Gujarat High Court

Devtadin Zurai Yadav vs Manager on 4 February, 2022

Bench: Nirzar S. Desai

C/SCA/10724/2018                             CAV JUDGMENT DATED: 04/02/2022




           N THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 10724 of 2018

                                With

            R/SPECIAL CIVIL APPLICATION NO. 10548 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10546 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10580 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10579 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10578 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10577 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10554 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10552 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10551 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10550 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10549 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10547 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10555 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10553 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10584 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10581 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10587 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10588 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10585 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10586 of 2018
                                With
            R/SPECIAL CIVIL APPLICATION NO. 10582 of 2018




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     C/SCA/10724/2018                             CAV JUDGMENT DATED: 04/02/2022



FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIRZAR S. DESAI               Sd/-
==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2      To be referred to the Reporter or not ?                       NO

3      Whether their Lordships wish to see the fair copy             NO
       of the judgment ?

4      Whether this case involves a substantial question             NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== DEVTADIN ZURAI YADAV Versus MANAGER & 2 other(s) ========================================================== Appearance:

MR PRABHAKAR UPADYAY(1060) for the Petitioner(s) No. 1 MR.K.M.PATEL, SR ADVOCATE with MR VARUN K.PATEL(3802) for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 04/02/2022

CAV JUDGMENT

1. As the issue involved in this group of petitions is

common and as the orders under challenge in this group

of petitions are the common orders passed by the Labour

Court as well as the Industrial Court, all these matters

are heard together and are decided together.

1.1 Rule. Learned advocate Mr.Varun Patel waives

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

service of notice of rule on behalf of the respondents. By

consent of the learned advocates appearing for the

respective parties, the matter is taken up for final

hearing.

2. Both the learned advocates, viz. Learned advocate

Mr.Prabhakar Upadhyay for the petitioner as well as

learned senior advocate Mr.K.M.Patel assisted by learned

advocate Mr.Varun Patel for the respondents have jointly

submitted to treat Special Civil Application No.10724 of

2018 as lead matter in this entire group of petitions and

both of them have relied upon and referred to annexures

of the aforesaid Special Civil Application No.10724 of

2018 and requested this Court to treat Special Civil

Application No.10724 of 2018 as lead matter and hence

the facts are taken from Special Civil Application

No.10724 of 2018. All the petitioners in this group of

petitions who are workers of Ahmedabad New Cotton Mill

No.2 ('Mill Company', for short) were working in weaving

department of the said mill. Ahmedabad New Cotton Mill

No.2 is joined as Respondent No.1 in the group of

petitions as Manager and will be referred to hereinafter

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

as 'mill company'.

2.1 By way of this group of petitions, the petitioners

herein have challenged the impugned common order

dated 06.02.2013 passed by the learned Presiding Officer,

Labour Court No.4, Ahmedabad in Application No.249 of

1997 and allied matters (below Exh.46) whereby the

Labour Court, Ahmedabad dismissed group of BIR

Application No.249 of 1997 and 34 allied matters wherein

the present petitioners prayed for quashing and setting

aside the order of their termination and further prayed

for their reinstatement with back-wages and all

consequential benefits. The aforesaid common oral order

dated 06.02.2013 passed by the learned Presiding Officer,

Labour Court No.4, Ahmedabad was carried in appeal

before the Industrial Court at Ahmedabad by way of an

Appeal (IC) No.9 of 2013 to Appeal (IC) No.38 of 2013

below Exh.7 by the present petitioners who are

appellants therein and the Member, Industrial Court,

Ahmedabad vide order dated 24.01.2014 dismissed all the

appeals and, therefore, being aggrieved by and

dissatisfied with these two orders, petitioners have, by

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

way of writ petition under Article 226 and 227 of the

Constitution of India, challenged the aforesaid common

orders and prayed for quashing and setting aside of both

the impugned orders referred to hereinabove by issuance

of writ of certiorari or any other appropriate writ, order

or direction.

