{"id":106115,"date":"2010-01-18T00:00:00","date_gmt":"2010-01-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-vs-heard-on-18-january-2010"},"modified":"2016-03-05T08:04:28","modified_gmt":"2016-03-05T02:34:28","slug":"the-vs-heard-on-18-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-vs-heard-on-18-january-2010","title":{"rendered":"The vs Heard on 18 January, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
The vs Heard on 18 January, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nMCA\/2110\/2009\t 2\/ 25\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nMISC.CIVIL\nAPPLICATION No. 2110 of 2009\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 14632 of 2007\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nTHE\nAHMEDABAD ADVANCE MILLS LTD. - Applicant(s)\n \n\nVersus\n \n\nTHE\nTEXTILE LABOUR ASSOCIATION & 1 - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nSI NANAVATI, SR. ADVOCATE FOR NANAVATI & NANAVATI\nfor\nApplicant:1, \nRULE SERVED for Opponent(s) :  2. \nMR DS VASAVADA\nfor Opponent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 18\/01\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
1.\tHeard
\nlearned Senior Advocate Mr.S.I.Nanavati for Nanavati & Nanavati
\non behalf of applicant, learned advocate Mr.D.S.Vasavada for opponent
\nNo.1 and Mr.Danial, learned Union Representative appearing on behalf
\nof opponent No.2   concerned employee.\n<\/p>\n
2.\tThis
\nCourt has passed an order on 21.12.2009, which is quoted as under :\n<\/p>\n
 1.\tHeard
\nlearned senior advocate Mr. S.I. Nanavati appearing on behalf of
\napplicant, learned advocate Mr. Vasavada appearing on behalf of
\nopponent No.1 and Mr. Danial, learned union representative of
\nopponent No.2.\n<\/p>\n
2.\tConsidering
\nthe submissions made by both learned advocates and averments made in
\nthis application and also the affidavit filed by respondent No.2, the
\nquestion raised in this application requires detailed examination.
\nHence, Rule returnable on 18.1.2010.\n<\/p>\n
3.\tMeanwhile,
\ninterim relief in terms of Para.11(C) till final disposal of this
\napplication.\n<\/p>\n
3.\tBefore
\nconsidering merits of the matter, it is necessary to consider order
\npassed by this Court in SCA No.14632 of 2007. In SCA, petitioner has
\nchallenged the order passed by Industrial Court, Ahmedabad in Appeal
\n(IC) No.27 of 2006 against the order of Labour Court in Application
\nNo.294 of 1996 dated 7.5.2007. The Industrial Court, Ahmedabad has
\nallowed the appeal filed by respondent Union and judgment and order
\npassed Labour Court on 10.4.2006 in BIR Application No.294 of 1996
\nhas been set aside. The Industrial Court has declared that there was
\na closure of the mills company from 23.5.1996 onwards and permission
\nfor closing down was not obtained from the appropriate Government.
\nTherefore, said closure was declared illegal. The consequential
\nbenefits of holding of illegal closure shall be paid by mills company
\nto the concerned employee with the cost of rs.500\/-. The Rule issued
\nby this Court on 8.1.2008 and ad-interim relief granted by this
\nCourt. Thereafter, matter has been discussed number of occasions
\nbetween the parties to find out some solution in respect to question
\ninvolved in the present petition. Thereafter, matter has been settled
\nbetween the parties. It is necessary to note that opponent No.1
\nTLA being a union representative under provisions of BIR Act,1946.
\nThe terms of settlement has been worked out between the parties and
\nproduced on record by both parties. The consent terms has been
\nproduced on record and according to consent terms, benefits which
\nwere available to concerned employees of tendering their voluntary
\nresignation, retired employees,  expired employees and Badli
\nemployees has been worked out on agreement between the parties to the
\neffect that mills has closed down manufacturing activities completely
\nand it has been agreed to grant following benefits as per the
\nsettlement to the concerned employee. This consent terms dated
\n11.2.2008 signed by both advocates of respective parties as well as
\nShri S.D.Vyas, Director of Ahmedabad Advance Mills Ltd. and Shri Amar
\nBarot, Secretary of TLA.\n<\/p>\n
4.\tThis
\nCourt has passed the order on 11.2.2008 recording settlement. The
\norder which has been passed by this Court on 11.2.2008 in aforesaid
\nSCA,  paras.5, 6, 7 and 8 are relevant which are quoted as under :\n<\/p>\n
 5.\tI
\nhave perused the consent terms arrived at between the parties.  The
\nmatter has been rightly settled and both the parties have rightly
\nagreed to the terms which is in the interest of both the parties. The
\nresult of this settlement is that the order passed by the Industrial
\nCourt, Ahmedabad which is under challenge declaring the closure of
\nthe mills company is illegal, is now considered to be a closure
\ndeclared by the mills company is legal and valid, which is accepted
\nby the respondent union and all the concerned employees along with
\nrepresentative of respondent-union who has given writing to this
\nCourt dated 28\/1\/2008.\n<\/p>\n
6.\tThe
\naforesaid consent terms is taken on record and accordingly, the order
\npassed by the Industrial Court, Ahmedabad in Appeal (IC) No.27 of
\n2008 dated 7\/5\/2007 is hereby modified in terms of consent terms and
\nboth the parties are directed to abide by consent terms and it is
\ndirected to both the parties to implement the consent terms as
\nrecorded by this Court.\n<\/p>\n
7.\tRule
\nis made absolute in terms of consent terms with no order as to costs.\n<\/p>\n
8.\tIt
\nis necessary to note that long pending dispute is now reached to the
\nhappy settlement, where, rupees fifteen crores are to be disbursed in
\nfavour of the concerned employees with the sincere efforts made by
\nMr.Amar Barot, Secretary of Textile Labour Association and showing
\npositive approach in all respect getting the result of long pending
\ndispute in good settlement.  This Court is really appreciated the
\nsincere efforts of Mr.Amar Barot, Secretary of TLA being a
\nrepresentative of Union in local area in Textile Industry.  It is
\nsimultaneously happy to note the positive approach of the employer
\nleaving a legal battle aside and settled the dispute in a positive
\nmanner which is ultimately, beneficial to the concerned employees.
