Satish Arjun Surve vs State Of Maharashtra And Ors.
2004 Latest Caselaw 138 Bom

JUDGMENT

S.C. Dharmadhikari, J.

1. Rule, Returnable forthwith by consent. Service on respondent No. 7 dispensed with. Union of India served.

2. Petitioners pray for direction to the State Government, Collector Mumbai as well as Registrar, Industrial Court to take appropriate steps to recover amounts under Recovery Certificates issued in their favour.

3. The Recovery Certificates are issued under Section 33-C(l) of the Industrial Disputes Act, 1947 which reads as under:

"33-C(l): Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B, the workman himself or any other person; authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government; for the recovery of the money due to him and if the appropriate Government is satisfied that any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue".

4. A perusal of this provision indicates that it contemplates recovery of money due from employer to a workman, by making an application to appropriate Government for recovery of the same which upon satisfaction of appropriate Government is then mentioned in a certificate. The certificate is thereafter forwarded to the Collector. The mandate to the Collector is to proceed to recover the dues mentioned in the same manner as arrears of land revenue.

5. In Writ Petition No. 268 of 1998 decided on July 6, 1998 in the case of Islam Ali v. D, Dayaram & Co. & Ors. reported in 1999-III-LLJ (Suppl)-1144 (Bom-DB) this Court has directed that the State Government and the Authorities exercising powers under Maharashtra Land Revenue Code should ensure that the dues of workmen are collected within a reasonable period and has further proceeded to lay down the period as well. It has directed that these authorities should endeavour to recover certified amount within three months except where there are extraordinary good reasons for delay. It appears that despite pronouncement by this Court, the State Government and authorities under Maharashtra Land Revenue Code have not taken any steps to expedite such recoveries, leave alone, making any endeavour to recover certified amounts within a period of three months. These are really sorry state of affairs. It is in this background that we are approaching the issue.

6. A provision of similar nature is incorporated in Section 50 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short M.R.T.U. & P.U.L.P. Act). We have been faced with a request similar to that made in this petition by number of employees and more particularly from the employees of textile mills in Mumbai. Elsewhere also it is observed that the Collector has not initiated steps to recover 1 the amounts under the recovery certificate in accordance with the provisions made in Maharashtra Land Revenue Code, 1966 expeditiously. The delay in recovery has forced number of workmen/employees to approach 1 this Court with a prayer for issuance of writ of mandamus to the authorities to fulfil their statutory obligations.

7. At the outset, we wish to make it clear that in this case we are not concerned with the correctness or validity of the certificate. What we are really concerned is with the expeditious recovery of the dues under the same. The principal grievance of the petitioner is that far from being diligent, the authorities in charge of such recovery are not taking any steps to recover the dues of the employees forcing them to complete starvation. That the dues are admitted and that recovery certificates have gained finality, is not in dispute. All that remains is actual recovery of the dues and handing over the same to the concerned employee.

8. For a proper appreciation of the procedure of recovery under Maharashtra Land Revenue Code and the Rules framed there under, a reference to some of the provisions of Code is necessary.

9. Section 174 onwards sets out a complete code which has to be followed when land revenue or arrears thereof are recovered by authorities exercising powers thereunder. It is clear from a perusal of the same that land revenue being given a priority, recovery thereof is intended to be made expeditiously. The procedure to be followed in this case, is not and cannot be compared to recovery suits in a Civil Court. Similarly, it is not the intent to apply the procedure for execution of a decree set out in Code of Civil Procedure. The dues of workman under the beneficial provisions like Industrial Disputes Act, 1947 and MRTU & PULP Act are equally intended to be recovered expeditiously and that is why dues thereunder are contemplated to be recovered as arrears of land revenue. The expectation and :he intent is that State would give such dues the same priority as it gives to recovery of its revenues and taxes such as !and revenue. However, we find that the very purpose or object of the enactment is frustrated and defeated due to inaction on the part of the authorities to initiate measures of recovery consequent upon recovery certificate being forwarded to them.