3. Brief facts leading to the filing of the present group

of petitions are stated as under:

3.1 The present petitioners were appointed in weaving

department of the respondent mill company and

according to the petitioners they continuously worked

with the mill company till the mill company closed down

the production activities and worked till their termination

continuously. It is the case of the petitioners that the

respondent mill company closed down the production

activities illegally with effect from 10.02.1995 and the

services of the petitioners came to be illegally terminated

with effect from 17.01.1997 and the present petitioners

sent the approach letter dated 04.03.1997 to the

respondent mill company by RPAD under Section 42(4) of

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

Bombay Industrial Relation Act, 1946 ('BIR Act', for

short). As the respondent mill company closed down its

production activities from 10.02.1995, it approached the

Board for Industrial and Financial Reconstruction under

the provisions of Sick Industrial Companies (Special

Provisions) Act, 1985 ('SICA', for short), which came to

be registered as Case No.18 of 1995. The BIFR was

pleased to pass an order dated 16.10.1996 whereby the

rehabilitation scheme of the mill company was

sanctioned. In view of the order dated 16.10.1996 passed

by the BIFR, a settlement was arrived at between the mill

company and the Textile Labour Association (TLA) under

the provisions of Gujarat Industrial Relations Act, 1946

and settlement was recorded in Reference (IC) No.1 of

1997 before the Industrial Court at Ahmedabad. In view

of the aforesaid settlement, which was arrived at on

08.01.1997 and the order dated 16.10.1996 passed by the

BIFR, the present petitioners were issued termination

order dated 17.01.1997 by the mill company and,

therefore, it is the case of the petitioners that in view of

section 42(4) of Gujarat Industrial Relation Act, 1946

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

when they sent an approach letter dated 04.03.1997 by

way of RPAD to the mill company, within a period of six

months from the date of their termination, it was well

within time prescribed under the Act.

3.2 The petitioners thereafter preferred an application

under Section 78/79 of the BIR Act, 1946 before the

Labour Court, which came to be registered as B.I.R.

Application No.249 of 1997 and allied matters. In the

aforesaid applications, it was alleged that the mill

company had stopped production from 10.02.1995 and

though the petitioners were regularly going to mill

company as per their shift, their presence were not

marked in the muster roll and they were not paid salary

as per their entitlement. It was alleged that the aforesaid

action of the respondent mill company would amount to

illegal closer of the company and, therefore, the

respondent mill company is required to pay full salary for

the said period and, therefore, they may be reinstated on

their original posts with back-wages and all consequential

and incidental benefits.

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

3.3 After the pleadings were over, after leading the

evidence, learned Presiding Officer, Labour Court No.4,

Ahmedabad vide its order dated 06.02.2013 dismissed

BIR Application No.249 of 1997 and allied matters which

was confirmed vide order dated 24.01.2014 passed in

Appeal below Exh.7 by the Industrial Court, Ahmedabad

which are under challenge by this group of petitions.

4. Heard learned advocate Mr.Prabhakar Upadhyay for

the petitioners and learned senior advocate Mr.K.M.Patel

assisted by learned advocate Mr.Varun Patel for the

respondent No.1 Mill company.

5. Learned advocate Mr.Prabhakar Upadhyay

submitted that one of the reasons weighed with the

Labour Court to dismiss the application preferred by the

petitioners was that the petitioner did not send approach

letter within the period of six months as contemplated

under the provisions of BIR Act, 1946 and, therefore, the

application sent by the petitioners was barred by

limitation. He submitted that the aforesaid findings of the

Labour Court are bad and the Labour Court has failed to

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

appreciate the fact that, in any way, the petitioners'

