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2015 DIGILAW 293 (BOM)

Kiran Shankar Prasad Pande v. Parmanand Koche

2015-02-02

R.K.DESHPANDE

body2015
Judgment 1. Rule made returnable forthwith. The respondent nos.1 to 55 are served by way of paper publication with the notice of final disposal of the matter. However, none of them has appeared before this Court. Heard Shri Rohit Joshi, the learned counsel for the petitioner and Shri Agnihotri, the learned counsel for Respondent No. 56. 2. Respondent Nos. 1 to 55 were employed initially by the Divisional Railway Manager, South Eastern Railway, Nagpur, who is the respondent No. 56. They were working from 01.12.1978, 06.08.1980, 12.06.1985 and 07.06.1986. Thereafter, they were engaged to carry out the same work by the contractor, who is the petitioner herein. The said complainants worked with the contractor upto 31.08.1993 when the contract of the petitioner was terminated by respondent no. 56. As a result of this, the complainants were retrenched from service. 3. Application CGIDA Case No. 02 of 1994 was filed by the complainants under Section 33C(2) of Industrial Disputes Act. This has been allowed by the Labour Court on 19.10.2010, holding the petitioner and the respondent no. 56 jointly and severally liable to pay an amount of Rs.12,750/- to each of the male complainants except the complainant Kallu Bhosh at Sr No. 21 and Arun Sontakke at Sr. No. 24. The Labour Court further directed the payment of Rs.10,300/to each of the female complainants except one Shalini Indurkar at Sr. No.9. The Labour Court further directed payment of Rs.9000/- to applicant no.9 Shalini Indurkar, Rs.8,250/- to applicant No. 21 Kallu Bhosh and Rs. 7,500/- to applicant No. 24 Arun Sontakke. The amount is to be paid within 30 days failing which it shall carry interest at the rate of 12% per annum. The basis for allowing the complaint is that, the complainants were continuously working for 240 days preceding the date of their retrenchment on 31.08.1993 and hence, they were entitled for retrenchment compensation in accordance with Section 25F of the Industrial Disputes Act. 4. Shri Joshi, the learned counsel for the petitioner has relied upon the provision of Section 25FFF(1) along with proviso therein and has urged that the petitioner/contractor has closed down the undertaking on account of unavoidable circumstances beyond his control and therefore, the compensation to be paid to the workmen under clause (b) of Section 25F shall not exceed his average pay for 3 months. He submits that the complainants were working with the petitioner from 1989 to 1993 and therefore, the petitioner could not have been held liable for payment of compensation by taking into consideration the past service rendered by the complainants from 1978 to 1989 with the respondent nos. 56 principal employer. The question also arises as to whether Section 25F is attracted in the present case or not. All these questions could not have been gone into by the Labour Court in exercise of its jurisdiction under Section 33C(2) of the Industrial Disputes Act and the parties should have been left with an option to file a substantive complaint to get such relief. 5. Shri Joshi, the learned counsel for the petitioner submits that at the most the petitioner could be held liable for payment of salary of 33 male workers at the rate of Rs.1500/- per month for two months and so far as 22 female workers are concerned at the rate of Rs.1200/- per month for two months. He submits that the total liability of petitioner-contractor would not exceed at any rate than Rs.1,41,800/- and the petitioner/contractor is prepared to deposit this amount without prejudice to his rights to defend the separate complaints, if any, filed by the complainants. 6. In view of this, it is held that each of the 33 male complainants shall be entitled to an amount of Rs.3000/- towards salary of two months and each of the 22 female complainants shall be entitled to an amount of Rs.2400/- towards two months salary. The petitioner to deposit entire amount of Rs.1,41,800/- in this court within a period of six weeks from today. The office shall permit accordingly each of the complainants to withdraw the said amount as per the decision of this Court as and when they approach for such withdrawal. 7. In the result, the writ petition is disposed of by an order as under: (i) The judgment and order dated 19.10.2010 passed by the Labour Court in Application No CGIDA 02 of 1994 is hereby quashed and set aside. The said application is dismissed. (ii) The petitioner to deposit an amount of Rs.1,41,800/- in this Court within a period of six weeks from today, failing which the writ petition shall stand dismissed without reference to Court. The said application is dismissed. (ii) The petitioner to deposit an amount of Rs.1,41,800/- in this Court within a period of six weeks from today, failing which the writ petition shall stand dismissed without reference to Court. (iii) The office shall permit each of the male worker to withdraw an amount of Rs.3000/- and each of the female worker to withdraw an amount of Rs.2,400/- as and when they approach for withdrawal of such amount. (iv) If such amount is not withdrawn within a period of one year from today, the matter shall be placed before this Court for further appropriate orders in respect thereof. (v) All questions are left open to be agitated by the complainants i.e. respondent nos. 1 to 55 by filing substantive complaints and after taking into consideration the amount already deposited by the petitioner in this court, the court shall pass appropriate order. Put up this matter in the next week on 09.02.2015 as Shri Agnihotri, the learned counsel appearing for Respondent No.56 submits that he shall make an arrangement to communicate the order passed by this Court to the respondent nos. 1 to 55 through the local counsel for withdrawal of such amount.