10. A perusal of the provisions of two enactments in question reproduced above would go to show that it is the appropriate Government which issues the certificate and ultimately it is forwarded to its own officials by it for initiating proceedings to recover the dues thereunder. It is not clear as to why the authorities take time to act upon the same. In numerous cases our experience is that authorities remit these certificates back to the Industrial Court and call upon the Industrial Court to forward to it the details of movable and immovable properties of the defaulters.

11. In these matters another aspect that merits our attention pertains to insistence by the Authorities under Maharashtra Land Revenue Code to comply with requirements of Rule 17 of Maharashtra Realisation of Land Revenue Rules, 1967. Rule 17 reads as under:

"17. Procedure for recovering sums recoverable as an arrear of land revenue: (1) Where any sum due to any department of Government or a local authority or a co-operative society is recoverable as an arrear of land revenue from any defaulter, such department, local authority or, as the case may be, co-operative society may send a requisition in writing for recovering the sum to the Tahsildar of the taluka in which the defaulter resides or has property. (2) Such requisition shall contain the following particulars, viz., (a) Full name and address of the defaulter; (b) The sum to be recovered; (c) The provision of law under which the sum is recoverable as an arrear of land revenue; (d) The process by which the sum may be recovered; (e) The property against which the process may be executed; (3) On receipt of such requisition, the Tahsildar shall dispose it of in accordance with the provision of the Code and these Rules."

12. A perusal of this Rule would indicate that when any sum is due to any department of Government or a local authority or a co-operative society and the same is: recoverable as arrears of land revenue from the defaulter, such department, local authority or co-operative society may send a requisition in writing for recovering the sum to the Tahsildar of the Taluka in which the defaulter resides or has properties. The requisition should contain the particulars set out in sub-rule (2) of Rule 17. Ms. Kajle, contended before us that a requisition has been sent to Industrial Court to forward the details of the properties against which process may be executed. She submits that this procedure is followed in all such cases. She submits that once these requisitions are complied with, authorities initiate further steps. We are unable to see any justification in applying this rule to recoveries under Section 33-C(l) of Industrial Disputes Act and Section 50 of M.R.T.U. and P.U.L.P. Act. First of all, this is not a recovery at the instance of Industrial Court. Secondly Industrial Court is neither a department nor any other entity contemplated by Rule 17. It is, therefore, not obliged to send any requisition. Once, there is no obligation to send any requisition, then there is no necessity of calling upon Industrial Court to forward details pertaining to the assets and properties of the defaulter. These are nothing but delaying tactics which are resorted to at the instance of the defaulter by the authorities. We strongly deprecate such a practice and direct that in case of recovery certificates under these enactments, there is no obligation on the Industrial Court to forward any requisition. Once there is no necessity of forwarding such requisition, then Authorities need not call upon Industrial Court to furnish any details of the assets and properties of the defaulters. Hereafter Industrial Court need not be called upon to furnish any details. Ultimately, certificate being issued by appropriate Government, it is the duty of appropriate Government to collect all the details and proceed in accordance with law. That apart, use of the word "may" in the Rule in question, does not demonstrate any duty or obligation but indicates that for speedy and proper recovery a requisition be made.

13. It is clear that upon remittance, the matter remains pending with the Industrial Court. This necessarily results in the proceedings for recovery being kept in abeyance. This is the first stage at which delay occurs. It appears that Industrial Court has its own problems in tracing out the details pertaining to the properties of the defaulter and forwarding it to the Collector. This is on account of the fact that proceedings before Industrial and Labour Court are restricted to liabilities on account of wages and disputes pertaining to suspension, termination of service etc. In majority of such cases there may not be any occasion for the Court registry to insist upon applicants approaching the said Courts/ Tribunals to forward to the Court, the details of the properties and assets. In such cases workmen implead concerns/firm/ company and its partners or proprietors. They are also handicapped and may not be in a position to forward the details of their properties and assets. More often than not, the applicants who land up getting recovery certificates in their favour are themselves called upon by the Industrial Court to forward to it the details whenever requests in that behalf are received from the District Collectorate. Therefore, the ultimate beneficiary of the provisions is moving around in circles. If Chapter XI of the Maharashtra Land Revenue Code is perused together with the provisions contained in Chapter XIV for the city of Mumbai, we do not find any justification in the authorities under the Land Revenue Code calling upon Industrial Court to forward to them the details of assets and properties of the defaulters.

