Bombay High Court
Kalambar Vibhag Sahakari vs Dattatraya Timbakrao Dalvi on 13 October, 2016
Bench: R.V. Ghuge
WP/925/1995
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 925 OF 1995
WITH CIVIL APPLICATION NO. 529 OF 2013
IN WRIT PETITION NO. 925 OF 1995
WITH CIVIL APPLICATION NO. 12283 OF 2016
IN CIVIL APPLICATION NO. 529 OF 2013
Kalambar Vibhag Sahakari
Sakhar Karkhana Ltd., Gandhi Nagar,
At post. Kalambar, Taluka Loha,
Dist. Nanded,
through its Managing Director,
(Original respondent) ..Petitioner
1.
Versus
Shri Dattatraya S/o. Tukaram Dalve,
Age. 44 years, Occu. Private Service,
R/o. Wadepuri, Tq. Loha, Dist. Nanded.
2. Shri Laxman S/o. Baliram More,
Died, Through L.R.S.,
2A. Anusayabai Laxman More
(Respondent Nos. 1 and 2
Original Complainants)
3. Member,
Industrial Court, Jalna.
(Respondent No. 3 - Court Below)
4. Mr. B. G. Sampatrao,
5. Mr. U.B. More,
6. Mr. Sayyad Peer Sarwar,
7. Mr. D. S. Jamge,
8. Mr. N. N. Shinde,
9. Mr. V. S. Savale,
10. Mr. N. K. Shaikh,
11. Mr. S. S. Tate,
12. Mr. M.B. Tate,
13. Mr. K. D. Lohar,
14. Mr. B. M. More,
15. Mr. V. V. Swami,
16. Mr. R. G. Majare,
17. Mr. G. N. Naik,
18. Mr. M. G. Karade,
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WP/925/1995
2
19. Mr. P. D. Pawar,
Died Through L.R.,
19A. Godawaribai Pralhad Pawar,
20. Mr. M. N. Maheshkar,
21. Mr. V. G. Behere,
22. Mr. G. V. Kawatikar,
Died Through L.R.S.,
22-A. Shantabai Gangadhar Kawatikwar,
23. Mr. G. L. More,
24. Mr. B. R. Shirmangale,
25. Mr. T. B. Mise,
26. Mr. M. M. Mahajan,
27. Mr. B. W. Kausalya,
28. Mr. V. M. Sawant,
29. Mr. H. G. Kadam,
30. Mr. S. V. Sangale,
31. Mr. V. S. More,
Died Through L.R.,
31A. Bhamabai Uddhav More,
32. Mr. M. M. Pandale,
33. Mr. N. G. Ganorkar,
34. Mr. H. G. Tekale,
35. Mr. S. M. Giri,
Died Through L.R.,
35A. Anusayabai Laxman More,
Respondent Nos. 4 to 35 all are Major,
Occu. Agriculture / Private Service, etc.,
R/o. C/o. Mr. Dalve, Wadepuri,
Tq. Kandhar, Dist. Nanded.
(Respondent Nos. 4 to 35 workmen in
whose favour relief has been granted.)
36. The State of Maharashtra,
Through, The Secretary,
Department of Agriculture and
Cooperation, Government of Maharashtra,
Mantralaya, Bombay,
37. Honourable Minister
of State for Industries and
Labour Department. ... Respondents.
...
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WP/925/1995
3
Advocate for Petitioner : Shri R.K.Ingole Patil
Advocate for Respondents 1, 2, 4 to 35 : Shri V.N.Upadhye
AGP for Respondents 36 & 37 : Shri P.N.Kutti
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: October 13, 2016
...
ORAL JUDGMENT :-
1. Leave to bring L.Rs. of the deceased respondents on record is
granted.
2.
The petitioner is aggrieved by the judgment delivered by the
Labour Court, dated 30.6.1994, by which, Complaint (ULP) No.38 of
1994 (Old No. 217 of 1987) has been allowed.
3. The reliefs granted by the Industrial Court read as under:-
"Complaint is partly allowed.
It is declared that the Respondent has committed unfair labour
practices under item no.9 of schedule IV read with section
28(1) of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act.
It is further ordered that the respondent shall cease and desist
from committing such unfair labour practice.
It is further ordered that the complainants whose names are
mentioned in Annexure 'A' attached to this Judgment and order
WP/925/1995
shall be entitled to reinstatement in service with continuity
and backwages from the date of retrenchment i.e. 14.10.1987
till they are reinstated in the service.
