Bombay High Court
Ankush M. Bhabal And 8 Others vs M/S. Agarwal Traders Mumbai And ... on 22 November, 2017
Bench: R.M. Savant
app-270-10(204)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 270 OF 2010
IN
WRIT PETITION NO.1977 OF 2006
1 Ankush M Bhabal )
Shivshankar Nagar Salt Pan Road )
Wadala (e) Mumbai 400 037 )
2 Smt. Laxmi Maruti Bhabal )
Widow of late Shri Maruti Bhabal )
Residing at Room No.105, )
First floor, "A" Wing )
Swarganga Apartments Sector-18 )
Kamothe Khandeshwar )
Navi Mumbai 410 209 )
3 Vijay Dattatraya Yeram )
A/90, Shastri Nagar, Sion Koliwada)
Mumbai 400 022 )
4 Sadanlal Mahabir Mali )
Silver Dukes B No. Room 203 )
Prabhadevi, Hathiskar Marg, )
Mumbai 400025 )
5 Suryakant Laxman Bhabal )
Shivshankar Nagar Salt Pan Road )
Wadala (e) Mumbai 400 037 )
6 Madhukar Atmaram Lakeshri )
Baramden Rami Chawl )
Jawahar Nagar, Sai Baba Road, )
Khat (E) Mumbai 400051 )
7 Naseer Abbas Mullah )
Municipal Pathra Chawl )
Chawl No.43, Room No.4 )
Byculla Mumbai 400011 )
8 Smt Pratikha Prakash Ghavale )
Widow of late Shri Praksh Ghavale )
Lokmanya Co-operative Housing )
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app-270-10(204)
Society, Plot No.526, Room No.22 )
Charkop, Kandivali (West), )
Mumbai 400067 )
9 Smt. Shaila Dattatray Kharkar )
widow of late Shri Dattatray Kharkar)
G-8(96) Hiraji Baug Wadi )
Chawl No.8, Jakeria Bunder Road, )
Sewri, Mumbai 400015 ) ..Appellants
(original Respondents)
versus
1 M/s. Agarwal Traders )
proprietor of Navyug Processes )
12, D.D. Sathe Marg, Girgaum )
Mumbai 400 004 )
2(i) Rajeev Banwarilal Jalan )
703, Shanti Heights, )
G. D. Ambedkar Raod, Mumbai-31 )
(ii) Mrs. Manjuladevi V. Roongta )
42, Sonarica, 33-A, Pedder Road )
Mumbai 400 026 )
3 Manoj Banwarilal Jalan )
Legal heir, 12,D. D. Sathe Marg, )
Girgaum Mumbai 400 004 ) ..Respondents
Mr.Mahesh Shukla for the Appellants
Mr. S. K. Talsania Senior Advocate a/w Mr. Kiran Bapat i/b Desai & Desai
CORAM :R. M. SAVANT, &
SARANG V KOTWAL, JJ
DATE : 22nd NOVEMBER, 2017
ORAL JUDGMENT (PER R.M.SAVANT J.)
1 The above Appeal challenges the judgment and order dated
22-7-2008 passed by a Learned Single Judge of this Court S. A. Bobde J., (as
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His Lordship then was). By the said order, the above Writ Petition No.1977 of
2006 came to be allowed and resultantly the judgment and order dated 6-6-
2006 holding the Respondents herein who were the Petitioners guilty of unfair
labour practices under Item 6 of Schedule II and Item 9 of Schedule IV of the
MRTU & PULP Act, 1971, came to be set aside.
2 The factual martix involved in the above Appeal can in brief be
stated thus. The Appellants herein are the workers who were working at the
relevant time with the Respondent No.1. The Respondent No.1 was a
partnership firm engaged in the business of job work of calendaring and
packaging of cloth. The Respondent No.1 had its factory at Sewri, Mumbai.
The land on which the factory of the Respondent No.1 was situated was a
subject matter of acquisition for the purposes of the Bombay Electric Supply
Undertaking (BEST for short). The said acquisition, it seems was completed in
the year 1993 and as a consequence of the acquisition the factory of the
Respondent No.1 was demolished on 13-7-1993.
