1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE Appeal No.461 of 2008 In Notice of Motion No.79 of 2008 In Writ Petition No.2059 of 2005 Britannia Industries Ltd. Appellant Vs. Maharashtra General Kamgar Union & ors. Respondents Mr.J.P.Cama, Senior Counsel with Mr.P.M. Palshikar for appellant. Mr.Anand Grover with Mr.Prakash Mahadik for respondent-Union. CORAM: B.H.MARLAPALLE & SMT.V.K.TAHILRAMANI,JJ. Reserved on : January 5, 2010. Pronounced on: February 2, 2010. JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This intra Court appeal arises from the order dated 16th 2 September 2008 passed by the learned single Judge thereby allowing Notice of Motion No.79 of 2008 in Writ Petition No.2659 of 2005 taken out by the respondent – Union in terms of prayer clause (a) and the present appellant is the petitioner in the said petition. The brief facts leading to this appeal are required to be stated. 2. The company had submitted an application under Section 25-O(1) of the Industrial Disputes Act, 1947 (“the Act” for short) seeking permission to close down its factory located at Reay Road (East), Mazgaon, Mumbai 400 010 on 24/12/2003 and the respondent – Union by its reply dated 1/1/2004 had opposed the application. However, the Competent Authority of the State Government allowed the closure application on 23/3/2004 and immediately thereafter review application came to be filed by the respondent – Union under Section 25-O(5) of the Act. The Competent / Specified Authority by its order dated 5/4/2004 declined to review the order of closure dated 23/3/2004 or to grant interim relief to the Union but referred the application of closure to the Industrial Tribunal for adjudication as required 3 under Section 25-O(5) of the Act. After hearing all the parties concerned the Industrial Tribunal decided the Reference by its Award dated 12/8/2005 and the application for closure came to be rejected. The said award is the subject matter of chalelnge in Writ Petition No.2659 of 2005 which has been filed on 18/10/2005. On 13/2/2006 the petition came to be admitted after hearing both the parties and so far as interim relief is concerned, a compromise was arrived between the parties and an order in terms of the Minutes of Order was passed on the very same day. The said order dated 13/2/2006 reads as under: “Heard. Rule returnable in the second week of June, 2006. Shri Anand Grover waives service on behalf of Respondent No.1. So far as interim relief is concerned, parties to the petition have presented draft Minutes of Order dated 13.2.2006 duly signed by both the parties and their respective advocates. The same is taken on record and marked “X” for identification. Interim relief is granted in terms of Minutes of 4 Order dated 13.2.2006.” The Minutes of Order dated 13/2/2006 read as under: “Pending hearing and final disposal of the Petition: 1. Each workman shall be paid 50% of the last drawn amount/wages (as set out at Exhibit “1” to the affidavit dated 25.1.2006 of J.F. Lewis filed on behalf of the Respondent No.1 Union) from the period beginning the month following the month of which he was last paid. 2. The arrears for the amount equivalent to wages till December 2005 will pay to each workman by 15th March 2006 and the monthly amount for the month of January and February 2006 will be paid by 1.3.2006. Thereafter, the monthly amount equivalent to wages will be paid the 7th of every month. 3. It is specifically agreed by the parties that the amount equivalent to wages shall be paid by the Petitioner Company as aforesaid without requiring the workman to file individual affidavits stating that they are not employed elsewhere. 4. It is also specifically agreed that that the 5 amount equivalent to wages shall be paid as aforesaid requiring the workmen to repay the amount back in the event that the final order in this Petition and in any appeal thereafter, is decided in favour of the Petitioner Company. 5. The employees who have retired after 24.4.2004 and who retire hereafter shall be paid gratuity and all the retirement dues as payable on 24.4.2004, subject to the final orders in this Petition. 6. The Petitioner Company shall maintain the status quo in all respects in relation to the land, plant, machinery and factory of the Reay Road Unit.” 3. Notice of Motion No.329 of 2006 came to be filed in Writ Petition No.2659 of 2005 by the Respondent-Union on or about 16th June 2006 for the following reliefs: (a) For an order fixing the date of final hearing of the Petition and peremptorily on a fixed date; (b) In the alternative, without prejudice to prayer (a), for an order to vary the Minutes of Order dated 6 13.2.2006 and to direct the Petition to pay the workmen wages in accordance with the provisions of Section 25-O(6) of the Industrial Disputes Act.” On 16th January 2008 the learned Single Judge passed the following order in Notice of Motion No.329 of 2006: “Applicant is granted liberty to renew prayer in this Application after sometime, in the event the Writ Petition which is already notified on the Weekly Board at Serial No.41, does not reach for hearing within reasonable time.” 4. Notice of Motion No.79 of 2008 in Writ Petition No.2659 of 2005 came to be filed by the union on or about 14/2/2008 and it prayed for the following substantial reliefs: “(a) Pending hearing and final disposal of the present Petition, the order dated 13.2.2006 passed in the present petition be modified and for further order directing the Petitioner to pay the workmen, whose names are listed at Exhibit A, to the affidavit in 7 support of this Notice of Motion, wages in accordance with the provisions of Section 25(O)(6) and/or Section 17B of the Industrial Disputes Act as per the impugned Award dated 12.8.2005 of the Industrial Tribunal.” On 22/2/2008 Notice of Motion No.79 of 2008, while Notice of Motion No.329 of 2006 was pending, came up before the learned Single Judge and the following order came to be passed: “1. List this Motion along with Writ Petition No. 2659 of 2009. 