It is further ordered that the Complainants whose names are
mentioned in Annexure 'A' shall be also entitled to claim wages
for the period February, 1986 to July, 1986 and August 1986 to
October,1987.
The complaint as far as it relates to following workmen;
1.
2.
Venkat Motiram Akale,
Motiram Govindrao Hippargekar
3. Ramrao Tukaram Gaikwad,
4. Raghunath Manika Pachure,
5. Pralhad Ramchandra Mulange
6. Babu Tukaram Panchal
7. Habaji Ganeshrao Kandhare
8. Balaji Rajaram Tumberfale,
9. Tukaram Shamrao Shekhapure,
10. Kisansing Hanumansing,
11. Madan Govind Rautare,
12. Uttam Venkat Kadam,
13. Babusing Harising Gunawat
14. Shriram Dattarao Shinde
15. Balansing Bahgwansinh Marmat
and stands dismissed.
The respondent is ordered to implement the above Judgment
and order within two months from today.
WP/925/1995
ANNEXURE 'A'
Sr. Name of the complainant / employee
1. B.G.Sampatwar
2. U.B.More
3. Sayad Peer Sarvar
4. D.S.Jambe
5. N.N.Shinde
6. V.S.Savale
7. N.K.Shaikh
8. S.P.Tate
9. M.B.Tate
10. K.D.Lohar
11. B.M.More
12. V.V.Swami
13. R.G.Majare
14. G.N.Naik
15. M.G.Karade
16. P.D.Pawar
17. M.N.Maheshkar
18. V.J.Bhere
19. G.V.Kawatikar
20. G.L.More
21. B.R.Shrimangale
22. T.B.Mise
23. M.M.Mahajan
24. B.N.Kausalye
25. V.M.Swami
26. H.G.Kadam
27. S.V.Sangale
28. U.S.More
WP/925/1995
29. N.M.Padade
30. N.G.Gonarkar
31. H.B.Tekale
32. S.M.Giri.
Sd/- 30.6.94
(P.M.BANSOD)
Member,
Industrial Court, Jalna"
4. By order dated 21.4.1995, passed by this Court, this petition
was admitted and this Court observed in paragraph Nos. 6 and 7 as
under:-
"6. The petitioner - factory is directed to deposit a sum of
RS.3,20,000/- in this Court, which would roughly cover the
liability about the retrenchment compensation payable to the
retrenched employees and in addition to it, submit a Bank
guarantee to the tune of Rs.3 Lacs to safeguard the interest
of the workmen in case they are held to be entitled for
further wages. The deposit and the bank guarantee to be
submitted in this Court within a period of four weeks from
today. Liberty to both the parties to pray for earlier bearing.
7. If any of the employees retrenched, in the meantime,
wants to accept the terminal benefits offered by the factory,
they are at liberty to accept it. The factory shall not
employee any person in the cadre in which these 34
retrenched employees were working. Liberty to reemploy
these employees. On the above conditions, interim relief in
terms of prayer (C)."
WP/925/1995
5. I have heard the learned Advocates for the respective sides at
length. With their assistance, I have gone through the petition paper
book and the judgments cited.
6. An issue raised before this Court is with regard to the
Industrial Court having entertained the Complaint filed by the
respondent / employees under item 9 of Schedule IV of the
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 ("the said Act "), despite the fact that the
workers had been retrenched. It is argued that the retrenchment
was specifically questioned before the Industrial Court and the issues
as like illegal closure or illegal lock-out or an illegal lay off was not
raised before the Court. The petitioner has categorically prayed that
when the Industrial Court had no jurisdiction to deal with a case of
retrenchment under item 9 of Schedule IV, the complaint was
rendered untenable in law.
7. Learned Advocate for the respondent has cited the judgment
of the Honourable Supreme Court in the mater of Mackinon
Machkenzie and Company Ltd. Vs. Mackinnon Employees Union [2015
AIR SCW 1607]. Shri Upadhye has drawn my attention to paragraph
Nos. 3, 42 and 43 of the said judgment to contend that the
Honourable Apex Court has laid down the law that all cases of
retrenchment or termination or illegal discharge or dismissal can be
WP/925/1995
considered by the Industrial Court.
8. It is noteworthy that the Honourable Apex Court was dealing
with a case of 'proposed closure' of an establishment. The proposed
closure was challenged before the Industrial Court under item 9 of
Schedule IV. Item 9 of Schedule IV of 1971 Act reads as under:-
"9. Failure to implement award, settlement or agreement."
9.
It also needs to be noted that neither of the parties before the
Honourable Apex Court had raised a grievance as regards the
jurisdiction of the Industrial Court in entertaining the said complaint.
