IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8617 of 2010 With CIVIL APPLICATION No. 10645 of 2010 In SPECIAL CIVIL APPLICATION No. 8617 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= AMBALAL SARABHAI ENTERPRISES LIMITED & 2 - Petitioners Versus KISHOR G SALUNKE & 4 - Respondents ========================================================= Appearance : In S.C.A. No.8617 of 2010 MR MIHIR JOSHI SR.COUNSEL WITH MS MEGHA JANI for Petitioners : 1 -3.
RULE SERVED for Respondents : 1 - 5. MR MS MANSURI for Respondents : 1, Appearance : In C.A. No.10645 of 2010 MR MS MANSURI for Applicants: 1-5 MR MIHIR JOSHI SR.COUNSEL WITH MS MEGHA JANI for Respondents: 1 -3.
========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 31/08/2012 CAV JUDGMENT
1. The petitioners, the respondents in Complaint (IT) No.12 of 2010 in Reference (IT) No. 167 of 2000 and 104 of 2004 pending before the Industrial Court, Vadodara have approached this Court under Articles 226 and 227 of the Constitution of India, challenging the interim order passed below Ex. 2 by the Industrial Tribunal on 9.7.2010 on the ground that said order is passed without jurisdiction and contrary to the provisions of law and hence, it is prayed to be quashed and set aside.
2. Facts in brief leading to filing this petition deserve to be set out as under:
3. The petitioner no. 1 is a Company incorporated under the Companies Act, 1956. The petitioner nos. 2 and 3 are the Chairman and Director respectively of the said Company. The respondents are the office bearer of the Union and complainants. The workmen of the Company lodged Charter of Demands on account of non- acceptance of the same by the Company Industrial Dispute was raised, which came to be referred to the Industrial Tribunal, Vadodara by the Competent authority i.e. Assistant Labour Commissioner, Vadodara vide his order dated 31.7.2000. The order of Reference is produced at page 65 in the compilation, which indicate that the dispute was referred to the Tribunal for adjudication as the dispute existed between Ambalal Sarabhai Enterprise (ASE) Ltd., its units, Organization and employees of Sarabhai Chemicals and its employees’ union.
4. The Company could not make payment to its employees from December, 2003 to July, 2004. Hence, the union was constrained to raise dispute in respect of the demands for regular wages and other ancillary issues, which culminated into consensus between the Management and workmen in form of agreement dated 25.08.2004 on eight points including making reference under Section 10 (2) of I.D.Act 1047. Accordingly vide order dated 13.04.2004 the dispute was referred to the Industrial Tribunal herein it was registered as Reference (IT) No.
104 of 2004. The said demands were pertaining to immediate payment of the wages from December, 2003 to July, 2004; payment for 14.8.2004 to 19.8.2004 be made to the employees as they were not responsible for the situation arisen at that time; the Company had closed the working from 20.8.2004 to 25.8.2004, the workmen were entitled for wages thereof to the complaints made against the workmen should be withdrawn and the payment should be made, the suspension order and inquiry should be withdrawn and in past, if any property or asset is sold, alienated by the ASE or if any adequate source of income has arisen, the Company shall pay immediately the remaining outstanding amount to the workmen. These two References were pending and in the meantime, the complaint came to be filed in both these References under Section 33-A of the Industrial Disputes Act, 1947, which came to be marked as Complaint No. 12 of 2010. The said complaint was filed on 21.5.2010 and sought interim relief against transferring of the Company's property as the grievances was voiced that surreptitiously the company was siphoning off the property and assets of the company and depriving the workmen of their legitimate rights and dues. The Industrial Court passed an order on 9.7.2010 partly allowing the interim order application modifying its earlier order and permitting the Company to mortgage property for maintaining the Company or for paying the outstanding wages but while doing so, the Company will be under an obligation to mention and accept the first charge of the workmen on such mortgage. When such money is raised in such a way, the 60% of the amount be earmarked and spent on paying the remaining wages to the workmen and only 40% of the amount be spent towards managing the company for other affairs and creditors. The Company would be under an obligation to give details of such funds and it will not be in a position to sale its assets without prior permission of the Industrial Court. This order is assailed in this petition under Articles 226 and 227 of the Constitution of India.
5. This Court (Coram: K.S. Jhaveri, J.) on 3.8.2010 passed the following order :
“Draft amendment granted.
Heard. Rule returnable on 12.10.2010.
Admittedly as per the salaries of the workers in the application under Section 33-A of the Industrial Disputes Act, 1947 their dues come to around Rs. 5,00,00,000/- Rupees Five Crores) for which, undertaking is filed by the Management before the Tribunal.
Hence, in the meantime, order dated 09.07.2010 passed by the Presiding Officer, Industrial Tribunal, Vadodara shall be kept in abeyance on the following conditions:
(i) As pointed by the Tribunal, the Board of the Directors of the petitioner Company will pass Resolution stating that petitioner- Company will not sell, transfer or alienate property worth the amount referred in the undertaking to any other Company without permission of this Court;
(ii) that the lease or any mortgage or any transaction with respect to the land of the petitioner- Company which the company is going to make, will be subject to the result of this petition;
(iii) that the Company will make an endevour that 2(P) settlement which is subject matter of the reference is complied by the petitioner-Company in its true spirit; and
(iv) that the parties will complete the pleadings within a period of four weeks from today so that the matter can be proceeded on the returnable date.”
6. The respondents therefore filed Civil Application No. 10645 of 2010 with following prayers :
(A) Be pleased to admit this civil application.
(B) Be pleased to pass an order for vacating the interim relief granted by this Hon'ble Court by Annexure C-2 order on dated 03/08/2012.
the settlements by way of interim relief.
(D) Ex-party ad interim relief in terms of para (C) above may granted.
(E) Any appropriate order or direction which your lordships deems fit in interest of justice may be passed.
(F) cost of this application be awarded to the applications.
7. Accordingly both the matters were being listed together and learned advocates for both the parties have requested that the Court may decide main matter finally and hence both the matters were being heard, decided and disposed of by this common judgment and order.
8. Apart from the oral submissions, learned advocates have submitted their written submissions.
9. Learned advocate for petitioners has made following submissions as under.
(i) Learned advocate for the petitioners in the written submission submitted that the petition is filed for challenging the order dated 09.07.2010 passed by Presiding Officer, Industrial Tribunal, Vadodara in complaint (IT) No.12 of 2010 in Reference (IT) No.167 of 2000 and 104 of 2004. The complaint is filed under Section 33-A of Industrial Disputes Act, 1947. She further submits that Reference (IT) No.167 of 2000 is with respect to charter of demands which came to be referred to the Industrial Tribunal by Assistant Labour Commissioner, Vadodara vide order dated 31.07.2000. The issues of industrial dispute raised by the Company are at Page 64. The charter of demands of the workers is at Page no.65.
(ii) Learned advocate for the petitioner further submitted that the Reference (IT) No.104 of 2004 arose out of order dated 13.10.2004 of Assistant Labour Commissioner, Vadodara referring six issues to the Industrial Tribunal. The subject of the letter mentions industrial dispute between Sarabhai Chemicals, a division of ASE and its workers regarding outstanding wages from December 2003 to July 2003 and five other demands. The said reference is result of understanding signed between the parties in presence of the Minister, Department of Labour on 25.08.2006. Issue no.8 refers to making a reference of industrial dispute regarding the situation between 14.08.2004 and 25.08.2004. Pending the reference, settlement is arrived between the Company and two unions i.e. Chemical Labour Union and Sarabhai Chemicals Limited Employees Union on 03.11.2007 and 05.11.2007. The said settlement are recorded by the Tribunal vide order dated 06.10.2007. The order mentions in para 4 that full and final settlement is arrived at between the workers and the Company. Part award was passed. It is the say of the petitioner, as per his information, statement of claim is not yet filed by the workers in the said reference.