services could not have been terminated with effect from

10.02.1995. In support of the aforesaid contention

Mr.Upadhyay submitted that the BIFR was pleased to

pass an order dated 16.10.1996 in Case No.18 of 1995

whereby the rehabilitation Scheme of the mill company

was sanctioned. In the order dated 16.10.1996 the

provisions are made for the employees and as per

Para:F(v) [Page:132 of the compilation] of the said order

during the closer period of the mill company with effect

from 1995 till the sanction of the scheme, the workers

would not claim any wages / compensation. As per the

settlement dated 08.01.1997, it was decided that the

workers, whose names are there on the muster roll of the

mill company on 10.02.1995, would be granted benefits

as per the sanctioned scheme. The respondent mill

company, after taking into consideration the order dated

16.10.1996 and settlement dated 08.01.1997, passed the

order dated 17.01.1997 whereby the services of the

workmen were terminated with retrospective effect i.e.

from 10.02.1995. In view of the aforesaid order dated

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

17.01.1997, the present petitioners were paid certain

amount by the mill company which they accepted without

prejudiced to the rights and contentions to challenge the

order of termination dated 17.01.1997. It is submitted by

Mr.Upadhyay that when the order of termination was

issued on 17.01.1997 terminating the services of the

petitioners with effect from 10.02.1995, the limitation

would start from the date of the order and not from the

date of termination. Mr.Upadhyay submitted that conjoint

reading of section 42(4) of the Gujarat Industrial

Relations Act, 1946 read with Rule 53 of Bombay

Industrial Relation (Gujarat) Rules, 1961 would clearly

indicate that the application for change in respect of

orders passed by the employer under the Standing Order

be made within six months from the date on which such

order is passed and, therefore, the Labour Court,

Ahmedabad committed error by treating the notice of

change given by the present petitioner to the respondent

mill company as time barred though the same was sent

very much well within time. Therefore, the order passed

by the Labour Court confirmed by the Industrial Tribunal

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

is bad and contrary to the provisions of law and,

therefore, deserves to be quashed and set aside. He

submitted that the Labour Court has arrived at finding

that the cause of action had arisen on 10.02.1995, is

factually incorrect as on 10.02.1995 no employees were

even knowing that their services are terminated. For the

first time by way of order of termination dated

17.01.1997, the petitioners came to know about their

termination with retrospective effect from 10.02.1995

and, therefore cause of action can be said to have started

from 17.01.1997 and not from February, 1995 and,

therefore, approach letter dated 04.03.1997 issued by the

petitioners to the mill company was well within time and,

therefore, the impugned orders are bad in law and

deserves to be quashed and set aside.

5.1 Mr.Upadhyay then submitted that the Labour Court

as well as Industrial Tribunal have committed an error by

dismissing the application and appeal preferred by the

present petitioners on the ground that petitioners and

other co-workers have not obtained any prior permission

from BIFR under Section 22(1) of SICA Act, 1985. He

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

relied upon section 22 of the SICA which reads as under:

"22. (1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof 31 [and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company] shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority."

5.2 By relying upon the language of section 22 of the

SICA, it was submitted by learned advocate Mr.Upadhyay

that provisions of section 22(1) of SICA would be

applicable only in the cases where the proceeding is

pending for execution, distress or like against any

property of the company or appointment of Receiver in

respect thereof or recovery of suit or for enhancement of

any security against the industrial company. There was

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

no execution proceeding which was pending either by the

petitioner or co-workers against the mill company and,

therefore, provisions of section 22(1) of the SICA 1985

would not be applicable in the facts of the present case

and, therefore, no prior permission was required from

BIFR before filing an application before the Labour Court

by the petitioners. He submitted that Labour Court has

wrongly relied upon the judgment in the case of Morarji

Desai Textile Labour Co Operative Industries Limited vs.

Thakorebhai Dhulabhai Patel reported in 2003 (2) LLJ

129 as the facts of that case and facts of the present case

are different. In the case of Morarji Desai (supra) it was

the case related to issue in respect of recovery of wages

from mill company which is not the case here and,

therefore, the ratio laid down in case of Morarji Desai

(supra) would not be applicable in the facts of the

present case and, therefore, the Labour Court has

wrongly relied upon the same. Mr.Upadhyay further

relied upon the case reported in 1993 (2) SCC 144 in

the case of Maharashtra Tubes vs. State Industrial and

Investment Corporation of Maharashtra Limited, more

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

particularly paras:10 and 12 of the said judgment.

