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Shivraj Fine Art Litho Works and anr. Vs. Judge, First Labour Court and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1500 of 1979
Judge
Reported in1982(2)BomCR343
ActsBombay Industrial Relations Act, 1949 - Sections 78(1) and 119D; Code of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2; Bombay Industrial Relations Act, 1946 - Sections 3(8A) and 3(24)
AppellantShivraj Fine Art Litho Works and anr.
RespondentJudge, First Labour Court and ors.
Appellant AdvocateA.B. Oka and ; V.R. Manohar, Advs.
Respondent AdvocateV.S. Sirpurkar, Adv. for respondent No. 3
Excerpt:
.....the wages. 7. the management filed reply to the main application as well as to the application for interim relief on 24-5-1979. it seems that the reply was accompanied by as many as 44 documents, some of which have been annexed to the petition and the gist of some of which is stated on oath. it appears that on the very day on which the reply as well as aforesaid documents were filed on the record the application for interim relief was heard and decided. the labour court passed an order asking the management to remove the notice as well as to open the lock of the factory and actually to allow the employees to carry on the usual work. we have, therefore, to take recourse to the well recognised general principles behind order 39, rules 1 and 2 of the civil procedure code governing the power..........industrial relations act, 1946 (hereinafter referred to as 'the b.i.r. act'). an application for interim relief in terms of section 119-d of the b.i.r. act was also filed by the union. this was done on 16-4-1979. thereafter, it appears that some negotiations were made between the parties. as a result, a purshis was given on behalf of the respondents nos. 2 and 3 saying that the workers will not resort to any sort of violence within the factory premises as apprehended by the receiver and they will work smoothly and production will not be hampered from the side of the workers at any stage if raw materials were provided. in view of this, the labour court deferred the passing of the order on interim application mentioning that if the arrangement did not work the order will be passed. some.....
Judgment:

V.A. Mohta, J.

1. Messrs Shivraj Fine Art Litho Works is a partnership firm of which Shri V.D. Dhanwatey, his son Shri Shivajirao, second petitioner and respondents 4 and 9 were partners. The firm carried on business in litho printing and it appears that the business was going on a vast scale. Sometime in January 1974 the said firm came to be dissolved and Shri V.D. Dhanwatey and second petitioner filed a suit for declaration, accounts etc., in the Court of Civil Judge, (Senior Division) Nagpur. One Shri Pendharkar was appointed as receiver after hearing both parties and while the receiver was operating the factory or the business, it seems there have been heavy losses. After a lapse of approximately 4 years, Shri Pendharkar, resigned from receivership and one of the partners Shri V.D. Dhanwatey was appointed receiver. This order came to be challenged in appeal where there has been some modifications in the said order by appointing one Shri Garpure as the Joint Manager along with the receiver. Sometime in August 1978 Shri Gharpure also tendered resignation and one Shri H.K. Khan was appointed in his place.

2. The business ran in trouble and there was paucity of funds. The workers who are approximately 500 in number were neither paid even their earned wages or were provided with work. Mr. Dhanwatey was appointed as receiver sometime in August 1978. On 11-4-1979 a notice was put up on the board of the concern intimating the workers that with effect from that very date the decision to close the factory was taken. The reasons as disclosed in the said notice are that Mr. Bhatia, the Manager and one Shri Morey were assaulted by some of the employees causing serious injuries as a result of which Shri Bhatia had remained unconscious for hours and was ultimately removed to hospital. Some of the officers were illegally detained and gheraoed in the office for about 6 hours. Because of these incidents and few more, stated in the notice, it was declared that the management apprehended danger to the life and property and that such a serious risk they could not take. The workers were prohibited from entering the Press without written permission from the receiver. This act of the management was challenged by respondents 2 and 3 the two Unions, by filing an application under section 78(1)-A-(c) of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as 'the B.I.R. Act'). An application for interim relief in terms of section 119-D of the B.I.R. Act was also filed by the Union. This was done on 16-4-1979. Thereafter, it appears that some negotiations were made between the parties. As a result, a purshis was given on behalf of the respondents Nos. 2 and 3 saying that the workers will not resort to any sort of violence within the factory premises as apprehended by the receiver and they will work smoothly and production will not be hampered from the side of the workers at any stage if raw materials were provided. In view of this, the Labour Court deferred the passing of the order on interim application mentioning that if the arrangement did not work the order will be passed. Some part of the wages, if appears, were also distributed on 27-4-1979 a day before the factory actually started.