(iii) Learned advocate for the petitioner further submitted that the subject Complaint (IT) No.12.2010 came to be filed by five individual workers under Section 33-A of the Act on 25.10.2010 in the two references. The applicants of the said complaint also filed an application for interim relief restraining Ambalal Sarabhai Enterprises Ltd. (ASE), its divisions, its subsidiaries, Shri Kartikeya Sarabhai and his family members from transferring any movable and immovable property and for maintaining status quo. The applicants produced 6 documents with list on 21.05.2010.
(iv) The ASE filed its written statement and reply to application for interim injunction on 08.06.2010. The ASE also filed an undertaking on 29.06.2010 that land admeasuring 2,42,846 sq. ft. of old survey no.543 and 586 having market value of more than Rs. 6 Crores shall not be transferred pending the complaint. It was pointed out that the interim order dated 25.04.2010 passed by the Tribunal in terms of para 9(1) of the complaint was very wide and of very general nature being disproportionate covering properties of more than Rs.450 Crores as against amount of unpaid wages of the complainant not exceeding Rs. 5 Crores.
(v) Learned advocate for the petitioner further contended that the Tribunal vide order dated 09.07.2010 granted interim relief directing that the respondent company was permitted to mortgage its property for the purpose of raising finance for management and for making payment of wages on condition that the workmen would have priority of claim as against the secured creditors in future and further that 60% of the funds received under such transaction should be first utilized for making payment of outstanding wages and the balance 40% for other purposes and that no movable or immovable property of the company except finished goods should be sold without permission of the Industrial Tribunal.
(vi) Learned advocate for the petitioner further contended that the order passed by the Tribunal dated 09.07.2010 is challenged in this petition and the Court has passed an order on 03.08.2010 after hearing both the parties, admitting the matter and keeping the impugned order in abeyance on the conditions that due resolution would be passed by the company not to transfer or alienate property worth the amount referred to in the undertaking i.e. Rs. 5 Crores without permission of the Court; that any transaction in respect of the land would be subject to the result of the petition; and the company would make an endeavour to comply with the settlement in its true spirit.
(vii) Learned advocate for the petitioner further contended that pursuant to the aforesaid order/resolution was duly passed by the company on 16.08.2006 of CA/10645/2010 and payments were made by the Company towards wages of the workmen after the aforesaid order being Rs.52,55,958/- in September 2010, Rs.52,65,123/- in October 2010, Rs.16,28,220/- in November 2010, Rs.18,02,448/- in December 2010, Rs.21,20,212/- in January 2011, Rs.22,27,833/- in February 2011.
(viii) Learned advocate for the petitioner further contended that the subject complaint being Complaint (IT) No.12 of 2010 is not maintainable under Section 33A of the Industrial Disputes Act, 1947 since there is no contravention of the provisions of Section 33 of the said Act by the Company, which is a condition precedent for invoking the jurisdiction and applicability of Section 33-A of the Act, and therefore, no interim relief ought to have been granted by the Tribunal. He further submits that scope and purpose of Section 33-A of the Act is essentially to prevent victimization of the concerned workmen interalia by altering the conditions of service applicable him/them immediately before the commencement of such proceedings, and to ensure that if that is done, the complaint regarding the same by the Tribunal as if it were a dispute referred to or pending before it.
(ix) In support of his submission, learned advocate for the petitioner placed reliance upon the Supreme Court judgment in case of Air India Corporation, Bombay Vs. V.A. Rebello and another reported in (1972) 1 SCC 814. Relevant paragraph no.10 reproduced herein below;
“10. The basic object of these two sections broadly speaking appears to be protect the workmen concerned in the disputes which form the subject matter of pending conciliation proceedings or proceedings by way of reference under Section 10 of the Act, against victimization by the employer on account of raising or continuing such pending disputes and to ensure that those pending proceedings are brought to expeditious termination in a peaceful atmosphere, undisturbed by any subsequent cause tending to further exacerbate the already strained relations between the employer and the workmen. To achieve this objective a ban, subject to certain conditions, has been imposed by Section 33 on the ordinary right of the employer to alter the terms of his employees' services to their prejudice or to terminate their services under the general law governing contract of employment and Section 33A provides for relief against contravention of Section 33, by way of adjudication of the complaints by aggrieved workmen considering them to be disputes referred or pending in accordance with the provisions of the Act. This ban, however, is designed to restrict interference with the general rights and liabilities of the parties under the ordinary law within the limits truly necessary for accomplishing the above object. The employer is accordingly left free to deal with the employees when the action concerned is not punitive or mala fide or does not amount to victimization or unfair labour practice. The anxiety of the legislature to effectively achieve the object of duly protecting the workmen against victimization or unfair labour practices consistently with the preservation of the employers' bona fide right to maintain discipline and efficiency in the industry for securing the maximum production in a peaceful harmonious atmosphere is obvious from the overall scheme of these two sections ”
and contended that the complaint is adjudicated “as if it were a dispute referred to the Tribunal or pending before it” in accordance with the provisions of the Act. It is held by the Supreme Court in the case of Automobile Products of India Limited and Ors. Vs. Rukmaji Bala and Others, reported in AIR 1955 SC 258.
Paragraph nos.11 and 13 are reproduced herein below;
“11. .................. In short, these two sections give to the workman a direct right to approach the Tribunal for the redress of their grievance without the intervention of the appropriate Government and provide for speedy determination of dispute and avoid multiplicity of proceedings by giving complete relief to the workmen in relation to their grievances arising out of the action taken by the employer in contravention of the provision of the relevant sections. It is significant that this jurisdiction or power has been vested in the Tribunal or appellate Tribunal whose normal duty is to decide or adjudicate upon industrial disputes and not on any conciliation officer or Board who are normally charged with the duty of bringing about settlement of disputes.
13. The object of Section 22 of the 1950 Act like that of Section 33 of 1947 Act as amended is to protect the workman concerned in disputes which form the subject matter of pending proceedings against victimization by the employer on account of their having raised industrial disputes or their continuing the pending proceedings. It is further the object of these two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a determination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen ”
(x) In the present case the complaint alleges non- payment of wages from December 2009 to April 2010. The complaint is filed alleging that the Company violated Section 9-A and 33 by committing breach of settlement-award and by stopping to make regular payment of wages. Para 10 of the complaint can be translated as under:-
“10. As aforesaid, the respondents have committed breach of Section 9-A and 33 of Industrial Disputes Act by committing breach of settlement-award by stopping regular payment of wages, by stopping payment of other benefits payable to us as per conditions of service, by getting the stay order against sale of properties by fraudulent undertaking before the Hon'ble Tribunal. Hence, we complainants are forced to file this complaint.”