2. Both these proceedings and any other cognate proceedings pending in the said Writ Petition be listed in the week commencing from 15th April 2008 for hearing. This date is granted on the assumption that there will be no stay of further hearing of the present proceedings by the Appellate Court. Hearing of Petition is expedited as fate of 168 workers is involved in the proceedings.” 8 5. When Notice of Motion No.79 of 2008 was heard by the learned Single Judge on 16/9/2008, the appellant-company filed its affidavit-in-reply and opposed the Notice of Motion. It was contended that when Writ Petition No.2659 of 2005 was admitted and the order of interim relief in terms of the Minutes of Order was granted on 13/2/2006, there were in all 280 workmen on the rolls of the factory and about 130-140 workmen in the mean while had opted for voluntary retirement. When the affidavit-in-reply was filed there were only 145 workmen left as six workmen had already retired and/or accepted voluntary retirement of the company. It was further contended that the order of interim relief passed on 13/2/2006 was by way of Minutes of Order and the prayer in Notice of Motion No.79 of 2008 amounted to review of the said order and, therefore, it was required to be placed before the very same learned Judge. The affidavit more specifically stated, “... I say that the company has prayed for stay of the impugned award by way of Interim Relief. However as the parties have agreed by way of consent minutes the minutes were signed by the parties by way of Interim Relief. I say that accordingly Interim 9 Relief was granted by this Hon’ble Court in terms of Minutes of the Order. I say that in view of this the Respondents cannot have any grievance about the said order which was passed by Consent, and if they do seek to raise any grievance then their only remedy may be to file either appeal before the Honourable Division Bench or review petition for setting aside the said order (though the petitioner reserves its right to oppose and contest such appeal or review on all grounds, including maintainability against a consent order), and therefore prayer of payment of wages under Section 25-O(6) in Notice of Motion cannot be granted. I say that the company has no objection for fixing any date of final hearing of the above matter as per convenience of the court.” 6. The learned Single Judge proceeded to pass the order by allowing Notice of Motion in terms of prayer clause (a) which has been quoted hereinabove. It is required to be noted at this stage that in Notice of Motion No.329 of 2006 in Writ Petition No.2659 of 2005, which is still pending, the prayer made was for payment of full wages in terms of the provisions of Section 25- 10 O(6) of the Act Whereas in Notice of Motion No.79 of 2008 the respondent-Union made an alternative prayer i.e. either to pay full wages as required under Section 25-O(6) of the Act or to extend the benefit under Section 17-B of the said Act. The learned Single Judge by the impugned order has granted alternative prayer by extending the benefit of Section 17-B of the Act and by deleting the alternative prayer for full salary / wages under Section 25-O(6). 7. On the objection raised by the company and the contentions that the Notice of Motion amounted to a review petition, the learned Single Judge in para 6 of the impugned order observed as under: “Mr.Singh, learned counsel for the petitioner strongly contended that the Minutes of Order were arrived at after negotiations and signed by consent of parties and there is no reason to alter the circumstances ordered by the Minutes in the absence of any change. This contention is not acceptable in view of the order of this court dated 16.1.2008 in which this court specifically granted permission to 11 renew the prayer in this Notice of Motion being after some time in the event the writ petition does not reach for hearing within a reasonable time. It must also be noticed that what was submitted by the parties to this Court for the purpose situation were not Consent Terms but Minutes of Order. The learned counsel for the petitioner – employer is not entirely accurate in the submissions that the interim arrangement was by consent, vide a Judgment of the Supreme Court reported in [(1996) 6 SCC 705 Speed Ways Picture Pvt. Ltd. & Anr. v. Union of India and Anr.]