5.3 Learned advocate Mr.Upadhyay submitted that

respondent mill company has illegally closed down the

company without following due procedure as

contemplated under the provisions of Chapter - V-B of the

Industrial Disputes Act, 1947 ('ID Act', for short). He

submitted that as contemplated under Section 25(O) of

the 'ID Act', the mill company was required to obtain

permission from the competent authority by following due

procedures. He submitted that respondent mill company

has also failed to comply with the provisions of Section

25(N) of the 'ID Act'. The aforesaid provisions of section

25 (O) and 25 (N) of the 'ID Act' being mandatory

provisions which are violated by the respondent mill

company, the closure of the mill is illegal. However,

though the aforesaid aspects were pointed out to the

Labour Court as well as Industrial Court, both the Courts

below have not taken aforesaid aspects into consideration

in its true perspective. In support of the aforesaid

contention, learned advocate Mr.Upadhyay relied upon

the judgments of the Hon'ble Supreme Court in the case

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of Hindustan Wire Products Limites vs. Jaspan Singh

reported in 2002 (9) SCC 758 and in case of Oswal Agro

Furane Ltd. vs. Oswal Agro Furane Workers Union

reported in 2005 (3) SCC 224. He submitted that both

the Courts below ought to have taken into consideration

the facts that petitioners of these petitions have not

tendered voluntary resignation and, therefore, there is

violation of section 25G and 25H of the 'ID Act' which has

not been properly considered by both the Courts below.

He submitted that both the Courts below were required

to take into consideration section 25(SS) as amended by

Gujarat Act, 20 of 1984 dated 20.10.1972. According to

Mr.Upadhyay findings recorded by the Labour Court,

which are confirmed by the Industrial Court, are contrary

to provisions under Section 25(SS) of the 'ID Act'.

5.4 By making aforesaid submissions Mr.Upadhyay

prayed for quashing and setting aside the orders

impugned in this group of petitions and praying for

allowing these petitions.