(xi) Learned advocate for the petitioner further contended that the complainants prayed for declaration that the Company has committed breach of awards dated 24.06.2008 and Reference No.104 of 2004 and has practiced unfair labour practice, prayed for payment of salary from December 2009 to April 2010 and for direction restraining the Company from transferring, assigning, selling or leasing its properties mentioned in para 11 of the complaint without complying with conditions of settlement at Exhibit 64 and 65 in Reference No.104 of 2004 dated 24.06.2008. Thus, the grievance raised in the complaint is regarding non payment of wages from December 2009 to April 2010 and for breach of award/settlement. The complainants have failed to point out as to which particular condition of service is altered. It is nobody's case that the Company has altered entitlement of workers to wages whether regarding the amount, terms or mode of payment. In the instant case, there has been delay in payment of wages on the part of the company due to financial restraints which are elaborately mentioned in the petition. Non-payment of wages does not amount to change in the service conditions principally because the change and such non-payment is a default which can be redressed under specific provisions of law.
(xii) Learned advocate for the petitioner further contended that by the complainants before the Tribunal as well as before this Court that the Company has violated provisions of Section 9-A of the Act and has thereby altered the conditions of service applicable to them. The said contention is ill-founded as, firstly there has not been any alteration to the entitlement of the workers to the wages, the period of wages or the mode of payment. Section 9-A will be attracted only when an employer proposes to effect any change in respect of any matter specified in the fourth schedule. Non payment of wages or delay or irregularity in payment of wages does not fall in item 1 of fourth schedule. Reliance is placed on (i) AIR 1955 Mad 45, in case of South India Estate Labour Reliance Organization Vs. The State of Madaras & Ors., (ii) AIR 1956 Pat 294 (Para 2, 9 and 10) in case of National Coal Company Ltd. Vs. L.P.Dave & Others. The judgment cited by the respondent reported in 1973 (4) SCC 141 in fact supports the contention of the petitioner since it holds that introduction of a scheme of reorganization without notice under Section 9-A was not justified and the workers were justified in refusing to work under the new scheme and therefore it followed that the refusal of the management to pay unless they work under the new scheme would amount to alteration of the conditions of service of the workers in such circumstances.
Secondly, the change, if any, is not in regard to any matter connected with the dispute pending before the Tribunal. What is pending before the Tribunal is Reference No.167 of 2000 which pertains to charter of demands by the workers and Reference (IT) No.104 of 2004 which is with reference to non payment of wages from December 2003 to July 2004. Pursuant to settlements between the Unions and the Company, nothing as such remains to be done in the said reference. The part award dated 06.11.2007 specifically mentions that the award is in full and final settlement as per conditions of the agreement.
(xiii) Learned advocate for the petitioner further contended that the non-payment of wages would not give rise to an industrial dispute and therefore, also such a complaint is not maintainable looking to the object and purpose of Section 33-A of the Act. In support of this submission, he placed reliance in case of Grehams Trading Company (India) Ltd. Vs. Industrial Tribunal and another), reported in 1963 2 LLJ 153 (cal). Paragraph nos.12. and 14 are reproduced herein below.
“12. Non-implementation of award does not fall within the definition of industrial dispute. Industrial disputes Act contains a provision for penalty for breach of settlement or award and also a provision for recovery of money due from an employer under an settlement or award. Section 29 of the Industrial Disputes Act deals with penalty for breach of settlement or award and reads as follows........
14. Therefore, if the petitioner company was guilty of non implementation of the award as to bonus, as affirmed by the Supreme Court (which of course I do not hold), the petitioner company should have been proceeded against either under Section 29 or under Section 33-C(i) of the Industrial Disputes Act but the matter should not have been referred to an industrial Tribunal for adjudication ”
(xiv) Learned advocate further submitted that no complaint can be entertained under Section 33A, if it cannot be adjudicated “as if it were a dispute”. As is held by the Supreme Court, the objection of section 33 and section 33A is to curtail litigation and give an opportunity to the workmen to raise an industrial dispute directly before the Tribunal without the intervention of appropriate Government and seeking reference of the industrial dispute through the Government. Since the remedy for recovery of amount due under an award lies under Section 33A and not under Section 10 of the Act, a complaint for the same under Section 33A cannot be entertained and any order passed on such an application amounts to an order passed beyond scope of the provisions and beyond jurisdiction vested in the Tribunal under Section 33 and Section 33A.
(xv) Learned advocate for the petitioner further contended that moreover, for a complaint regarding non-payment of wages due under a settlement or award, as complained of in the subject complaint, the only remedy is that which is provided under the relevant statutes inter alia being the following:
“ Section 29: Penalty for breach of settlement or award-
Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine or with both [and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first] and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realized from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach.”
(xvi) Learned advocate for the petitioner further submitted that for any money due under an award, remedy is provided in Section 33-C(1). Remedy for recovery of any money or benefit which is capable of being computed in terms of money is provided to the workman under section 33C(2). Section 33-C-(1) and (2) reads as under:-
“Section 33C: Recovery of money due from an employer
(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter VA or Chapter VB], the workman himself or any other person authorized by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same anner as an arrear of land revenue:
Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:
Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.
(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months: Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.”
The prayer in the complaint under Section 33-A of the complainant refers to breach of award.
(xvii) Learned advocate for the petitioner further contended that so far as non payment of wages is concerned, remedy for claims arising out of delay in payment of wages is provided in Section 15 of Payment of Wages Act, 1936. Section 15(2) of the Payment of Wages Act, 1936 reads as under:-
“15. Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claim-
(1) .......
(2) Where contrary to the provisions of this Act, any deduction has been made from the wages of an employed person, or any legal practitioner or an official of a registered trade union authorized in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under sub-section (1), may apply to such authority for a direction under sub-section (3). Provided ”
(xviii) Learned advocate for the petitioner further submitted that sub-section (3) of Section 15 of said Act confers power to the authority to direct payment of delayed wages together with payment of such compensation as the authority may think fit. He submitted that as a substantive remedy is provided in the statute dealing with payment of wages, it cannot be decided as an industrial dispute under the Act and hence, the complaint under Section 33A of the Act in respect to delay in payment of wages is not maintainable.
(xix) In view of the aforesaid, the petitioners submitted that any contravention which is not connected with the dispute already pending, which does not result into alteration of the conditions of service and which is not an industrial dispute, cannot be a subject matter of an application under section 33A. Since recovery of money due under an award can be enforced by filing an application under Section 33C(1) the same cannot be adjudicated as an 'Industrial Dispute' under the Act either independently or in a complaint under section 33A. In support of this submission, he relied upon the judgment in case of Lakshmi Devi Sugar Mills Ltd Vs. pt. Ram Sarup reported in AIR 1957 SC 82. Learned advocate for the petitioner submitted that the change, if any, is not with regard to any matter connected with the dispute pending before the Tribunal. What is pending before the Tribunal is Reference No. 167 of 2000 which pertains to Charter of Demands by the workers and Reference (IT) No. 104 of 2004 which is with reference to non-payment of wages from December, 2003 to July, 2004. Pursuant to settlements between the Unions and company, nothing as such remains to be done in the said reference. The part award dated 6.11.2007 specifically mentioned that the award is in full and final settlement as per conditions of the agreement.
