1 caw158-11.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.158 OF 2011 IN WRIT PETITION NO.7790 OF 2009 MBPT Dock & General Employees Union .. Applicants Vs. The General Manager (HR) Castrol India Limited .. Respondents Mr.P.B.Shah for the applicants Mr.J.P.Cama, Sr.Advocate, Mr.Anupam Surve and Mr.Atman Mehta i/b M/s.Haresh Mehta and Co. for the respondents CORAM: K.K. TATED, J. DATE: 29th MARCH, 2011 P.C. 1. Heard the learned counsel for the parties. 2. This application is preferred by original respondent no.1 Union for permission to withdraw the amount deposited by respondent company with the court pursuant to the order dt.12.11.09 passed 2 caw158-11.doc in Writ Petition No.7790 of 2009 (Coram: R.S.Mohite, J.) 3. The learned counsel for the applicants submits that the Presiding Officer, Central Government Industrial Tribunal No.2, Mumbai by its award dt.2.1.09 held that the respondent / employer to treat the applicants / employees as its employees till they attain the age of superannuation and give all monetary benefits to them attached to the post till then. 4. Being aggrieved by this order, the respondent original petitioner company preferred writ petition no.7790 of 2009. The said writ petition was admitted on 12.11.09. Respondent company sought interim relief staying order of Tribunal. But no stay of Tribunal s order was granted. So the court directed the ’ respondent company to deposit the amount of workers wages from March 2005 till order dated 12.11.09 in Writ Petition. Thereafter, the respondent company deposited a sum of Rs. 58,06,794.95 in this court towards the wages from March 2005 till 12.11.2009. 5. The learned counsel for the applicants submits that the applicants besides the prayer for payment of the amount 3 caw158-11.doc deposited with the court, they made other prayers, but in this application they did not press those other prayers and restricted only to the prayer for payment of the deposited amount. He further makes a statement that applicants are ready and willing to give an undertaking that in case the court directs them to redeposit the entire amount they are ready and willing to do the same. 6. The learned Senior Counsel appearing on behalf of the applicants pointed out that for the same cause of action applicants preferred contempt petition no.240 of 2010 in this court which is pending and therefore, the present Civil Application is not maintainable. The learned counsel for the applicants after taking instructions from his clients that is six persons namely Mr.S.D.Padwal, Mr.S.J.Shinde, Mr.S.B.Padnekar, Mr.H.S.Gurav, Mr.P.G.Kadam and Mr.D.S.Nachare and the Union namely MBPT Dock & General Employees Union makes a statement that they undertake to withdraw the contempt petition no.240 of 2010 on the next date of hearing. The same is accepted. 4 caw158-11.doc 7. The learned Senior Counsel for the respondent original petitioner vehemently opposed the present Civil Application. He submits that the applicants are not entitled to withdraw the amount deposited by the respondents in court. Respondent filed their affidavit in reply dated 19.1.01 to oppose the present Civil Application for withdrawal of the amount. 8. The learned counsel for the respondent oppose the present Civil Application allowing the applicants to withdraw the amount without furnishing any security to the satisfaction of the Registrar and / or providing the bank guarantee. He submits that even the Apex Court in the matter of Dena Bank vs. Ghanshyam reported in (2001) 5 SCC 169. specifically held that before allowing the withdrawal of the amount to the workers the court should impose some conditions and or take security that in case they have to refund the amount, it can be recovered from them in accordance with law. He relies on Head Note (G) as under: However, while passing an interlocutory order, the “ interests of the employer should not be lost sight of. Even though the amount paid by the employer under 5 caw158-11.doc Section 17-B to the workman cannot be directed to be refunded in the event he loses the case in the writ petition, any amount over and above the amount payable under Section 17-B to him has to be refunded to him. It is, therefore, in the interests of justice to ensure, if the facts of the case so justify, that payment of any amount over and above the amount payable under Section 17-B to the workman be ordered to be paid on such terms and conditions as would enable the employer to recover the same. Therefore, it is added that if the appellant succeeds in the writ petition, it will be entitled to recover the difference of amount (i.e.amount paid under the impugned order less the amount payable under Section 17-B of the Act) from the respondent in accordance with law.” 9. In the present case, at the time of admitting the writ petition, this court refused to grant any interim relief in favour of respondent company. Therefore, there is no question of directing the applicants to furnish any other security to the satisfaction of the Registrar and / or bank guarantee. 10. In any case it is admitted fact that the respondent company deposited the said amount in this court in Writ Petition No.7790 of 2009 towards the wages of applicants from March 2005 to 12.11.09. Though the respondents are disputing their liability to pay the said amount to the applicants, in the facts and circumstances of the present case and in the interest of justice, 6 caw158-11.doc applicants are entitled to withdraw the said amount. As the Writ Petition challenging the award for payment is pending, it is just and proper to direct the applicants to furnish an undertaking for the refund of amount with 6% interest in case the writ petition is allowed. 11. Civil Application is allowed to the extent that applicants / workers are entitled to withdraw the amount deposited by respondent company on furnishing undertaking to this court that in case this court directs them to redeposit the entire amount, they will deposit the said amount with interest @ 6% p.a. from the date of withdrawal till the date of deposit. 12. Civil application is disposed of accordingly. 13. The learned counsel for the respondent seeks stay of this order for three weeks. Considering the facts and circumstances of the present case, stay is granted for two weeks from today. (K.K. TATED, J.)