Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 403 (GUJ)

Hanjar Cinema v. General Majdoor Sangh

2013-07-12

PARESH UPADHYAY

body2013
JUDGMENT : Per Paresh Upadhyay, J. Heard Mr. M.B. Gandhi, learned advocate for the petitioner and Mr. V.M. Dhotre, learned advocate for the contesting respondents. 2. In Special Civil Application No. 8006 of 2004, the petitioner-Management has challenged the award of the Labour Court, Ahmedabad dated 10.03.2004 in Reference (LCA) No. 76 of 1997, by which eleven workmen, mentioned in the operative part thereof, are ordered to be deemed to be in service from 23.08.2001, with continuity of service, with full back wages. This petition was admitted by this Court on 10.08.2004 and the implementation and operation of the impugned award dated 10.03.2004 was stayed on condition of compliance with the provisions of Section 17B of the Industrial Disputes Act. 3. The respondent-Union, thereafter moved an application before this Court, being Civil Application No. 9926 of 2004 in Special Civil Application No. 8006 of 2004, agitating therein that, since the workmen are not being paid wages under Section 17B of the Industrial Disputes Act, the stay granted by this Court be deemed to have been vacated and the petitioner - Management be directed to reinstate the workmen. The said application came to be disposed of by this Court vide order dated 20.12.2004, inter-alia observing therein that, for the purpose of claiming wages, the concerned workmen need to file affidavit that he is not gainfully employed. It was observed that, if the concerned workman file affidavit stating that he is not gainfully employed, the same can be considered in accordance with law. 4. Pursuant to the above observations, the workmen again moved an application being Civil Application No.57 of 2005 praying for wages under Section 17B of the Industrial Disputes Act, which was dismissed for default on 24.06.2005, which was subsequently restored on 21.03.2006 by the order of this Court recorded in Misc. Civil Application No. 797 of 2006. Thereafter, on the said application i.e. Civil Application No.57 of 2005, this Court on 24.04.2006 directed the original-petitioner Management to pay wages to the workmen under section 17B of the Industrial Disputes Act. 5. According to workmen, there was default in paying those wages. Therefore, other interim proceeding had also taken place, one of which was Civil Application No. 5767 of 2007 in Civil Application No. 57 of 2005 in Special Civil Application No. 8006 of 2004, on which, this Court, on 02.05.2007, had passed an order, which reads as under:- "1. 5. According to workmen, there was default in paying those wages. Therefore, other interim proceeding had also taken place, one of which was Civil Application No. 5767 of 2007 in Civil Application No. 57 of 2005 in Special Civil Application No. 8006 of 2004, on which, this Court, on 02.05.2007, had passed an order, which reads as under:- "1. The present Civil Application is filed with a prayer to direct the opponents to pay last drawn wages in light of wage slip at Annexure-E collectively' produced by the petitioner. 2. Learned advocate Mr. Dhotre submitted that in Civil Application No.57 of 2005 on 24th April 2006, this Court has directed to original petitioner to pay regularly continuous last drawn wages as required under Section 17-B of the Industrial Disputes Act with effect from 10th March 2004 till 30th April 2006 within a period of one month from the date of receiving the copy of the said order. 3. Accordingly, present applicants have received Rs.8190/- by each applicant by letter dated 5th June 2006 a last drawn salary for a period of 10th March 2004 to 10th April 2006. 4. Learned advocate Mr. Dhotre further submitted that wage slip to be considered, but, that cannot be considered at this stage because this being a disputed facts before this Court. What was the last drawn salary of the workman at the time of terminating his service, this question is to be examined by Labour Court. 5. Therefore, according to applicant, last drawn wage is not paid because according to workman, last drawn wages of Rs.930/- and original petitioner has come out with the case that last drawn salary was Rs.10-50 ps. 6. Therefore, in light of this, being dispute, it is open for the petitioner to file recovery application before the Labour Court where the question of disputed facts can be examined by leading proper evidence before the Labour Court. This Court cannot entertain such question in present proceedings, however, it is further directed to present petitioner to pay last drawn wages with effect from 11th April 2006 onwards till the matter will be finally decided by this Court regularly. 7. In view of above observations and directions, present Civil Application is disposed of." 6. This Court cannot entertain such question in present proceedings, however, it is further directed to present petitioner to pay last drawn wages with effect from 11th April 2006 onwards till the matter will be finally decided by this Court regularly. 