(xx) He submitted that in the present case, there has been delay in payment of wages due to financial constraints. The company has not altered entitlement of the workers to ages and has not denied their right to get the wages. If the grievances of the workers is regarding non- payment of wages between the dates agreed upon in a settlement or award between the employer and the workmen, the remedy may lie in proceedings under Section 29 or 33C(i) of I.D.Act or under Section 15 of the Payment of Wages Act. In case the grievance is not an 'industrial dispute' under the Act, either independently or in a complaint under Section 33A, no complaint can be filed entertained under Section 22A if it cannot be adjudicated 'as if it were a dispute'.
(xxi) Learned advocate for the petitioners in alternative submitted that if the court concludes that the complaint requires to be entertained, the order passed by the Tribunal is beyond scope of powers conferred on the Tribunal under Sections 10 and 11 of the Act. Since a complaint under Section 33 is required to be adjudicated with the provisions of this Act, the Tribunal has to confine itself within the powers conferred on it under Section 10 and section 11 of the Act. The tribunal has no jurisdiction to pass interim orders of the nature that it has passed restraining the company from dealing with its assets, laying down terms on which financial assistance can be secured by the Company either under Section 10 or 11 of the Act or under any of provisions of the Act. He further submits that the complaint is with respect to non- payment of wages from December, 2009 till March 2010 amounting to approximately Rs.5 crores, the interim order restrains the company from dealing with its assets which will be to the tune of approximately Rs.450 crores.
(xxii) Learned advocate for the petitioner alternatively submitted that Section 33-A cannot be invoked for an apprehended breach. The provisions of Section 33-A are not preventive in nature. A complaint u/s. 33-A lies when conditions of services, etc., are “changed” during pendency of proceedings. Section 33-A is not available for preventing an employer from effecting any change. No such complaint can be filed on an apprehension or on apprehension or on any possibility of happening of an event in future. It is held by High Court of Gujarat in the case of Nadiad Municipality vs. Ghanshyam Barot & Ors. (1998) 2 GLH 728 that :
“The heading of the section says that it is a special provision for adjudication as to whether conditions of service are changed during the proceedings. The word used is “changed”. Therefore, that word “changed” shows and indicates that a complaint under S. 3-A would arise only after a change in service condition has been effected. The first sentence of the section says that when an employee contravenes the provisions of S. 33, when the word “contravenes” is used it indicates that there must be an actual contravention by the employer. Therefore, if the S. 33-A is carefully read, it will be quite clear that no complaint could be lodged under S. 33-A for the actual completed action of the employer. The S.33-A will come into play only after the employer had changed the condition of the service and contravened the provisions of S.33. Therefore, when it is not the case of the workman when he approach before the Industrial Tribunal or the Labour Court under S. 33-A that there was already changed or contravention by the employer, then the Labour Court/Industrial Tribunal has not jurisdiction to entertain an application under S. 33-A. The S.33-A is not in the preventive nature. If a workman feels that there is a likelihood of change in his service condition and if he wants to have ad interim relief, then he will have to approach before the Industrial Tribunal/Labour Court, as the case may be, before whom the Reference is pending or in case of the Conciliation Proceedings before the authority before whom the Conciliation Proceedings are pending. It must also be further mentioned here that if the employer happened to commit the breach of S. 33 then not only civil action could be taken against the employer but even a criminal action could be taken against the employer. But I am unable to accept the contention of the respondents that before actual breach of condition of the service, the workmen could file an application under S. 33-A.
(xxiii) Learned advocate for the petitioners submitted that the Company is implementing a restructuring scheme and has managed to survive for all these years inspite of difficult financial condition. The company has always functioned in the interest of the employees and acted bonafide. The Company has substantial assets and the impugned order results in halting efforts towards restructuring which are being made painstakingly, would make it impossible for the Company to get financial assistance and would make it almost impossible for it to make a come back. He further submits that the complaint is pending before the Tribunal. The Company has filed an undertaking before the Tribunal stating that it will not sell, transfer or put under any charge its landed property bearing old survey No. 543 and 586 having market value of more than Rs.6 crores. The outstanding wages as on today as per the claim of the workers would be Approx. Rs.6,45,00,000/-. Though as per the Company, it would be Rs.2,60,44,000/- as payment of salary from February 2010 to August 2010 is under a dispute due to disciplinary action initiated by the Company, the workers during the aforesaid period instead of cooperating with the Company, went on sit in strike and prevented all officers from going to the Company.
(xxiv) Learned advocate for the petitioners, in support of aforesaid submissions rely on the following judgments :
10. AIR 1955 SC 258
11. AIR 1977 SC 1229 12.1998(2) GLH 728 13.AIR 1955 Mad 45 14.(1963) II LLJ 153 Cal 18.(1972) 1 SCC 814 19.(2004) I LLJ 394 Bom
20. AIR 1956 Pat 294
21. Many/DE/3838/2006.
10. Learned advocate for the respondents-workmen in its written submissions stated as under:
a) That the petitioner company is a Public Limited Company engaged in production of Pharmaceuticals but since last atleast 15 years instead of producing pharmaceuticals mainly doing business of selling its know how, trade marks, plant, machinery and its huge land situated in prime locations in very suspicious manner with design to scrap the industry stopped the worker attending factory by not implementing the necessary legal obligations under drug law and drug authority's directives issued in this regard.
b) The workers are assured by the petitioner to pay their full wages while remaining at home. The aforesaid stoppage of work was introduced by a general notice initially for some short period extended by time and in force till date.
c) The common Award of wage revision passed by the Tribunal came to an end and unions have raised new demands which were jointly referred on dated 31-7-2000 by Management and unions invoking Section 10(2) of the I.D. Act 1947 to the Industrial Tribunal Vide Ref. No. 167 of 2000 and same is pending till date.
d) The Management at one hand sold its various movable and immovable properties but at other hand stop paying salary and dues on retirement to the workers hence serious dispute raised and lockout was imposed which was lifted by intervention of Minister of Labour by a Settlement between the parties.
e) The petitioner company did not follow any of the conditions of the settlement Annexure 'J' and not paid salary regularly and about 9 months salary, kit allowance and other dues of live and retired workmen are also not paid and the petitioner wants to transfer the property. Hence one more settlement dated 24-6-2008 was signed by the petitioner company with respondents.
f) Since the petitioner has shown no interest to implement any settlement notices have given,and finally a complaint No.12 of 2010 with an application for interim relief u.s. 33-A of the I.D. Act filed.
g) The Industrial Tribunal considering the facts that earlier also such an orders are passed and looking to the demand of justice confirmed the ad interim relief by a detailed order Annexure 'A' page 18 dated 9-7-2010 and this interim interlocutory order is under challenge in this petition.
h) It is submitted that the Tribunal has only directed the petitioner not to sale its property without previous permission of the Tribunal and allowed the petitioner to mortgage its subject to payment of due wages partly from the money realised from such mortgage.
i) The Tribunal has not passed any blanket order or not granted any kind of relief to the workers in the case but it is a balance order keeping interest of every body concerned. The workmen are not going to get any immediate money or salary because of this interim order but atleast their survival rights are some extent protected without any difficulty to the petitioner employer. The petitioner is not prevented from selling the property in genuine, transparent manner protecting the interest of the company itself, as and when any such sale proposal is there petitioner could approach to the Tribunal and Tribunal can consider such request. However, the petitioner employer management have chosen to file this petition.
j) It is submitted that, this Court while admitting the petition imposed following conditions for keeping the order Annexure 'A' in abeyance.
(i) As pointed out by the Tribunal the Board of Directors of the petitioner Company will pass Resolution stating that petitioner company will not sell, transfer or alienate property worth of amount referred in the undertaking to any other company without permission of the Court.