3. Then followed an application before the Civil Court on behalf of the receiver that permission should be granted to issue a licence to some proper person for running the business. This licence was given to petitioner No. 2 who, as stated above, happens to be not only one of the partners of the firm but son of a receiver. One of the terms of the licence was that the licensee was to pay Rs. 1.60 lakhs per month for running the business. Licensee paid the licence fee on 8-5-1979 and entered into possession on 11-5-1979. On 13-5-1979 upto which date admittedly the business was running, since 26-4-1979, another notice came to be affixed on the notice board. In the said notice, there is a reference to the stand of the management that inspite of compromise, some of the workers had started the trouble again and even though the licensee obtained some raw material for running the factory the production was not improved and that the workers deliberately indulged not only in go-show tactics but in various types of violent behaviour and slogan shouting. There is a reference in it to earlier notice dated 13-5-1959 (copy of which is not annexed to the petition) regarding the allegation that the manager was once again beaten and was Gheraoed. Under the circumstances, and in view of the failure on the part of the workers to honour the undertaking given, it was not possible for the management any more to run the business. As a result, from the next day the press would be closed and that the Labour Court would be moved to pas appropriate orders on application for interim relief. Till the application was decided, the Press would remain close and, therefore, no worker should enter the factory premises without permission from the receiver.

4. This action of the management of affixing second notice and closing down the Press was once again challenged in the Labour Court in the similar fashion but by filing a separate application under the B.I.R. Act. Independent application for interim relief was filed in these proceedings.

5. Along with the petition, a notice dated 19-5-1979 placed on behalf of the management and so also the two replies given on behalf of some of the employees have been annexed. From all these notices, it appears that the management requested to workers in general that because some of the workers should not desist form working properly and those workers who were not laid off by notice dated 2-5-1979 should create proper atmosphere for running the Press smoothly. From these notices one thing seems to be clear that even according to the management all that happened was not because of all the employees in general but because of only some of them. The management admitted that huge arrears of wage were due but they could only be cleared in instalments.

6. The second application before the Labour Court which was also coupled with an application for interim relief was filed on 25-9-1979, alleging that the workers were demanding the arrears of wages which had mounted upto a huge sum of Rs. 15 lakhs and that the poor workers could not work indefinitely without getting the wages. The stand taken by the respondents Nos. 2 and 3 was that in reality and in substance what was done by the management was declaration of lock out as contemplated under section 2(24) of the B.I.R. Act. According to them, the notice has been put in 'for no other purpose than no compel the employee not to raise their demand'. In the interim relief, the withdrawal of the so called lock out was claimed in the first instance and the alternative prayer was made that in case the Court though that any other interim relief would be in the interest of justice that may be granted.

7. The management filed reply to the main application as well as to the application for interim relief on 24-5-1979. It seems that the reply was accompanied by as many as 44 documents, some of which have been annexed to the petition and the gist of some of which is stated on oath. According to the management, what was done was a 'closure', as contemplated under section 3(8-A) of the B.I.R. Act and could not be termed as a 'lock out'. The contentions disclosed in the application were seriously challenged. From these documents filed it appears that on earlier occasion also the Civil Judge. (Senior Division) was required to give police protection to the receiver. Break-up of the different machineries including the production capacities was placed on the record along with the percentage of production before the agitation and afterwards, and it has been demonstrated as to how during the relevant time the production has been much below the mark. It appears that on the very day on which the reply as well as aforesaid documents were filed on the record the application for interim relief was heard and decided. The Labour Court passed an order asking the management to remove the notice as well as to open the lock of the factory and actually to allow the employees to carry on the usual work.

8. Source material of power of granting interim relief is to be found in section 119-D of the B.I.R. Act. The only phraseology used 'just and proper', has not been defined anywhere. We have, therefore, to take recourse to the well recognised general principles behind Order 39, Rules 1 and 2 of the Civil Procedure Code governing the power of temporary injunction, such as existence of prima facie case, balance of convenience and existence of efficacious remedy to get monetary compensation. The Labour Court has accepted in principle this approach as the correct one. We may at this very stage make it clear that in cases of labour dispute the usual consideration of being compensated in terms of money sometime in future may not hold good. If a worker is starving today, that he is likely to get compensation after a protracted litigation at some indefinite day in future will neither be legal nor proper consideration in refusing the interim relief if otherwise the worker is entitled to the same.

