Case: M/S. Ivp Limited Vs. Ivp Limited Workers Union & Another

Swatanter Kumar, C.J.The Industrial Tribunal, Mumbai vide its Award dated 19th July, 2007 had rejected the application of the applicant and for grant of permission for closure. The award was challenged before the learned Single Judge, but the writ petition came to be dismissed vide order dated 28th November, 2008. The order of the learned Single Judge was challenged by the company by filing Letters Patent Appeal No.11 of 2009. In this appeal, Notice of Motion No.168 of 2009, for interim orders for granting stay of the operation of the order of the learned Single Judge as well as the workmens plea for grant of wages under section 17(b) was dealt with and disposed of by judgment dated 12th November, 2009 passed by us. The present review petition has been filed by the company primarily seeking review of the judgment on the ground that after the permission, the company, had without prejudice to its contention that the Award of the Industrial Court was unsustainable had move a second application for closure of the unit. This permission was not granted by the competent authority within the statutory period of 60 days. Thus, as a consequence thereof, the permission would be deemed to have been granted with effect from 24th April, 2008. In the submission of the review petitioner, thus, no order could be passed under section 17(b) as the industry would be deemed to have been closed in terms of the provisions of the Industrial Disputes Act, 1947. Secondly, it is stated that out of 113 workmen, some workmen had retired were covered by the closure and the company paid closure compensation, gratuity etc. in addition to the provident fund and other dues to the workmen which were accepted by them and in all, a sum of Rs.12,27,61,629/- had been paid which was not taken into consideration by the court while passing the order under review. It is also contended that an undertaking had been given by the company not to alienate, transfer or part with possession of the assets of the company, the General Reserves of which according to the workmen are valued at Rs. 216 crores and thus, the interest of the workmen was fully protected and there was no occasion for the court to impose the condition of deposit 50% of the arrears. According to the learned counsel appearing for the non-applicants, it is contended that the grant of present review petition cannot be reheard all over again which is impermissible. Secondly, the amount due and payable to the workmen is much excess than the amount paid to the workmen by the company. Therefore, the condition imposed is valid and proper. The workmen are entitled to the back wages in view of the fact that Award is in their favour, where closure permission was denied. Thus, they would be entitled to all the benefits. The company cannot take any advantage of the alleged deemed closure with effect from 24.4.2008. 2. Having heard the learned counsel appearing for the parties, we are of the view that as far as the first contention is concerned, the company had not even taken up any specific ground in the manner as sought to be argued now in their memorandum of appeal. Furthermore, this is a matter which can, if permitted to be raised in the manner as now raised by the petitioner be considered by the court while dealing with the merits of the appeal. Reliance made by the applicant on the judgment of the learned Single Judge of this court in the case of Hind Rectifiers Limited v. Presiding Officer, 1st Labour Court and another, 2001(1) Bom. C.R. 543 has no application to the present case because the principle stated in that judgment was that the amount payable under section 17(b) of the Act would be extended to an employee for a period subsequent to the superannuation of the said officer. This judgment has hardly any application on facts to the present case. Before the Industrial Court, no such issue has been raised. Thus, the parties are free to take such actions as are permissible to them in accordance with law but the company cannot take any benefit in the present review petition to deprive the workmen of their dues in terms of section 17(b) of the Act. This court has granted stay of operation of the Award on compliance with the conditions of Section 17(b) and we see no reason to take any different view. As already noticed, this is a prima facie view for the purposes of interim application and the order will be controlled by such directions as may be passed by the court at the time of hearing of the appeal finally. 3. There is some merit in the contention raised on behalf of the company that the court has not taken notice of a sum of Rs. 12,27,61,629/- having been paid to the workmen by the company while directing deposit of 50% of the back wages of the workmen to be deposited. This amount as well as the undertaking given by the company and the order of injunction passed in regard to the assets of the company ought to have been considered by this court. It is true that this contention was raised before us. Though by and large it would hardly change the order, the fact of the matter still remains that the court has not noticed and dealt with this contention in some detail. There is no dispute to the fact before us that this amount has been paid to the workmen who have already received closure compensation, gratuity and provident fund etc. but according to the counsel, this amount can easily be set of and even then some dues will be payable for the subsequent period and therefore, the condition would continue. Once it is not disputed that amount has been received by the workmen to the extent of Rs. 12,27,61,629/- in relation to which the order of injunction relates has already been paid by the company. Therefore, the condition of deposit of 50% of the back wages may be harsh and would imbalance the equities between the parties. The estimated value of the assets of the company even according to the workmen are far in excess of their claims. It would cover the entire claim of the workmen despite the fact that they have received a sum of Rs. 12,27,61,629/- as closure compensation, gratuity and dues of the provident fund etc. 4. The provisions of Order 47 Rule 1 have been amended so as to entitle the review applicant to move an application for reviewing the order even where any other sufficient reason is shown to the satisfaction of the court which would satisfy the review of the order. Non-consideration of these pleas would, in our opinion, constitute sufficient and reasonable cause for reviewing the said order.