\nTherefore, this Court also appreciated the sincere efforts of learned
\nsenior advocate Mr.S.I.Nanavati,  learned advocate Ms.Anuja Nanavati
\nlearned advocate and Mr.D.G.Shukla who have helped through out in the
\nproceedings.  This Court also appreciated the sincere effort of
\nlearned advocate Mr.D.S.Vasavada.\n<\/p>\n
5.\tThe
\naforesaid paragraphs are quoted by this Court for deciding
\ncontroversy arise between the present applicant and opponent No.2.
\nThis Court has observed that net result of this settlement is that
\nthe order passed by Industrial Tribunal, Ahmedabad which is under
\nchallenge declaring closure of the mills company is illegal, is now
\nconsidered to be a closure declared by the mills company is legal and
\nvalid which is accepted by the respondent Union and all the concerned
\nemployees along with representative of respondent Union, who has
\ngiven writing to this Court dated 28.1.2008. This Court while taking
\nconsent terms on record, modified order passed by Industrial Court,
\nAhmedabad in Appeal (IC) No.27 of 2008 dated 7.5.2007. In terms of
\nconsent terms, both parties are directed to abide by consent terms
\nand it is directed to both the parties to implement the consent terms
\nas recorded by this Court and Rule is made absolute in aforesaid SCA
\nin terms of consent terms with no order as to costs.\n<\/p>\n
6.\tTherefore,
\nwhatever benefits accrued  in favour of concerned employees as per
\nconsent terms are to be calculated on the basis of legal closure of
\npetitioner mills. The opponent No.2 herein has filed application
\nbefore the controlling authority which is at Page-27 (Form-I) dated
\n31.7.2008. The date of appointment is 1.7.1954 and date of
\ntermination means voluntary resignation dated 15.4.2008, total period
\nof service is 54 years and daily wage is considered at Rs.143.41 ps.
\nThe difference of gratuity has been calculated which comes to
\nRs.35,220.10 ps which is at Page-27 of compilation. Thereafter, on
\n5.3.2009, mills company has filed reply against claim of opponent
\nNo.2. The application is registered by competent authority being
\nApplication No.63 of 2009 on 16.4.2009.\n<\/p>\n
7.\tThe
\npresent applicant   mills company has filed present application
\nwith a prayer to issue necessary direction to the controlling
\nauthority, Ahmedabad modifying \/ clarifying the earlier order dated
\n11.2.2008 passed by this Court in SCA No.14632 of 2007 and to quash
\nthe proceedings of Application No.63 of 2009 filed by opponent No.2
\nbefore the controlling authority.\n<\/p>\n
8.