It also needs to be noted that a case of proposed closure and likely
discharge was before the Industrial Court. It also needs mention that
Sections 4 to 7 of the Act of 1971, which deal with the duties of the
Industrial Court and the Labour Court, were not cited before the
Honourable Apex Court.
10. In the instant case, the respondent / employees had putforth a
solitary cause of action as regards their illegal retrenchment.
11. Section 5 which prescribes the duties of the Industrial Court
and Section 7 which prescribes the duties of the Labour Court, read
as under:-
WP/925/1995
"Section 7 - Duties of Labour Court.
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.
Section 5 - Duties of Industrial Court.
It shall be the duty of the Industrial Court,-
(a) to decide an application by a union for grant of
recognition to it;
(b) to decide an application by a union for grant of
recognition to it in place of a union which has already been
recognised under this Act;
(c) to decide an application from another union or an
employer for withdrawal or cancellation of the recognition of
a union;
(d) to decide complaints relating to unfair labour practices
except unfair labour practices falling in Item 1 of Schedule IV;
(e) to assign work, and to give directions, to the Investigating
Officers in matters of verification of membership of unions,
and investigation of complaints relating to unfair labour
practices;
(f) to decide references made to it on any point of law either
by any civil or criminal court; and
WP/925/1995
(g) to decide appeals under section 42."
12. Item 1 of Schedule IV reads as under:-
"1. To discharge or dismiss employees -
(a) by way of victimization;
(b) not in good faith, but in colourable exercise of 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 allegation 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."
13. It is, therefore, evident that Complaints relating to ULP
described under item 1 of Schedule IV are to be tried by the Labour
Court and all other complaints invoking items under Schedules II, III
WP/925/1995
and items 2 to 10 of Schedule IV of the 1971 Act can be tried by the
Industrial Court. This is the Scheme of the Act.
14. Notwithstanding the above, it cannot be ignored that this
petition is instituted on 12.9.1994 and is before this Court for the last
22 years. Considering the fact that the petitioner / establishment has
gone into liquidation on 19.1.2006, I am neither inclined to consider
the objection of the petitioner regarding jurisdiction and remand the
matter to the Industrial Court, for re-framing of an issue touching the
jurisdiction of the Industrial Court, nor am I inclined to continue the
rigors of litigation being suffered by both the sides, in the light of the
subsequent events that have occurred after the admission of this
matter and the directions of this Court in paragraph Nos.6 and 7 of
it's order dated 21.4.1995, reproduced above.
15. There is no dispute between the parties that the petitioner /
factory has gone in liquidation from 19.1.2006 and there has been no
manufacturing activity. Shri Upadhye contends that even after the
judgment of the Industrial Court, dated 30.6.1994, the crushing
season was intermittently being conducted by the petitioner /
factory. Shri Patil contends that the petitioner had run into a severe
financial crisis and though intermittently some stray crushing
operations may have occurred, there was no sufficient work to
engage about 640 employees, including the respondents herein.
WP/925/1995
16. In the peculiar backdrop as above and upon considering the
impugned judgment of the Industrial Court, I deem it proper to
balance the equities by suitably modifying the judgment of the
Industrial Court in the light of the above facts.
17. The Industrial Court has considered that the monthly wages of
some of the workers mentioned in Annexure 'A' (32 workers),
reproduced above, were unpaid. As the two complainants, namely,
Shri Dattatraya Tukaram Dalve and Shri Laxman Baliram More have
prosecuted the complaints, it appears that their names have been
inadvertently missed out from the operative part of the order of the
Industrial Court. I am including them in the said list.
18. Considering the above, the disputed question is as to whether
there was any crushing season and how far these respondents could
have been accommodated. In the absence of any evidence that the
crushing operations had continued and work was available, the
direction of the Industrial Court to reinstate them in service with
continuity and backwages from the date of retrenchment -
14.10.1987, cannot be sustained.
19. After this Court passed the order dated 21.4.1995, all these
workmen have been sitting idle and have not been working. In the
WP/925/1995
face of the liquidation of the petitioner / factory, these 34
employees cannot be rewarded with wages since they had not worked
and in the peculiar facts of this case, the grant of backwages would
amount to rewarding these respondents without having worked in the
said period. This petition is, therefore, being partly allowed to the
extent of modifying the directions of the Industrial Court of granting
backwages.
20.
