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SCA/16063/2006 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16063 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
RAMESHBHAI
DUNGARBHAI PATEL - Petitioner
Versus
MAFATLAL
INDUSTRIES LTD. (TEXTILE DIVISION) & 2 - Respondents
=========================================================
Appearance :
MR
PC MASTER for Petitioner
MR UDAY JOSHI FOR M/S
TRIVEDI & GUPTA for Respondent: 1,
RULE SERVED for Respondents
: 2 - 3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 24/06/2009
ORAL
JUDGMENT
Heard
learned advocates for the parties.
The
petitioner has challenged the order passed by the Labour Court,
Navsari dated 24.9.2004 allowing the application Exh.13 in T.
Application No. 1 of 2002 of respondent Mill-Company for postponing
the proceedings of T-Application No. 1 of 2002 in view of the
proceedings pending before the Board for Industrial and Financial
Reconstruction (hereinafter referred to as ‘BIFR’ for short) and
order dated 6.5.2006 passed by the Industrial Court, Surat in
Revision Application No. (I.C) No. 25 of 2004, wherein, the
aforesaid order was assailed by the workman and which had been
rejected by the Industrial Court confirming the order dated
24.9.2004.
Facts
in brief deserve to be set out as under:
The
workman, at the relevant time was serving in the respondent no. 1
Mill Company as a permanent employee from 1.6.1975 in a stamping
department as a Clerk and his last drawn salary was Rs.4462/-. The
Mill-Company had without giving notice of change under Section 42 of
the BIR Act, closed down the factory from 22.2.2000 to 4.6.2000 and
about 2500 employees were made jobless. The Mill-Company made
agreement with the representation union- Majoor Mahajan Mandal.
Though it was required to be noted that the respondent nos. 2 and 3
had created a new representative in the Company for the employees
without forming any Union and entered into a settlement under
Section 2-P of the Industrial Disputes Act, 1947 on 6.5.2000. As the
said settlement was against the interest of the representative
employees, the said settlement was not signed by the representative
Union and one of the conditions in the said settlement was that
those employees will be taken back in the service only who signs the
undertaking for resuming the duty. The petitioner approached for
duty but he was not allowed to resume duties. The petitioner was
issued chargesheet along with other employees for not resuming
duties. The chargesheet culminated into inquiry proceedings. The
petitioner ultimately issued approach letter to the Company. The
petitioner was dismissed on 8.11.2001. The petitioner filed
T-Application No. 1 of 2001, wherein, an application Exh.13 came to
be filed by the Mill-Company respondent for staying the further
proceedings in view of the provisions of Sick Industrial Companies
(Special Provisions) Act, 1985 (hereinafter referred to as the
SICA for short) as proceedings before BIFR was pending. The
Civil Application came to be allowed as stated hereinabove vide
order dated 24.9.2004, which the petitioner assailed in Revision
Application (I.C) No. 25 of 2004, which was rejected by the
Industrial Court vide order dated 6.5.2006. Both these orders are
challenged in this petition.
This
Court (Coram: H.K.Rathod, J.) vide its order dated 02.08.2006 issued
Rule in the matter and it was ordered to be expedited. Accordingly,
this matter is listed before this Court for final disposal.
Shri
Joshi, learned advocate appearing for the respondent No. 1 contended
that in the given facts and circumstances, the provisions of Section
22 of SICA have rightly been made applicable for suspending the
proceedings of T-Application as the Company is closed since long.
The proceedings if permitted, would have caused undue hardship,
which would go contrary to spirit and later of SICA itself.
Shri
Joshi, learned advocate has fairly submitted that in Special Civil
Application No. 7225 of 2007 filed by Bhanubhai Ranchhodbhai Parmar
& 10 others Vs. Mafatlal Industries Ltd. decided on 12.3.2009,
this Court has held that the proceedings of T-Application could not
have been stayed or postponed.
This
Court has heard learned counsel for the parties at length and
perused the papers.
