Shivaji Nawab Pathak vs Shivangi Industries
2022 Latest Caselaw 8893 Guj

    C/SCA/20141/2017                                     ORDER DATED: 07/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 20141 of 2017
                                 With
   CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
           In R/SPECIAL CIVIL APPLICATION NO. 20141 of 2017
=============================================
                           SHIVAJI NAWAB PATHAK
                                    Versus
                       SHIVANGI INDUSTRIES & 3 other(s)
=============================================
Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MS NALINI S LODHA(2128) for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 1,2,3
=============================================

  CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 07/10/2022

                                ORAL ORDER

1. Civil Application No.1 of 2022 is filed for vacating of interim relief as according to the applicant, the order granting interim relief is coming in way of the applicants (original respondents) in enjoying fruits of the judgment of the Debts Recovery Tribunal (DRT), Ahmedabad dated 29- 10-2015 passed in Original Application No.331/2015. However, it has brought on record of the Court that the matter before the Controlling Authority under the Payment of Wages Act had proceeded and has resulted into final disposal of such proceedings, whereas the main petition was against the order at interim stage.

2. In view of the aforesaid development, at request of both the sides, main petition is taken up for hearing and disposal.

3. The main petition is filed claiming prayers as under:

"(A) That Your Lordships be pleased to issue an order, direction and/

C/SCA/20141/2017 ORDER DATED: 07/10/2022

or writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned Order dated 7-10-2017, as being illegal and contrary to the provisions of Industrial Disputes Act and be pleased to direct the Labour Court to hear and decide the same on merit;

(B) Pending admission and final disposal of this petition, Your Lordships be further pleased to restrain the respondent no.4, their agent and servants from disposing off the entire property of the employer through Public Auction till the petition is finally heard and decided by this Hon'ble Court;

(C) Your Lordships be further pleased to direct the respondent no.4 to deposit the workers' dues before this Hon'ble Court;"

4. Learned Advocate for the petitioners-workmen submitted that claim of the petitioners-workmen was based on the fact that the petitioners- workmen were working with respondent No.1 and despite their due services, payment of wages was not being made. As a result of which, the petitioners-workmen had filed proceedings before the Controlling Authority under the provisions of the Payment of Wages Act being Application No.14 of 2016. Under such application, another application Exh-2 was filed seeking interim directions with regard to the property in question belonging to respondent No.1. An order came to be passed on 07-10-2017 below Exh-2, wherein application Exh-2 came to be rejected and interim directions given vide Exh-9 was also vacated. Accordingly, Exh. Nos.48, 49 and 51 applications were also rejected by the aforesaid order.

5. This was the subject matter of challenge before this Court. This Court by order dated 08-11-2017 issued notice and directed maintenance of

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status quo with regard to the movable and immovable properties in question. This, apparently, was for protecting the interest of the petitioners-workmen, so that their claim for their wages is not frustrated.

6. Learned Advocate for the respondent-Bank submitted that the matter has proceeded before the Controlling Authority and ultimately, final order has been passed on 30-03-2022, wherein the directions are given to the extent that the petitioners-workmen were entitled to receive an amount of Rs.3,75,318/- and therefore, right of the petitioners- workmen herein would be to the extent to the aforesaid amount, whereas claim of the respondent-Bank as per the judgment of the DRT is to the extent of Rs.8,17,15,575/- and therefore, by pendancy of the petition and the order of the status quo granted, the respondent-Bank is unable to get the judgment of the Tribunal executed.

7. As against this learned Advocate for the petitioners-workmen submitted that right of the petitioners-workmen has now been crystallized in favour of the petitioners-workmen and therefore, their right over the property in question would also continue and their share has to be protected. Learned Advocate refers to Application No.109 of 2016 and other applications, which are made for execution of the award of the Labour Court under the Payment of Wages Act and submitted that the petitioners-workmen are entitled to the benefits of the right, which has now crystallized in their favour.

8. Having considered the rival submissions of the parties and having perused the documents on record, it appears that undoubtedly challenge before this Court in the main petition was pursuant to some interim orders, which were sought by the petitioners-workmen below Exh-2 as well as Exh-48, 49 and 51 and against those applications, the order was of rejection of their claim against which, the petition was preferred with the prayers mentioned in the preceding paras. Perusal of

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record would indicate that this Court while issuing notice by order dated 08-11-2017, had directed to maintain status quo with regard to movable and immovable properties in question, though such properties were not clearly defined or described in the proceedings before the Controlling Authority under the provisions of the Payment of Wages Act.