\n The affidavit-in-reply filed by opponent No.2 against present
\napplication with authority of  union representative Mr.P.K.Danial,
\nGeneral Secretary of mighty Labour Association.\n<\/p>\n
9.\tMr.S.I.Nanavati,
\nlearned Senior Advocate, submitted that in pursuance to aforesaid
\nconsent terms and order passed by this Court on 11.2.2008, opponent
\nNo.2 has tendered his voluntary resignation on 15.4.2008 and that
\nresignation was accepted by mills company as per settlement recorded
\nby this Court and to be paid amount on or before 31.5.2008. This
\nletter where voluntary resignation was accepted, has been
\ncommunicated immediately to opponent No.2 which bears signature of
\nopponent which is at page-23. Page-24 is a letter of opponent No.2
\nwhere it is mentioned that on the basis of settlement arrived at
\nbetween representative union TLA and mills company as well as order
\npassed by this Court on 11.2.2008, whatever terms and conditions
\ndecided between the parties has been accepted by opponent No.2  –
\nworkman and requested mills company to pay whatever dues available as
\nper consent terms to him. In the said letter, it is also made clear
\nby opponent No.2 that he has not filed any case or proceedings
\nagainst mills company and even in case if any such case is filed, he
\nhas given undertaking to mills company to withdraw it voluntarily. He
\nis not having any other premises or quarters with him or any property
\nof company with him. Even if any property is remained with him, he is
\nprepared to give vacant possession to mills company. This letter at
\npage-24 is signed by opponent No.2   workman in presence of
\nwitness, who has also signed in the said letter. Thereafter, a
\nreceipt has been given by opponent No.2 (page-25) as per settlement
\nrecorded by this Court as referred above, total amount comes to
\nRs.78,478\/- and after deducting various deduction, Rs.24,151\/- as
\nagreed between both parties, remaining amount of Rs.54,327\/- has been
\npaid to opponent No.1 by Cheque No.717731 dated 10.6.2008 drawn on
\nSBI Commercial Branch, Ashram Road, Ahmedabad. This receipt is also
\nsigned by opponent No.2 on 14.6.2008 in presence of union
\nrepresentative. Thereafter, Rs.80,942\/- amount of gratuity is also
\npaid as per consent terms (page-26) which has also been accepted by
\nopponent No.2. Thereafter, Form-I has been preferred which was sent
\nto mills company by opponent No.2 on 31.7.2008 claiming difference of
\namount calculating the interim period of closure upto 15.4.2008.
\nThereafter, mills company has filed reply on 5.3.2009 (page-28) to
\ncontrolling authority under Payment of Gratuity Act,1972. After reply
\nof mills company, opponent No.2 has filed application No.63 of 2009
\nbefore the controlling authority on 16.4.2009 claiming difference of
\ngratuity amount which comes to Rs.35,220.10 ps. These are the facts
\nwhich are on record.\n<\/p>\n
10.\tIn
\nlight of these facts which are almost undisputed between parties
\nbased on documents which referred by this Court as above.\n<\/p>\n
11.\tMr.S.I.Nanavati,
\nlearned Senior Advocate relying upon the decision of Apex Court in
\ncase of Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills
\n&  Ors. reported in 2008 AIR SCW 8122, submitted that once the
\nrepresentative union arrived at an agreement or consent terms with
\nmills company, then concerned employee   opponent No.2 has no right
\nto challenge the consent terms. He also raised contention that
\nconsent terms has been accepted by opponent No.2 and accordingly,
\nvoluntary resignation was tendered by him which was accepted by mills
\ncompany and according to consent terms which was recorded by this
\nCourt on 11.2.2008, necessary due payment was already made which was
\naccepted by opponent No.2. Therefore, now to file application before
\ncontrolling authority claiming difference of amount of gratuity is
\nnot maintainable in law and the controlling authority has no
\njurisdiction to decide such application when amount of gratuity has
\nbeen determined on the basis of consent terms with representative
\nunion. He relied upon certain terms of settlement which is quoted as
\nunder :\n<\/p>\n
 5.\tIt
\nis agreed by and between the parties that as per the present
\nsettlement the Petitioner Mills will be completely closed for all
\npurposes and the Respondent Union or its members \/ employees who are
\nthe beneficiaries under the present settlement will not raise  any
\ndispute about the closure of the petitioner Mills.\n<\/p>\n
12.\tHe
\nemphasized vehemently that after accepting consent terms and
\ntendering voluntary resignation and accepting amounts by opponent
\nNo.2, filing of an application No.63 of 2009 under provisions of
\nPayment of Gratuity Act is contrary to order passed by this Court
\ndated 11.2.2008 and it is nothing but an abuse of process of law
\nwhich may result into multiplicity of proceedings. The controlling
\nauthority ought not to have proceed with such application after the
\nreply filed by applicant mills co. whereby attention of controlling
\nauthority was drawn about the order passed by this Court on
\n11.2.2008. The undertaking given by opponent No.2 accepting the order
\npassed in terms of settlement \/ consent terms dated 11.2.2008.
\nTherefore, any proceedings initiated by controlling authority in
\nresponse to application No.63 of 2009 filed by opponent No.2 is
\nwithout jurisdiction and contrary to order passed by this Court. He
\nsubmitted that order passed by this Court dated 11.2.2008 recording
\nconsent terms is not challenged by opponent No.2 to any higher forum.
\nHe further submitted that once consent terms arrived by mills co.
\nwith representative union, then opponent No.2 is having no locus
\nstandi to challenge the order passed by this Court dated 11.2.2008.