(ii) That the lease or any mortgage or any transaction with respect to the land to the petitioner company which the company is going to make will be subject to the result of this petition.
(ii) That the company will make an endeavour that 2(p) settlement which is subject matter of the reference is complied by the petitioner company its true spirit.
k) Looking to the above conditions the petitioner was required to furnish security of Rs.5 crore but the company though filed an undertaking but land shown there in are not clear and marketable, the valuation of such land is not such a high as shown by the company,no registered valuer's certificate is produced, secondly the petitioner was obliged to comply with the 2(p) agreement in which along with other one of the terms is to pay regular wages on 8th day of every months. The petitioner therefore legally bound to pay atleast current months wages regularly from the date of order 3- 8-10 but petitioner company has not fulfilled such conditions hence Civil Application No. 10645/10 is moved and when it came for hearing the earlier bench has orally directed the company to pay wages and to produce certificate of marketability and title as well as valuation from authentic sources but same is not done and now about 13 months wages, 1 Crore rupees of kit allowance 1.60 crore as gratuity are due from the company.
l) Respondents advocate has submitted that petitioners' advocate have raised following points for determination of this Court, as under:-
(A) Complaint U.S. 33 A is not maintainable as non payment of wages is not an alteration of condition of service complainant could have gone under payment of Wages Act.
(B) Non payment of wages is not an issue connected with pending demands alteration must be related with pending dispute.
(C) It is not stated in complaints pleading that which is the condition altered.
(D) S.9 A is not attracted as there is no change in mode of payment, period of payment in this case wages not paid is not a matter covered by the fourth Schedule.
m) In reply to above points raised by learned advocate for the petitioners, following reply has given answer to said points as under, in the written submissions.
That, it is not only a case of non payment but not providing work, stopping workers from attending duties with assurance to pay full wages, non implementations of binding settlements, non paying kit allowance and other benefits, committing breach of statutory provisions mandating for payment of wages, committing breach of Awards settling wage structure, and snatching away the right to work withholding the normal wages for unlimited period and malafide intention behind it is a ground for complaining breach of Section 33.
That, Section 33 is not only limited to alteration of condition of service but Section is intends to take care of condition of service etc. within it's sweep. What is intended is to protect the workmen from the change of Condition of Service. The opening words of the section is “CONDITION OF SERVICE ETC. TO REMAIN UNCHANGED UNDER CERTAIN CIRCUMSTNCES DURING PENDANCY OF PROCEEDINGS”. Therefore what is intended is to keep conditions of service etc. as remain unchanged.
The condition of service so far as the industrial workers are concerned can be mainly defined as statutory and contractual.
The I.D. Act even, without and in absence of application of S. 33 (because s. 33 attract only when dispute / proceedings are pending) imposed a ban against change of condition of service. S.9A in this regard provides that if an employer wish to change any condition of service listed in fourth schedule is legally obliged to give 21 days advance notice to the concerned workmen/union.
Fourth schedule is mainly taking care of all the conditions of service with in its purview.
So far this case is concerned Item No.1 and 8 are most relevant, where in wages, including period and mode of payment is considered as condition of service. The “wages” itself is mentioned as condition of service and period and mode of payment is made inclusive there in,therefore the basic condition is wages from part of statutory condition of service the non payment, or delayed payment therefore can not be said to be excluded from term wages it includes decrease and denial to pay wages within its sweep. Similarly item No.8 speaks about “withdrawal of any customary concession or privilege or change in usage” also support the above point the Item No.8 is very wide and it almost cover all the condition either express or implied in customary existence.
n) In support of above submission, following citation are cited by learned advocate for the respondents, i.e. (1) in Tata Iron and Steel Co. 1972-2 SCC 383 Supreme Court; (2) Hindustan Lever Ltd 1973 I L.L. J. pg. 427. wherein The Supreme court has categorically held that non payment of wages for unlimited period is breach of S. 33 and Section 9-A hence complaint u.S. 33-A is maintainable. Payment of regular wages is thus express and statutory condition of service.
o) It is submitted that if such condition is not fulfilled or changed during the pendency of an industrial dispute concerned with wage revision, demands, and particularity Ref. No.104/04 wherein one of the terms of reference is to pay regular wages then it is wrong to canvass that there is no breach of S. 33.
S.33 is mainly and in large perspective deals with all the prejudicial action taken by employer in respect of concerned workmen in the dispute.
p) Standing orders is also condition of service. Award or settlement are also condition of service Ref. No. 167/2000 regarding wage revision is admittedly commenced on 31/7/2000 hence on the day of commencement of this industrial dispute all above condition of service are in force which altered/changed by employer by not paying wages, allowances, etc.
q) The Ref No. 167/00 and Ref. No. 104 of 2004 are looking to its terms of reference applicable to all the workmen. Award which may be passed will blind all the workmen under Section 18(3) of the I.DF. Act therefore all the workmen are concerned and connected with the above reference therefore argument of the petitioner is not valid one.
r) The Industrial Tribunal in impugned order rightly and properly considered prima facie case and held the complaint maintainable, payment of Wages Act may be a general remedy for delayed or deduction of wages but when direct subject is covered by pending dispute this special remedy is legally available and there is no prohibition in law.
s) The complaint memo specifically clearly indicates that how the petitioner has committed breach of S. 33 therefore it is wrong to say that complaint does not specify how breach of Section 33 is committed.
t) That the arguments made on behalf of the company is that company has not altered the date of payment as fixed but unable to pay on that day does not altered or changed the date hence there is no alteration at all, this argument is demonstrating an apparent malafide and highhanded mighty attitude of petitioner management. The petitioner claims powers and prerogatives of legislature by advancing such argument. The date of payment of wages, hour of works , intervals rest holiday etc. are part of Payment of Wages Act/ Factory Act and therefore any change, amendment there is if to be done it can only be done by legislature and not by way of claiming a right to change by such provision by employer. No power has got in authority to make change in statute but if statutory prescribed or imposed conditions and terms are not followed and fulfilled then it amount to alteration and or breach of condition of service. There is a vital difference between alteration and statutory change or amendment in laws. If the preposition canvassed by the petitioner to be accepted then there is no need to describe the legal/ statutory condition of service provided in standing order, Factory Act, Payment of Wages Act, again as conditions of service for the purpose of S.9A and 33 of I.D. Act. In fact even condition of service came into existence by way of Award and settlement is not even altered/modified or changed by invoking section 9-A and 33 of the Act that can be changed by subsequent settlement or Award only. Division Bench of Bombay High Court in case of Haribhao Shinde Vs. F.H. Lala reported n A.I.R,. 1970 Bombay 213 held so. Para 15 and 16 are directly supporting the above submission.
Therefore, a non payment of wages coupled with the breach of settlement and award is to be viewed as more serious.
u) It is further submitted that the Industrial Tribunal is empowered by S.33-A to exercise all powers of referred under Section 10 hence it has jurisdiction to pas appropriate order U.S. 10(4) read with Sec,. 2 (b) and 11 (1) of the I.D. Act as held by Supreme Court in the Grindlays Bank reported in 1981 1 LLJ 427, the Court considering S. 11 (1) held that Tribunal has got ample power and authority to pas effective order for doing justice between the parties.
v) In support of above submission, learned advocate has cited following judgments:-
1. 2002 1 LLJ p.834 Jaipur Jilla Bhumi Vikas Bank Vs. Ramgopal Sharma
2. Unreported judgment of this Court in SCA No. 243 of 2011 dated 28/1/2011 in a matter between Clutch Auto Ltd Vs. Ratilal Bhimsingh Baria.