14. The above-mentioned aspects of the matter give rise to serious allegations against the machinery under the Land Revenue Code. In the instant case, it is contended by Shri Patel before us that respondent No. 2 (Collector of Mumbai) whose statutory duty it is to recover the amount as arrears of land revenue by following prescribed procedure is not recovering the amount and compelling all persons who have obtained such recovery, certificates to approach this Court and obtain directions for execution and recovery. He is conducting himself in this manner in order to oblige the employer and at his instance.

15. We are of the view that the authorities in order to avoid serious charge of this nature being levelled against them from time to time should act diligently in realisation of amounts under the certificates forwarded to them by appropriate Government. Respondent No. 1 ought to look into this aspect seriously and streamline the procedures with a view to enable expeditious recovery of workers' dues failing which it is failing in its duty as a Welfare State to fulfil the mandate of Article 21 of the Constitution of India read with Directive Principles of State Policy (Articles 38, 39 and 43). In all these matters if the authorities are of the opinion that assistance is required from any agency/authority in tracing out the properties and assets of defaulters, in exceptional cases, it may take the same. We make it clear that such steps should be an exception and not a rule. After receipt of such details, the Collector should initiate proceedings for recovery in accordance with Chapter XI and Chapter XIV by serving a written notice of demand on the defaulter and following up the same by further process as contemplated by Section 176 of the Code culminating in sale of properties in appropriate cases to recover the dues under the certificate within the time stipulated in the order of Division Bench of this Court and if it is unable, for some reason to do so, state such reasons in writing and communicate the same to Respondent No. 1 with a copy to the concerned employee.

16. We are also making it abundantly clear that the aforesaid steps be initiated without any exception in case of all employers, be they National Textile Corporation or any other Government or semi-Government body. It is expected of such entities to be more responsive and sensitive towards dues of the workers who have been, in most of the cases, rendered jobless. No favourable treatment, ought to be shown to such entities merely because they are set up under a Statute or established by Government otherwise. They being defaulters within the meaning of the said term under the Land Revenue Code, they deserve no sympathy or exceptional treatment. We are constrained to make these observations in the light of the following facts.

17. In W.P. No. 85 of 2004, petitioner was employed in Kohinoor Mills. From January 1982, there was a textile strike. Petitioner did not join the strike and offered to work. The mill neither assigned him work nor paid salaries forcing him to file a complaint of unfair labour practice under the MRTU and PULP Act. On December 22, 1999, the Complaint ULP No. 878 of 1990 instituted by the petitioner was allowed. As the order was not complied with Miscellaneous Application was filed claiming salary from July 1990 to July 31, 2000. Amount is to the tune of Rs. 6,12,598.68 which is an enormous sum considering a person who is jobless on account of textile strike. There are very few textile mills functional in Mumbai. Most of them are managed by a Corporation like National Textile Corporation. It is unable to provide employment to every worker employed therein prior to the said strike. Hence in such cases, there will be no question of re-mployment and recovery certificates having been issued as early as in November 2002, Collector was duty bound to take steps to recover the dues.

18. In W.P. No. 3085 of 2003 the plight of the petitioner therein is no different. His dues are to the tune of Rs. 5,69,724.90 in identical facts and circumstances as that of the petitioner in W.P. 85 of 2004. Ms. Kajle, learned counsel for respondent Nos. 1 and 2 and Ms. Menon learned counsel for National Textile Corporation pointed out to us that not only in this case but in other cases steps have been taken to recover considerable amount.