9. Thus, it was necessary for the Labour Court first to record a finding on prima facie correctness of the claim of respondents 2 and 3. No doubt much will depend upon as to whether the action of the management amounted to 'lock out' as contemplated under section 3(24) of the B.I.R. Act as contended by the Union or 'closure' defined under section 3(8-A) of the B.I.R. Act as contended by the management. The term 'closure' has been separately defined under the B.I.R. Act though this is not the case under the Industrial Disputes Act. In the present case, we are of course concerned primarily with the B.I.R. Act which unlike the Central Legislation has drawn a positive and specific distinction between the two. Every 'lock out' is a 'closure' but vice versa is not necessarily the case. This is how these two terms have been defined.

(8-A) 'Closure' means the closing of any place or part of a place of employment or the total or partial suspension of work by an employer or the total or partial refusal by an employer to continue to employ persons employed by him, whether such closing, suspension or refusal is or is not in consequence of an industrial dispute;

(24) 'lock-out' means the closing of a place or part of a place of employment or the total or partial suspension of work by an employer or the total or partial refusal by an employer to continue to employ persons employed by him, where such closing, suspension or refusal occurs in consequence of an industrial dispute and is entitled for the purpose of---

a) Compelling any of the employees directly affected by such closing, suspension or refusal or any other employees of his; or

b) Aiding any other employer in compelling persons employed by him, to accept any terms or condition of or affecting employment;

Essentially feature between the two lies in the fact that the lock-out has firstly to be on account of industrial dispute and secondly has to be achieved a particular purpose, namely compelling the employment to accept any term or condition of or affecting employment. In the present case, it appears prima facie that the dispute, if any, does not relate to any changes in service condition or affecting the employment. Dues are admitted and the employer pleads inability to pay rightly or wrongly. Serious allegations about threats and grave apprehension about danger to life and property are pleaded. Of course, it is possible that these allegations are not real, and are raised only as a bogie as contended on behalf of the Union. But the possibility of their being true wholly or partly also cannot be ruled out at this stage. The Labour Court has held that 'what has influenced the receiver more in putting the notice dated 16-5-1979 may be a matter of evidence to be recorded. Whether it is 'lock-out' or a 'closure' can be considered in the merit of the case when full facts would be disclosed'. Thus, the Labour Court has not recorded even a prima facie finding that this was a case of 'lock out'. Indeed, the order proceeded on the assumption that in reality the action of the management may or may not amount to 'lock out' as it would depend upon the ultimate evidence that will be adduced in support of the contentions of the rival parties. Some material in the shape of approximately 44 documents has been placed on the record on behalf of the management but it is surprising of find that there is not even a whisper about these documents, on behalf of the respondents 2 or 3, who are the applicants in the Labour Court and not a single affidavit of worker seems to have been filed denying the incidents, the contentions and the foundation for the apprehension of the management. The version of the workers has neither been placed on the record excepting in the application, nor are any documents placed on the record. Even after the employer has come up with a specific case, the original applications chose to remain silent in the matter though it is obvious that they owed a duty to speak under the circumstances. In view of this position on the record, in our view, without and before trial it is difficult to proceed on the assumption that prima facie case in favour of 'lock out' or for grant of interim relief in the way in which it was granted has been made out at this stage.

10. Next question that falls for consideration is whether in view of the apprehensions of danger to life and property and the back ground disclosed on the record, it was just and proper to order the removal of the lock of the factory and to allow the employees to work. The Labour Court is absolutely correct when it observes that all possible efforts to run the factory and to keep in running must be made. What the Labour Court has failed to notice and consider is the feasibility, the practicability and the possible consequence of the order that was passed. The main relief itself would not be grantable in the present case to the employees except upon a finding that the notice of 'closure' was not really given to protect the property and life and for the reasons stated in the notice but was indeed a colourable exercise of the power by the management mala fide and that as a matter of fact, it was a 'lock out'