3. 1995 (2) Bombay C.R. 344 Peico Employees Union Thane Vs. Peico Electronics and Electrical Ltd.
w) In reply to the judgments cited on behalf of the petitioners, learned advocate has submitted as under:
That the petitioner company's Advocate has cited few decisions most of them are rendered prior to the constitution Bench's judgment in Jaipur Jilla case. The Jaipur Jilla case has made a drastic change in law so far the breach of S. 33 is concerned. The earlier views of Punjab National Bank. Bhavnagar Municipality, Automobile Product which relied upon by the petition rare no more a good view and breach of S. 33 which was considered as mere technical breach which does not it self gives any fruits to the aggrieved workman has been changed now and the workman is held entitled to full relief only on establishing breach of S.33 looking to this view non of the case law are relevant for deciding this petition.
The Nadiad Nagar Palika Case cited by the petitioner is also before the Jaipur Jilla Case, more over in that case complaint was filed before actual breach of Section 33 under the highly disputed circumstances the workmen in that case were seeking relief in a manner of preventing the breach of section 33 and such judgment was given by the single judge of this Court but so far this case is concerned breach of S. 33 is already committed and continuously going on the relief granted by the tribunal is perfectly balancing the convenience and to avoid irreparable loss therefore the Nadiad Nagar Palika case is not applicable to this case.
He further submitted that all other judgments/ case laws cited by petitioner are hardly have any bearing over the most peculiar and exceptional facts and circumstances of this case in this case, the petitioner is selling its property, pocketing crores of rupees, siphoning funds at one hand and not going for closer retrenchment, not going to BIFR and same time not paying wages with malafide intention at other hand.
x) That the Chairman of the company is rendering his lip services for human rights, environment and other social services and running one of the richest N.G.O. But in practice trying to kill poor workers and their family by committing apparent, illegal acts and unfair labour practices.
y) In fact this is a fit case where in this Hon'ble Court may consider to order detailed enquiry in to the affairs of the petitioner's company through some statutory Agency, particularly in a matter how the assets of this company are eliminated since last 15 years and worker dues,P.F., E.S.I., no paid and shareholders are also put in to helpless situations.
``) In view of all above and oral submission made earlier in this matter it is submitted that the Court may dismiss this petition and also order for payment of reasonable cost incurred by the respondents through their union.
11. In reply to the submissions of respondents, petitioner's counsel has replied as under;
(a) That, the contention of respondents that delay in payment of wages has resulted in change in conditions of service resulting in breach of Section 9-A, and in support thereof following judgments are cited, viz.(a) In case of Hindustan Lever Ltd. V/s. Ram Mohan Ray and others reported in (1973) 4 SCC 141.
In this case, the employer introduced a scheme of reorganization of the working. The workers presented themselves for work everyday and offered to work according to the old Scheme but they were not given any work according to the old Scheme. They were told that as long as they refused to work under the new Scheme, they would be paid no wages. The Court held in para 15 that “it means that the workers were justified in refusing to work under the new scheme. It follows that the refusal to pay their wages amounted to alteration of conditions of service and applications were therefore rightly made under Section 33-A.” What was altered was conditions of service by introducing new scheme in place of old scheme. The workers were denied wages till they worked under the new Scheme. It was after holding that the workers were justified in refusing to work under the new scheme that as a corollary the Supreme Court held that refusal to pay their wages amounted to alteration of conditions of service. It is further clarified in para 17 that “We thus come to this conclusion : (I) That non payment of wages in the circumstances of this case amounts to an alteration of conditions of service. ... ...”. The aforesaid judgment does not lay down any proposition that non payment of wages in itself amounts to alteration of conditions of service. In the instant case, there has been delay in payment of wages due to financial constraints which cannot be equated with refusal to pay wages.
In case of judgment reported in (1972) 2 SCC 383 in the case of M/s. Tata Iron and Steel Co. Ltd. V/s. The Workmen & Ors;
In the aforesaid case, rest days were changed from Sunday to Wednesday (in case of Sijua Colliery) and from Sunday to Friday (in case of Bhelatand Colliery). The workers were not given work on Wednesday and Friday. The workers refused to work on Sundays. The Court held that the said change was covered in entries 4, 5 and 8 of fourth schedule resulting in alteration of conditions of service. It was further held that when the employers closed the Sijua and Bhelatand Collieries, they knew that this change in the weekly days of rest was not acceptable to the considerable section of workmen who had not come to work on Sunday. The said case is not a case when a complaint is filed under Section 33-A. In the instant case, the Tribunal has not even held as to in which of the matters specified in fourth schedule the change is effected.
In respect of judgment reported in (1976) 1 SCC 63 in the case of The management of India n Oil Corporation Ltd., V/s. Its Workmen;
The aforesaid case was a clear case of withdrawal of compensatory allowance by the employer. Thus, on the facts of the case, a particular monetary benefit was withdrawn for all time to come. The facts of the said case are very different from the facts of the present case where there is no denial to entitlement of wages or any other benefit to the worker in respect of which complaint is filed. Again the said case is not under Section 33-A.
(b) It is contended by the respondent that Section 33 is not limited to only alteration of conditions of service. The said contention is contrary to plain reading of Section 33. Under Section 33 (1) (a) speaks of alteration of conditions of service, in regard to any matter connected with a pending industrial dispute. Under sub-section (3)(1)(b) speaks of discharging or punishing of any workman concerned in the dispute for any misconduct connected with the dispute. Section 33 thus speaks of either alteration of conditions of service or punitive action for misconduct. The complaint is clearly not filed for breach of Section 33(1)(b). Thus, the only section of which contravention is complained of is Section 33(1)(a).
(c) It was stated that orders of stay granted by the Tribunal earlier continued to be in force. Such bald statement is not backed by any pleadings. On the contrary, it is stated in para 10 of the complaint that the stay orders against sale of properties have been vacated.
(d) That the respondents have not disputed the statements made in the petition and have refrained from filing a detailed parawise reply.
12. In view of these submissions, learned advocate for the petitioner submitted that the order challenged in the petition is thus beyond jurisdiction and illegal and is required to be set aside.
13. This court has heard learned counsels for the parties and perused the memo of the petition and the reply. The Court needs to be mindful of the fact that the petitioners have challenged interim order passed by the Tribunal and therefore, the discussion of the fine points of law and facts pleaded by parties, if elaborately dealt herein in the present proceedings than it would affect the final adjudication which would be based upon the appreciation of elaborate evidences led by both the sides. Bearing this limitation in mind, now let us examine the challenge to the order passed by the Tribunal on 9.7.2010 in the complaint No.12 of 2010 which is impugned in these proceedings.
14. The petitioners have raised contention with regard to competence of the complaint filed under Section 33A on the ground that there existed no occasion warranting filing of the complaint as the incident of non-payment of wages cannot be subject matter of complaint to be filed under Section 33A of the I.D. Act. In support of this submission, various decisions have been cited to establish that the complaint cannot be filed for the alleged cause of action for which there is an express remedy available in form of approaching the payment of Wages Authority and other remedies.
