Bombay High Court
Sarva Shramik Sangh vs Saint Martin Hospital And Anr on 11 May, 2017
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.663 OF 2000
Sarva Shramik Sangh,
"Shramik" Tilak Road,
Ahmednagar.
Through its Secretary.
...PETITIONER
-VERSUS-
1 Saint Martin Hospital,
A/p. Kolhar (Bk.),
Tq.Shrirampur, District Ahmednagar.
Through its Managing Trustee.
2 Member, Industrial Court,
Ahmednagar.
(Deleted vide order dated 30.06.2002).
...RESPONDENTS
...
Shri A.S.Shelke, Advocate for the Petitioner.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 11th May, 2017
Oral Judgment :
1 The Petitioner Union representing nine employees mentioned
in Annexure-A to the petition, is aggrieved by the judgment of the
Industrial Court dated 30.09.1999 by which Complaint (ULP)
No.379/1989 though has been allowed, monetary benefits till the date of
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the impugned judgment were not granted.
2 This Court admitted this petition on 03.06.2002 and refused
interim relief to the Petitioner. Despite service of court notice, none
appears for the Respondent.
3 I have heard the strenuous submissions of the learned counsel
for the Petitioner, who contends that as formal closure of the Respondent
Hospital was not declared, 09 employees would be entitled for continued
wages as under the Industrial Disputes Act, 1947, a formal closure alone
would severe the employee-employer relationship between the Petitioner
and the Respondent.
4 It is trite law that the Establishment/ Industry has to declare a
formal closure which would result in the discharge of the employees. Such
employees would then be entitled for legal dues including discharge
compensation which is equivalent to retrenchment compensation.
5 However, I find that the Industrial Court by the interim order
dated 27.11.1989 had directed the Respondent/ Establishment to pay all
arrears of salaries to the employees at issue from September, 1989
onwards. It was further directed that the Respondent/ Establishment
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would pay salaries to all employees as long as they are in employment in
future. The Respondent was given the liberty to terminate the services of
the employees by following the due procedure of law.
6 The learned counsel for the employees submits that the
interim order of the Industrial Court dated 27.11.1989 was implemented
only to the extent of payment of arrears of salaries. However, salaries after
the date of the interim order till the date of the impugned judgment were
not paid.
7 The Industrial Court, while dealing with the complaint finally,
has noted that evidence was adduced on behalf of the workers that the
last working day of these workers with the Respondent/ Establishment
was 04.12.1990. The Industrial Court also noted from the oral and
documentary evidence that no doctor was appointed in the Respondent
Hospital and except the watchman, who was guarding the property,
nobody was visiting the hospital. Though these employees have stated in
oral evidence that they were not terminated, it was proved that the last
working day of these workers was 04.12.1990 and they were paid salaries
less than minimum wages as were prescribed at the relevant time. Based
on such evidence, the Industrial Court concluded that since the entire
activities of the hospital were stopped by 04.12.1990, the said date could
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be presumed to be the discharge date of these workers and closure of the
Establishment. Since closure compensation and wages from November,
1989 to November, 1990 were not paid, the Industrial Court directed the
Respondent/ Establishment to pay closure compensation which is akin to
the calculations of retrenchment compensation as well as unpaid wages
and all retiral benefits.
8 It is not disputed that after 04.12.1990, the hospital has
become completely dysfunctional.
9 Considering the peculiar facts as recorded above and the
statement made by the witness of the workers that the last working day
was 04.12.1990, I do not find any reason to conclude that the impugned
judgment is perverse or erroneous merely because a different or second
view is possible in the matter.
10 This Writ Petition is, therefore, dismissed. Rule is discharged.
11 However, it is observed that the Respondent/ Establishment
shall accordingly, calculate entire closure compensation, unpaid wages,
difference of minimum wages and all retiral dues including gratuity
payable to these workers and pay the same within a period of EIGHT
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WEEKS from today, failing which the said amount would carry interest at
the rate of 6% per annum from the judgment of the Industrial Court.
12 The Petitioner is at liberty to serve the copy of this judgment
on the Respondent and take recourse to such steps as are permissible in
law for recovery of amount, if the above direction is not complied with by
the Respondent.
kps (RAVINDRA V. GHUGE, J.)