7. In view of above observations and directions, present Civil Application is disposed of." 6. Pursuant to the above order of this Court, on behalf of the workmen, proceedings were taken out before the Labour Court, Ahmedabad in Recovery Application No.487 of 2007, which the Labour Court allowed vide order dated 31.03.2010 and directed the Management to make payment of wages as claimed by the workmen. The said order of the Labour Court is challenged by the petitioner Management, by a separate petition, being Special Civil Application No.4897 of 2010. The amount payable pursuant to the direction of the Labour Court was agreed to be deposited before the Labour Court, as recorded in the order dated 30.06.2010 by this Court on Special Civil Application No.4897 of 2010. It is stated that the said amount is subsequently deposited also. The said amount was directed to be invested in the fixed deposit, by the order of this Court dated 09.07.2010 and the petition was admitted. The amount of interest was directed to be paid to the workmen. So far as the second petition i.e. Special Civil Application No.4897 of 2010 is concerned, it is at this stage. 7. Heard Mr. M.B.Gandhi learned advocate for the petitioner and Mr. V.M.Dhotre, learned advocate for the contesting respondents-Union and workmen, in both the petitions. 8.1 Mr. Gandhi has submitted that the second petition i.e. Special Civil Application No.4897 of 2010 is dependent on the fate of Special Civil Application No.8006 of 2004. It is submitted that, in the event this Court does not interfere in the award of the Labour Court which is the subject matter of Special Civil Application No.8006 of 2004, effectively, the petitioner-Management may not have any case in the subsequent petition i.e. Special Civil Application No.4897 of 2010. 8.2 So far Special Civil Application No.8006 of 2004 is concerned, this Court is to examine the legality and validity of the award of the Labour Court, Ahmedabad dated 10.03.2004. 8.2 So far Special Civil Application No.8006 of 2004 is concerned, this Court is to examine the legality and validity of the award of the Labour Court, Ahmedabad dated 10.03.2004. The case of the workmen before the Labour Court as reflected in the statement of claim was to the effect that, though the Hanjar Cinema, Ahmedabad, which was closed on 01.07.1990, had reopened on 19.02.1995, the workmen who had worked earlier, ought to have been called for work, but the Management did not call, which was illegal. It was agitated that the workmen ought to have taken back on and from 19.02.1995. Thus, effectively, the grievance of the workmen was of violation of Section 25H of the Industrial Disputes Act. The reasoning is recorded by the Labour Court in Para-8 of the impugned award. The Labour Court has proceeded on the footing that the retrenchment of the respondent-workmen in the year 1990 itself was not in accordance with law and therefore even during 1995 the employer-employee relationship had continued. Labour Court has recorded that one of the workmen had given his evidence on 23.08.2001 in one of the Recovery Applications to the effect that the employer-employee relationship had continued and therefore, the said date is accepted by the Labour Court to be the effective date for granting relief and therefore, while allowing Reference No.76 of 1997 on 10.03.2004, the workmen are ordered to be treated as having been reinstated with effect from 23.08.2001, with full back wages. The Labour Court has ordered continuity of service also. It is this award which is under challenge in this petition. In this factual background, learned advocate for the petitioner has contended that the impugned award be quashed and set aside. 9. On the other hand, Mr. Dhotre learned advocate for the respondent Union and workmen has contended that the case of the workmen before the Labour Court was to the effect that the workmen should have been considered to be in continuous employment and the same having been accepted by the Labour Court, this Court may not interfere with the same. Learned advocate Mr. Dhotre relied on the following decisions in support of his contentions. (I) Karnataka Power Transmission Corporation Ltd. v. Amalgamated Electricity Co. Ltd., (2001) 1 SCC 586 (II) Imambhai G. Sheikh v. RPFC, [ 1982 (1) GLR 581 ] 10. Learned advocate Mr. Dhotre relied on the following decisions in support of his contentions. (I) Karnataka Power Transmission Corporation Ltd. v. Amalgamated Electricity Co. Ltd., (2001) 1 SCC 586 (II) Imambhai G. Sheikh v. RPFC, [ 1982 (1) GLR 581 ] 10. