JIVANLAL PRITILAL v. JASHODABEN BABUBHAI PARMAR — 1998 DIGILAW 663 (GUJ)

H. L. GOKHALE, J. ( 1 ) SPECIAL Civil Application No. 5400 of 1998 is filed by one Shri Jivanlal Pritilal who claims to be a labour contractor working under M/ s. Maneklal Harilal Mill No. 1 situated at Saraspur, Ahmedabad. Special Civil application No. 8088 of 1998 is filed by the said Mill Company. Both these petitions seek to challenge the interim order passed by the learned Judge of the labour Court at Ahmedabad below interim application (Exh. 2) in Application No. 579 of 1997 and the order passed by the Industrial Court in Revision Application nos. 5 and 6 of 1998 confirming that order. Mr. Clerk has appeared for aforesaid jivanlal Pritilal (hereinafter referred to as the Contractor) and Mr. Chudgar has appeared for the Mill Company (hereinafter referred to as the Mill Company ). Mr. G. M. Joshi has appeared for 12 lady employees who are respondent Nos. 1 to 12 in both these matters. ( 2 ) THE facts leading to these petitions are as follows : The said Mill Company is a cotton textile mill, the employer-employee relations under which are governed under the Bombay Industrial Relations Act, 1946 (hereinafter referred to as B. I. R. Act, 1946 ). Respondent Nos. 1 to 12 have filed Application No. 579 of 1997 under secs. 78 and 79 of the said Act before the learned Labour Court Judge at Ahmedabad, wherein they have prayed for a declaration that they may be declared as employees of the Mill Company. The said prayer has been justified by contending that they have been working in the said Mill Company continuously for years together. They were engaged in the Mending Department and were required to work from 8 a. m. to 4-30 p. m. This mending work was done inside the premises of the Mill Company and that it was an essential work for the purposes of the principal activities of the said employer. In an exhibit annexed to the Application, they mentioned the years in which they have joined in the Mill Company. The names and the dates given in the Annexure are as follows : ( 21 ) THERE is one more aspect of this matter. In an exhibit annexed to the Application, they mentioned the years in which they have joined in the Mill Company. The names and the dates given in the Annexure are as follows : ( 21 ) THERE is one more aspect of this matter. It is sought to be contended in the reply of the contractor that the lady employees were engaged only for butta cutting and since that work was not available, they could not be engaged any further. In this behalf, if one looks to the work awarded to the contractor, there are some eight different activities which the Mill Company had awarded to the contractor to execute. It has nowhere been pleaded either by the Mill Company or by the contractor that these activities were so specialized that separate class of employees were required to be engaged. It is also material to note that the lady employees were paid only rs. 30/- per day which is even not the minimum wage for unskilled labour under the Minimum Wages Act. It is also contended that there is a fine distinction between loop-cutting and butta cutting. This submission with respect to these lowly paid employees is shocking to say the least. ( 22 ) I have considered these rival submissions. It is apparent that the management has failed to defend the interim application before the learned Labour Court Judge and on the date on which either the Labour Court Judge or the Industrial Court decided the matter, the plea that the employees were already terminated was not pressed into service. In that view of the matter, the Courts below were bound to look into the application in the way it was filed. When any plaint or application is presented, the Court has to see the application as it is. This being the position merely because a reply is filed much later in February 1998 by the contractor claiming termination and if that plea is also not pressed into service, the order by the learned labour Court Judge and the Industrial Court could not be faulted. In this view of the matter, there is no need to intervene by this Court any further and these two orders will have to be held as correct as on the date on which they were passed. In this view of the matter, there is no need to intervene by this Court any further and these two orders will have to be held as correct as on the date on which they were passed. As observed by the Honble Supreme Court in D. P. Maheshwari v. Delhi Administration, in AIR 1984 SC 153 , such interference under Art, 226 of the Constitution of India is likely to break the resistance of workmen. ( 23 ) THE fact, however, remains that as far as this Court is concerned, now that it is pointed out that the applications to challenge the termination had been filed subsequently, some appropriate arrangement will become necessary. Mr. Clerk and mr. Chudgar submit that now when the plea with respect to termination is pressed into service that will have to be decided first. Mr. Joshi submits that the subsequent cases are without prejudice to the earlier and only consequential. Whether the subsequent applications are to be decided first or Application No. 5790 of 1997 filed earlier should be decided first, this Court cannot ignore both the substantive applications. The evidence in both the matters will be by and large common. Hence, it will be proper that both these proceedings ought to be heard together. It would also be desirable that the proceedings in the Labour Court be decided expeditiously. Pending disposal thereof, the further operation of both the orders will have to be kept in abeyance. This is without saying in any way that those orders are erroneous. However, as stated above, since the plea with respect to termination has also to be decided, it would be proper that till disposal of the proceeding, further enforcement of the impugned orders should remain in abeyance. ( 24 ) DURING the pendency of these cases, the employees will have to be protected. Mr. Joshi submits that the amount deposited in the Court