. Thus, in the circumstances, the Notice of Motion is eligible for being considered on merits since the matter has not been heard as contemplated by the parties and having regard to mandate of Section 17B of the Industrial Disputes Act.” 8. Mr.Cama, the learned Senior Counsel submitted that in view of the settled position in law, Notice of Motion No.79 of 2008 was required to be placed before the very same learned Judge who passed the interim order in terms of the Minutes of Order by treating the motion as a review application and in this 12 regard he relied upon the decision in the case of Speed Ways Picture Pvt. Ltd. & anr. Vs. Union of India & anr. [(1996) 6 SCC 705]. He submitted that the interim arrangement of payment of wages at 50 % of the last drawn wages was agreed upon between the parties by way of settlement and it was an unconditional payment irrespective of whether the workman was gainfully employed or not. At the same time even if the company succeeded, the payment so made was not recoverable or on retirement of the workman during the pendency of the petition, the amount so paid was not recoverable. This settlement between the parties could not have been varied unless it was contended by the respondent-Union that it was not a party to the settlement and such a plea could have been taken up only by way of review petition. The aim and object of the Act may be to impart social justice to the workmen but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio. Therefore, in view of the settlement signed by the Union on behalf of the 145 workmen remaining on 13 the rolls of the company, they were bound by the said settlement which was placed before the learned single Judge in the form of Minutes of Order. Reliance in this regard has been placed on the decision in the case of Haryana State Co-op. Land Development Bank Vs. Neeloam [(2005) 5 SCC 91]. Mr.Cama also relied upon the following observations made in the case of Pushpa Devi Bhagat Vs. Rajinder Singh [AIR 2006 SC 2628], “12. The position that emerges from the amended provisions of Order 23, can be summed up thus: (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC. (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1, Order 43. (iii)No independent suit can be filed for setting aside a compromise decree on the ground that 14 the compromise was not lawful in view of the bar contained in Rule 3A. (iv)A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23. Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court...” 15 9. Mr.Grover, the learned counsel appearing for the respondent, on the other hand, with his usual vehemence submitted that the writ petition was to be finally heard in the second week of June 2006 and on that condition the interim arrangement was agreed by the Union. However, the petition could not reach for final hearing due to some or the other issues raised by the petitioner – company and even when Notice of Motion No.329 of 2006 was heard on 16th January 2008, the petition could not reach for final hearing. The workmen waited for almost two years and realised that on account of the issues raised by the petitioner – company the petition was not likely to be decided finally and left with no alternative and the fact that they could not sustain on 50 % of the last drawn wages, pressed for the relief of full salary or in the alternative, benefit of Section 17-B of the Act. It was submitted that in the facts and circumstances of the case the application under Section 17-B was maintainable and it has been rightly granted by the impugned order. As per Mr.Grover the order does not suffer from any impropriety and it was an independent prayer for the benefit of Section 17-B of the Act and could not be treated as a review petition so as to place before the very same learned Judge who passed the interim order on 13/2/2006 in terms of 16 Minutes of Order. He relied upon the following decisions: (1) Dena Bank Vs. Kirit Kumar Patel [(1999) 2 SCC 106] (2) C.H. Saraiah Vs. Executive Engineer, Panchayat Raj Dept. & anr. [(1999) 9 SCC 229] 10. The main issue that is required to be considered by us in this appeal against an interlocutory order is, whether Notice of Motion No.79 of 2008 amounted to a review application. If the findings on this issue are in the negative then only we need to examine the impugned order on merits. However, if our findings are in the negative, we are not required to examine the merits of the order i.e. whether the workmen are entitled for payment of full wages during the pendency of the writ petition and the said question will have to be decided afresh in the Motion by treating it as a review application. 11. The fact remains that Notice of Motion No.329 of 2006 has not yet been decided and while it was pending, Notice of Motion No.79 of 2008 was taken out for the very same relief. The interim order passed in the form of Consent Order has been recalled / modified by the impugned order. In the order dated 17 13/2/2006 the learned Single Judge noted that the parties to the petition presented the draft of Minutes of Order duly signed by both the parties and their respective Advocates and, therefore,the Minutes annexed to the said order were nothing short of a bipartite settlement between the petitioner – company and the respondent – Union. It could be more appropriately called a settlement within the meaning of Section 2(p) of the Act and such a settlement is binding on both the parties, unless it is terminated by following the due process in law. In the case of Speed Ways Picture Pvt. Ltd. (Supra) the Supreme Court dealt with “Minutes of Order” as well as “Order in terms of Consent Terms”. It observed, “5. ...As a courtesy to the Court, the practice of long standing is to put statements such as these in writing in the form of “minutes of order” which are tendered and on the basis of which the Court passes the order: “Order in terms of minutes”. The signatures of counsel upon “minutes of order” are intended for identification so as to make the order binding upon the parties counsel represented. An order in terms of minutes is an order in invitum, not a consent order. It 18 is appealable and may be reviewed. 