\nHe also submitted that consent terms arrived between mills co. and
\nrepresentative union under provisions of Bombay Industrial Relations
\nAct,1946. Therefore, controlling authority has no jurisdiction to
\nentertain such application filed by opponent No.2. Therefore,
\nentertaining such application by controlling authority itself is
\nagainst the order passed by this Court dated 11.2.2008 and also it is
\ncontrary to the provisions of  Bombay Industrial Relations Act,1946.
\nTherefore, that proceedings is required to be quashed. He relied upon
\nPara.31, 32, 39, 43, 44, 45 and 46  of aforesaid decision of Apex
\nCourt which is quoted as under :\n<\/p>\n
 STATUS
\nAND POSITION OF REPRESENTATIVE UNION<\/p>\n
31.\tThe
\nlearned counsel for the appellant contended that respondent No. 8
\ncould not have agreed      to   accept      a    meager   amount
\nof    Rs.22 crores when the outstanding dues were more than Rs.130
\ncrores. It was also stated that majority of workers are with the
\nappellant and they are opposed to the settlement. Thousands of
\nworkers have   so    stated     in       writing   and   informed
\n the appellant        that   the      grievance    raised      by
\nthe appellant is well-founded and they are entitled to much more
\namount than what had been paid under the settlement.<\/p>\n
\n \n\n\n \n\n\n \n\n\n32.\tEven\n   this      contention      has   no    force. The    learned    \ncounsel        for   the   Union,      in   our opinion, is right in\n<\/pre>\n
submitting that under the Bombay Industrial Relations Act, 1946, it
\nis the `Representative Union  which has all powers to enter into a
\nsettlement on behalf of workers in the industry and it is only that
\nUnion which can take a decision under 1946 Act. The said decision
\nwould bind not only the members of the Union, but also to those
\nworkers who are not  members of such Union.<\/p>\n
\n \n\n\n \n\n\n \n\n\n39.\tThis\n      Court     considered          the     relevant provisions      \n  of      the    1946        Act,      the     object underlying     \n        conferment            of        power        on\nRepresentative Union and the action taken by it and     held     \nthat     when     a    Representative          Union appears in any\n<\/pre>\n
proceeding under the Act, none else can be allowed to appear not even
\nthe employee at whose instance proceedings might have been started
\nunder Section 42(4) of the Act.       The Court held that if the
\nRepresentative Union appears, the decision taken by that Union would
\nbe final and binding.\n<\/p>\n
43.\tThe
\nCourt, therefore, concluded;\n<\/p>\n
 The
\nresult therefore of taking SS. 27A, 32 and 33 together is that s. 27A
\nfirst places a complete ban on the appearance    of    an    employee
\n  in proceedings under the Act once it has commenced     except
\nthrough    the representative of employees. But there are   two
\nexceptions   to   this  ban contained in SS. 32 and 33. Section 32 is
\nconcerned with all proceedings before the authorities and gives power
\nto the authorities under the Act to permit an employee himself to
\nappears even   though    a   representative  of employees may have
\nappeared but his permission cannot be granted where the
\nrepresentative Union has appeared as a representative of employees.
\nSection 33 which is the other exception allows an employee to appear
\nthrough any person in certain proceedings only even   though    a
\nrepresentative  of employees might have appeared; but here again it
\nis subject to this that no one else, not even the employee who might
\nhave made the application, will have   the   right    to   appear
\nif   a Representative     Union    has    put   in appearance as the
\nrepresentative of employees. It is quite clear therefore that the
\nscheme of the Act is that where a Representative Union appears in any
\nproceeding under the Act, no one else can be allowed to appear not
\neven the employee at whose instance the proceedings might have begun
\nunder s. 42(4). But where the appearance is by any representative of
\nemployees other than a Representative Union authorities under s. 32
\ncan permit the employee to appear himself in all proceedings before
\nthem and further the employee is entitled to appear by any person in
\ncertain proceedings specified in s. 33. But whenever the
\nRepresentative    Union    has    made   an appearance, even the
\nemployee cannot appear in any proceeding under the act and   the
\nrepresentation      must    be confined only to the representative
\nUnion. The complete ban therefore laid by s. 27A on representation
\notherwise than   through   a    representative     of employees
\nremains complete where the representative of employees is the
\nRepresentative      Union      that     has appeared; but if the
\nrepresentative of employees that has appeared is other than the
\nRepresentative Union then SS.32 and 33 provide for exceptions with
\nwhich we have already dealt. There can therefore   be   no    escape
\n  from   the conclusion    that    the    Act    plainly intends that
\nwhere the Representative Union appears in any proceeding under the
\nAct even though that proceeding might have commenced by an employee
\nunder s. 42(4) of the Act, the Representative   Union     alone  can
\nrepresent    the  employee    and the employee cannot appear or act
\nin such proceeding .\n<\/p>\n
44.\tAgain,
\nin Textile Labour Association, Bhadra,      Ahmedabad         v.