9. It would be appropriate to refer to the proceedings initiated by the respondent-Bank being Original Application No.331/2015 before the DRT, wherein the judgment was passed on 29-10-2015, where the operative part of the order would read as under:

"Order

1) I hereby allow this O.A. of the Applicant Bank and direct the defendants to pay jointly and severally to the applicant bank within 30 days from today, a sum of Rs.28,72,241.00, 16,47,332.00, 83,00,655.00, 93,30,749.00 and 5,95,64,598.00 against term loan I, II, III, IV and cash credit account respectively aggregating to Rs.8,17,15,575.00 (Rs. Eight Crores Seventeen Lac Fifteen Thousand Five Hundred Seventy Five only) with simple interest at the rate of 12% p.a. from the date of filing of this O.A. till the date of realization of dues, with costs and expenses.

2) In case of failure to deposit the above amount within the stipulated period, the same shall be recovered from hypothecated securities as detailed in Schedule-I and mortgaged properties as detailed in Schedule-II, annexed with the OA.

3) If there is any shortfall, the same shall be recovered from the sale of other personal movable & immovable properties of the Defendants.

(4) Recovery Certificate be issued forthwith and be sent to Recovery Officer, Debts Recovery Tribunal-II, Ahmedabad.

5) The Registry of this Tribunal is hereby directed to issue the free

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copy of the order and sent to the both parties.

6) File be consigned to records."

10. Said judgment covers the properties, which are described in detail by Schedule-I and Schedule-II to such application. Therefore, in the opinion of the Court, the judgment passed by the DRT in favour of the respondent-Bank needs now to be executed as sufficient number of years have passed, despite the order being passed, the property has continued to remain as it is unused and deteriorating in value day by day. In so far as the right of the petitioners-workmen is concerned, such right has already been crystallized by the award of the Labour Court, when it finally decided upon Payment of Wages Application No.14 of 2016 by award dated 30-03-2022, wherein extent of the right of the petitioners-workmen has been stated in the operative part of the order, which records as under:

-:- FINAL ORDER -:-

(1) The application of the applicant workmen is partly allowed. (2) It is hereby ordered to the respondent No.1 to 3, to pay the total outstanding salary amount of Rs.3,75,318/-(Rupees Three Lakhs Seventy Five Thousand Three Hundred and Eighteen only) from 01/01/2016 to 15/06/2016 as mentioned in the Annexure-B to all the workmen as per the Annexure-A, jointly and separately within 30 days of the receipt of this order.

(3) No order is passed against the respondent No.4. (4) No order is made as to the costs.

(5) The order is pronounced in the open court today on 30/03/2022.

11. It is also evident from the record that order of the Controlling Authority dated 30-03-2022 is not subject matter of challenge anywhere. Moreover, it appears that the petitioners-workmen have already taken

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recourse for issuing of Recovery Certificate before the appropriate Authority on the basis of the award of the Labour Court. Needless to observe that right, which has been crystallized in favour of the petitioners-workmen would continue to remain till benefits are received as per the award in their favour and for that purpose, proceedings which are initiated, are ordered to be expedited before the Authority. However, with regard to the right of the respondent-Bank clearly, while passing the order, the Controlling Authority has completely absolved the respondent-Bank, which was also a party before the Controlling Authority and joint and several liability is fixed upon respondent Nos.1, 2 and 3 herein.

12. In view of the aforesaid, the petition stands disposed of with the directions that the claim of the petitioners-workmen, which has now crystallized in the form of award of the Controlling Authority under the Payment of Wages Application No.14 of 2016, it is open for the petitioners-workmen to pursue the same before the appropriate Authority. Interim relief granted earlier by this Court now stands vacated. It is clarified that whatever orders are passed by the concerned Authority even under the provisions of Payment of Gratuity Act, are not disturbed by this order.

13. In view of the order passed in the main matter, no orders are required to be passed in the Civil Application. Hence, the Civil Application does not survive and stands disposed of accordingly.

(A.Y. KOGJE, J) PARESH SOMPURA