WP/2351/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2351 OF 1999 M/s.Parvati Financial Consultance & Services Pvt. Ltd. ... Petitioner V/s. General Mazdoor Sabha, Thane ... Respondent Mr.K.S. Bapat i/b D.S. Mhaispurkar for Petitioner Mr.P.G. Karande for Respondent CORAM: SMT.NISHITA MHATRE, J. DATE: 11.01.2011 ORAL JUDGMENT: 1. The petition has been preferred against the order passed by the Industrial Court in Complaint (ULP) No.52 of 1993 on 31.8.1998. By the impugned order, the Industrial Court has declared that the Petitioner has committed unfair labour practices under Items 9 and 10 of Schedule IV of the MRTU & PULP Act. It has further directed the petitioner to pay the workers' wages from 12.1.1993. The workers who had already received their legal dues were only entitled to wages whereas those who had not received the dues were entitled to the wages plus the legal dues. 2. The petitioner's establishment was being run at Majiwade, Thane. It was a commercial establishment and was located in rental premises. According to the petitioner, its landlord requested it to vacate these premises and sold the premises to WP/2351/1999 : 2 : some third person. On 26.11.1992, the petitioner displayed a notice in the establishment informing the workmen that the office at Majiwade, Thane was being shifted to Lower Parel, Mumbai from 1.12.1992. Accordingly, the workmen reported for duty at Lower Parel. However, they found that there were several inadequacies in the premises including the access to toilets and proper ventilation. The workmen therefore requested the petitioner to take remedial measures so that conducive working conditions would be available to them. It appears that rather than improving the working conditions the petitioner displayed a notice that it would be closing down the concern from 12.1.1993. Thus, 22 workmen were affected by the closure of the establishment in Lower Parel. The petitioner claims that the closure compensation and all the dues of the workmen were paid or in any case offered to them after the closure was effected. Six workmen refused to accept the compensation. A complaint being complaint (ULP) No.52 of 1993 was preferred before the Industrial Court, Thane by the respondent union in which it was pleaded that the workers had been locked out by the petitioner under the garb of a closure. It was pleaded that this lockout was illegal and therefore continuation of such a lockout which was deemed to be illegal was an unfair labour practice under Item 6 of Schedule II of the MRTU & PULP Act. Since the workmen were not paid their wages, it was pleaded that the petitioner had committed an unfair labour practice under Items 9 and 10 of Schedule IV. It was contended that requiring the workers to work in unhygienic conditions amounted to unfair labour practice. 3. A written statement was filed by the petitioner before the Industrial Court. A preliminary objection was raised by the petitioner regarding the territorial jurisdiction of the Industrial Court in Thane to decide a complaint in respect of a closure of an WP/2351/1999 : 3 : establishment in Mumbai. It was further contended that the workmen had accepted the closure and all except six had accepted their legal dues pursuant to the closure. The petitioner denied that there was a lockout and contended that the action taken by it was in fact a closure. 4. Evidence of one of the workmen was led on behalf of all the others. She deposed that the workmen had been directed to report for duty in Lower Parel although they had continued in service for a long period in Thane. She has further deposed that when the workmen reported for duty at Lower Parel, they realised that the office was situated in a godown; there was no ventilation nor any toilet facility provided in the establishment. She conceded that out of 22 workers who had been employed by the petitioner, all except six, including her had accepted the legal dues offered by the petitioner. The workman denied the suggestions put to her that the petitioner company was not in existence when her evidence was being recorded or that it was closed from 12.1.1993. She further admitted that she had returned the legal dues which were sent to her along with a registered letter. The General Secretary of the Union was also examined on behalf of the respondent. He has corroborated the deposition of the earlier witness. 5. The Industrial Court by the impugned order has declared that the petitioner has not committed any unfair labour practice under item 6 of Schedule II. However, it has found that no documents were placed on record by the petitioner to indicate that the closure notice was served on the respondent union. It has also observed that the fact that the petitioner was required to shift to Lower Parel because of the sale of the building in which the premises were situated was also not established by the WP/2351/1999 : 4 : respondent. The Industrial Court has then held that the workers' demands were “in continuation of the lockout itself”. It has further observed that no justifiable reason is mentioned in the closure notice besides the fact that the petitioner chose not to support the closure notice by leading oral evidence in that behalf. The Industrial Court has not considered the issue regarding its territorial jurisdiction to decide the complaint. 