6. It would be a different matter if the order of the Court was passed on “Consent Terms”, i.e., on a statement above the signatures of counsel which expressly stated it was “by consent”. The order of the court in such event would read: “Order in terms of consent terms”. 11. In our opinion, Notice of Motion No.329 of 2006 and Notice of Motion No.79 of 2008 were required to be placed before the very same learned Judge who passed the order dated 13/2/2006 in terms of minutes of order, and such a ground was very specifically raised in the affidavit-in-reply filed on behalf of the company while opposing the motion. The order passed on 16/1/2008 in Notice of Motion No.329 of 2006 cannot be read as the order holding that the procedural requirement was not to be followed. We are not dealing with the merits of the relief prayed for i.e. either payment of full wages or the benefit of Section 17B of the Act. The scheme of Section 25-O (6) of the Act is very specific and it states that the workmen shall be entitled to claim full salary after the application is rejected. 19 Notwithstanding the said statutory provision, the parties and more particularly the union and the workmen agreed to receive less amount by way of settlement and such an order could be varied only by way of a review petition and it was required to be placed before the very same learned Judge who passed the interim order in terms of the Minutes of Order. Thus Notice of Motion No.79 of 2008 was required to be treated as a review petition. 12. The Notice of Motion though prayed for alternative reliefs, the fact remains that the reliefs prayed for amounted to recall of the order dated 13/2/2006 granting interim relief, which was based on the settlement between the parties as held by the Supreme Court in the case of Speed Ways Picture Pvt. Ltd. (Supra) the order in terms of “minutes of order” is either appelable or may be reviewable. Admittedly against the order dated 13/2/2006 no appeal was filed or has been pending and, therefore, when the respondent prayed for directions to pay full wages or extend the benefit available under Section 17-B of the Act, the order dated 13/2/2006 was sought to be impliedly recalled. A settlement between the parties as defined under Section 2(p) of the Act is like a consent decree and to avoid such 20 a consent decree a party intending to do so must approach the Court which recorded the settlement in the form of minutes of order. We, therefore, hold that pursuant to the law laid down by the Supreme Court in Speed Ways Picture Pvt. Ltd. (Supra) and Pushpa Devi Bhagat (Supra), Notice of Motion No.79 of 2008 was required to be treated as a review application and placed before the very same Judge (Daga,J.), for being heard and decided so as to recall / modify the terms of the Minutes of Order. 13. It is also pertinent to note that in this appeal an order came to be passed on 20/11/2008 directing that during the pendency of the appeal and without prejudice to the rights and contentions of both the sides, every workman should be paid 70 % of their respective last drawn wages. The said arrangement continues as of now and thus the impugned order has not taken effect. We were also informed across the bar that Writ Petition No.2059 of 2005 has been listed in the present final hearing board but is not likely to reach as some issues arising from the said petition are pending for consideration either before a larger Bench of this Court or on account of the pendency of connected issues before the Supreme Court. Though by the interim order 21 dated 13/2/2006 which is sought to be recalled / modified by the union, every workman was being paid 50 % of the last drawn wages, on account of the ad-interim order passed by a Division Bench in this appeal, they are now getting 70 % of the wages. If the Motion is decided within a month or so, no serious prejudice is likely to be caused to any of the parties and the order of payment of 70 % of wages is required to be continued till the Notice of Motion is heard and decided by the concerned learned Judge by treating it as a review petition. The arguments advanced by Mr.Grover are mainly on the merits of the application which we are not required to examine as we have answered the main issue in the affirmative. 14. Hence this appeal succeeds and the impugned order dated 16th September 2008 passed in Notice of Motion No.79 of 2008 is hereby quashed and set aside. The said Notice of Motion is directed to be restored to file for being treated as a review application. The office to take appropriate steps to place the Notice of Motion before Hon’ble Shri Justice Daga expeditiously. Parties are at liberty to take out appropriate motion for getting Notice of Motion No.79 of 2008 listed before Hon’ble Shri Justice Daga for early disposal. Till the Notice of 22 Motion No.79 of 2008 is heard and decided by treating as a review application, the interim order passed in this appeal on 20/11/2008 shall continue to operate. 15. Parties to bear their respective costs. (SMT.V.K.TAHILRAMANI,J.) (B.H.MARLAPALLE,J.)