1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.3078 OF 2008 M/s.Burlington Exports. ...Petitioner. Vs. State of Maharashtra & Ors. ...Respondents. .... Mr. J.P. Cama, Senior Advocate with Mr. ajay Cama and Ms. Pallavi Dedhia i/b. Sanjay Udeshi & Co. for the Petitioner. Mr. R.M. Patne, AGP for Respondent No.1. Ms. Gayatri Singh for Respondent No.2. ..... CORAM :DR.D.Y.CHANDRACHUD, J. May 5, 2008. P.C.: These proceedings under Articles 226 and 227 of the Constitution, arise out an interim order passed by the Industrial Tribunal at Thane on 15th March 2008. By the impugned order, an ad-interim order dated 30th January 2008 was confirmed until the final decision of the reference. The reference to adjudication arose out of an application filed by the Second Respondent-Union under Section 25(O)(5) of the 2 Industrial Disputes Act, 1947. The Petitioner filed an application on 5th July 2007 for closure of its industrial establishment at Wagle Estate, Thane. Permission on the application was granted by the Commissioner of Labour on 31st August 2007. The Union sought a reference. In terms of the application made by the Union, a reference has been made to the Industrial Tribunal. Pending the disposal of the reference, an ad-interim order was passed by the Industrial Tribunal on 30th January 2008. The ad-interim order was to restrain the employer – the First Party to the Reference - in the following terms: “1. The first party is hereby restrained from transferring, selling, leasing, conveying, creating third party interest and/or from disposing of he landed property of the company and the premises at Wagle Estate, Thane. 2. The first party is also further restrained from removing machines, tools, equipments, fixtures, furnitures, all other materials and articles, except the office furniture lying at the premises of the establishment situated at Wagle Estate, Thane. 3. So far removal of raw material and office fixtures is concerned, the first party shall allow the two representatives of the second party, to remain present for verification and identification regarding removal of the same.” 3 The ad-interim order has been confirmed by the impugned order dated 15th March 2008, which is questioned in these proceedings. The contention of the Petitioner is that on 1st September 2007 a letter was addressed to all the workmen individually to collect their dues. According to the Petitioner, 184 workmen were engaged in the factory, a reference to that number being found in the order passed by the Commissioner of Labour granting closure permission. The case of the Petitioner is that 158 out of the 184 workmen filed individual affidavits stating that they were duly accepting the closure compensation together with terminal dues and that they had no claim for reinstatement. A copy of one such affidavit is annexed to these proceedings and the relevant portion thereof reads as follows: “We were one of the employees working in the Company's factory and our services came to be terminated with effect from 01/09/2007 consequent upon the closure of the undertaking Industrial Establishment. Upon termination of our services, we were paid one month's notice pay and closure compensation as if retrenched and we have encashed the said cheque. Further we have received our gratuity amount in full, amount of earned leave encashment due and bonus due in respect of the accounting years 2006-2007 and 2007-2008 (on pro-rata basis). We hereby declare, state and confirm that now we have no other claims monetary or otherwise of any nature whatsoever 4 including that of reinstatement and/or re-employment against the company viz. Burlingtons' Exports, B/75 Wagle Industrial Estate, Thane 400 604.” Apart from this, according to the Petitioner, individual declarations were signed by 158 of the 184 workmen. The 26 remaining workmen, according to the Petitioner, accepted closure compensation, but have not come forward thereafter, to accept their terminal dues. In these circumstances, it has been submitted, relying on the judgment of the Supreme Court in Steel Authority of India vs. Union of India, JT 2006 (12) SC 294 that it is a settled principle of law that common law principles of estoppel, waiver and acquiesence are applicable to industrial adjudication and would operate to estop the workmen from seeking a reference to adjudication in the present case. On the other hand, on behalf of the Second Respondent- Union, it has been urged that the reference would relate back to the application for closure, namely 18th May 2007. According to the Union, there were 73 additional workers and the figure of 184 5 workmen relied upon by the employer does not include these 73 workmen. The reference was made on 20th October 2007. Learned Counsel submitted that in these circumstances, the Industrial Tribunal was justified in confirming the ad-interim order. Prima facie, a perusal of the order passed by the Industrial Tribunal would show that the only ground which weighed with the Industrial Tribunal is that if the Company was allowed to dispose of the property, pending the disposal of the reference, nothing would remain in the reference. The submission of the Petitioner is that as a matter of fact, 158 out of 184 workmen had accepted the closure compensation and terminal dues and it was only 26 workmen who had declined to accept the terminal dues after having accepted the closure compensation. This submission has not been regarded by the Tribunal as being of any consequence whatsoever. The Tribunal has not evaluated, even prima facie, the merits of the plea of the Petitioner that since the large body of workers had accepted closure compensation and terminal dues, no case was made out for the grant of interim relief since in any event it may not be possible to restart 6 the establishment with 26 workmen who now remain. The Industrial Tribunal would undoubtedly have to consider the plea of the Union as well, namely that there were 73 other workmen who had also not accepted the closure of the establishment. During the course of the hearing of these proceedings an effort was made by Counsel for the parties to arrive at an interim workable arrangement, but that was not possible. In these circumstances, it would be appropriate and proper if the Industrial Tribunal is directed to apply its mind afresh to the issue as to whether the ad-interim order passed on 30th January 2008 should be confirmed, modified, or vacated altogether. In order to facilitate a fresh exercise being carried out, the impugned order dated 15th March 2008 is quashed and set aside and the proceedings are remitted back to the Industrial Tribunal for a fresh decision. In the meantime, the ad-interim order which held the field shall remain to continue in operation. The Industrial Tribunal shall dispose of the application for interim relief expeditiously after the reopening of the Court after Summer Recess and endeavour to do so by the end of 7 June 2008. The petition is disposed of in the aforesaid terms. No order as to costs. .....