\n Ahmedabad       Mill Owners Association, Ahmedabad,<\/a> (1970) 3 SCC
\n890, this Court held that once Representative Union of Textile
\nIndustry in the local area of Ahmedabad entered      into    a
\ncompromise,         such    compromise would    bind      all
\nthe       employees        and       those employees   who  are   not
\n  members  of the Representative Union cannot contend that they are
\nagainst such compromise and are not bound by it.\n<\/p>\n
45.\tIn
\n Santuram  Khudai   v. Kimatrai Printers & Processors Pvt. Ltd. &
\nOrs.,<\/a> (1978) 1 SCC 162, a similar question arose. The Court
\nreiterated the law laid down in Girja Shankar and   held    that
\n    once   the    Representative Union appears      on     behalf
\n    of     the     employees         in a proceeding        before
\n   a    Labour      Court     under 1946 Act, individual workman has
\nno locus standi. According    to    the     Court,       combined
\n     reading     of Sections 27A, 30, 32, 33 and 80 of the Act make
\nit clear that consistent with the avowed policy and prevention of
\nexploitation of workmen and augmentation       of    their
\nbargaining  power, the Legislature  has     clothed  the
\nRepresentative Union with plenary power to appear or act on behalf of
\nemployees in any proceeding under the Act. Keeping in view the said
\nobject, it has deprived individual employees or workmen of the right
\nto appear or act in any proceeding under the Act where the
\nRepresentative Union enters appearance    or     acts       as
\nrepresentative  of   the employees.\n<\/p>\n
46.\tFollowing
\n  Girja          Shankar,       the    Court observed that mala fides
\nor bona fides of the Representative          Union        has     no
\n relevance in construing the relevant provisions of the Act. In case
\n   the        employees           find        that       the
\nRepresentative          Union    is    acting   in    a manner which
\nis prejudicial to their interests, their remedy      lies    in
\ninvoking       the     aid    of    the Registrar      under
\nChapter        III    of     the Act requesting him to cancel the
\nregistration of the union.\n<\/p>\n
13.\tAs
\nagainst that, Mr.Danial, Union Representative, who has filed reply in
\naffidavit against present application, raising contention that
\napplicant has paid the gratuity to opponent No.2   workman in
\ndifferent two rates which is as per the settlement arrived between
\nthe applicant Mills Co. and TLA which is contrary to mandatory
\nprovisions of Gratuity Act and two different rates have been taken
\ninto account while calculating amount of gratuity; one is Rs.121.12
\nps. and second is Rs.143.41 ps. which quite against the Gratuity Act.
\nHe submitted that such type of different calculation is not
\npermissible under the provisions of Gratuity Act and settlement or
\norder cannot  change mandatory right of eligible person. Therefore,
\neven if it is done then it is nothing but a breach of law. The
\nconsent terms cannot consider as a right thing and union
\nrepresentative is not empowered to decide the fate of the workman
\nthrough settlement especially when settlement is against the
\nprevailing laws and its mandatory provisions. He relied upon decision
\nof Bombay High Court reported in 2002 II CLR 395. Therefore,
\naccording to his submission, such settlement or consent terms is not
\nproper and contrary to the provisions of Gratuity Act and merely
\naccepting amount by opponent No.2, he cannot consider to be helpless
\nfor challenging or claiming difference of amount of gratuity. The
\nresignation cannot consider to be voluntary and for that, he
\nsubmitted that resignation has become very sensitive and element of
\nsuspicion arises when the resignation is genuine. He relied upon one
\ndecision of Apex Court in case of G.T.Lad v. Chemicals and Fibres of
\nIndia Ltd.<\/a>  reported in 1979 I LLJ 29 (SC). However, he has accepted
\nin affidavit-in-reply that resignation which was tendered by opponent
\nNo.2 was voluntary because he has no other option with him. But he
\nwas not agreed with the illegal deduction made by Mills Co. The
\nopponent No.2 has lost Rs.35,220.10 ps. because of illegal settlement
\nwith representative union. Therefore, according to his submission,
\nsuch application filed by applicant Mills Co. may be dismissed and
\ndirection be issued to pay Rs.35,220.10 ps. to opponent No.2.\n<\/p>\n
\tIt
\nis necessary to note that affidavit-in-reply is not filed by opponent
\nNo.2 but, it has been filed by Union Representative Mr.Danial, who is
\nnot the party of present proceedings. Except that, Mr.Danial, Union
\nRepresentative has not raised any other contention before this Court.\n<\/p>\n
14.\tI
\nhave considered submissions made by both learned advocates and
\ndocuments which are annexed to present application as well as
\naffidavit-in-reply filed by Mr.Danial, Union Representative.\n<\/p>\n
15.\tThe
\ncalculation which has been made by opponent No.2 considering his
\ntotal service of 54 years from 1.7.1954 to 15.4.2008. The applicant
\nMills Co. as per consent terms considered amount of gratuity for 41
\nyears’ service from date of joining upto 31.3.1995. On 31.5.1995,
\nmonthly salary of opponent
\nNo.2 was Rs.3149.31 ps. Accordingly, daily wage comes to Rs.121.12
\nps. Total amount comes to Rs.74,489\/-. Thereafter, Mills Co. has
\nconsidered after three years gratuity w.e.f. 1.4.1997 to 31.12.1999
\nwhere total monthly salary comes to Rs.3728.74 ps. where per day
\nwages comes to Rs.143.41 ps. which amount comes to Rs.6453\/-.