6. Per contra, learned senior advocate Mr.K.M.Patel

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

appearing with learned advocate Mr.Varun Patel

submitted that by agitating the issue about application

preferred by the present petitioners were not time barred

as the order of termination was passed by the respondent

no.1 Mill company on 15.01.1997, the petitioners are

trying to mislead this Court. He submitted that there are

concurrent findings of facts by the labour Court which are

confirmed by the Industrial Court. The applications

preferred by the petitioners were not maintainable as

they are time barred. It is the finding of fact by labour

Court as confirmed by the Industrial Court that workmen

did not give approach letter as required by proviso to

Section 42(4) of the Gujarat Industrial Relations Act,

1946 read with section 53 of Bombay Industrial Relation

(Gujarat) Rules, 1961, within a period of six months. Both

the courts below, after appreciating the pleadings and

oral as well as documentary evidence, have concurrently

held that the cause of action for the relief prayed for was

arisen for the first time on 10.02.1995. He submitted that

according to the averments made in the pleadings by the

workmen themselves mill was closed down on 10.02.1995

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

without paying them legal dues. He submitted that it was

the case of the workmen that they were not paid any

wages and their presence were not marked from the year

1995. He submitted that in view of the aforesaid

pleadings and averments, the approach letter ought to

have been sent by the petitioners within six months from

10.02.1995, which was actually given on 12.03.1997. He

submitted that just to make the applications preferred by

the petitioners within time frame, the petitioners are

referring to communication dated 17.01.1997, which is

nothing but a payment advice regarding the amount

payable as per the BIFR Scheme. He submitted that the

petitioners were very well aware about the fact that there

is no provision of condonation of delay as per the scheme

of the Bombay Industrial Relations Act, 1946 and,

therefore, to bring the application preferred by the

petitioners within limitation, it is conveniently canvassed

by the petitioners that vide communication dated

17.01.1997, their services were terminated with

retrospective effect from 10.02.1995. Learned Senior

Advocate Mr.Patel took this Court to the language of

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

communication dated 17.01.1997 which is heavily relied

upon by the petitioners and from aforesaid submission

pointed out that the aforesaid communication refers to

scheme sanctioned by the BIFR under the SICA and it

refers to entitlement of the benefits payable to the

petitioners. He drew attention of this Court to the

language of the communication dated 17.01.1997

whereby in the beginning, it is categorically stated that

the petitioners have already been discharged from the

services and on page:181 against the column date

'discharge from service' it is specifically stated " from

10.02.1995 as per the scheme approved by BIFR". On the

basis of the aforesaid communication dated 17.01.1997,

learned senior advocate submitted that since the

aforesaid communication is only a payment advice and

given details about the calculation of the benefits

available to the petitioners as per their entitlement, the

same cannot be treated as an order of termination and,

therefore, it cannot be construed that cause of action

arose from 17.01.1997. The aforesaid communication is

nothing but payment advice in consonance with the

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scheme under SICA approved by BIFR. Mr.Patel

thereafter took this Court to the application preferred

under Section 78 / 79 of the BIR Act and by referring to

Annexure - A application No.249 of 1997 preferred by

Devtadin Yadav referred to the averments made in Para:2

of the said application and submitted that it is

categorically stated in para:2 by the petitioners that

production activities of mill were closed down from

10.02.1995. He submitted that though in the application

it is alleged that though the petitioners were regularly

attending the mill, they were not given any wages and

their presence were not marked in the muster roll. By

pointing out to the aforesaid averments made in the

application, learned senior advocate submitted that Act

contemplates straight jacket formula for availing remedy

for redressal of grievances i.e.

i. Approach letter within six months from that of cause

of action [ Rule 53(1) ].

ii. 15 days for arriving at settlement [ Rule 53 (2) ]

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

iii. If no settlement is arrived at, application to Labour

Court within 3 months of arising of dispute [ section

79 (3) (a)].

iv. The dispute is deemed to have arisen if no

agreement is arrived at within the prescribed period

i.e. 15 days [ Explanation to section 78 (1) (C) ].

6.1 By making aforesaid submissions, learned senior

advocate Mr.K.M.Patel submitted that by clever drafting

the actual or real cause of action cannot be permitted to

bring the application wihtin time frame provided under

the Act as the actual or real cause of action is required to

be seen and submitted that therefore both the Courts

below have rightly dismissed the petition as having been

time barred.

6.2 Thereafter learned senior advocate Mr.Patel

submitted that in the instant case, vide the scheme of

rehabilitation to take over the textile mill of Ahmedabad

New Cotton Mill by Ashima Group was sanctioned by

BIFR on 16.10.1996. The scheme envisaged

rationalization of surplus labour force on payment of legal

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

dues. As per the scheme, all the existing equipment of

weaving or processing department were to be sold.

Meaning thereby, the scheme envisaged closure of

weaving and processing department. Pursuant to the

sanctioned scheme, the Respondent No.1 mill company

entered into settlement with Textile Labour Association

on 08.01.1997 and an award was made by the Industrial

Court in terms of settlement arrived at between

Respondent No.1 and Textile Labour Association in

Reference (IC) No. 1 of 1997. In view of the aforesaid

settlement, which provided for closure of weaving

department on payment of legal dues to the petitioners,

however it did not provide for continuance employment of

the petitioners. The settlement was arrived at between

representative Union and respondent no.2 and hence it is

binding on all workmen. All the petitioners herein were

from weaving department which was closed pursuant to

the sanctioned scheme and they have been paid legal

dues and retrenchment compensation as per scheme and

settlement. The relief prayed for by the petitioners of this

group of petition is contrary to the provisions of the

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

sanctioned scheme. The scheme was sanctioned after

being heard that all concerned parties including

stockholders including the representative of TLA as well

as the representative of separate committee of workers

formed by the employees who were not members of TLA.