3 The Respondent No.1 issued a notice on 12-7-1993 of the
intended lock out from 26-7-1993 for the acts of certain workmen which
according to the Respondent No.1 was adversely affecting the working of the
Respondent No.1. However, before the intended lock out could take place on
26-7-1993, the structure wherein the factory of the Respondent No.1 was
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situated, came to be demolished on 13-7-1993 by the BEST authorities. It is
upon this that the Respondent No.1 offered the dues to the workmen on
account of its closure. It seems that some of the workmen accepted the dues
whilst others did not. In view of the fact that a closure had taken place on
account of the events which have transpired after notice dated 12-7-1993 was
issued by the Respondent No.1, the Appellants herein a good 7 years after the
said closure on 30-8-2000 filed a Complaint purporting to espouse their own
cause as also cause of the other workmen of the Respondent No.1 totalling in
number 76. The said Complaint was filed invoking unfair labour practice
under Item 6 of Schedule II and Item 9 of Schedule IV of the MRTU & PULP
Act, 1971. The gravamen of the case of the complainants in the said
complaint was that the closure effected by the Respondent No.1 is in the guise
of lock out and was therefore in contravention of the Section 25(O) of the
Industrial Disputes Act. It was therefore the case of the complainants that the
said closure is illegal and that the contract of employment continues and
therefore the Respondent No.1 was liable to pay wages till the contract of
employment was terminated. It seems that since there was a delay of about 7
years in filing the complaint, the Industrial Court condoned the delay and set
upon to adjudicate the said complaint.
4 The Respondent No.1 herein filed its Written Statement and
placed on record the factum of the closure taking place in view of the
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acquisition of the land and the demolition of the structure on 13-7-1993. It
was the case of the Respondent No.1 in the Written Statement that it had
offered to pay closure compensation to the workmen some of whom had
accepted and some of whom had refused to do so.
5 The Industrial Court on the basis of the pleadings framed issues
amongst which was the issue of whether the complainants prove that the
Respondents have committed unfair labour practice under Item 6 of Schedule
II and Item 9 of Schedule IV of the MRTU & PULP Act, 1971 and to what relief
the complainants were entitled to.
The parties adduced evidence in support of their respective
assertions made vide their pleadings in the complaint as well the Written
Statement. The Industrial Court on the basis of the material on record came to
a conclusion that though the Respondent No.1 was very much aware of the
acquisition of the land which was going on since 1986 and was aware of the
fact that the structure was likely to be demolished, had not informed the
workmen of the same. The Industrial Court therefore was of the view that the
said conduct of the Respondent No.1 shows that the notice of lock out dated
12-7-1993 was a ruse adopted by it. The Industrial Court observed that since
the contract of employment has not been terminated by the Respondent No.1,
the same continues and could only come to an end either on account of
termination or retirement. The Industrial Court was therefore of the view that
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the Respondent No.1 was liable to pay wages to the workmen from 12-7-1993
till contracts of employment with the individual workmen come to an end.
The Industrial Court accordingly recorded a finding that the Respondent No.1
had committed an unfair labour practices under Item 6 of Schedule II and Item
9 of Schedule IV of the MRTU & PULP Act, 1971. The Industrial Court
resultantly directed the payment of wages and legal dues to the complainants
and the other workmen concerned till the subsistence of the contract of
employment.
6 The Respondent No.1 aggrieved by the said judgment and order
dated 6-6-2006 passed by the Industrial Court challenged the same by way of
filing a Writ Petition in this Court being Writ Petition No.1977 of 2006. As
indicated above the said Writ Petition came to be allowed by a Learned Single
Judge of this Court by judgment and order dated 22-7-2008. The sum and
substance of the reasoning of the Learned Single Judge whilst allowing the
Writ Petition was the finding recorded by the Learned Single Judge that the
closure of the establishment of the Respondent No.1 has taken place on
account of the acquisition of the land of the Respondent No.1 and
consequently demolition of the factory building of the Respondent No.1 and
not on account of any voluntary act pursuant to the notice dated 12-7-1993.
The Learned Single Judge was of the view hat the applicability of Section
25(O) was also in question as there was no material placed on record to
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establish the existence of more than 76 workmen and therefore the provisions
of Chapter VB which include Section 25 of the Industrial Disputes Act was not
applicable. The Learned Single Judge has however, molded the reliefs by
directing the Respondent No.1 to pay the closure compensation to the
workmen and also to pay interest @12% p.a. from 13-7-1993 till the date the
amount is deposited by them before the Industrial Court, as directed by the
impugned judgment and order. As indicated above, it is the said judgment and
order dated 22-7-2008 passed by the Learned Single Judge which is taken
exception to by way of the above Appeal.
7 Heard the Learned Counsel for the parties.
8 The Learned Counsel appearing on behalf of the Appellants Mr.
Shukla would seeking to re-urge the contentions which were urged before the
Learned Single Judge namely that since there was no ceasation of the contract
of employment, the said contract continued and therefore the complainants
were entitled to wages till the subsistence of their employment. The Learned
Counsel would submit that the workmen were kept in the dark in so far as the
acquisition is concerned and therefore in view of the demolition which has
taken place on 13-7-1993 they have been left in the lurch by the Respondent
No.1 on account of the fact that they could not take any steps to protect their
employment. It was also the submission of Mr. Shukla that the Respondent
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No.1 being aware of the acquisition being adopted in respect of the land of the
Respondent No.1 ought to have made arrangements to shift their business
activities to some other place.