19. Ms. Kajle places on record a letter dated January 31, 2004 addressed to her by Tahsildar, Labour Dues Recovery Mumbai City and points out that out of dues of Rs. 1, Crore in arrears under various certificates including the petitioners before us, Management of Kohinoor Mills (NTC) is paying only Rs. 4 lakhs per month and it will take 27 months to recover this amount. She points out to us that we should give directions and direct NTC to pay Rs. 25 lakhs per month with a view to wipe off the arrears.

20. Ms. Menon, learned counsel for NTC in these petitions contended before us that NTC has an obligation to take over sick mills. When it takes over such sick units it is impossible to manage them as there is no hope of continuous production or manufacturing activities in cases of such units. She points out to us the situation of textile mills and the condition of textile market as a whole on account of privatisation, globalisation and changing Government policies. She, therefore, submits that it will not be possible to deposit a large amount per month. She prays that National Textile Corporation has to pay a sum of Rs. 1 Crore 17 lakhs and odd under the certificates which are pertaining to Kohinoor Mills alone. She points out that as on January 31, 2004, an amount of Rs. 25 lakhs and odd has been forwarded to the Collector. She admits that the amount pertaining to both the petitioners before us was outstanding but in so far as Petitioner in W.P. No. 85 of 2004 is concerned, the same has been paid as is confirmed by the Tahsildar. In so far as Petitioner in W.P. No. 3085 of 2003, is concerned, she points out that the entire amount is outstanding and would be paid. She assures that even the workmen, who have been paid principal sum, the amount of interest would be paid to them along with others. However, considering the totality of facts and circumstances, she prays that this Court should grant her request to release the amounts by instalments of Rs. 4 lakhs per- month under all recovery certificates. It is her case that NTC has to pay not only the dues of Kohinoor Mills but other units as well. Hence she submits that we should exercise our discretionary power and grant time and instalments as prayed for by her.

21. In our view, considering the object for which the provision of recovery certificates has been incorporated in the relevant statutes and in the light of the discussion aforesaid, it will not be proper to grant the indulgence and time as sought for by NTC. In our view, NTC and Union of India are duty bound to discharge the liability under the recovery certificates as expeditiously as possible.

22. We are of the view that in so far as recovery certificates of Kohinoor Mills are concerned, the National Textile Corporation should clear the liabilities along with interest by paying monthly instalment of Rs. 5 lakhs and the first of such payment would be released on March 15, 2004 and all subsequent payments on 15th of each succeeding months till amounts under all recovery certificates. As far as other units of NTC, in case there are pending dues under the recovery certificates issued in favour of employees thereof, NTC should clear those dues as well by forwarding the principal amount and interest by monthly instalment of Rs. 3 lakhs till the entire liability is cleared off. We direct respondent Nos. 1 and 2 not to grant any indulgence to the management and see to it that the directions issued by us are complied with. Needless to state that apart from coercive measures being initiated, all steps permissible in law be taken to recover outstanding amount from them. We make it clear that it will be the duty of respondent Nos. 1 and 2 to implement the directions along with NTC and the respective units, failing which they would be held responsible for breach of the directions and orders of this Court.

23. We make it clear that our observations and directions issued in the foregoing paragraphs would apply to recoveries of all workers and employees who have valid recovery certificates in their favour and steps must be taken by Collectors of all Districts in Maharashtra to promptly recover the dues outstanding under the same. We are emphasising this aspect as we are informed that barring Mumbai all other Collectorates have not shown necessary expediency and urgency in initiating proceedings for recovery of dues under the certificates forwarded to them.

24. We hope that if there is any obstacle or hurdle in initiating prompt steps to recover the dues under the recovery certificates, the same need to be removed and rectified by. respondent No. 1. It is the suggestion of petitioners in majority of cases before us that instead of forwarding the recovery certificates to the Collectorates in the district, recoveries could be made by appointing Recovery Officer in the concerned Industrial Court/Labour Court. This aspect also be considered by respondent No. 1 and to expedite recoveries, even this measure be thought of by them. We leave the matter for their decision. A copy of this order be forwarded to Secretary, Department of Labour, Mantralaya, Mumbai for information and necessary action at his end.

25. Petitions stand disposed of.