The petitioners of Special Civil Application No.10724 of

2018 viz. Devtadin was also one of the members of the

committee. The sanctioned scheme by the BIFR was also

challenged by the persons in the management of

Ahmedabad New Cotton Mills by way of an appeal and

even that appeal has also been dismissed by AAIFR. He

submitted that even during hearing it was urged that

Court may grant any relief which is in consistent with the

scheme of BIFR and which is upheld in appeal and award

dated 08.01.1997 of the Industrial Court in terms of

settlement with representatives of TLA. However, no such

relief was granted.

6.3 Learned senior advocate Mr.Patel submitted

that the Respondent No.1 is the group i.e. Ashima Group

which has taken over the mill company and the group has

taken over the company as per the sanctioned scheme

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

and, therefore, if any relief is sought for by the petitioner

is granted it would amount to compelling the respondent

to bear liability which were not contemplated or provided

by the sanctioned scheme. Learned senior advocate

submitted that once the scheme was finalised, confirmed

and upheld in appeal and pursuant thereto once the mill

company is taken over by Ashima Group, the labour Court

as well as Industrial Court have rightly held that they

have no jurisdiction to sit in appeal over the order dated

16.10.1996 sanctioning the scheme. He submitted that

the award of Industrial Court in terms of settlement is

binding on Labour Court.

6.4 Learned senior advocate submitted that the

allegations made by the petitioners in respect of violation

of Section 25F and 25G of the 'ID Act' are bald

allegations and without any basis and this method is

adopted by the respondent mill company and as such the

respondent company has acted in good faith and closed

the weaving department pursuant to sanctioned scheme

as per the settlement arrived at between the respondent

and representative of TLA and, therefore, the said

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contention may be rejected considering the fact that

there is no documentary evidence produced by the

petitioner showing any violation of Sections 25G and 25H

of the ID Act.

6.5 Learned senior advocate submitted that even

contention of petitioners regarding violation of section

25F of the 'ID Act' has also no legs to stand. He

submitted that the Labour Court as well as Industrial

Court do not have any jurisdiction to sit in appeal over

the order of the BIFR. The State Government was very

much party to the proceedings before the BIFR and State

Government supported the scheme in which weaving and

processing department provided rationalization of surplus

labour was proposed on payment of legal dues and even

appeal before AAIFR, State Government and

representative Union supported the sanctioned scheme

and, therefore, once the State Government itself as well

as representative unions, who are party before the

proceedings before BIFR and AAIFR in the Appeal, it can

be inferred that there was permission of the State

Government and, therefore, argument in respect of

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breach of Sections 25N and 25O of the ID Act are

untenable.

6.6 Learned senior advocate Mr.Patel submitted that the

applications preferred by the petitioners before the

Labour Court without taking into consideration any

previous consent from BIFR and, therefore, those

applications were not maintainable. The argument of

petitioner that in view of Section 22(1) of SICA was

amended with effect from 01.02.1994 by Act No.12 of

1994 by which even suit for recovery of money during the

implementation of scheme requires prior permission of

the Board and hence the judgment relied uopn by the

petitioner in case of Maharashtra Tube (supra) has no

applicability in the present case, the applications

preferred by the present petitioners according to learned

senior advocate were not maintainable as there was no

prior consent from BIFR obtained by the petitioners.

7.1 On perusal of record as well as considering the

arguments submitted by learned counsel for the parties,

it transpires that Ahmedabad New Cotton Mill No.2 ('Mill

C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022

Company') stopped working on 10.02.1995 and hence the

issue was raised before 'BIFR'. The 'BIFR' sanctioned

rehabilitation scheme of 'Mill Company' on 16.10.1996

permitting the petitioner company tobe taken over by

Ashima Group. Pursuant to that, a settlement was arrived

at wherein the representatives of workers union i.e. TLA

and Respondent No.1 - Ashima Group were parties on

08.01.1997 and an award was made by Industrial Court in

terms of settlement under Reference (IC) No.1 of 1997.