be released to them. Mr. Clerk and Mr. Chudgar oppose this request. Mr. Joshi states that as per commissioners report, the employees had reported for duty on 17/10/1997 and were not entertained inside. Mr. Joshi has also brought on record the letters which were sent to the lady employees by the contractor on 27-6-1998 directing them to report on duty. Mr. Clerk and Mr. Chudgar oppose this request. Mr. Joshi states that as per commissioners report, the employees had reported for duty on 17/10/1997 and were not entertained inside. Mr. Joshi has also brought on record the letters which were sent to the lady employees by the contractor on 27-6-1998 directing them to report on duty. With respect to these letters, an affidavit is filed by the contractor wherein it is stated in paras 2 and 4 that these letters were issued due to insistence of the Mill Company and the employees were offered work in mending section but they could not execute the work in that section and hence started creating unrest and were required to sit idle and that stage continued upto 30-8-1998. Mr. Joshi, therefore, submits that admittedly there is evidence and admission to show that workers were reporting for duty in October 1997 and July and August 1998. ( 25 ) AS stated above, it is clear that in the month of October 1997, the employees concerned were waiting outside the gate when they were turned out. This position must have continued thereafter. Mr. Joshi submits that they are entitled to full wages thereafter as directed by the Industrial Court and in any case when they were called for duty in June 1997 the so-called termination did not survive. It is also on record that the employees were not taken on duty for two months in July and August 1998. As far as all these three months are concerned, the workers will be eligible for full wages in any case. ( 26 ) FROM the record which is annexed to the application, it is seen that various lady employees had joined this Company from 1992 onwards. If they were subsequently terminated on 30-9-1997, even on that footing, they will be entitled to retrenchment compensation, notice pay and gratuity. Thus, the 12 lady employees will be eligible to claim gratuity, notice pay and retrenchment compensation as shown in the table below. The amounts due to them are calculated at the rate of Rs. 30. 00 per day and 26 days work in a month, i. e. , Rs. 720. 00 per month. Sr. Name of Continuous Wages Retrench- Gratuity Notice Total no. employee years of for ment com- Pay service Oct. 97, pensation completed July and upto Aug. The amounts due to them are calculated at the rate of Rs. 30. 00 per day and 26 days work in a month, i. e. , Rs. 720. 00 per month. Sr. Name of Continuous Wages Retrench- Gratuity Notice Total no. employee years of for ment com- Pay service Oct. 97, pensation completed July and upto Aug. 98 30-9-97 780 x 31 Jasodaben 4 2340 780 x 2 - 780 4680 =15602 Kashiben 5 2340 780 x 2. 5 780 x 2. 5 780 7020 =1950 =19503 Narmadaben 7 2340 780 x 3. 5 780 x 3. 5 780 8580 =2730 =27304 Ilaben 7 2340 780 x 3. 5 780 x 3. 5 780 8580 =2730 =27305 Kamalaben 4 2340 780 x 2 - 780 4680 =15606 Madhuben 4 2340 780 x 2 - 780 4680 =15607 Jamnaben 4 2340 780 x 2 - 780 4680 =15608 Jayaben 4 2340 780 x 2 - 780 4680 =15609 Leelaben 4 2340 780 x 2 - 780 4680 =156010 Meenaben 5 2340 780 x 2. 5 780 x 2. 5 780 7020 =1950 =195011 Bhanuben 5 2340 780 x 2. 5 780 x 2. 5 780 7020 =1950 =195012 Rekhaben 2 2340 780 x 1 - 780 3900 =780total Rs. 70, 200 ( 27 ) THUS, the amounts mentioned in the table are admittedly due to the 12 lady employees. The same will be paid to them under the order of Court as interim adhoc payment. Mr. Joshi states that they will receive it as payment of unpaid wages. That will be so for the months of October 1997, July and August 1998. The rest of the amount will in any case be due to them under the particular heads even if they are held to be validly terminated. Thus, releasing these amounts will not cause prejudice to the managment, and their release is certainly not release of the entire amount or equivalent to full relief. 28. In the circumstances, although I find no error in the two orders passed, the further enforcement of these two orders will remain in abeyance. The Labour Court is directed to dispose of Application No. 579 of 1997 and Application No. 29 of 1998 (together with other such applications) as expeditiously as possible and in any case by the end of December 1998. Till then, the enforcement of the impugned orders will remain stayed. The Labour Court is directed to dispose of Application No. 579 of 1997 and Application No. 29 of 1998 (together with other such applications) as expeditiously as possible and in any case by the end of December 1998. Till then, the enforcement of the impugned orders will remain stayed. In the event the Mill Company any the contractor succeed, naturally they will not be required to pay anything. In the event, the workers succeed, all the wages from 1-10-1997 will become payable to them minus the amount paid. The petition is, therefore, entertained only in part as stated above. The Registrar will act on this order and issue cheques to these 12 lady employees of the amounts as mentioned in the table. The remaining amount will be transferred to the Labour Court at Ahmedabad and the learned Judge of the Labour Court will invest it in a fixed deposit for three months to begin with. It is clarified that both the parties will not seek unnecessary adjournments and in the event the decision gets prolonged for any reason, it would be open for the parties from making necessary applications. When the learned Judge of the Labour Court proceeds to decide the applications, he is expected to decide them on merits without being influenced by any of the observations made in this judgment or the orders passed by the Courts below. The petition is disposed of accordingly with no order as to costs. Rule is made absolute to the aforesaid extent only. Mr. Chudgar and Mr. Clerk request for suspending this order. That request is rejected. .