IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10136 of 2004 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 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 ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= COMMISSIONER OF PAYMENT & 2 - Petitioner(s) Versus PRAFUL MAYDHAR YAVAR - Respondent(s) ========================================================= Appearance :
MS. SHRUTI PATHAK, AGP for Petitioner(s) : 1 - 3. MR RM DESAI for Respondent(s) : 1, MR PRABHAKAR UPADYAY for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/08/2012 CAV JUDGMENT
1. By way of this petition under Article-227 of the Constitution, the petitioners seek to challenge the impugned order passed by City Civil Judge, Court No.4, Ahmedabad in Civil ?Appeal No.25/2000 in exercise of powers under the provisions of Sec.18(7) of the Gujarat Closed Textile Undertaking (Nationalization) Act, 1986.
2. Facts shortly stated be thus –
2.1) Respondent was working as skilled labour in Spinning department of M/s. New Swadeshi Mill Company Ltd., w.e.f. 12/2/1968. The services of the respondent workman came to be terminated w.e.f. 26/4/1980. The respondent approached the Labour Court, Ahmedabad by way of filing T. Application No.383/1980 under the provisions of the Bombay Industrial Relation Act, 1946, challenging the illegal order of termination dated 26/04/1980. During the pendency of T. Application No.383 of 1980, the Mill Company was closed down in the year 1984. As per the provisions of the Gujarat Closed Textile Undertaking (Nationalization) Act, 1986, the Gujarat State Textile Corporation has taken over the possession of the mill company and other closed textile undertakings. The Commissioner of Payments was appointed under Sec.12 of the Act, 1986.
2.2) The Labour Court, Ahmedabad was pleased to pass an order dated 20/12/1991 in T. Application No.383 of 1980, whereby the order of termination came to be quashed and set aside and the Mill Company was directed to reinstate the workman on his original post with continuity of service with full back wages for the intervening period. Copy of the order is at annexed at Page-46 of the compilation. Since the order dated 20/12/1991 was not complied with, therefore, the present respondent workman has preferred another application being Application No.593/1992 before the Labour Court, Ahmedabad. Labour Court was pleased to reject the application no.593/1992 vide order dt.24/10/1994.
2.3) Being aggrieved and dissatisfied by the said order dated 24/10/1994 the petitioner preferred an Appeal under sec.84 of the BIR Act, 1946, which came to be registered as being Appeal (IC) No.75/1994 before the Industrial Court, Ahmedabad. The Industrial Court, was pleased to pass an order dt. 12/06/1997 in Appeal (IC) No.75/1994 whereby the direction has been issued by the Industrial Court. The operative part of the order passed by the Industrial Tribunal dt. 12/6/1997 is at Page-64 of the compilation. The Mill Company was ordered to be wound-up by an order dt. 6/2/1997 passed by this Court (Coram: Hon’ble Mr.Justice S.D.Pundit, as he then was) in Company Petitoin No.205/1996.
2.4) Since the Mill Company was ordered to be wound-up, no order or decree can be executed without prior permission of this Court, therefore, the present respondent workman approached this Court by way of filing Company Application No.185/1998. This Court (Coram: Hon’ble Mr.Justice H.N.Gokhale, as he then was) passed an order dt. 17/1/1998, which is reproduced as under:
“Heard Mr.Upadhyay for the applicant, he states that he has also filed claim/application before the Claim Commissioner. The Claim Commissioner shall decide the same within three months from the date of receipt of the order. This application stands disposed off accordingly order to go down forthwith.”
In pursuance to the order passed by this Court, the respondent workman has approached the Commissioner of Payment by submitting the claim, as per the order passed by the Industrial Court, Ahmedabad. The claim of present respondent was rejected by the Commissioner of Payment vide order dated 24/3/1999.
2.5) The respondent workman preferred Civil Appeal no.15/1999 before the City Civil Court, Ahmedabad challenging the order dated 24/3/199. The City Civil Court, Ahmedabad passed an order dated 22/10/1999 in Civil Appeal No.15 of 1999 whereby the matter was remanded back to the Commissioner of Payment. The Commissioner of Payment passed an order dt. 18/2/2000 whereby the claim of the petitioner has been considered in a sum of Rs.72,600/- towards the claim of Leave Encashment. Copy of the said order is at Page-33 of the compilation. The amount of Rs.72,600/- has been paid to the respondent by A/c.Payee Cheque.
2.6) Being aggrieved and dissatisfied by the said order dated 18/2/2000 the respondent workman preferred Civil Appeal No.25/2000 before the City Civil Court, Ahmedabad. The City Civil Court, Ahmedabad passed and order dated 10/9/2001 and partly allowed the Appeal preferred by the respondent by holding and declaring that the respondent workman is entitled to recover an amount of Rs.3,77,545/- from the Secretary, Industry Department, State of Gujarat. It was further directed that if the amount is not deposited on or before 31/3/2002, the Secretary Industries Department, State of Gujarat shall pay the interest on the said amount @ 9% per annum from the date of the order till the realization. The operative part of the order is at Page-36 to the compilation.
