Bombay High Court

M/S. Hurry Noth And Co. Pvt. Ltd vs Lokeshwar Kamgar Sanghatna And ... on 6 June, 2017

Bench: Rajesh G. Ketkar

                                           1
                                                               34.WP.8213-16.doc




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION


                      Writ Petition NO. 8213 OF 2016


M/s. Hurry Noth And Co. Pvt. Ltd.                ...Petitioner
          Versus
Lokeshwar Kamgar Sanghatna 
And Anr.                                         ...Respondents

                               ....
Mr.D.S. Hatle i/b. J.D. Pundlik, Advocate for the Petitioner.

Mr.Bennet D'Costa, Advocate for the Respondents.

Mr.Sameer Golatkar, Secretary of respondent No.1 is present.
                             ....

                               CORAM :   R. G. KETKAR, J.

                               DATE     :  06th JUNE, 2017   
JUDGMENT:

1. Heard Mr.D.S. Hatle, learned counsel for the

petitioner and Mr.Bennet D'Costa, learned counsel for the

respondents, at length.

2. By this Petition under Article 227 of the Constitution

of India, the petitioner has challenged the judgment and order

dated 26.11.2015 passed by the learned Member, Industrial

1 / 10

34.WP.8213-16.doc

Court, Thane (for short, 'Tribunal') below Exhibit-C-21 in

Complaint (U.L.P.) No.128/2011. By that order, the Tribunal

rejected the application Exhibit-C-21 made by the petitioner

inter alia praying for (a) permission to dispose of the raw

materials, semi-finished goods and scrap lying in the factory

premises of the petitioner; (b) permission to dispose of the

machineries, spare parts, equipments, stores and

consumables lying in the stores, tools and tackles and any

other material, (c) permission to release the goods /

equipments / machineries / empty gas cylinders belonging to

the customers / suppliers / vendors of the petitioner; and (d)

permission to create third party interest by way of subletting

the premises / assignments to any suitable person with a view

to availing the opportunity cost and the potentiality of the

property so as to meet the day to day expenses. The parties

will be referred hereinafter as per their status in the complaint

before the Industrial Court, Thane.

3. The complainant has instituted the complaint under

Section 28 read with Items No.1, 5 and 6 of Schedule II and

Items No.9 and 10 of Schedule IV of Maharashtra Recognition

of Trade Unions and Prevention of Unfair Labour Practices Act,

2 / 10

34.WP.8213-16.doc

1971 (for short, 'Act') inter alia praying for (a) declaration that

the respondents [(1) M/s.Hurry Noth & Co. Pvt. Ltd, (2) Mr.

Sunil Talwar and (3) Mr.Prabhakar Jhalse (Patil)] have engaged

in unfair labour practices under Items No.1, 5 & 6 of Schedule

II and Item No.10 of Schedule IV of the Act; and (b) declaration

that the closure notice dated 16.4.2011 is illegal and the

closure be removed.

4. During pendency of the complaint, the complainant

took out application Exhibit-U-2 for interim reliefs. By order

dated 17.1.2012, the Tribunal partly allowed the application

and directed the respondents not to remove the plant and

machinery, fixtures, assets in so far as the claim of the

concerned workers and not to create third party interest in the

factory premises of the company pending final disposal of main

complaint on merit. The parties were given liberty to expedite

the complaint within six months.

5. It appears that the respondents filed application

Exhibit-C-12 inter alia for permission to dispose of the raw

materials, semi-finished goods and finished goods lying in the

factory premises of respondent No.1; for releasing the goods /

3 / 10

34.WP.8213-16.doc

equipments of the customers / suppliers of respondent No.1

which has been brought for the purpose of processing; for

creating third party interest in view of subletting of the

premises / assignments to any suitable persons with a view to

availing the opportunity cost and the potentiality of the

property so as to meet the day to day expenses. By order

dated 23.7.2013, the Tribunal disposed of the application and

permitted respondent No.1 to remove the raw material and

finished goods and not to create third party interest in

immovable property pending the complaint.

6. The complainant filed application below Exhibit-U-28

seeking review of the order dated 23.7.2013 below Exhibit-U-

12. By order dated 19.8.2013, the Tribunal partly allowed

application Exhibit-U-28 and modified the order dated

23.7.2013 by restricting the relief only in respect of removal of

finished goods. The respondents were directed to deposit the

legal dues of the undisputed workers as mentioned in Exhibit-

C-11 without prejudice to the rights and contentions of both

the parties in the Court. Insofar as the relief granted under

Exhibit-U-2 in respect of removal of the plant and machinery,

fixtures, assets, and not to create any third party interest

4 / 10

34.WP.8213-16.doc

pending the final disposal of the main complaint on merits,

was continued. It is common ground between the parties that

the respondents have not challenged the orders passed below

Exhibits-U-2 and U-28.

