Bombay High Court
M/S. Ivp Limited vs Ivp Limited Workers Union on 16 December, 2009
Bench: A.M. Khanwilkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION NO.28 OF 2009
IN
NOTICE OF MOTION NO.168 OF 2009
IN
APPEAL NO.11 OF 2009
IN
WRIT PETITION NO.1934 OF 2007
M/s. IVP Limited
Allana House, 2nd Floor,
Allana Marg, Colaba,
Mumbai- 400 001. .. Petitioner
(Orig. Appellant)
Versus
1. IVP Limited Workers Union,
Forbes Godown No.1,
Opp. IVP Company,
Shashikant N. Redij Marg,
Ghorupdeo, Mumbai-400 033.
2. The Industrial Tribunal,
New Administrative Building,
Bandra (East),
Mumbai- 400 051. .. Respondents
(Orig. Respondents)
Mr. C.U. Singh, Senior Advocate i/by Mr. N.R. Patankar for the
petitioner.
Mr. Sanjay Siinghvi with Mr. Bonnet D'Costa for the respondents.
CORAM : SWATANTER KUMAR, C.J. &
A.M. KHANWILKAR, J.
DATE OF RESERVING THE JUDGMENT : 11th DECEMBER, 2009
DATE OF PRONOUNCING THE JUDGMENT: 16th DECEMBER, 2009
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JUDGMENT (Per Swatanter Kumar, C.J.)
The Industrial Tribunal, Mumbai vide its Award dated 19th July,
2007 had rejected the application of the applicant and for grant of
permission for closure. The award was challenged before the learned
Single Judge, but the writ petition came to be dismissed vide order
dated 28th November, 2008. The order of the learned Single Judge was
challenged by the company by filing Letters Patent Appeal No.11 of
2009. In this appeal, Notice of Motion No.168 of 2009, for interim
orders for granting stay of the operation of the order of the learned
Single Judge as well as the workmen's plea for grant of wages under
section 17(b) was dealt with and disposed of by judgment dated 12th
November, 2009 passed by us. The present review petition has been
filed by the company primarily seeking review of the judgment on the
ground that after the permission, the company, had without prejudice to
its contention that the Award of the Industrial Court was unsustainable
had move a second application for closure of the unit. This permission
was not granted by the competent authority within the statutory period
of 60 days. Thus, as a consequence thereof, the permission would be
deemed to have been granted with effect from 24th April, 2008. In the
submission of the review petitioner, thus, no order could be passed
under section 17(b) as the industry would be deemed to have been
closed in terms of the provisions of the Industrial Disputes Act, 1947.
Secondly, it is stated that out of 113 workmen, some workmen had
retired were covered by the closure and the company paid closure
compensation, gratuity etc. in addition to the provident fund and other
dues to the workmen which were accepted by them and in all, a sum of
Rs.12,27,61,629/- had been paid which was not taken into consideration
by the court while passing the order under review. It is also contended
that an undertaking had been given by the company not to alienate,
transfer or part with possession of the assets of the company, the
General Reserves of which according to the workmen are valued at Rs.
216 crores and thus, the interest of the workmen was fully protected and
there was no occasion for the court to impose the condition of deposit
50% of the arrears. According to the learned counsel appearing for the
non-applicants, it is contended that the grant of present review petition
cannot be reheard all over again which is impermissible. Secondly, the
amount due and payable to the workmen is much excess than the
amount paid to the workmen by the company. Therefore, the condition
imposed is valid and proper. The workmen are entitled to the back
wages in view of the fact that Award is in their favour, where closure
permission was denied. Thus, they would be entitled to all the benefits.
The company cannot take any advantage of the alleged deemed closure
with effect from 24.4.2008.
2. Having heard the learned counsel appearing for the parties, we
are of the view that as far as the first contention is concerned, the
company had not even taken up any specific ground in the manner as
sought to be argued now in their memorandum of appeal. Furthermore,
this is a matter which can, if permitted to be raised in the manner as
now raised by the petitioner be considered by the court while dealing
with the merits of the appeal. Reliance made by the applicant on the
judgment of the learned Single Judge of this court in the case of Hind
Rectifiers Limited v. Presiding Officer, 1st Labour Court and another,
2001(1) Bom. C.R. 543 has no application to the present case because
the principle stated in that judgment was that the amount payable under
section 17(b) of the Act would be extended to an employee for a period
subsequent to the superannuation of the said officer. This judgment has
hardly any application on facts to the present case. Before the Industrial
Court, no such issue has been raised. Thus, the parties are free to take
such actions as are permissible to them in accordance with law but the
company cannot take any benefit in the present review petition to
deprive the workmen of their dues in terms of section 17(b) of the Act.
This court has granted stay of operation of the Award on compliance
with the conditions of Section 17(b) and we see no reason to take any
different view. As already noticed, this is a prima facie view for the
purposes of interim application and the order will be controlled by such
directions as may be passed by the court at the time of hearing of the
appeal finally.
3. There is some merit in the contention raised on behalf of the
company that the court has not taken notice of a sum of Rs.
12,27,61,629/- having been paid to the workmen by the company while
directing deposit of 50% of the back wages of the workmen to be
deposited. This amount as well as the undertaking given by the
company and the order of injunction passed in regard to the assets of the
company ought to have been considered by this court. It is true that this
contention was raised before us. Though by and large it would hardly
change the order, the fact of the matter still remains that the court has
not noticed and dealt with this contention in some detail. There is no
dispute to the fact before us that this amount has been paid to the
workmen who have already received closure compensation, gratuity and
provident fund etc. but according to the counsel, this amount can easily
be set of and even then some dues will be payable for the subsequent
period and therefore, the condition would continue. Once it is not
disputed that amount has been received by the workmen to the extent of
Rs. 12,27,61,629/- in relation to which the order of injunction relates
has already been paid by the company. Therefore, the condition of
deposit of 50% of the back wages may be harsh and would imbalance
the equities between the parties. The estimated value of the assets of
the company even according to the workmen are far in excess of their
claims. It would cover the entire claim of the workmen despite the fact
that they have received a sum of Rs. 12,27,61,629/- as closure
compensation, gratuity and dues of the provident fund etc.
4. The provisions of Order 47 Rule 1 have been amended so as to
entitle the review applicant to move an application for reviewing the
order even where any other sufficient reason is shown to the satisfaction
of the court which would satisfy the review of the order. Non-
consideration of these pleas would, in our opinion, constitute sufficient
and reasonable cause for reviewing the said order.
5. Thus, while allowing this petition partly, we direct the company to
pay last drawn wages to the workmen in accordance with the provisions
of Section 17(b) of the Industrial Disputes Act, 1947 during the
pendency of the appeal and also deposit in court 20% of the back wages
due to the workmen from the date of refusal of permission for closure till
the date of admission of appeal.
6. Review Petition is disposed of accordingly. No order as to costs.
CHIEF JUSTICE
ig A.M. KHANWILKAR, J.
