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2010 DIGILAW 146 (GUJ)

Surat Silk Labour Union v. State of Gujarat

2010-03-11

H.K.RATHOD

body2010
ORDER : H.K. Rathod, J. Heard learned advocate Ms. Sangeeta N. Pahwa appearing on behalf of petitioner and learned AGP Ms. Sachi Mathur appearing on behalf of respondent No. 1 - State Authority. 2. According to facts narrated in petition, respondent No. 3 has terminated the services of 44 workmen on July 25, 2009 without following due process of law. She submitted that all these workmen were permanent employees of respondent No. 3 and Bombay Industrial Relation Act ('BIR Act' for short) is applicable to respondents therefore, immediately, T. Application has been filed by concerned employees challenging termination order before Labour Court, Surat, which is pending. The respondent No. 3 has closed his business activities w.e.f. July 25, 2009, without obtaining prior permission of specified authority under the provisions of Industrial Disputes Act, 1947. The due wages has not been paid and therefore, there is a delayed payment of wages as per Page 28 - Statement produced, along with petition Annexure-C. Therefore, employees concerned have approached the Payment of Wages Authority under Section 15(2) of Payment of Wages Act. During pendency of that application, application under Section 17-A is also filed by employees' concerned with a prayer to attach the property or to direct the respondent No. 3 Company to maintain status quo and not to shift the machinery and material which are lying with respondent No. 3. The Payment of Wages Authority has passed an order on September 16, 2009 with a direction to respondent No.3 not to shift machinery as per Schedule-B, Item Nos. 1 to 9 mentioned along with application and directed to maintain status quo and hearing was fixed on October 16, 2009. 3. The present petition is filed by petitioner with a view to get sufficient protection, so, dues of workmen and their consequences benefits may not (sic) be available to employees in case if respondent No. 3 shifted the machinery or sell the property belongs to respondent No. 3. 4. Learned advocate Mrs. Pahwa relied upon two decisions of this Court i.e. Special Civil Application 2212/2004 decided on March 5, 2004 (Coram : Justice Jayant Patel) and another decision in case of Miscellaneous Mazdoor Sabha v. State of Gujarat (1992) II CLR 754 (Guj.) decided on January 16, 1992. Relying upon these two decisions, learned advocate Ms. 4. Learned advocate Mrs. Pahwa relied upon two decisions of this Court i.e. Special Civil Application 2212/2004 decided on March 5, 2004 (Coram : Justice Jayant Patel) and another decision in case of Miscellaneous Mazdoor Sabha v. State of Gujarat (1992) II CLR 754 (Guj.) decided on January 16, 1992. Relying upon these two decisions, learned advocate Ms. Pahwa submitted that let this petition may be entertained by this Court for protecting the interest of workmen otherwise, it is very difficult to recover amount from respondent No. 3. 5. I have considered her submissions and I have scanned the records of present petition as well as I have also gone through the decisions cited by learned advocate Ms. Pahwa. Considering the facts and circumstances of present case, I am not entertaining this petition only on the ground that alternative effective remedy, is already availed by petitioner or concerned employees. The termination order is challenged under the provisions of BIR Act under Sections 78/79 before Labour Court, Surat and that proceeding is pending. During pendency of proceedings under the provisions of BIR Act, the Labour Court has power to pass such interim order which may consider just and proper. Therefore, Section 119-D of BIR Act is quoted as under: "119(D). In any proceeding before it under this Act, the Industrial Court, a Labour Court or a Wage Board may pass such interim orders as it may consider just and proper." Therefore, similar relief can be prayed before Labour Court in proceedings where termination order is challenged by concerned employee and Labour. Court is competent to pass interim order protecting the interest of concerned employees. 6. The concerned employees have also approached the Payment of Wages Authority by filing application under Section 15(2) of the Payment of Wages Act. During pendency of application, the concerned employees have also filed an application for attachment before judgment under Section 17-A before Payment of Wages Authority at Surat. The relevant Section 17-A is quoted as under: "Section 17-A - Conditional attachment of property of employer or other person' responsible for payment of wages. During pendency of application, the concerned employees have also filed an application for attachment before judgment under Section 17-A before Payment of Wages Authority at Surat. The relevant Section 17-A is quoted as under: "Section 17-A - Conditional attachment of property of employer or other person' responsible for payment of wages. (1) Where at any time after an application has been made under sub-section (2) of Section 15 the authority, or where at any time after an appeal has been filed under Section 17 by an employed person or (any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf or any Inspector under this Act or any other person permitted by the authority to make an application under sub-section (2) of Section 15) the Court referred to in that Section, is satisfied that the employer or other person responsible for the payment of wages under Section 3 is likely to evade payment of any amount that may be directed to be paid under Section 15 or Section 17, the authority or the Court, as the case may be, except in cases where the authority or Court is of opinion that the ends of justice would be defeated by the delay, after giving the employer or other persons an opportunity of being heard, may direct the attachment of so much of the property of the employer or other person responsible for the payment of wages as is, in the opinion of the authority or Court, sufficient to satisfy the amount which may be payable under the direction. (2) The provisions of the Code of Civil Procedure relating to attachment before judgment under that Court shall, so far as may be, apply to any order for attachment before judgment under sub-section 1." 7. Therefore, provisions made in Code of Civil Procedure for attachment before judgment under Order 38, Rule 5, the Payment of Wages Authority is having same power to pass order during pendency of application under Section 15(2) of Payment of Wages Act. Therefore, both authorities i.e. Labour Court as well as Payment of Wages Authority are having jurisdiction to pass interim order to protect the interest of workman or both authorities are competent to grant relief as prayed in present petition by petitioner. Therefore, both authorities i.e. Labour Court as well as Payment of Wages Authority are having jurisdiction to pass interim order to protect the interest of workman or both authorities are competent to grant relief as prayed in present petition by petitioner. Therefore, only on that ground, this petition is not entertained by this Court and decision which has been relied upon by learned advocate Ms. Pahwa are not having similar facts, because, in reported decision of Division Bench in Miscellaneous Mazdoor Sabha v. State of Gujarat (supra), a direct petition was filed, but, learned advocate Ms. Pahwa submitted that before this Court, in SCA No. 2212/2004, some proceedings were pending before Labour Court. Even though, when alternative effective remedy is available and already availed by petitioner, according to my opinion, it is not proper to entertain this petition only on that ground, therefore, as and when necessary application is made by petitioner before Labour Court under Section 119-D of BIR Act, it is directed to concerned Labour Court, Surat to pass order immediately as required to be passed under Section 119-D of BIR Act in accordance with law and also similarly, if petitioner or concerned employee may request to Payment of Wages Authority to pass appropriate orders under Section 17-A(1) and (2) of the Payment of Wages Act. As and when such prayer is made, it is directed to Payment of Wages Authority, Surat to pass appropriate orders while considering provisions as referred above in accordance with law. However, in case of any difficulty, after approaching the concerned authority as well as Labour Court, it is open for petitioner to approach this Court. In view of above observations and directions, present petition is disposed of without expressing any opinion on merits. Order accordingly.