, I shall hand over vacant and peaceful possession thereof to you (or such other person as you may direct) within 24 hours of my ceasing to be in your employment without requiring any notice being given to me to vacate the room, and without raising any kind of dispute, even if I have any claim for a any unpaid wages or otherwise. 3. I acknowledge that I am a mere permissive user of the room. You will be at liberty to withdraw and cancel, at any time you like, without specifying any reason, this permission to use room. 3. I acknowledge that I am a mere permissive user of the room. You will be at liberty to withdraw and cancel, at any time you like, without specifying any reason, this permission to use room. In any event, I agree to vacate, and make all the persons staying with me vacate, the room immediately with all our belongings and to hand over the same to you, or as you may direct.” 17. Insofar as the purport and effect of the agreement and undertaking is concerned, he submits that these employees have undertaken to vacate the said premises after the employer indicates a need to have the premises. It is for the employer to decide as to how such quarters are to be utilized. He draws my attention to the list of doctors, deployed in the petitioner-hospital for children, who have applied for such quarters, which are situated within the premises of the hospital. Considering that a hospital would always find it advantageous to have the doctors and the paramedics within it’s campus, the management decided to utilize the quarters, according to the necessity felt by the employer. The list placed before the court contains 27 applicants, who are all doctors employed with the petitioner. 18. He has then drawn my attention to the details of the service quarters as on 26/09/2018, that were placed before the Industrial Court. This building, consisting of the service quarters, has three floors (G+2). Details as regards the occupants of the service quarters are also mentioned in the said chart placed on record in the petition papers. A butler is accommodated in room No.1, considering his requirement on the campus. Room No.2 is occupied by the office of the Employees Co-operative Society. Room No.3 is occupied by an Operation Theatre Mehetar. Room No.4 is occupied by an Assistant Mukadam, who is required to be available for personal requirement of the occupants. Room No.5 is occupied by an Electrician, who is required on the premises. Room Nos.19 and 20 are also occupied by two doctors, as set out in the chart placed before the court, which is marked as ‘X-1’ for identification. All other rooms (totalling, 36) are occupied by the doctors and the paramedics. Several rooms, which were occupied by the employees, viz. Room Nos.9, 23 and 33 have been vacated so as to accommodate the doctors. Mr. All other rooms (totalling, 36) are occupied by the doctors and the paramedics. Several rooms, which were occupied by the employees, viz. Room Nos.9, 23 and 33 have been vacated so as to accommodate the doctors. Mr. Jitendra Yadav, who was occupying room No.33 earlier, is now shifted to room No.21 as room No.33 has now been occupied by a doctor. Mr. Yadav is an Operation Theatre Attendant. Per contra, the two employees before the court are Telephone Operator (Santosh Gangaram More) and Registration Assistant (Vivek Kaluram More). Taking into account the wait-list of the applicant-doctors, it is the endeavour of the management to ensure that these service quarters are occupied by the doctors, the paramedics and such employees, who are extremely necessary to be at the beck and call. 19. I have perused the impugned judgment dated 06/01/2020 with the assistance of the learned counsel of the respective sides. It is apparent that the Industrial Court lost sight of the fact that item 5 could be attracted, only if there are pleadings and such pleadings are proved. The principle of ‘first plead and then prove’ has been lost sight of. 20. Though the learned advocate for the employees strenuously contends that those employees occupying the quarters, would constitute a set of privileged workers, I am unable to accept the said contention, which the Industrial Court erroneously has, for reasons more than one. Firstly, the declaration of ULP against an employer is not to be made casually. Such a declaration has it’s own ramification. A declaration of ULP can never be made on the basis of assumptions or presumptions. The Union was bound to establish a set of privileged workers so as to make out a case of favouritism in their favour as against the underprivileged set of workers. In the absence of any material indicating this feature of the case, the argument of the Union that all the Class IV and Class III employees, occupying the quarters should be evicted, is a fallacious submission. 21. It is evident from the chart placed before the court that these two employees were not necessarily required to be on the premises of the hospital for 24 hours. The complainant Santosh More was a Telephone Operator and there is no dispute that there are four Telephone Operators, who were in different shifts and, three of such operators, do not occupy any quarter. The complainant Santosh More was a Telephone Operator and there is no dispute that there are four Telephone Operators, who were in different shifts and, three of such operators, do not occupy any quarter. The other complainant-employee Vivek More is a Registration Assistant and there are several Registration Assistants, who work in different shifts. Vivek More is not the only Registration Assistant, who is on the desk for registering patients for 24 hours. 22. Though the learned advocate for the employees has submitted, on instructions, that they were required 24x7, there is no material on record to indicate this aspect, inasmuch as, it is impossible and illegal to engage an employee to work 24x7. When called upon to explain as to whether these two employees were the only Telephone Operator and Registration Assistant, it is conceded, on instructions from Santosh More, who is present in the court, that there are several Telephone Operators and Registration Assistants, who do not occupy the quarters and all of them work in different shifts along with these two complainants. 