15. The petitioners have also taken contention that the non payment of wages cannot be dubbed as breach of service condition. The service condition, as prescribed under schedule-IV, if alter, then only the remedy of filing complaint under Section 33-A is available.
16. The petitioners have also contended that the non payment of wages on account of financial constraint faced by the petitioner Company would not give rise to any cause of action enabling the respondent workman to file complaint against the petitioner under Section 33-A of the I.D.
Act.
17. This Court is of the considered view that the aforesaid submissions cannot be said to be incorrect in any manner as they are based upon sound principle of law pronounced in various decision cited by the petitioners’ counsel. But a question arises as to whether they are applicable to the peculiar facts and circumstances of the present case where the development of events indicates that complainant filed under Section 33-A was primafacea maintainable.
18. The fact remains to be noted that two references are pending wherein the complaint is filed being Reference (IT) No. 167 of 2000 and Reference (IT) No. 104 of 2004. The second reference precedes agreement between the management and office bearers of Union dated 25.08.2004. The typed copy thereof is produced at page on 71 of the present petition includes as many as nine points of understanding which may be set out hereunder:- (1) the unpaid wages for seven month which the Employer has deposited in Fixed deposit and whereon the employer agreed to pay 5 % interest that will be paid along with interest by 31.03.2005, 31.03.2006 and 31.03.2007. (2) From October 2004 the Employer will regularly pay monthly wages on or before 8th of the subsequent month. And the wages for August 2004 would be paid by 25.09.2004.(3) the days on which the workmen have not worked they will not receive wages for those days. Police Complainant will be withdrawn.(4)The union accepts that the workmen would maintain discipline. (5) The employer will pay the wages for the month of July by 27.04.2004. (6) The sale proceeds received from the sale of produce will be firstly used for making payment to the workmen and it will not be stalled on account of aforesaid agreement for making payment in three installments.(7) The workmen did not work from 14.08.2004 to 19.08.2004 and worked as per their desire during 20.08.2004 to 24.08.2004 causing lose of production to the employer if that will be made up by the workmen than the employer will pay wages for those 11 days also. (8) on account of various difficulties faced during 14.08.2004 to 25.08.2004 all the points of disputes pertaining thereto will be subjected to reference under provisions of Section 10(2) of the I.D.Act 1047. (9) As per the understanding workmen will resume from 26.08.2004.
19. It seems that pursuant to the said agreement dated 25.08.2004 gist whereof is quoted herein above the competent authority was persuaded to make reference with made order on 13.10.2004 for reference with got registered as Reference (IT) No. 104 of 2004.
20. The order of Reference dated 13.10.2004 contain reference on the points made in the appendix to the order which is reproduced on page 77 and 78 of the compilation. The same could be set out as under: (1) The workmen and staff members of Sarabhai Chemicals Ltd should receive their wages regularly every month. And the amount of arrears of unpaid wages from December 2003 to July 2004 be paid immediately or not?(2) As the workmen were not responsible for the creation of situation from 14.08.2004 to 19.08.2004 their wages for this period should be paid or not? (3) From 20.08.2004 to 25.08.2004 the Emoployer had stopped the working hence wages for this period be paid to the workmen or not ?(4) The police complaints filed against the workmen be withdrawn immediately and those workmen who could not attend duty on that count be paid their wages for these days. (5) The orders of suspensions issued to workmen/ staff-members pending inquiry be withdrawn. (6) In future where ever the Ambalal Sarabhai Enterprise receives sizable funds either from sales of its assets/property or otherwise than out of that firstly the workmen’s dues be paid immediately.
21. The narration of facts herein above would lave no doubt that terms of pending reference did pertain to employer’s liability to pay regularly the workmen’s wages and dues irrespective of it’s financial constraints and for acknowledging first claim of workmen over the sale proceeds of Company’s assets or over any funds received by the company for receiving their outstanding wages and arrears of dues.
22. These terms of reference would clearly indicate that the regular payment of wages is part and percale of adjudicatory process undertaken to I.T. Reference No.104 of 2004. Now during pendency of adjudication of the same demand the omission of payment of the wages to the workmen, on the due date, would amount to changing the service condition during pendency of reference giving rise to filing of the complaint under Section 33 A of the I.D.Act.
23. The Court is constraint to hold this in view of the fact that this is specifically pleaded by the workmen and the factum has not been denied and controverted by the petitioner in any manner which would render the complaint competent and maintainable.
24. The Court is unable to accept submission made on behalf of the petitioners that the respondent workmen could not have filed complaint and were required to file proceeding under the provision of Payment of Wages Act only. The Payment of Wages Act cannot be said to have in any manner whittled down and/or repealed the provision of I.D. Act. The power of Courts and Tribunals under the I.D. Act are much more wider and terms of the reference is capable of giving rise to such adjudication pursuant to agreement than non payment of wages would surely give rise to valid complaint under Section 33-A of the I.D.act.
25. The wages or regular payment of wages in my view become part of the service condition where under at least during the pendency of dispute on the subject matter, additional obligation was cast upon the employer in remaining vigilant in making payment on the date on which payment become due and payable, or else it would surely amount to change the service condition which may affect the workmen’s capacity to pursue litigation for enforcing his right flowing from the Act.
26. The petitioners have also impugned the order dated 09/07/2010 on the ground that such a restrictive order could not have been passed against the petitioners which affects petitioners’ right to carry on their business as per their wisdom and necessity. The order where under the petitioners are required to seek permission of the Court for alienating or dealing with the property could not have been passed by the Tribunal, as the dues of the petitioners are at the best to the tune of Rs.7 crores and odd, as against this a property worth Rs. 40 crores is subjected to restrictions which in itself renders the impugned order unreasonable and therefore, liable to be quashed and set aside. This contention is also required to be appreciated in background of the peculiar facts and circumstances attendant in the case.
27. The factum with regard to I.T. Reference No.104 of 2004 pertaining to the regular payment of wages is recorded clearly by the Industrial Tribunal also, as could be seen from the narration in paragraph no.4, page no.25. The Industrial Tribunal has recorded that the list of documents exhibits 63, 64 and 65 and order exhibit 66 are discussed from this Labour Court has recorded that the question involved at that time was payment of wages of December, 2003 to July, 2004 and the remaining wages to be paid and at the consent of both the sides part of award is made on 06.11.2007, which is exhibit 61. The total employee is numbering 1121 and 373 is the staff members. The outstanding towards such payment was shown to be Rs. 14,97,84,162/- and for this payment part of the property of the company agreed to be sold and at that time some portion was permitted to be soled. On 05.11.2007, the settlement is made with another Union. The earlier settlement was with Chemical Labour Union and the subsequent dated 05.11.2007 was with Sarabhai Employees Union, containing same condition. There was an order under exhibit 30 in I.T. Reference No.104 of 2004 and the order was passed that before alienating the property of the company, the prior permission is required to be taken and without prior permission the property will not be transferred in any manner. This order was passed on 17.10.2006. The Industrial Tribunal has further recorded on internal page no.13, running page 31 that earlier also there was such kind of stay granted at exhibit 42 in I.T. Reference No.104 of 2004 and therein at exhibits 20 and 21 property were ordered not to be alienated in any manner without permission of the Industrial Tribunal. Thus, exhibits 20 and 21 property, as could be seen from the order in I.T. Reference No.104 of 2004, is not being alienated in any manner without permission the Court, as could be seen from the discussion.