Decision:
1[ds]2. Having heard the learned counsel appearing for the parties, we are of the view that as far as the first contention is concerned, the company had not even taken up any specific ground in the manner as sought to be argued now in their memorandum of appeal. Furthermore, this is a matter which can, if permitted to be raised in the manner as now raised by the petitioner be considered by the court while dealing with the merits of the appeal. Reliance made by the applicant on the judgment of the learned Single Judge of this court in the case of Hind Rectifiers Limited v. Presiding Officer, 1st Labour Court and another, 2001(1) Bom. C.R. 543 has no application to the present case because the principle stated in that judgment was that the amount payable under section 17(b) of the Act would be extended to an employee for a period subsequent to the superannuation of the said officer. This judgment has hardly any application on facts to the present case. Before the Industrial Court, no such issue has been raised. Thus, the parties are free to take such actions as are permissible to them in accordance with law but the company cannot take any benefit in the present review petition to deprive the workmen of their dues in terms of section 17(b) of the Act. This court has granted stay of operation of the Award on compliance with the conditions of Section 17(b) and we see no reason to take any different view. As already noticed, this is a prima facie view for the purposes of interim application and the order will be controlled by such directions as may be passed by the court at the time of hearing of the appeal finally.There is some merit in the contention raised on behalf of the company that the court has not taken notice of a sum of Rs. 12,27,61,629/having been paid to the workmen by the company while directing deposit of 50% of the back wages of the workmen to be deposited. This amount as well as the undertaking given by the company and the order of injunction passed in regard to the assets of the company ought to have been considered by this court. It is true that this contention was raised before us. Though by and large it would hardly change the order, the fact of the matter still remains that the court has not noticed and dealt with this contention in some detail. There is no dispute to the fact before us that this amount has been paid to the workmen who have already received closure compensation, gratuity and provident fund etc. but according to the counsel, this amount can easily be set of and even then some dues will be payable for the subsequent period and therefore, the condition would continue. Once it is not disputed that amount has been received by the workmen to the extent of Rs. 12,27,61,629/in relation to which the order of injunction relates has already been paid by the company. Therefore, the condition of deposit of 50% of the back wages may be harsh and would imbalance the equities between the parties. The estimated value of the assets of the company even according to the workmen are far in excess of their claims. It would cover the entire claim of the workmen despite the fact that they have received a sum of Rs. 12,27,61,629/as closure compensation, gratuity and dues of the provident fund etc.The provisions of Order 47 Rule 1 have been amended so as to entitle the review applicant to move an application for reviewing the order even where any other sufficient reason is shown to the satisfaction of the court which would satisfy the review of the order.of these pleas would, in our opinion, constitute sufficient and reasonable cause for reviewing the said order.