23. In the light of the factual matrix as recorded above, it is apparent that the Industrial Court committed a grave error in assuming that when there are 24 rooms vacant, there is no reason to call upon the two employees to vacate the premises and that, there was no eviction notice issued to other staff members. The impugned judgment, concluding that the management has shown undue favouritism or partiality towards all the occupants of the building as the eviction notice was issued only to these two employees, is palpably incorrect. An Unfair Labour Practice under item 5 of Schedule IV cannot be established in such a manner and the impugned judgment is apparently erroneous and perverse. 24. The learned counsel for the petitioner has relied upon the judgment delivered by the Hon’ble Apex Court in Ceat Limited v. Anand Abasaheb Hawaldar & Ors., (2006) 3 SCC 56 to support his contention that item 5 of Schedule IV cannot be established without pleadings and evidence. He has pointed out paragraph Nos. 11 to 15, which read as under : “11. In Item 5 of Schedule IV to the Act, the legislature has consciously used the words "favouritism or partiality to one set of workers" and not differential treatment. Thus, the mental element of bias was necessary to be established by cogent evidence. He has pointed out paragraph Nos. 11 to 15, which read as under : “11. In Item 5 of Schedule IV to the Act, the legislature has consciously used the words "favouritism or partiality to one set of workers" and not differential treatment. Thus, the mental element of bias was necessary to be established by cogent evidence. No evidence in that regard was led. On the contrary the approach of the Industrial Court and the High Court was different. One proceeded on the basis of breach of assurance and the other on the ground of discrimination. There was no evidence brought on as regards the prerequisite i.e. favouritism or partiality. Favouritism means showing favour in the matter of selection on circumstances other than merit. (Per Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn., 2005.) The expression "favouritism" means partiality, bias. Partiality means inclination to favour a particular person or thing. Similarly, it has been sometimes equated with capricious, not guided by steady judgment, intent or purpose. Favouritism as per Webster's' Encyclopaedic Unabridged Dictionary of the English Language means the favouring of one person or group over others having equal claims. Partiality is the state or character of being partial, favourable, biased or prejudiced. 15. Because of this element of personal interest, bias is also seen as an extension of the principles of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore, the courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred.” 25. Respondent No.2, Santosh More, was present in the court hall. The learned advocate for the management pointed out that he has his own flat in Nalasopara and he has taken a PF loan, which is within the knowledge of the employer, for renovating the said flat. It is pointed out that he had sought such loan on his Provident Fund accumulations for renovating the flat in the Financial Years 2011-12 and 2014-15. On both these occasions, he was granted loans to the tune of Rs.80,000/- and Rs.1,40,000/-, respectively. Mr. It is pointed out that he had sought such loan on his Provident Fund accumulations for renovating the flat in the Financial Years 2011-12 and 2014-15. On both these occasions, he was granted loans to the tune of Rs.80,000/- and Rs.1,40,000/-, respectively. Mr. More instructed the learned advocate for the respondents to make a statement, on the basis of a sale deed shown to the learned advocate, that he had sold off the said flat, way back in the year 2010. With this statement of fact being made by the said employee, it is obvious that he has played a fraud on the management in 2011-12 and has repeated the same fraud in 2014-15. He has also acquired a certificate from the Housing Society, dated 21/3/2015 for permission to carry out the renovation of the flat. Be that as it may, this issue not being before the court, is left to the employer to be dealt with. 26. After the marathon submissions of the learned counsel concluded yesterday, the 3rd day of January, 2022, I called upon the learned advocate for the employees to seek instructions as to whether the two employees are willing to make a statement that they would vacate the premises within six months, which would be sufficient time to enable them to search for an accommodation. I disclosed to the parties that I would be allowing this petition, on merits. 27. Today, the learned advocate for the respondents, on instructions from Santosh More, makes a statement on behalf of both the employees that they have their own difficulties like exams of the children and the deliveries of their daughters-in-law, etc. and, therefore, need to occupy the premises till 31/12/2023. The learned advocate for the management submits, on instructions, that if these employees make a statement that they would vacate the premises, on their own, the management is willing to allow them to occupy the same, till 30/06/2022. 28. The learned advocate for the two employees, then submits on instructions from the employees, who are present in the court premises, but not inside the court-hall, due to Covid-19 restrictions, that they would vacate the premises on or before 30/06/2022. 29. In view of the above, this petition is allowed in terms of prayer Clause 27(a) quoted above. The impugned judgment dated 06/01/2020 is, therefore, quashed and set aside and Complaint (ULP) No.305 of 2016 stands dismissed. 30. 29. In view of the above, this petition is allowed in terms of prayer Clause 27(a) quoted above. The impugned judgment dated 06/01/2020 is, therefore, quashed and set aside and Complaint (ULP) No.305 of 2016 stands dismissed. 30. Considering the request of the employees and the concession granted by the learned advocate for the management, on instructions, both these employees will be permitted to reside in the said accommodation till 30/06/2022 and shall vacate the said premises, on or before 12.00 noon, on 30/06/2022. 31. Rule is made absolute in the above terms.