28. Thereafter, there is one more settlement on 24.06.2008, as recorded in the very same paragraph. The Industrial Tribunal has recorded in paragraph no.10 that though the undertaking is filed, the authority for filing such an undertaking is not coming forward and on such ground also the undertaking was said to be of no consequence. The Industrial Tribunal has recorded that the wages were to be paid on 8th of every month and non payment thereon on 8th of every month is nothing but breach of service condition and as the settlement on October, 2004 contains one of the condition that the wages will be paid on 8th of every month and as the same is not paid there is clear breach of service condition. The Industrial Tribunal has recorded the employees' submission in paragraph no.18 that in past whenever there was a question for payment of the dues of the employees, the company had to sale its property and it use to do only after arriving at some settlement and after taking permission from the concerned court. There was stay against selling of assets of the company.
29. It is required to be noted that, as it is observed by the Tribunal in paragraph no.4 on running page no.25 in the compilation that on earlier occasion also there was a stay against alienating or selling of assets of the Company. The sale was permitted by the concerned Tribunal but sale proceeds there from have remained unaccounted. After the complaint was lodged about 150 workmen have not been given any work. Exhibit 5 is the assurance dated 24.06.2008 reiterating that the employees were to be taken in new plant by 31.12.2009 and there was a promise for giving some interim relief also. It was also assured that irrespective of Company in production or not, the wages would be paid by 7th of every month. As per condition no.10, the sale of the land was to be informed to the Union and the Union was to be kept informed about the same. There is change in the nature of the Company and there is an attempt to siphon money with the help of subsidiary companies. The Company is not taking any other recourse to wind up its affairs even the Provident Fund and E.S.I. dues are also outstanding. These authorities have also filed cases. In this view of the matter, it was deemed to be just proper and rather required to pass restraint order so as to protect the arrears and dues of workmen. In Reference No.167 of 2000, the cases against the sister concerns and Companies have been consolidated. This fact is mentioned at page no.27, internal page no.9 in the award. The payment of wages is not made despite undertaking to the Court. The Tribunal has recorded at page no.28, internal page no.10 of the award in paragraph no.4 that the assets of the Company are part of the 2(P) settlement and in past also the Company had to seek Court's permission for alienating the property.
30. In view of the aforesaid discussions, it becomes clear that the order impugned in this petition is not something which is coming for the first time upon the Company. The Company has in fact been subjected to such order which is assailed in this petition. The Court, therefore, need not dwell elaborately upon the niceties and nuances of the rival contentions urged, as this challenge is against the interim order only and the final adjudication upon the complaint and the proceedings is pending.
31. The authorities cited at the bar on behalf of the petitioners are required to be appreciated from the facts attendant in the case on hand. The reliance is placed in case of Lakshmi Devi, Sugar Mills Ltd. Vs. Pt. Ram Sarup and Others (Civil Appeal Nos. 244 and 245 of 1954), Lakshmi Devi Sugar Mills Ltd. Vs. Chini Mills Mazdoor Sangh (Civil Appeal No.245 of 1954), reported in AIR 1957 Supreme Court 82, would be of no avail to the petitioners, as the facts and development of events in this case on hand would indicate that the said case has no applicability, rather there cannot be any dispute qua proposition of law, but the applicability thereof will have to be examined from the facts which are peculiar to this case on hand.
32. Similarly, the reliance is placed upon the decision of this Court in of case of Nadiad Municipality Vs. Ghanshyam Barot & Ors. reported in 1998 (2) G.L.H. 728, is also of no avail, as the Court has held that mere apprehension of proposed breach or for anticipation of breach, the complaint under Section 33A of the I.D. Act, cannot be filed and maintained. These authorities have no applicability to the fact of the case on hand, as in the instant case the wages and the settlement contain condition of making regular payment on 7th or 8th of every month and the Company is in arrears thereof, which would not be now characterized as any anticipatory breach, in fact it is admission on the part of the Company that wages could not be paid since December, 2009, as could be seen from the averment on paragraph no.29, recorded by the Tribunal.
33. The reliance is placed in the case of Grahams Trading Company (India) Ltd. Vs. Second Industrial Tribunal and Ors., reported in (1963) II LLJ 153 Calcutta, is in respect of the proposition of law that non implementation of the award would not fall within the purview of Section 33A of the I.D. Act. The Court is of the considered view that in the instant case, the interim award that is part one award in one of the reference and binding condition made therein would militate against the applicability of this ratio in the present case also, as the entire dispute is still at large and the present order impugned is merely an interim order.
34. The reliance is placed in cases of The Bhavnagar Municipality Vs. Alibhai Karimbhai and Others, reported in AIR 1977 Supreme Court 1229, and The Automobile Products of India, Ltd. and Others Vs. Rukmaji Bala and Others, reported in A.I.R. 1955 S.C. 258, for supporting the submission that the Tribunal has to adjudicate complaint, as if, it is a full-fledged reference and if the reference cannot be made or a dispute cannot be said to be existed on these grounds, then the complaints were not competent. The Court is unable to agree to this submission, as the facts narrated hereinabove unequivocally go to show that the terms of reference specifically contain this aspect and when such terms of reference have not been challenged by employer and when the adjudication is going on and the interim relief passed therein to safeguard the interests of the workmen than the same needs no interference by this court.
35. This brings the Court now to consider as to whether the impugned order could have been passed. The submission canvassed on behalf of the petitioner appears to be more attractive at the first place, but the peculiar development in respect of these group of companies and the fact that there is consolidation of all the cases against all the units of this group of companies and the fact that the Employer company in past had also been restricted on account of similar orders and when the huge amount of workmen’s dues are unpaid and outstanding, the restrictive orders are justified. These facts, in my view, would justify the interim order, besides it is required to be noted that the order does not put blanket restrictions upon the company and company is given liberty to approach the Court even if there is an urgency to seek permission for alienation of any property or for creating any encumbrance thereon. The Court before parting the judgment is, therefore, constraint to observe that the developments and narration of events in this litigation alone are sufficient to justify passing of the order, which in my view, does not require to be interfered in any manner. However, one direction is required to be issued to the Tribunal that in case when the Company is coming forward with any request for permission to alienate any property, the Tribunal shall decide the same as expeditiously as possible so that unnecessary impediment may not be faced by the Company even in meeting out its own liabilities and responsibility.
36. With this observation, the petition is dismissed, as having no merits. Rule is discharged. Interim relief granted earlier stands vacated. No costs.
37. The observations made hereinabove are for examining the challenge to the interlocutory order, therefore, it goes without saying that, it shall have no bearing upon final adjudication of the matter pending before the Tribunal.
38. In view of the order passed in the main matter, Civil Application No. 10645 of 2010 will not survive and is disposed of accordingly.
(S.R. BRAHMBHATT, J.)
Further Order:
Ms. Jani, learned advocate appearing for the petitioners submits that the interim relief which was granted earlier may be continued for a further period of four weeks. Shri Mansuri, learned advocate appearing for the respondent workmen strongly opposes this on account of the fact that wages have not been paid and arrears are accumulated day-by-day.
In view of this, instead of four weeks, the Court is of the opinion that let the interim relief continuing in this matter till date be continued for a period of two weeks from today on the same terms and conditions that will end on 14/09/2012.
(S.R.BRAHMBHATT, J.) Pankaj