6. The Division Bench of this Court in Glaxo Smith Kline Pharmaceuticals Ltd. v/s. Abhay Raj Jain & anr., 2008 III CLR 894, has held that the jurisdiction of the Industrial Court to decide a complaint with respect to the unfair labour practices is determined by the place where the cause of action arises. In the present case, the cause of action has arisen because of the alleged closure in the Mumbai establishment. The respondent had not sought a declaration that shifting of the establishment from Thane to Mumbai was illegal. In these circumstances, the Industrial Court, Thane had no jurisdiction to decide the complaint. 7. However, instead of allowing the petition only on this issue since the Industrial Court has considered the merits of the complaint filed before it, in my opinion, it would be appropriate to decide the same rather than directing the respondent to file a fresh complaint before the appropriate Court with respect to the cause of action which arose in 1993. 8. While dealing with the complaint, the Industrial Court has lost sight of the fact that only 22 workmen were employed with the petitioner. Therefore, there was no legal requirement for closing down the concern as envisaged under the Industrial WP/2351/1999 : 5 : Disputes Act. Unfortunately, rather than considering whether there was a lockout or closure, the Industrial Court has not dealt with the issue at all. Instead, it has held that there was no unfair labour practice under Item 6 of Schedule II. This means that the Industrial Court has found that there was no illegal lockout. The Respondent has been unable to establish that the Petitioner had effected a lock out of its establishment in Mumbai. 9. The question still remains whether there was a valid closure. The Industrial Court has found that the closure was illegal because the notice of closure was not served on the union representing the workmen. As I have already mentioned the rigours of sections 25FFA or 25-O were not applicable in the present case as only 22 workmen were admittedly employed by the petitioner. The question of serving a closure notice on the union does not arise. In fact, it may not be necessary even in a case where there are more than 50 workmen employed in an establishment as the requirement u/s 25FFA is that the employer must inform the appropriate government of its intention to close down its establishment. The Industrial Court has erred in concluding that the petitioner had committed an unfair labour practice under Items 9 and 10 of Schedule IV. 10. Thus, the workmen would be entitled to the closure compensation as well as the gratuity payable to them. It appears from the material on record that the closure compensation in respect of the six workmen who had not accepted the same was deposited before the Industrial Court. Presumably that amount was invested. The workmen would also be entitled to gratuity of a like amount. According to Mr.Bapat, appearing for the petitioner, the amount payable to each worker towards the closure WP/2351/1999 : 6 : compensation and gratuity together would range between `30000/- to `40000/-. If interest was to be added to this amount a substantially higher amount would be payable to the workmen. Mr.Bapat on instructions from the petitioner offers to pay an even higher amount i.e. `150,000/- to each of the six workmen. Mr.Karande appearing for the respondent has no instructions to accept this offer. However, in my view, the offer made by Mr.Bapat is very fair as it is more than the closure compensation and gratuity payable to the workman. 11. Accordingly, the order of the Industrial Court is set aside. The six workmen whose names have been mentioned in the deposition of the Respondent's witness i.e., Meena Phadake, Priya Adarkar, Smita Kale, Sneha Rane, Chaya Sardesai, Smitha Parab will be entitled to `1,50,000/- each towards closure compensation, gratuity. It appears that Smita Parab has expired on 22.8.2008. Her heirs would be entitled to this amount of `150,000/-. 12. The aforesaid workmen and the heirs of Smita Parab are entitled to withdraw the amount of `150,000/- each which has been deposited in this Court by the Petitioner. The remaining amount shall be returned to the petitioner along with the accrued interest. The amount deposited by the petitioner in the Industrial Court shall also be returned to the petitioner. 13. Accordingly the petition is disposed of. Rule made absolute. No costs. 14. In view of the disposal of the writ petition, Civil Application No.1192 of 2001 has become infructuous and is disposed of accordingly.