2.7) Being aggrieved and dissatisfied with the order dt. 10/03/2001 passed by the City Civil Court in Civil Appeal No.25/2000, the petitioner has preferred the present Special Civil Application.
3. It appears that initially Civil Revision Application No.495/2002 was preferred, but after the amendment of 2002, Civil Revision Application was permitted to be converted into Special Civil Application under Article-227 of the Constitution of India vide order dated 11/8/2004.
4. Ms. Shruti Pathak, learned AGP appearing for the petitioners submitted that the learned City Civil Judge ought to have appreciated that as per the provisions of Sec.18(3) of the Gujarat Closed Textile Undertakings (Nationalization) Act, 1986, the respondent workman was required to file proof of his claim within the time specified by the Commissioner. The workman in the present case failed to prove his claim under the provisions of the Act.
4.1) Ms.Pathak submitted that the learned City Civil Judge has failed to appreciate that the Commissioner is empowered to decide the claim of the workers under the provisions of the Gujarat Closed Textile Undertakings (Nationalization) Act,1986. Ms.Pathak further submitted that the learned City Civil Judge has not appreciated the fact that on the “appointed day” under the Act, the respondent workman was not on the roll of New Swadeshi Mills as an employee. Moreover the change of the undertaking was taken over under the provisions of Gujarat Closed Textile Undertakings (Nationalization) Act, 1986. Hence the workman cannot be considered to be under the continuous employment of New Swadeshi Mills and is not entitled to benefits claimed by him.
4.2) Ms.Pathak submitted that the learned City Civil Judge did not consider the fact that the respondent workman was never reinstated in the New Swadeshi Mills. Under the provisions of Gujarat Closed Textile Undertakings (Nationalization) Act, 1986 Government of Gujarat had taken over the undertakings. At the time when the charge of undertakings of New Swadeshi Mills was taken over by the Government at that time also the respondent workman was not on roll of the company. The learned City Civil Judge did not consider the provisions of Gujarat Closed Textile Undertakings (Nationalization) Act, 1986. Ms.Pathak submitted that the act does not provide for the payment of claims arising out of the case where the Commissioner of Appellant i.e. applicant no.1 is not party to such litigation.
4.3) Ms.Pathak further submitted that Sec.15 of the Gujarat Closed Textile Undertakings (Nationalization) Act, 1986 reads as under:
“Every person having the claim other than the claim relevant to gratuity and compensation and retrenchment of closer against the order of specified Textile undertaking should prefer such claim before the Commissioner within the 30 days of the specified date.”
Section 18(3) of the Act reads as under :
“Every claimant who fails to file the proof of his claim within the time specified by the commissioner shall be excluded from disbursement by the commissioner.”
The respondent workman has not proved his claim before the Commissioner.
4.4) Ms.Pathak submitted that the learned City Civil Judge has failed to appreciate that the Gujarat State Textile Corporation is not in existence and it has not been joined as a party. In 1992 it was closed and that time when the matter was remanded by the Court, this fact was brought to the notice of the Hon’ble Court. Hence State Government cannot be asked to pay the amount through the Secretary of the Department of Industry. These contentions were raised by the petitioner before the learned City Civil Judge, however, the same has not been appreciated by the learned Judge.
4.5) Ms. Pathak further submitted that considering the provisions of Sec.11-5(B) and 7-4 of the Gujarat Closed Textile Undertakings (Nationalization) Act, 1986 the State Government cannot be directed to pay the amount. The learned City Civil Judge ought to have appreciated that the Gujarat Closed Textile Undertakings (Nationalization) Act, 1986 is not in existence and hence the State Government cannot be directed to pay any amount.
4.6) Ms.Pathak also submitted that the Commissioner of Payment has also in his order dt. 18/2/2000 observed that the respondent workman had never filed claim within the stipulated time period fixed under the Act, 1986. Moreover, it is also observed by the Commissioner of Payment that intimation by the respective union about the status of various cases pending before the Labour Court, it cannot automatically become a claim. Such information does not give details about the nature of claims, amount of claim, proof of claim etc. The Act also does not provide for the payment of claims arising out of litigation where Commissioner appointment is not party.
4.7) Ms.Pathak submitted that the learned City Civil Judge ought to have appreciated the fact that though the respondent workman was removed from services in the year 1980 i.e. prior to nationalization, he got final relief on 12/6/1997 against the GST Company which was not in existence because of the winding-up of the company. This fact was also taken note of by the Commissioner of Payment in its order dated 18/12/2000. The Commissioner of Payment in its order had also observed that since the entire record and documents pertaining to the New Swadeshi Mills was in custody of the Official Liquidator appointed by Hon’ble Court, the Commissioner did not have access to the records for verification.