\nTherefore, as per terms of settlement, amount of gratuity is required
\nto be calculated as per A + B as agreed by Union Representative with
\nMills Co. in consent terms. The consent terms provides a clause for
\namount of gratuity to permanent retired employees which will be paid
\nas per award dated 12.2.1997 upto 1.3.1995 and from 1.4.1997 till the
\ndate of retirement for the period from 1.4.1995 to 31.3.1997, lumpsum
\npayment as per clause-9 of the award dated 12.2.1997. The permanent
\nemployees will be paid gratuity as per award dated 12.2.1997 upto
\n31.3.1997 and from 1.4.1997 to 31.3.2007, index base is to be taken
\nfrom 31.3.1997. So question of last drawn salary is not required to
\nbe taken into account while calculating amount of gratuity on daily
\nwage of concerned employee. Therefore, amount of gratuity which has
\nbeen calculated by Mills Co. on the basis of consent terms as arrived
\nat between the parties and in case if any dispute arises or
\ndifference may arise in respect of calculation of any amount as per
\npresent consent terms, then matter will be referred to
\nMr.S.I.Nanavati, learned Senior Advocate and Mr.D.S.Vasavada, Union
\nRepresentative, who will decide it and  their joint decision will be
\nbinding to both the parties as well as to the concerned employee and
\nthey will not raise any objection or dispute about such calculation.
\nRelevant Item No.7 of the consent terms is quoted as under :\n<\/p>\n
 7.
\nIt is further agreed by and between the parties that if any dispute
\nor difference may arise in respect of calculation of any amount as
\nper present consent terms, then it will be referred to Shri
\nS.I.Nanavati, Senior Advocate and Shri D.S.Vasavada, Advocate, who
\nwill decide it and  their joint decision will be binding to both the
\nparties as well as to the concerned employee and they will not raise
\nany objection or dispute about such calculation.\n<\/p>\n
16.\tThe
\nsubmission made by Mr.Danial, Trade Union Representative that amount
\nof gratuity has been calculated in two spells – (A) and (B). Spell
\n(A) provides that amount of gratuity from date date of joining till
\n31.3.1995 and Spell (B) provides that amount of gratuity paid from
\n1.4.1997 to 31.12.1999. In both kind of gratuity, Spell (A) last
\ndrawn wages taken into account on 31.3.1995 and in Spell (B), last
\ndrawn wages taken into account from March,1997 because living index
\nis taken into account. Therefore, according to him, amount of
\ngratuity is available to employee under the provisions of Payment of
\nGratuity Act,1972 on the basis of last drawn wages which has not been
\ncalculated. Therefore, provisions of Gratuity Act is violated.\n<\/p>\n
16.1\tIt
\nit necessary to note that one proceedings initiated by both parties
\ni.e. TLA Union representative and the Ahmedabad Advance Mills Ltd.
\ngiving submission in Case (IC) No.1\/1997     under provisions of the
\nBombay Industrial Relations Act,1946 wherein under Section-66
\nsettlement between both parties arrived on 12.2.1997 and accordingly,
\nthat settlement has been recorded by Industrial Court on 12.2.1997.
\nTherefore, as per terms 6(C), the gratuity is required to be
\ncalculated from date of joining of concerned employee upto 31.3.1995
\non basis of receiving salary by concerned employee on 31.3.1995. This
\nsettlement has been arrived because of discontinuation of certain
\ndepartments and to accept voluntary resignation from concerned
\nemployees and whatever posts are found to be vacant, that posts are
\nrequired to be abolished. For that, specific settlement has been
\narrived with representative union by applicant mills co. Therefore,
\npart (A) calculation made upto 31.3.1995 as per settlement dated
\n12.2.1997 which was produced before controlling authority.
\nThereafter, subsequent period, Part (B) was taken into account from
\n1.4.1997 to 31.12.1999. Both kind of gratuity has been calculated on
\nbasis of two separate agreement arrived by representative union with
\napplicant Mills Co. That agreements are binding to concerned opponent
\nNo.2 and accordingly, benefit of gratuity has been calculated for
\ntotal years of service which comes to 41 years. The opponent No.2 in
\nits form-I considered his service to be continued upto 15.4.2008
\nwhich is not correct because by second agreement which was recorded
\nby this Court on 11.2.2008 where specific agreement arrived between
\nboth parties that closure of the mills co. is held to be legal and
\nvalid which is accepted by the respondent Union and all the concerned
\nemployees along with representative of respondent Union, who has
\ngiven writing to this Court dated 28.1.2008. Therefore, a moment
\nclosure is considered to be legal, then thereafter there is no
\nfurther period is available to concerned employee to claim gratuity.
