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SCA/3316/2011 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3316 of 2011
=========================================================
ASHOKBHAI
NARANDAS BUNDELA - Petitioner(s)
Versus
GENERAL
MANAGER & 1 - Respondent(s)
=========================================================
Appearance
:
MR
HARSHAL M SHAH for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 25/03/2011
ORAL
ORDER
Heard
learned advocate Mr. HM Shah on behalf of petitioner Ashokbhai
Narandas Bundela.
In
present petition, prayer is made by petitioner in para 10(A) and 10
(B) to direct respondent no. 2 to pay 18 months wages with 18%
interest till date and further to direct respondent to pay 18 months
wages and 18% interest thereon.
According
to facts of present petition, petitioner was serving as Battery
Operator with Raipur Manufacturing Co. Ltd and his service was
terminated. Thereafter, “T” application was filed by
petitioner under section 78/79 of Bombay Industrial Relation Act
being registered no. 224/197 before Labour Court, Ahmedabad. The
Labour Court, Ahmedabad has passed an order on 21/9/2001 granting
reinstatement with full back wages of interim period. The said Unit
i.e. Raipur Manufacturing Co. Ltd went into liquidation on
15/10/2001. Therefore, Recovery Application no. 449/2007 was filed,
wherein order has been passed to recover amount from respondent on
4/9/2008. Thereafter, petitioner has preferred Company Application
no. 34/2009 in Company Petition no. 114/2001, in which, Company
Court had ordered on 23/7/2009. There was a Contempt Application
being OJMCA no. 14/2010 in Company Application no. 34/2010 in
Company Petition no. 14/2010. The Chartered Accountant presented his
report on 5/1/2010 for claims and dues of present petitioner. The
petitioner had served notice to Official Liquidator for recovering
of eighteen months wages on 2/7/2010. The petitioner was replied by
other side to approach Industry Disputes Center, Bachat Bhavan,
Ahmedabad. Therefore, petitioner has forwarded claim to Industry
Dispute Center.
According
to petitioner, several oral and written representations were made to
Industry Disputes Center, which were turned down without any result.
The petitioner was firstly replied that incharge person was on
leave. Then he was stated that amount would be disbursed, he need
not to come again and again and when he served another notice on
13/12/2010 and approached Industry Dispute Center, Manager it was
stated that he shall not be paid a single penny and take legal
recourse.
Therefore,
this petition is filed by petitioner for claiming eighteen months
wages based on order passed by Labour Court in “T”
Application no. 224/1997 dated 21/9/2001. The Labour Court has set
aside termination order granting reinstatement with full back wages
of interim period. The notice issued by learned advocate Mr. Shah
to Official Liquidator on 2/7/2010 and supplying certain documents
in respect to date of joining of petitioner in Mill, wages received
on the date of closure of Mill and birth Certificate of petitioner.
On 19/3/2010, an approach was made by petitioner to Industry
Disputes Center but there was no response given by respondent no. 1.
It is necessary to note that very petitioner Ashokbhai Narandas
Bundela approached to Company Court in Company application no. 34/09
in Company petition no. 114/2001, wherein this Court has passed an
order on 23/7/2009, which is relevant, therefore, quoted as under:
The
present application has been preferred by the applicant seeking
prayer to direct the OL to disburse the amount of Rs.4,21,000/-.
Heard
Mr. Shah for the applicant and Mr.Yadav for the OL.
Upon
hearing the learned Advocate appearing for both the sides, it
appears that the Company was ordered to be wound up on 15.10.2001 as
stated by Mr.Yadav during the course of the hearing. It also appears
that the applicant preferred the Application T. No. 224/97 before
the Labour Court seeking reinstatement against the termination. The
Labour Court has passed the Award on 22.09.2001 prior to the date of
winding up of the Company, whereby the applicant has been ordered to
be reinstated with full backwages. Therefore, when the Labour Court
passed the Award, the Company was not ordered to be wound up and
therefore the applicant would be entitled to the benefit as may be
available as per the said Award of the Labour Court dated 21.09.2001
in T.No.224/97.
It
also appears that thereafter, the applicant, based on the Award of
the Labour Court, filed further Recovery Application No.449/07
without express leave of the Company Court and it also appears that
the order has been passed by the Labour Court dated 04.09.2008,
whereby the amount of Rs.4,21,000/-, is ordered to be paid to him.
So far as second order dated 04.09.2008 passed by the Labour Court
in Recovery Application No.449/07 is concerned, the same is without
express leave of this Court and therefore, the same cannot be
enforced against the property of the Company in liquidation in
normal circumstances. Under the above circumstances, it appears that
if the applicant is to enforce the order passed by the Labour Court
in the Recovery Application dated 04.09.2008 against the property of
the Company, the same cannot be granted.
However,
the applicant would be justified in maintaining claim based on the
Award of the Labour Court dated 21.09.2001 in T.No.224/97 as
observed earlier and if such a claim is lodged by the applicant, it
will be required for the OL to get the claim of the applicant
examined with the help of the Chartered Accountant. The Chartered
Accountant would not be in a position to go behind the Award of the
Labour Court. But if such reinstatement is to be considered and the
consequential benefits are to be calculated, the same shall be
examined by the Chartered Accountant and the Chartered Accountant
will find out the exact admissible amount of the applicant towards
workers claim for disbursement under Section 529 A of the Act.