Since the petitioner has gone into liquidation on 19.1.2006, it
presupposes that the factory has got closed down. Though the
petitioner may not have formally declared a closure, it is not
disputed that after going into liquidation, the petitioner / factory is
defunct. It is also undisputed that despite liquidation proceedings,
the assets of the petitioner / factory have not been liquidated in
these last ten years.
21. Considering the over all effect of the above recorded facts and
taking into account that the 34 workers involved in these cases have
all crossed their age of superannuation, I deem it proper to direct
the petitioner to quantify the claims of these workers towards their
unpaid wages as on the date of filing of the complaint, which is
dated 28.10.1987, and to calculate their retiral benefits like
retrenchment compensation and gratuity till 19.1.2006 keeping in
view that the Industrial Court has granted continuity in service to
WP/925/1995
these respondents along with reinstatement. I am arriving at these
conclusions after recording the fact that these respondents /
employees have not been working after they had lodged their
complaints, their retrenchment having been rendered unsustainable
and the petitioner / factory having suffered closure of manufacturing
activities on 19.1.2006. This would lend a finality to this litigation
which has continued from 1987 till this date, which is almost 29
years.
22.
This petition is, therefore, partly allowed and the impugned
judgment of the Industrial Court, to the extent of granting back
wages to the respondents is set aside. However, the conclusion as
regards unpaid wages till the date of the lodging of the complaints
and continuity till 19.1.2006 is sustained.
23. The direction of continued wages is set aside, keeping in view
that none of these respondents have worked from 14.10.1987 till
19.1.2006. Instead, as the liquidation has caused the closure of the
factory on 19.1.2006, I am directing the petitioner to calculate the
retrenchment compensation to be paid to these workers till
19.1.2006 and gratuity for the same period. An amount of
Rs.3,20,000/- has already been deposited by the petitioner in this
Court. An interest of more than Rs. 4,00,000/- has also been
accumulated on the said amount, which is in this Court.
WP/925/1995
24. Shri Upadhye, learned Advocate requests on instructions that
the legal heirs of the three deceased respondents have been brought
on record today. He further prays that the amount of Rs.3,20,000/-
and the interest accrued thereon, would be withdrawn in equal
shares by the 30 employees and the legal heirs of the 4 respondents
from this Court. He further submits that as regards their unpaid
wages till the date of the filing of the complaint, will be calculated
by these persons and they would tender individual affidavits to the
Liquidator. The Liquidator would then calculate the unpaid wages as
well as the retrenchment compensation and the gratuity amounts to
be paid to these respondents and after adjusting the amounts
withdrawn by these respondents, rest of the amounts would be
disbursed by the Liquidator, if any, through the bank guarantee of
Rs.3,00,000/-.
25. Considering the above stated request as regards the payment
of dues, I am, therefore, issuing the following directions to the
petitioner / Liquidator:-
(A) These 34 employees, inclusive of the legal heirs, shall
withdraw the amount of Rs.3,20,000/- along with the
accrued interest, in equal shares.
(B) Each of them will file an affidavit/undertaking along
WP/925/1995
with a recent photograph, address proof and copy of
Election Commission's voter ID or UID Aadhar card.
(C) The affidavits shall mention that if these respondents
have received more amounts than is due to be paid to them,
they would refund the excess amount within six weeks from
the date of the decision of the Liquidator.
(D) The Bank guarantee of Rs.3,00,000/- is being returned
to the Liquidator and the same shall be released from this
Court.
(E) The Liquidator shall endeavour to decide the
individual amounts to be paid as directed herein above, and
adjust the amounts withdrawn by the respondents and in
the event more amounts are to be paid, the Liquidator shall
do so, within a period of 4 months from today.
(F) The respondents shall also file their individual
affidavits before the Liquidator within three weeks from
today, indicating their unpaid wages till 28.10.1987 and the
amounts received by them. The Liquidator shall, after
calculating the retrenchment compensation and gratuity
amounts, shall proceed to make the payments.
(G) The Bank guarantee of Rs.3,00,000/- from which the
Liquidator is now being released, would be utilized for
making payments of these respondents and the said amount
shall not be utilized for any other purpose.
(H) After making the payments in the manner as directed
above, if still some more amounts remain unpaid, the
WP/925/1995
Liquidator shall endeavour to make the said payments from
the assets being liquidated, on first priority basis.
(I) Needless to state, the calculations of the legal dues of
the respondents shall be till the date of liquidation or till
the date of their superannuation, whichever is earlier.
26. Rule is made partly absolute in the above terms.
27. All pending Civil Applications, in view of the disposal of the
main petition, do not survive and stand disposed off.
( RAVINDRA V. GHUGE, J. )
...
akl/d