\nTherefore, considering both agreements dated 12.2.1997 and order
\npassed by this Court on 11.2.2008, the amount of gratuity in respect
\nto opponent No.2 has been properly calculated by applicant Mills  Co.
\nIf there is an error in calculation, the remedy is available to
\nopponent No.2 to approach Advocate of Representative Union and
\nlearned Senior Advocate Mr.S.I.Nanavati as per order passed by this
\nCourt on 11.2.2008 but, there is no remedy is available as per
\nbinding agreement to concerned opponent No.2 to approach directly to
\ncontrolling authority under the provisions of Payment of Gratuity
\nAct.\n<\/p>\n
16.2\tMr.Danial,
\nlearned Union Representative has referred and relied upon recent
\ndecision of Apex Court in case of Allahabad Bank & Anr. v. All
\nIndia Allahabad Bank Retired Employees’ Association<\/a> reported  in 2010
\nI CLR 1 = 2009 AIR SCW  7667 and 2009 (4) Scale 577. He relied upon
\nrecent decision of Apex Court in respect to gratuity where question
\nwas considered by Apex Court whether the retired employees having
\nexercised their option to avail the benefits under the pension scheme
\nare estopped from claiming the benefit (i.e. gratuity) under the
\nprovisions of the Payment of Gratuity Act. Answering this question by
\nApex Court in the negative, the Apex Court has held that right to
\nreceive gratuity under the provisions of the Act cannot be defeated
\nby any instrument or contract. The pension and gratuity are separate
\nretiral benefits and right to gratuity is a statutory right. No
\ncomparison between a pension scheme, not providing for payment of
\ngratuity and right of employee to receive gratuity under the
\nprovisions of the Act. Therefore, appeal preferred by Allahabad Bank
\nhas been dismissed. So aforesaid decision of Apex Court is not
\napplicable to facts of this case because here amount of gratuity has
\nbeen paid to opponent No.2 by applicant   Mills Co. which has been
\naccepted by him on basis of two agreements dated 12.2.1997 and
\n11.2.2008. Both agreements with representative union under provisions
\nof BIR Act,1946. When both agreements arrived with representative
\nunion by applicant   Mills Co. the concerned employees expressly or
\nimpliedly waived their statutory right to claim payment of gratuity
\nunder the provisions of the Act. But their claim of gratuity is
\ndecided in terms of two settlement dated 12.2.1997 and 11.2.2008.
\nTherefore, observations made by Apex Court in Para.22 and 23 of
\naforesaid decision is relevant   which are quoted as under :\n<\/p>\n
 22.
\nThis Court in Hindustan Lever and Anr. Vs. State of Maharashtra &
\nAnr.9 relying upon the decision of this Court in Purshottam H. Judye
\nVs. V.B. Poddar10 held that the word `instrument  would include
\naward made by the Industrial   Tribunal.   It   is   thus   clear
\nthat notwithstanding the Desai and Shastry Awards and the subsequent
\nsettlements the members of the employees association are entitled to
\navail the benefit conferred upon them for payment of gratuity under
\nthe provisions of the Act. The employees cannot be deprived of their
\nvaluable statutory right conferred upon them to receive payment of
\ngratuity.\n<\/p>\n
23.\tThere
\nis no material placed before us that the employees while opting for
\nthe pension scheme at the time of their superannuation\/retirement
\neither expressly or impliedly waived their statutory right to claim
\npayment of gratuity under the provisions of the Act.  In the
\ncircumstances we find no merit in the submission made by the learned
\ncounsel for the appellant in this regard. For the aforesaid reasons
\nwe find no merit in the appeal.\n<\/p>\n
16.3\tIn
\nview of above observations made by Apex Court in aforesaid recent
\ndecision, reliance which has been placed by the Mr.Danial, Trade
\nUnion Representative is not helpful to him in support of his
\nsubmission. The aforesaid recent decision of Apex Court makes it
\nclear that in case if employee while opting for the pension scheme at
\nthe time of his superannuation or retirement, either expressly or
\nimplied waived their statutory right, then concerned employees are
\nnot entitled to claim amount of gratuity as per provisions made in
\nthe Payment of Gratuity Act. In this case, by two agreements with
\nrepresentative union under provisions of BIR
\nAct, 1946 which is binding to members of representative union and
\neven also it is binding to non-members means concerned other
\nemployees working with applicant Mills Co. In this case, having
\naccepted both settlements arrived with representative union and
\nreceiving payments, thereafter to file proceedings under provisions
\nof Payment of Gratuity Act,1972 is not maintainable. Otherwise there
\nis no sanctity of both settlements arrived with representative union
\nby applicant Mills Co.  When applicant Mills. Co. negotiated entire
\nmatter where question of closure of Mills Co. was discussed where
\nnumber of workers are affected and on principle of collective
\nbargaining when entire matter has been settled, so employees
\nconcerned may get immediately amount of their legal dues without