9 Per contra, the Learned Senior Counsel Mr. Talsania appearing for
the Respondents would support the impugned order passed by the Learned
Single Judge. The Learned Senior Counsel would contend that the closure of
the Respondent No.1 has taken place on account of the demolition of the
factory premises which has taken place pursuant to the acquisition of the
property of the Respondent No.1 and therefore the closure can be said to be
not on account of any voluntary act of the Respondent No.1 but by operation
of law. The Learned Senior Counsel would submit that the Industrial Court
had erred in recording a finding that the contract of employment subsist
notwithstanding the fact that the factory premises have been demolished
pursuant to the acquisition which has resulted in the closure and thereby
bringing to an end the contract of employment.
10 We have heard the Learned Counsel for the parties and have
considered the rival contentions. The question that is posed is whether the
closure which has taken place of the Respondent No.1 can be termed to be
illegal so as to covered by under Item 6 of Schedule II and Item 9 of Schedule
IV of the MRTU & PULP Act, 1971. It is in the context of the said issue that a
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few facts would have to be revisited. The fact that the property of the
Respondent No.1 was under acquisition for the public purpose of the BEST,
cannot be disputed. The said acquisition seems to have commenced in the
year 1986 and seems to have culminated in the year 1993. It is just before the
culmination of the acquisition of proceedings that notice of lock out came to
be issued on 12-7-1993s by the Respondent No.1 and the intended lock out
was to take place on 26-7-1993. However, there is no dispute about the fact
that on 13-7-1993 the structure of the factory of the Respondent No.1 came to
be demolished by the acquiring body. It is therefore on account of the
demolition of the factory of the Respondent No.1 pursuant to the acquisition
proceedings that the closure in effect has taken place. The Learned Single
Judge was therefore right in coming to a conclusion that the closure had taken
place on account of the acquisition of the premises and the demolition of the
factory of the Respondent No.1. The close proximity of the notice of lock out
of the demolition on 13-7-1993 can be said to be a coincident as otherwise the
only corollary to the acquisition of a property is that the property vests in the
State free from all encumbrances.
11 Now coming to the contentions of the Learned Counsel appearing
on behalf of the Appellants Mr. Shukla that the workmen were not aware of
the acquisition proceedings and that on account of the demolition of the
acquisition proceedings that they were left in the lurch.
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12 In so far as the said aspect is concerned, it is required to be noted
that the Sarva Shramik Sangh who was espousing the cause of workmen had
filed a Writ Petition No.1106 of 1993 in this Court challenging the said
acquisition proceedings. In the context of the above Appeal prayer clauses (B)
and (C) of the said Petition are material and which are produced hereinunder:
(B) To hold and declare that the decision of the
Respondent No.3 to evict the Respondents 4 and 5
would resulting violation of Section 25-O of the
Industrial Disputes Act, 1947.
(C) To restrain the Respondents 4 and 5 from
closing down the undertaking and factory in
violation of Section 25-O of the Industrial
Disputes Act, 1947 and without the permission of
the State of Maharashtra under the said
provisions.
13 Hence the Petitioner Sarva Shramik Sangh which was a union was
very well aware of the consequences of the acquisition and had therefore
sought reliefs in the context of Section 25(O) of the Industrial Disputes Act.
Hence the filing of the said Writ Petition by the said Sarva Shramik Sangh and
the reliefs prayed therein belies the case of the Appellants herein that they
were not aware of the acquisition proceedings. In our view, therefore, the
situation which has developed was such that it was beyond the control of
either the Respondent No.1 or the workmen, in view of the acquisition of the
land and demolition of the factory premises of the Respondent No.1. The
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Learned Single Judge was therefore right in coming to a conclusion that the
severance of contract of employment had occurred on account of closure
which has taken place pursuant to the acquisition of the land and demolition
of the factory premises. In our view therefore, there is no merit in the
submission that the notice of lock out was a ruse adopted by the Respondent
No.1 to close down the establishment. If that be so there is no question of the
Respondents having committed any unfair labour practice with the meaning of
Item 6 of Schedule II and Item 9 of Schedule IV of the MRTU & PULP Act,
1971.
14 We are informed at the bar by the Learned Senior Counsel Mr.
Talsania that the amounts as directed by the Learned Single Judge have been
deposited in the Industrial Court which amounts has also been withdrawn by
the concerned workmen. The said fact is not disputed by the Learned Counsel
Mr. Shukla appearing for the Appellants / workmen. In that view of the
matter, there is no merit in the above Appeal which to accordingly stand
dismissed.
[SARANG V KOTWAL, J] [R.M.SAVANT, J]
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