4.8) Ms.Pathak further submitted that the Commissioner of Payment after taking into consideration the salary of the respondent workman in the year 1980 i.e. Rs.1100/- allowed the claim to the tune of Rs.72,600/-. The learned City Civil Judge ought not to have interfered with the said amount and ought not to have passed the order directing workman to recover sum of Rs.3,77,545/- from the Secretary of Industrial Department, Gujarat State. The learned City Civil Judge ought to have confirmed the order of the Commissioner for payment allowing the claim of respondent workman to the tune of Rs.72,600/-.
4.9) Ms.Pathak also submitted that since the undertaking in such respondent workman is wound up on account of the order passed in company petition no.205/1996 and GSTC was also closed, the State of Gujarat, Deputy Secretary, Industrial Department cannot be held liable to pay the compensation of Rs.3,77,545/-.
5. On the other hand Mr.Parabhakar Upadhyay learned Counsel appearing for the respondent submitted that no error could be said to have been committed by the Court below, much less an error of law warranting any interference by this Court in exercise of supervisory jurisdiction under Article-227 of the Constitution. Mr.Upadhyay therefore, urged that the petition be dismissed with cost.
6. Having heard the learned counsel for the respective parties and having gone through the materials on record, the picture that emerges is that the Industrial Court passed an order in exercise of powers conferred under the provisions of the Bombay Industrial Relations Act, 1946 dt. 12/6/1997. The order dt. 12/6/1997 has not been challenged by any of the parties before the Higher Forum. The order passed by the Industrial Court, Ahmedabad dt. 12/6/1997 appears to have attained finality. The Commissioner of Payment is appointed U/s.12 of the Gujarat Closed Textile Undertakings (Nationalization) Act, 1986 pursuant to the order passed by this Court in Company application No.185/1988. The respondent had submitted his claim before the Commissioner of Payment. The Commissioner of Payment as such had no authority or power to reject the claim, more particularly without taking into consideration the order passed by the Industrial Court. It is also undisputed that the settlement had been arrived at between the Textile Labour Association and the Gujarat State Textile Corporation on 31/8/1991 in respect of the legal dues of the employees working in the Mill of the Corporation. The petitioner paid the legal dues including the wages to most of the employees of the Mill pursuant to the settlement dated 31/8/1991. The settlement dated 31/8/1991 is on record at Page-65 of the Paper Book. Respondent was working in M/s. New Swadeshi Mill ( a unit of the GSTC Ltd.) in Liquidation. The petitioner settled the liabilities of the company and, therefore, State of Gujarat preferred Company Application No.450/2009, 451/2009, 452/2009,466/2008 and 467/2009 seeking direction to the Official Liquidator to transfer and handover the possession of the immovable assets and property belonging to and owned by the GSTC Ltd. The learned Single Judge of this Court (Coram: Hon’ble Mr.Justice K.A. Puj, as his Lordship then was) was pleased to pass an order dated 22/7/2010 in the Company Application No.450/2009 and other allied matters. The relevant para of the order dated 22/7/2010 is reproduced as under :
“39. In view of the fact that almost all liabilities have been discharged by the State Government and in view of the further fact that the State Government has undertaken to discharge the liability, if any, that may arise in future, the huge balance of Rs.81 crores lying with the Official Liquidator no longer requires. Hence the Court directs the Official Liquidator to remit the amount of Rs.50 crores to the State Government keeping with him the remaining amount so as to discharge the liabilities, if any, or to adjust and appropriate the same towards Central Government fees or other expenses. The State Government is also directed to file an undertaking before this Court and copy thereof be furnished to Official Liquidator stating therein that in case in future if any liability arises either from the creditors or from the workers and for discharge of such liability, if any amount is required the same shall be remitted forthwith by the State Government.”
It appears that with respect to another Mill of GSTC this Court was pleased to pass an order dated 11/3/2003 in Company Application No.313/2000 in the case of Bachubhai Jeshtaram Trivedi Vs. O.L. of Manjushri Textile whereby the State of Gujarat was directed to make payment to the concerned workers. The order dated 11/3/2003 is on record at Page-72 of the Paper book.
7. I am of the view that the respondent herein is entitled for the benefit as per the order dated 12/6/1997 passed by the Industrial Court, Ahmedabad. The right of the workman is always attached with the company. Even if there is a change of Management, the rights crystallized would not be affected in any manner. In the instant case the charge of the Mill Company was taken over under the Act of 1986 and the right of the respondent had been crystallized by the Industrial Court. Record reveals that the services of the respondent were terminated w.e.f. 26/4/1980 and the Industrial Court passed an order on 12/6/1997. Even after 1997 more than 15 years have elapsed but the respondent has not been able to reap the fruits of his legitimate dues. Under such circumstances I am of the view that no error much less an error of law could be said to have been committed by the Court below in passing the impugned order. The Court below has considered all the relevant aspects of the matter in detail. I do not find any jurisdictional error in the impugned order warranting any interference at my end in exercise of my supervisory jurisdiction under Article-227 of the Constitution. For the afore-stated reasons this petition fails and is accordingly rejected with no order as to cost. Interim relief granted earlier stands vacated forthwith. Rule discharged.
(J.B.PARDIWALA, J.) Ashish N.