The claim of the present petitioners that vide order dated

17.01.1997, the services of the petitioners came to be

terminated is the issue which would go to route of the

fact as to whether the approach letter was given within

the prescribed period of six months or not and, therefore,

what is required to be considered is the pleadings of the

present petitioners before the Labour Court as well as the

language of communication dated 17.01.1997 which

according to the petitioners is an order of termination,

whereas according to the respondent is nothing but a

payment advice in consonance with the scheme under

'SICA' approved by 'BIFR' and hence on perusal of the

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applications made by the present petitioner before

Labour Court [Annexure-A, page:29 and Annexure-B,

page:36], and from particularly para:2 of the application,

it reveals that in all the applications preferred by the

petitioner of Special Civil Application No.10724 of 2018,

wherein one of the petitioners himself viz. Devtadin

Yadav has made specific statement that the mill is closed

down.

7.2 Now in view of the same, if the contents of the

communication dated 17.01.1997 are seen, what is

termed as an order of termination by the petitioners is

actually communication whereby the petitioner was

informed about the amount of legitimate dues receivable

by them. Para:1 of the communication dated 17.01.1997

(page:180 of the petition) makes specific reference about

the proceedings before the 'BIFR' and refers that the

petitioners are terminated from the services pursuant to

the sanctioned scheme approved by 'BIFR' and the

communication further states that as per the scheme

sanctioned by 'BIFR', dues receivable by the petitioners

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are stated thereof. Therefore, as far as contention of the

petitioners in respect of the fact that the approach letter,

which was given by the petitioners on 04.03.1997

pursuant to the termination of the petitioners with effect

from 17.01.1997 was well within time, cannot be

accepted in view of petitioner's own admission in his

application dated 04.03.1997 [at page:36, para:2] as well

as considering the contents of the communication dated

17.01.1997 and, therefore, as far as the issue whether the

approach letter submitted by the petitioner on

04.03.1997 was time barred or not can be clearly held to

be time barred as the petitioner himself has stated in the

application that the 'Mill Company' closed down on

10.02.1995.

7.3 Therefore, the issue in respect of limitation of six

months in giving approach letter by the petitioner was

rightly decided by the Labour Court and confirmed by the

Industrial Court by stating that the cause of action arose

on 10.02.1995 and as per the provisions of Section 42(4)

of the BIR Act read with Rule 53(1) of Gujarat Industrial

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Relations Act, 1946, the workmen were required to give

such approach letter within a period of six months from

the date of cause of action arose. There is no provision of

condoning the aforesaid delay as the petitioners failed to

provide such approach letter within six months from

10.02.1995, an application was preferred by the

respondent rightly held to be time barred by the Labour

Court as confirmed by the Industrial Court.

7.4 As far as contention raised by the petitioners that

the application preferred by the petitioner and co-

workers was dismissed by the Labour Court on the

ground that the petitioner and other co-workers did not

obtain any prior permission from 'BIFR' under Section

2(2) of the 'SICA', in this regard the petitioners have

relied upon the judgment reported in case of

Maharashtra TubeS Ltd. vs. State Industrial and

Investment Corporation of Maharashtra Ltd. and another

as reported in 1993 (2) SCC 144, however, learned

senior advocate Mr.K.M.Patel pointed out that the

aforesaid judgment would not be applicable in the facts of

the present case simply for the reason that aforesaid

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judgment was delivered on January 29th, 1993 whereas

thereafter by Act No.12 of 1994, Section 22 of the Act

was amended with effect from 01.02.1994 and, therefore,

in view of the amendment of SICA Act with effect from

01.02.1994, whereby even the settlement for recovery of

money during the implementation of scheme requires

prior consent of the Board.