In
view of the above, the following orders –
Applicant
shall lodge the claim based on the Award dated 21.09.2001 in
T.Application No.224/97 together with the proof and calculation of
the amount payable, as early as possible, within 15 days.
The
OL shall examine the claim of the applicant with the help of the
Chartered Accountant after taking into consideration the
observations made by this Court in the present order.
The
report shall be received by the OL from the Chartered Accountant
within four weeks from the lodging of the claim.
After
the report is received by the OL, the same treatment shall be given
by the OL to the claim of the applicant to the extent of admissible
amount for payment on proportionate pro-rata basis and the cheque
shall be handed over within three weeks thereafter or the amount
shall be credited in the Bank Account of the concerned workmen by
electronic mode.
In
the event the applicant has any grievance thereafter, the applicant
may move appropriate application to this Court.
The
application is disposed of in terms of the aforesaid observations
and directions.”
Thereafter,
Division Bench of this Court in OJ Misc. Civil application no.
14/2010 filed by petitioner has passed following order on
11/2/2010:
“1. Heard
learned advocate Mr. Shah for the applicant and learned advocate Mr.
Yadav for the opponent – Official Liquidator.
2. Considering
the affidavit-in-reply, it is clear that the opponent could not make
the payment because of some administrative difficulties required to
be followed as per the direction of the Court. However, it is
brought to our notice that the amount of Rs.46,697/- has been paid to
the applicant, which learned advocate Mr. Shah for the applicant also
confirms, as per the directions of the Court. Under the
circumstances, nothing is required to be done. The application
stands disposed of.
The
date of birth of petitioner is recorded in School Leaving
Certificate as 27/2/1958. The Official Liquidator wrote a letter
addressed to learned advocate Mr. Shah on 14/7/2010 and it was
communicated by Official Liquidator to learned advocate Mr. Shah
that details of date of joining, wages received on the date of
closure of mill and date of birth has been forwarded to District
Industrial Center by office letter dated 12/7/2010. The copy of
that letter dated 22/7/2010 is also annexed to letter dated
14/7/2010. It is also necessary to note the contents of letter
dated 12/7/2010 of Official Liquidator informing to General Manager,
District Industrial Center, which is quoted as under:
“With
Reference to notice dated 02/07/2010 of Mr. Harshal M. Shah,
Advocate in respect of his client Mr. Ashok Naranbhai, an
ex-employee of the above named company for non payment of 18 months
wages from closure of the company as per the provision of Industrial
Dispute Act, as per records as available in this office, I have to
stat as under:
“1. Mr.
Ashok Naranbhai joined the organization on 22/04/1974 and was
registered as permanent workmen on 01/02/1990. A copy of the
permanent pass issued by the company is enclosed. However, the
service of Mr. Ashok Naranbhai was terminated an therefore, Mr.
Ashok naranbhai approached the Labour Court and an award was passed
in favour of Mr. Ashok Naranbhai. A copy of the award passed by the
Honourable Labour Court is enclosed for ready reference.
2. The
date of birth of Mr. Ashok Naranbhai is 27/02/1958. A copy of the
school leaving certificate submitted by Mr. Ashok Naranbhai is
enclosed.
3. As
per the audit report submitted by the Chartered Accountants
regarding verification of claim of Mr. Ashok Naranbhai, the last pay
considered by him for calculation of various benefit is Rs. 88/- per
day. A copy of the report of the Chartered Accountants is
enclosed.”
Ultimately,
learned advocate Mr. Shah served legal notice dated 13/12/2010
claiming eighteen months wages from General Manager, District
Industrial Center which given answer by Official Liquidator to
learned advocate Mr. Shah on 20/12/2010. The advice given by
Official Liquidator to take up matter with aforesaid authority means
General Manager, District Industrial Center for further necessary
action.
In
light of this back ground that petitioner being workman is not
getting eighteen months wages. Inspite of numbers of sincere efforts
made by him and his lawyer, no response given by respondent no. 1.
The Labour Court has passed an order on 21/9/2001, more than ten
years have passed still workman is remained without result of order
passed by Labour Court. Therefore, considering inaction on the part
of respondent no. 1, it is directed to respondent no. 1 General
Manager, District Industrial Center, First Floor, Bachat Bhavan,
Relief Road, Ahmedabad to consider legal notice served by learned
advocate Mr. Shah on behalf of petitioner dated 13/12/2010 and also
consider letter of Official Liquidator dated 12/7/2010 addressed to
General Manager, District Industrial Center and examine grievance of
petitioner. If it is found that petitioner is legally entitled
eighteen months wages then immediately such payment is to be made by
General Manager, District Industrial Center within a period of one
month from date of receiving copy of present order. If any answer
is available with respondent no. 1 then let examine legal notice
dated 13/12/2010 and to pass reasoned order and communicate
petitioner immediately within a period of one month from date of
receiving copy of present order.
In
view of above observations and directions, this petition is disposed
of by this Court without examining any opinion on merits. However,
if no reply or decision received by petitioner from respondent no. 1
within specified period by this Court or no payment is received by
petitioner then it is open for petitioner to revive present petition
by filing merely a note in the Registry of this Court.
(H.K.RATHOD,
J)
asma
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