\nbeing legal fight against applicant   Mills. Co. The opponent No.2
\nhas not made any allegation against representative union or there is
\nno mala fide has been alleged by
\nopponent No.2 against representative union. At the time of recording
\nsettlement by this Court, this Court has also found that settlement
\nproduced before this Court being settling in respect to all amounts
\nof legal dues of employee which was in interest of concerned
\nemployees. Therefore, this Court has recorded it and accordingly,
\napplicant   Mills Co. has acted on it. Thereafter, if such separate
\napplication filed before controlling authority if it is to be
\nentertained, then unnecessary multiplicity of proceedings will be
\narisen which is not in interest of either parties because it amounts
\nto violating legal and binding terms of both settlements. The
\nrepresentative union under provisions of BIR Act,1946 having sole
\ncollective bargaining agent recognized by statutory provisions become
\nnugatory. The Apex Court in number of decisions has considered this
\nquestion reported in 2008 AIR SCW 8122. Therefore, according to my
\nopinion, even recent decision of Apex Court in case of  Allahabad
\nBank & Anr. is also not helpful to opponent No.2. On the
\ncontrary, in case of waiving expressly or impliedly statutory right
\nunder provisions of Payment of Gratuity Act by virtue of two
\nsettlements arrived with representative union under provisions of BIR
\nAt,1946, the opponent No.2 is not entitled to claim any amount of
\ndifference under provisions of Payment of Gratuity Act,1972. Now to
\nchallenge such calculation is contrary to both settlements as
\nreferred above. Therefore, contentions raised by Mr.Danial, Trade
\nUnion Representative cannot be accepted and hence, rejected.\n<\/p>\n
17.\tIn
\nview of aforesaid consent terms arrived between representative union
\nand Mills Co. and in case of dispute of difference in calculation,
\nthe remedy is also available to opponent
\nNo.2, but opponent No.2 is not entitled to approach directly to
\ncontrolling authority by filing necessary application under
\nprovisions of Payment of Gratuity Act,1972. Unless and until the
\norder passed by this Court on 11.2.2008 recording consent terms
\narrived between both parties is challenged to higher forum by either
\nof parties. The opponent No.2 after accepting consent terms and
\ntendering resignation and accepting amount without any objection, has
\nno right to straightway approach to controlling authority claiming
\ndifference of amount under provisions of Payment of Gratuity Act,1972
\nbecause this consent terms is binding to him and he has no right to
\neven challenge such settlement which has been accepted by him arrived
\nby representative union under provisions of BIR Act,1946. This
\nconsent terms is having binding effect not only the members of union
\nbut, also to those workers even who are not members of such union.
\nThe decision taken by representative union would be final and binding
\nand individual employee has no locus standi to file any proceedings
\nbefore the Court or any authority contrary to consent terms which
\narrived between Mills Co. and representative union. That aspect has
\nbeen made clear by Apex Court in case of  Shivanand Gaurishankar
\nBaswanti (supra). Therefore, controlling authority has no
\njurisdiction to initiate any proceedings against present applicant in
\nresponse to application No.63 of 2009 filed by opponent No.2.
\nTherefore, considering relevant provisions of BIR Act and also the
\nobservations made by Apex Court in above referred cases, the
\nproceedings filed by opponent No.2 before the controlling authority
\nunder Payment of Gratuity Act,1972 in Application No.63 of 2009 is
\nalso required to be quashed because it is contrary to consent terms
\nas recorded by this Court on 11.2.2008
\nand it is also contrary to law laid down by Apex Court as referred
\nabove.\n<\/p>\n
18.\tTherefore,
\nApplication No.63 of 2009 filed by opponent No.2 before controlling
\nauthority at Ahmedabad under the Payment of Gratuity Act,1972 is
\nhereby quashed and set aside. It is directed to controlling authority
\nat Ahmedabad under Payment of Gratuity Act,1972 not to initiate any
\nfurther proceedings in respect to Application No.63 of 2009 filed by
\nopponent No.2 against present applicant Mills Co. Accordingly, Rule
\nis made absolute to aforesaid extent with no order as to costs.\n<\/p>\n
(H.K.RATHOD,J.)<\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court The vs Heard on 18 January, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print MCA\/2110\/2009 2\/ 25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION No. 2110 of 2009 In SPECIAL CIVIL APPLICATION No. 14632 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-106115","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nThe vs Heard on 18 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-vs-heard-on-18-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The vs Heard on 18 January, 2010 - 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