Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 1762 (BOM)

Pandurang Keshav Waghchaure v. Sakin Ahmed Pathan

2013-08-30

ABHAY M.THIPSAY

body2013
JUDGMENT Oral Order: 1. Heard the learned counsel for the petitioner. Heard the learned counsel for the respondent no.1. 2. The respondent no.1 and one more-Shri Sudamrao Pandharinath Shishode Patil were prosecuted on the allegations of having committed an offence punishable under section 48 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ‘MRTU & PULP Act’). The learned judge of the labour Court on holding a trial, found the petitioner as also the other accused guilty of the said offence and sentenced both of them to pay a fine of Rs. 5000/-, each, with a stipulation that in default of payment of fine, the petitioner and other accused should suffer imprisonment for a period of 15 days each. 3. Aggrieved by his conviction and the sentence imposed upon him, the petitioner filed an appeal before the Industrial Court but, the Industrial Court dismissed the same. Being aggrieved thereby, the petitioner has approached this Court invoking its Constitutional jurisdiction. 4. As it was apparent and conceded that both the Courts below have arrived at a concurrent finding of fact, the learned counsel for the petitioner was called upon to point out any manifest error or patent illegality and/or perversity in the findings arrived at by the Trial Court as also by the Appellate Court. 5. The learned counsel in support of his contention that the findings of fact arrived at by both the Courts below are suffering from perversity, raised two contentions. His first contention is that the petitioner himself was an employee of Shri Sant Eknath Sahakari Sakhar Karkhana Ltd Eknathnagar, and in fact he himself had filed a complaint in respect of unfair labour practices in connection with non-receipt of the dues receivable by him from the said Sakhar Karkhana. His second contention is that, there was sufficient material before the Trial Court to show that Sakhar Karkhana was going through financial problems and that, therefore, could not comply with the order passed by the Labour Court which was for the payment of arrears of unpaid salary/wages and other benefits such as gratuity etc, within a specified time. He submitted that, there was no willful disobedience or willful failure to comply with the order passed by the labour Court. He submitted that, there was no willful disobedience or willful failure to comply with the order passed by the labour Court. According to him, these aspects of the matter were not taken into consideration by both the Courts below and that, therefore, the findings arrived at by them suffer from a patent illegality, impropriety and perversity. 6. With the assistance of the learned counsel, I have glanced through the judgment delivered by the labour Court as also the Appellate Judgment delivered by the Industrial Court. I have taken through the relevant evidence. 7. It does not appear to me that aspects which are highlighted by the learned counsel for the petitioner were not taken into consideration by the trial court and/or the Appellate Court. All that appears is that, the contentions raised by the petitioner were not accepted by them. 8. With respect to the first contention, it was observed that the complaint which has been filed by the petitioner for non receipt of the amounts payable to him by the Sakhar Karkhana was after an order was passed on the complaint filed by the respondent no.1. Under the circumstances, the possibility of the petitioner having filed the complaint just to create a defence was apparent and the view to disregard that aspect of the matter as taken by the Trial Court and the Appellate Court was certainly said to a possible view. 9. With respect to the second contention, the Trial Court as well as the Appellate Court observed that sufficient details and sufficient material was not produced before the Court to enable it to judge this aspect of the matter. The Appellate Court noted that the defence of financial crunch of the said Sakhar Karkhana was not supported by any documentary evidence. 10. It needs to be observed that a broad and general defence of financial crunch would not be sufficient to come out of the clutches of the said penal provision. A bald assertion of the petitioner as was made before the Trial Court and the Appellate Court would not be sufficient to come to a finding that it was not possible for the petitioner and/or the other accused to comply with the order in question. What were the financial dealings of the Sakhar Karkhana during the material period, and whether no money at all was spent by it on any item or cause is not clear. What were the financial dealings of the Sakhar Karkhana during the material period, and whether no money at all was spent by it on any item or cause is not clear. That Sakhar Karkhana is indebted does not throw any light as to whether the Sakhar Karkhana was in a position to pay the dues of the petitioner or not. It cannot throw light on the fact that whether no financial transactions at all were done by the Sakhar Karkhana during the material period. In the instant case, the amount that was required to be paid to the respondent no.1 was about Rs.1,54,000/- and therefore, the general defence of financial crunch cannot absolve the petitioner or any other person is alleged to have contravened the order of the Labour Court to justify the non payment of the said amount. 11. Exercise of Writ Jurisdiction is discretionary. It is not that in this case the contentions of the petitioner have not been taken into account by the Courts below. They were taken into account and were rejected. No manifest illegality or perversity in the reasoning of the Courts below is noticed. Sentence imposed upon the petitioner is only a sentence of fine. In exercise of the Writ jurisdiction, this Court cannot act as if it were a Court of Appeal. Such exercise of the Writ jurisdiction is uncalled for and unwarranted. 12. The Petition is dismissed.