11. If, therefore, even the final relief would not be granted without recording this finding which could be arrived at only after evidence, it is difficult to appreciate as to how the whole of the relief can be legitimately granted to an interim application at interim stage in this manner. As observed in the case of Hotel Imperial v. Hotel Workers Union, : (1959)IILLJ544SC . Normally interim relief should not be the whole relief that the workman would get if they succeeded finally. Question of legality and proprietary or granting of reinstatement as an interim relief fell for consideration in the case of The Delhi Cloth and General Mills Co. Ltd. v. Shri Rameshwar Daral, : (1960)IILLJ712SC . This relief was granted by the Labour Court at interim stage and the High Court refused to interfere with that order mainly on the consideration that no interference was necessary as it was a discretionary order. In an appeal to the Supreme Court with certificate of fitness, this approach of the High Court was not approved and with the following observations the appeal came to be allowed and the interim reliefs to the workers was refused :---

'Therefore, when a Tribunal is considering a complaint under section 33-A and it has finally to decide, whether an employee should be reinstated or not, it is not open to Tribunal to order reinstatement as an interim relief, for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal. The interim relief ordered in this case was that the workman should be permitted to work; in other words he is ordered to be reinstated; in the alternative it was ordered that if the management did not take him back they should pay him his full wages. We are of opinion that such an order cannot be passed in law as an interim relief, for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under section 33-A'.

Now, the Labour Court in this case has rejected this contention and approach observing that 'the relief presently sought is not a whole relief but a temporary relief till the decision of the application'. It seems clear to us that this reasoning and this approach is wholly illegal and irrelevant and the Labour Court has completely misdirect itself on the question. Having accepted the principle, the Labour Court has not followed it. To say that whole relief has not been granted only because it is granted for limited period will not be correct. This approach is contrary to law and does violence to the latter and spirit of what Supreme Court has observed.

12. Shri Oka, the learned Advocate for the petitioner, submitted that ordering any employer to remove the lock of the factory and to run the factory without considering his problem and difficulty and so also practicability of the order and its implementation, is wholly illegal inspite of the good object with which it has been passed, namely, keeping the wheels moving. We think he is right. Therefore, it seems to us that the interim order not only suffers from illegality but also from the impracticability and as we can see it, the order is not likely to be of much use to workers who seem to be ultimate casualties and sufferers of the whole affairs, irrespective of the illegality or otherwise of the notice. It may be noticed that it is not even the case of the employer that all workers were responsible for all that happened assuming that some workers indulged into activities alleged by them. Even those who raised the voice perhaps had every reason to do so. It is but natural that these poor workers would be agitated, as admittedly several months earned wages were not paid to them and they were not even seeing the possibility of getting them in the near future. It is clear that they could not afford to wait indefinitely. The possibility, therefore, of getting money at some remote stage after protracted litigation, certainly is not an answer to refuse some interim relief for granting which the need appears to be imminent. Thus, in principle it has to be accepted that if not this relief the employees do deserve some interim relief even though in our view, the impugned order is bad in law. The prayer for alternate relief has been made in the application and has also been pressed before us by Shri Sirpurkar, the learned Advocate appearing for respondents Nos. 2 and 3.

13. It has been brought to our notice in the course of hearing that after having secured stay from this Court on 27-6-1979, the petitioner started delaying tactics of postponing the hearing of the main matter in the Labour Court on one ground of the other. Firstly, the time was taken to file the documents and thereafter as many as half a dozen adjournments were taken after the case was posted for evidence. As a result the workers are continuing to suffer, not knowing what lies in the future. Some of them are even reported to have been dead. This submission and the existence of such state of affairs as supported by an affidavit dated 25-1-1980. Even now it is not known as to if and when the normal conditions are likely to be restored or whether the so called closure is going to be a permanent feature. It is a different matter if the management specifically says so but it is also not their stand. We are informed that the matter is fixed for evidence now sometime in February 1980. Considering all these circumstances, the conduct of the employer and so also the difficulties that they are facing about finance etc., irrespective of the reasons behind those financial difficulties. We order the grant of alternate interim relief at the rate of 50 percent of the wages with effect from 1-2-1980. Normally, we would have also ordered security but as huge claim of the workers is over due admittedly, we do not feel necessity of passing such order as even if ultimately it is held that the respondents Nos. 2 and 3 are not entitled to this amount there can be adjustment of this amount in the past dues.

14. In the result, the present petition succeeds partly. The impugned order Annexure X dated 24-5-1979 passed by the Labour Court is quashed. Interim relief of monetary benefit at the rate of 50 per cent of wages with effect from 1-2-1980 till the decision of the main case is granted in favour of the employees. There shall be no order as to costs. The Labour Court is directed to dispose of the case on priority basis expeditiously.


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