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2019 DIGILAW 934 (GUJ)

General Works and Utar Gujarat Bidi Kamdar Union v. Commissioner of Labour, State of Gujarat

2019-10-16

SONIA GOKANI

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ORDER : Sonia Gokani, J. 1. The petitioner has approached this Court, seeking following reliefs: "33. ... A. The Hon'ble Court be pleased to issue and order, writ or direction in the nature of mandamus or any other appropriate writ, order or direction declaring the inaction on part of respondent No. 1 to 3 in taking actions against the employers for illegal closure and non-payment of due wages to the employees and illegal closure by respondent No. 4 to 6 as illegal, unjust, arbitrary and unconstitutional and hence, be pleased to direct the respondent No. 1 to 3 to take steps against the employer for illegal closure and non-payment of due wages and further direct the respondent No. 4 to 6 to pay regular wages to all concern, workmen because of illegal closure of undertakings. B. The Hon'ble Court be pleased to direct respondent No. 1 to 3 to produce report of the action initiate against employers for violation of provisions of labour legislation and direct the respondent No. 1 to 3 to see that in prosecution, the employer is punished with maximum punishment. C. The Hon'ble Court be pleased to direct respondent No. 4 to 6 pay 12% interest on the due wages of the workers from January 2019 to March 2019 and direct the respondent No. 4 to 6 to pay regular wages to the concern workmen as per sec. 25(O) of the Industrial Disputes Act, 1947. D. Pending admission and final disposal of the present petition, the Hon'ble Court be pleased to restrain respondent No. 4 to 6 not to create any burden on the land, property and immovable goods of all 3 establishments, without permission of this Hon'ble Court and direct respondent No. 4 to 6 to pay due wages to the workmen from January 2019 to March 2019 and further direct to pay regular wages to the concern workmen as per sec. 25(O) of the Industrial Disputes Act, 1947. F. Pending admission and final disposal of the present petition, the Hon'ble Court be pleased to direct respondent No. 1 to 3 to report what actions initiated till date against respondent No. 4 to 6 for the violation of labour legislation. G. .." 2. Respondent Nos. 25(O) of the Industrial Disputes Act, 1947. F. Pending admission and final disposal of the present petition, the Hon'ble Court be pleased to direct respondent No. 1 to 3 to report what actions initiated till date against respondent No. 4 to 6 for the violation of labour legislation. G. .." 2. Respondent Nos. 4 to 6 in the instant case are the Corporate Debtor (CD) before the NCLT, Ahmedabad Bench, where, Operational Creditor, M/s. Bonus Plastics Pvt. Limited, has initiated the action against them. 2.1. This is a petition being CP (I.B.) 8/9/NCLT/AHM/2019, which has been admitted and moratorium has been declared by the NCLT in terms of Sub-section (1) of Section 14 of the Code, where, at Paragraph-15, it is observed as under: "15. The petition is therefore admitted and the moratorium is declared for prohibiting all of the following in terms of Sub-section (1) of Section 14 of the Code:- (i) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (ii) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (iii) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (iv) the copy of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor." 3. Affidavit-in-reply is also filed by respondent No. 2, Assistant Labour Commissioner, stating, therein, that the State authority has initiated actions against respondent Nos. 4 to 6 under the Minimum Wages Act, 1956, the Contract Labour Act (R&A) Act, 1970, the Industrial Employment (Standing Orders) Act, 1946, the Industrial Disputes Act, 1947, the Payment of Wages Act, 1936, the Payment of Gratuity Act, 1972. 4. On the last adjournment, the Resolution Professional, represented by the learned Advocate, Mr. Saiyed, appeared and requested the Court to pass an appropriate order in view of the order of the NCLT. 5. Today, this Court has heard the learned Advocate, Mr. 4. On the last adjournment, the Resolution Professional, represented by the learned Advocate, Mr. Saiyed, appeared and requested the Court to pass an appropriate order in view of the order of the NCLT. 5. Today, this Court has heard the learned Advocate, Mr. Pathak, for the petitioner, who has urged that the criminal proceedings, as contemplated under the law shall have to be initiated. He has also urged this Court that in 'S.G. CHEMICALS & DYES TRADING EMPLOYEES UNION VS. S.G. CHEMICALS & DYES TRADING LTD.', (1986) 2 SCC 624 , where, the Marketing Division of the Company was closed down without complying with the provisions of Section 25-O of the ID Act, although, the condition under Section 25K of the Act, existence of not less than 100 workmen in the establishment was fulfilled, having regard to the total number of workmen employed in the Marketing Division of the factory of the Company and considering the two units, having constituted a single Unit, the Apex Court held that the consequent termination of services of the workmen was in contravention of the terms of existing settlement between the workmen and the employer, which amounted to unfair labour practice of not complying with the existing settlement, and therefore, it directed the reinstatement with backwages. He, therefore, has urged that the criminal proceedings should not be hampered by any of these proceedings. 6. Learned Advocate, Mr. Acharya, who has been appointed by the Court to assist the cause, has relied on the following decision to urge that what is needed under the entire proceedings is that the Company's assets should not be in any manner affected: (1) 'KUSUM INGOTS AND ALLOYS LTD. VS. PENNAR PETERSON SECURITIES LTD.', (2000) 2 SCC 745 ; (2) 'DINTAKURTHI KRISHNA MOORTHY GUPTA VS. STATE OF AP', 2017 (1) RCR (Cri) 483; 7. According to him, in criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881, where, before the drawl of the cheque by the Company or before the expiry of the notice period under Clause B of the proviso to Section 135 of the NI Act, criminal proceedings would not be maintainable. However, he has urged that for other civil remedies, Resolution Professional can be approached. 8. Learned AGP, Ms. Snusha Joshi, ensures to initiate actions in accordance with law, as stated in the affidavit of the Asst. However, he has urged that for other civil remedies, Resolution Professional can be approached. 8. Learned AGP, Ms. Snusha Joshi, ensures to initiate actions in accordance with law, as stated in the affidavit of the Asst. Labour Commissioner, as against the judgment of the NCLT, New Delhi, the matter is, now, kept in November, 2019. 9. This matter is, therefore, being posted on 14TH NOVEMBER, 2019. 9.1. In the meantime, as ensured by the Asst. Labour Commissioner in his affidavit, the criminal proceedings shall be initiated by the State. 9.2. So far as the petitioners are concerned, they shall be permitted to raise their claim before the Resolution Professional or any other body that they may deem appropriate.