7. Respondent No.1 thereafter filed application Exhibit-

C-21 claiming the reliefs, indicated hereinabove. By the

impugned order, the Tribunal rejected the application. It is

against this order, present Petition is instituted. In support of

this Petition Mr. Hatle submitted that the Tribunal failed to

consider that the raw material / the work in process and all

other material are perishable which is subject to the corrosion

on account of the salty weather and the value of the goods

would be diminished considerably and the petitioner would be

put to financial losses on day to day basis. The Tribunal failed

to consider that the plant and machinery is hypothecated to

the bankers, namely, the Bank of Baroda and, therefore, the

Tribunal should have allowed the petitioner to take away the

raw material, semi-finished goods and the work in process

with a view to realizing the amount involved thereof so as to

discharge the bankers partly. The Tribunal should have

allowed the petitioner to create third party interest in respect

5 / 10

34.WP.8213-16.doc

of the premises with a view to strengthening the financial

condition of the petitioner so as to meet the day to day

expenses like security charges, rent, property tax and the

charges towards the maintenance etc.

8. On the other hand, Mr. D'Costa supported the

impugned order. He invited my attention to paragraph-5 of the

impugned order.

9. I have considered the rival submissions advanced by

learned Counsel appearing for the parties. I have also perused

the material on record. Paragraph-5 of the impugned order

dated 26.11.2015 reads thus:

"5. I have heard both the sides. It appears that, the respondents were directed by passing order below Exh.U-2 not to remove plant and machinery, fixtures, assets in so far as the claim of the workers concerned and not to create third party interest in factory premises. It appears from the order below Exh.U-28 that, initially by passing order below Exh.C-12 the respondent was allowed to remove raw material and finished goods and again the order was passed on merit below application

6 / 10

34.WP.8213-16.doc

Exh.U-28 which was for review of the order dated 23.07.2013 passed below Exh.C-12 and the relief granted below Exh.U-2 in respect of removal of plant and machinery, fixtures, assets and not to create any third party interest, pending the final disposal of the main on merits was continued. The respondent no.1 were only allowed to remove finished goods only and were directed to pay legal dues of the undisputed workers. It also appears that, the respondent no.1 has come with the case that, they have concerned with only 25 workers and contended that, their dues are paid. According to the complainant, about 172 workers are unemployed. The grounds which are mentioned in para 9 of this application were also raised in earlier application Exh.C-12 by the respondent no.1. Ld. Advocate for the respondent submitted that, this application Exh.C-21 is not at all decided by my predecessor and Exh.C-23 was decided. It appears from the common order below Exh.U- 42 & Exh.C-21 dated 22.09.2015, my predecessor has discussed that, instead of challenging the order below Exh.U-2, the respondent is praying to set aside the order passed on merit by filing the application Exh.C- 21 and Exh.C-23. IT was also recorded by my

7 / 10

34.WP.8213-16.doc

predecessor to decide the matter expeditiously. According to the complainant, the affidavit of witness is already filed. They have also contended about unemployment of 172 workers. Considering these facts, it will not be desirable to allow the application. The prayer in Clause (c) in the application pertaining to relief of gas cylinders is already allowed by my predecessor by passing order below Exh.U-42 and Exh.C-21. For the reasons stated above,

the application is requires to be rejected."

10. A perusal of the above extracted paragraphs shows

that the Tribunal rejected the application principally on the

ground that the respondents did not challenge the order dated

17.1.2012 below Exhibit U-2 and the order dated 19.8.2013

below Exhibit U-28. In other words, the Tribunal was of the

view that the order passed below Exhibit U-2 will stand set

aside if the application Exhibit C-21 is allowed. For the

reasons recorded in paragraph-5 of the impugned order, I do

not find any fault in the approach of the Tribunal.

11. Mr. Hatle submitted that the perishable articles are

lying in the factory premises of the respondents and by

delaying the complaint, its value will be diminished

8 / 10

34.WP.8213-16.doc

considerably. He submitted that though the complaint is

pending since 2011 and the Tribunal has directed the parties to

expedite the hearing, there is no substantial progress in the

trial. He, therefore, submitted that the Tribunal may be

directed to dispose of the complaint within three months from

receipt of the authenticated copy of this order.

12. Mr. D'Costa submitted that the complainant has

taken inspection of the documents from the respondents. He

will furnish list of documents, of which inspection is taken, to

be produced by the respondent. Upon taking instructions from

Mr.Sameer Golatkar, Secretary of the complainant who is

present in Court, Mr. D'Costa states that the complainants will

examine four or five witnesses. Mr. Hatle states that

respondent No.1 will examine one of the Directors of the

Company. Both the parties agreed that they will extend full co-

operation for expeditious disposal of the complaint before the

Tribunal.

13. In the light of the aforesaid discussion, the Petition is

disposed of in the following terms :

(i)      Impugned order is upheld.


                                                                            9 / 10





                                                                   34.WP.8213-16.doc

(ii) The Industrial Court is requested to dispose of Complaint

(U.L.P.) No. 128/2011 as early as possible and not later

than six months from production of authenticated copy of

this order.

(iii) Both the parties shall co-operate for expeditious disposal

of the complaint.

(iv) It is made clear that the observations made herein are

only for the purpose of finding out the correctness of the

impugned order. All contentions of the parties on merits

are expressly kept open.

(v) The Industrial Court will decide the complaint

uninfluenced by the observations made herein.