Time Packaging Limited, Tarapur, ... vs Maharashtra Engineering And ...
2002 Latest Caselaw 135 Bom

JUDGMENT

C.K. Thakker, C.J.

1. This appeal is filed against an order passed by the learned Single Judge on August 28, 2001 in Civil Application No. 1383 of 2001. The said application was filed by the appellant herein to recall the orders dated January 31, 2001 and July 11, 2000 passed in the proceedings.

2. The respondent-Union had initiated proceedings before the III Labour Court, Maharashtra State, Thane, in Reference (IDA) No. 185 of 1998 against termination of services of ten employees. The Labour Court, by part I Award, dated December 8, 1999, partly allowed the reference. It rejected the prayer made by four employees for reinstatement but granted reinstatement to six employees.

3. Being aggrieved by the said Award, the appellant-petitioner approached this Court. On April 3, 2000, petition was admitted and Rule was issued. On July 11, 2000, stay was granted. The matter is pending for final hearing. Liberty, however, was granted to the concerned workmen or the union to make an application under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act").

4. In pursuance of the above order, Civil Application No. 5369 of 2000 was filed by the respondent under Section 17B of the Act on July 26, 2000. The Civil Application was allowed on January 31, 2001 and an order was passed in terms of Section 17B of the Act. The said order was passed after hearing both the parties,

5. It, however, appears that thereafter Civil Application No. 1383 of 2001 was filed by the present appellant on March 17, 2001. In the said application, it was stated that the unit in question, viz., at Tarapur, was closed down on October 11, 2000. The said fact, however, was not brought to the notice of the learned Single Judge when the order under Section 17B of the Act was passed, and, hence, the order passed on January 31, 2001 deserved to be recalled. The Civil Application was rejected by the learned Single Judge by an order, dated August 28, 2001, which is challenged in the present appeal.

6. The learned counsel for the appellant raised two contentions. Firstly, it was stated that an affidavit was sworn by the respondent before the Labour Court, Thane. The said affidavit, according to the counsel, cannot be said to be in consonance with the provisions of Section 17B of the Act, and could not have been relied upon by the learned Single Judge. Secondly, when the unit was closed on October 11, 2000, no order could have been passed or continued under Section 17B of the Act from that date. To that extent, in any case, the order passed by the learned Single Judge deserves interference.

7. The learned counsel for the respondent, on the other hand, submitted that both the contentions raised by the learned counsel for the appellant are ill-founded. So far as the affidavit is concerned, though it was sworn before the Labour Court, Thane, it was filed in this Court. The provisions of Section 17B, therefore, have been complied with, and the appellant cannot raise an objection of filing of the affidavit in this Court on the ground that it was sworn before the Labour Court, Thane. Regarding so-called closure, it was submitted that the action was taken in pursuance of a settlement. Moreover, in fact and in law, there is no closure, as other employees have been accommodated elsewhere. The respondent had not agreed to any such action. When there is no closure and rights have been crystallised in favour of the respondent, the employees cannot be adversely affected by any action taken by the appellant. It was, therefore, submitted that the Letters Patent Appeal deserves to be dismissed.

8. So far as filing of affidavit is concerned, in our view, the language of Section 17B is very clear. It states that an affidavit should be filed in "such Court" where the proceedings are pending. Admittedly, the proceedings are pending in this Court, and, therefore, an affidavit, as required by Section 17B of the Act, has to be filed in this Court. But it has been done. It is not even the case of the appellant that the affidavit is not filed in this Court. The argument of the learned counsel for the appellant is that affidavit is required to be sworn/verified also before "such Court". In the instant case, as the affidavit was sworn before Labour Court at Thane, and even though it was filed in this Court, it is not in compliance with Section 17B of the Act.

9. We are unable to accept the contention. In our view, Section 17B does not compel a party or an employee to verify or swear an affidavit in the Court where the proceedings are pending. What it requires is filing of the affidavit in 'such Court', i.e., the Court where the proceedings are pending. Since the affidavit is filed in this Court, in our opinion, the provisions of Section 17B cannot be said to have been violated. The contention, therefore, has no force. It deserves to be rejected, and is, accordingly, rejected.

10. So far as closure is concerned, from the record, it appears that there was some settlement between the employees and the appellant. No doubt, it was stated that the settlement did not precede, and it was only after the unit was closed down that certain benefits were awarded to the employees who were ready to settle the matter. In our view, however, this question cannot be decided in the present proceedings. Again, it also appears that some of the employees were accommodated at other places. What is the effect of such accommodation and whether such benefit can be made available to other employees like the members of the respondent-union herein will have to be considered in appropriate proceedings. It would, therefore, not be appropriate on our part to express any opinion one way or the other. It is, however, clarified that it is open to the appellant to raise all contentions, including closure of the unit, and the effect thereof, it is equally open to the respondent to contend that there was no such closure, and the members of the respondent-union herein are entitled to the rights which had been culminated in Part I Award.

11. The petition is ordered to be expedited. We grant liberty to the learned counsel for the appellant to request the learned Single Judge to take up the matter expeditiously in the peculiar facts of the case and closure of unit as per the assertion of the appellant. As and when such prayer is made, the learned Single Judge will consider the same, and will give due priority.

12. Appeal is disposed of. No costs.

13. Issuance of certified copy of this order is expedited.

14. Parties be given copies of this order, duly authenticated by the Sheristedar.