At
the outset, it is required to be noted that the petitioner was
serving with the respondent Mill-Company and is without any
employment/job since 8.11.2001. As his services came to be
terminated by the respondent Company, the petitioner raised
Industrial Disputes under the Bombay Industrial Relations Act by
submitting T-Application. It appears that the respondent Company
approached the Board under the provisions of SICA Act declaring
them as Sick Undertaking, wherein the Scheme has been framed for
rehabilitation of the respondent Company. It appears that the
T-Application is of 2002 and is still pending and the respondent
Company submitted application before the competent Court for staying
the proceedings initiated by the petitioner before the Labour Court,
Navsari. The learned Judge of the Labour Court vide order dtd.
24.9.2004 allowed the said Application. That being aggrieved by and
dissatisfied with the order passed by the Labour Court dtd.
24.9.2004, the petitioner preferred Revision Application (I.C.) No.
25 of 2004 and the learned Member of the Industrial Court by the
impugned order has dismissed the said revision application by
confirming the order passed by the Labour Court, Navsari dtd.
24.9.2004 below Exh. 13 in T-Application No.1 of 2002.
It
is mainly contended on behalf of the respondent Company that in view
of the rehabilitation scheme sanctioned by the BIFR the proceedings
before the Labour Court initiated by the petitioner by way of
T-Application is to be quashed and set aside and/or it is to be
suspended till the consent from the BIFR is obtained. It is also
required to be noted that the bar under sec.22 of the SICA Act would
be applicable only bat the time when there will be financial
implication and Award is sought to be implemented/executed having
financial implications. In the meantime, the proceedings may go on
and only at the time of execution of the Award having financial
implications, bar under sec.22 of the SICA Act can be made
applicable and at that stage the petitioner/ employee may be
directed to obtain consent from the BIFR.
In
the case of Jay Engineering Works Ltd. vs. Industry
Facilitation Council & Anr., reported in AIR 2006 SC 3252,
while considering the Award under Arbitration Act vis-a-vis
sec.20 of the SICA Act, the Hon’ble Supreme Court has observed that
adjudicatory process on making an Award under the Act of 1993 may
not come within the purview of 1985 Act but once an Award is made to
be executed shall come into play.
In
the case of Eagle Flask Industries Limited Vs. Talegaon Dabhade
Municipal Council & Ors, reported in (2004) 8 SCC 640, while
considering sec.22 of the SICA Act, the Hon’ble Supreme Court has
observed that the effect of sec.22 is to be considered only when
there is a demand for recovery and the question of recovery would
arise only when there is quantified demand on assessment.
In
view of the two decisions of the Hon’ble Supreme Court, the
adjudication by the Labour Court in the aforesaid T-Applications
can not be stayed and the proceedings cannot be suspended. As
observed by the Hon’ble Supreme Court only after adjudication and
the Award is declared, the effect of sec.22 of the SICA Act can be
considered.
In
view of the judgment of this Court passed in Special Civil
Application No. 7225 of 2007, wherein, the facts are almost
identical, so far law point is concerned, it can well be said that
the impugned order cannot be said to be sustainable in eye of law.
In
view of the above the impugned judgment and order passed by the
Industrial Court in suspending the proceedings of the T-Application
filed by the petitioner deserves to be quashed and set aside and the
Labour Court is required to be directed to proceed further with the
adjudication of the T-Application and after the Judgment is
declared, the effect of sec.22 of the SICA Act can be considered.
However, there is no justification to suspend the proceedings before
the Labour Court which have been initiated long back and to stay the
further proceedings and adjudication thereof.
In
view of the above, the present petition succeeds. The impugned order
passed by the Industrial Court, Surat in Revision Application (I.C)
No.25 of 2004 is hereby quashed and set aside. Let the Labour Court,
Navsari adjudicate upon the T-Application submitted by the
petitioner and thereafter when any Judgment is declared by the
Labour Court, Navsari, the effect of sec.22 of the SICA Act can be
considered. The Labour Court, Navsari is hereby directed to decide
and dispose of the T-Application No. 1 of 2002 in accordance with
law and on merits at the earliest but not later than six months from
the date of the receipt of writ of this order. Rule is made absolute
to the aforesaid extent. In the facts and circumstances of the case,
there shall be no order as to costs.
(S.R.BRAHMBHATT,
J.)
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