7.5 In the instant case, the application was preferred by

the present petitioner in the year 1997 i.e. much after

amendment under Section 22 of the SICA in the year

1994 and therefore also since the petitioners did not

obtain prior permission and consent from BIFR, the

petition preferred by the petitioners was rightly held to

be not maintainable by the Labour Court, which was

confirmed by the Industrial Court.

7.6 As far as the contention of learned advocate

Mr.Upadhyay in respect of the fact that the 'Mill

Company' did not obtain prior permission as

contemplated under Section 22(O) of the Industrial

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Disputes Act and has not followed procedures prescribed

under Section 25(N) of the Industrial Disputes Act is

concerned, it was pointed out by learned senior advocate

Mr.Patel that before the BIFR, the State Government was

a party and it supported the scheme in which weaving

and processing department provided rationalization of

surplus labour was proposed on payment of legal dues.

Section 25(N) of the ID Act is in respect of condition

precedent to retrenchment of workmen and sub-clause

25(N)(i) provides for prior permission of Appropriate

State Government or such authority as maybe prescribed

by the Government whereas Section 25(O) provides for

procedural for closing down an undertaking and there

also Section 25(O) (2) provides that a prior permission

from Government is required to be sought before closing

down organisation or before the retrenchment of

workman/workmen. In the instant case, the company had

approached the 'BIFR'. Before 'BIFR' also the State

Government as well as the Labour Union were parties.

Therefore, it was well within knowledge of the State

Government that company has closed down and the

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workmen are sought to be retrenched. The scheme was

sanctioned vide order dated 16.10.1996 by 'BIFR' after

taking into consideration the input submissions and

objections that were made by all the concerned parties

and thereafter scheme was sanctioned on 16.10.1996. In

fact, an appeal also was preferred against the order dated

16.10.1996 sanctioning the scheme by 'BIFR' before the

AAIFER and even before AAIFER also scheme was

supported by the workers as well as State Government

and, therefore, once having ordered sanctioning the

scheme dated 16.10.1996 passed by the BIFR as

confirmed by AAIFER, Labour Court cannot sit in appeal

over such order and therefore also such contention is

without any basis and therefore requires to be rejected.

7.7 In fact, the learned Industrial Court has, in its

judgment in para:10, while making reference about

appeal preferred against the order dated 16.10.1996 by

BIFR sanctioning the scheme, has categorically stated

that the scheme which was sanctioned by BIFR was

placed before AAIFER and the same was not challenged

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by any of the party to the proceedings before the BIFR

and ultimately while confirming the order passed by the

BIFR, the AAIFER was pleased to observed as under:

" It is next contended by the counsel for the appellant that as a result of the scheme only 460 out of 2628 workers could be retained and this has resulted in large scale retrenchment of the workers. No challenge has made against the scheme by any of the workers. On the contrary Mr.Barot appearing for the workers (10th respondent) submitted that the workers whole heartedly support the scheme and the new management. He pointed out that 560 permanent workers and 130 workers are given employment by the new management, that 100% bonus was paid by the new management and the workers are extremely happy and having most cordial relationship with the new management. Further it is pointed out that Rs.12 crores was paid by the new management to the workers including payments to those workers who have tendered resignations. He submitted that when new machineries are installed it would provide work for 200 more persons."

And therefore in view of the above, contention of the

petitioner in respect of non-adherence to the provisions

as prescribed by Section 25(N) and (O) of the ID Act are

also without any basis and hence require to be rejected.

7.8 In view of the above, the judgment relied upon by

the petitioner in case of Hindustan Wire Products Ltd. vs.

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Jaspal Singh and others reported in 2002 (9) SCC 758

as well as in case of Oswal Agro Furane Ltd. and others

vs. Oswal Agro Furane Workers Union and others

reported in 2005 (3) SCC 224 are also not applicable in

the facts of the present case.