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that the Labour Court, Ahmedabad sought to answer a question which was not posed before it. It was not even the case of the workmen, nor was it the terms of Reference that in the year 1990, when the Hanjar Cinema was closed, whether there was illegal retrenchment of the workmen. The grievance of the workmen was limited to the extent that, when the Cinema had restarted in the year 1995, those workmen, who had earlier worked with the said Cinema, ought to have been called back on work. Thus, effectively the Reference was as to whether, there was violation of Section 25H of the Industrial Disputes Act, or not. The details of statement of claim of the workmen, which is on record, was also on the same line. The Labour Court recorded satisfaction which led to the conclusion that there was breach of Section 25F of the Industrial Disputes Act, since the retrenchment in the year 1990 was illegal. Thus, the Labour Court answered a question, which was neither put before it, nor it was agitated before it. Thus the proceedings before the Labour Court has taken place in an unfair manner against the employer, which is challenged in this petition. It is the case on behalf of the petitioner-Management that earlier Management had sold the property and new Management has not engaged any fresh person and the business of show, is being conducted by the family members and there was no occasion for reinstating the old workers. This Court does not find any discussion or finding of the Labour Court to the effect that in the year 1995, when the Cinema had reopened, some new workmen were appointed and old workmen were not called and that is how, illegality is committed. This Court does not find any discussion or finding of the Labour Court to the effect that in the year 1995, when the Cinema had reopened, some new workmen were appointed and old workmen were not called and that is how, illegality is committed. What is recorded by the Labour Court is that, when the retrenchment of the workmen had taken place in the year 1990, the same was not in accordance with law and therefore they are deemed to be in service, which was not even the case of the workmen. There is ample material on record to show that, there was material on record to satisfy that, at the time of retrenchment of these workmen in the year 1990, legal dues were paid to each workman. Since the same was not an issue before the Labour Court, nor is before this Court, the same is not gone into further. However, it is found that, the finding of the Labour Court that there was illegality in retrenching the workmen in the year 1990, was beyond the scope of Reference, and was even beyond the scope of statement of claim of the workmen and the same was even without any material on record in that regard. Under these circumstances, the impugned award of the Labour Court cannot legally be permitted to stand. The decisions relied on by the learned advocate for the respondent workmen, which are referred above, in my view, would not take the case of the respondent workmen any further, in above stated fact situation. 11. For the reasons recorded above, Special Civil Application No.8006 of 2004 is allowed. The award of the Labour Court, Ahmedabad dated 10.03.2004 in Reference (LCA) No. 76 of 1997 is quashed and set aside. 12. So far Special Civil Application No. 4897 of 2010 is concerned, the same is arising out of the direction of the Labour Court, Ahmedabad in Recovery Application, which was preferred by the workmen on the basis of the above referred award of the Labour Court dated 10.03.2004 which is found to be illegal. Thus, as the necessary consequence, the order of the Labour Court, Ahmedabad dated 31.03.2020 impugned in Special Civil Application No. 4897 of 2010 also needs to be quashed and set aside. Thus, as the necessary consequence, the order of the Labour Court, Ahmedabad dated 31.03.2020 impugned in Special Civil Application No. 4897 of 2010 also needs to be quashed and set aside. As the consequence of what is held above, the respondent workmen legally can not be held to be entitled to receive any amount from the petitioner. However, some payment is already made to the workmen during the pendency of this petition and I am not inclined to give any direction to the workmen to refund the amount which is already received by them. The petitioner however is permitted to withdraw the amount which is invested in fixed deposit, as recorded in para 6 above. Under these circumstances, while holding that the respondent workmen are not entitled to receive any amount from the petitioner, and while permitting the petitioner to withdraw the amount which is deposited in the Fixed Deposit through the Labour Court, as recorded in the orders of this Court dated 30.06.2010 and 09.07.2010 in Special Civil Application No.4897 of 2010, it is further ordered that the amount which is already paid to the workmen shall not be recovered. 13. For the reasons recorded above, both the petitions are allowed. The award of the Labour Court passed in Reference (LCA) No.76 of 1997 dated 10.03.2004, so also, the order of the Labour Court in Recovery Application No.487 of 2007, dated 31.03.2010, both, are quashed and set aside. The amount lying with the Labour Court, as invested in the Fixed Deposit Receipts, as recorded in orders dated 30.06.2010 and 09.07.2010, shall be permitted to be withdrawn by the petitioner. Labour Court, Ahmedabad shall do needful in that regard. Rule made absolute in each petition, with no order as to costs. Writ Petition allowed.