1 wp-1985-10 jpc IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1985 OF 2010 Atcom Technologies Limited 3/A Lalwani Industrial Estate, 14, GD Ambedkar Road, Wadala (W), Mumbai 31 and another .. Petitioners Versus Kazi Huzefa c/o Maharashtra Employees Union Kokanipada, Kurar Village Malad(E), Mumbai-97 .. Respondent Mr. Apurv Harsh a/w Ms. Priya Baliya i/by Swati Sawant for the Petitioners Mr. F. R. Mishra for the Respondent CORAM: S. J. KATHAWALLA, J. DATED: 11 th October, 2010. P.C. 1. By this Writ Petition, the Petitioner employer has prayed that the Judgment and Order dated 11 th January, 2008 passed by the Labour Court, Mumbai in Reference (IDA) No.807 of 2003 (the said Reference) and the Judgment and Order dated 16th January, 2 wp-1985-10 2010 passed by the Industrial Court, Mumbai in Complaint (ULP) No. 424 of 2008 (the said Complaint ) be set aside. 2. The said reference was sent by the Commissioner of Labour (Conciliation), Mumbai under the provisions of the Industrial Disputes Act, 1947 to the Sixth Labour Court, Mumbai for adjudication of the industrial disputes raised by the Respondent workman against the Petitioner Company for reinstatement in service with back wages w.e.f. 5th October, 2002. The said Reference was disposed of by the Labour Court, Mumbai by its Judgment and Order dated 11th January, 2008 directing the Petitioner Company to pay the back wages to the extent of 50% to the Respondent workman for the period from 5th October, 2002 to 13th May, 2003 i.e. for about seven months. By its Judgment dated 11th January, 2008, the Sixth Labour Court, Mumbai had inter alia rejected the contention of the Petitioners that the Respondent is not a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947. 3. Admittedly the Petitioner employer did not impugn the said order and also failed to comply with the same in the last two years nine months. Since the Petitioner Company failed to comply with the judgment and order dated 11th January, 2008 despite written 3 wp-1985-10 requests by the Respondent workman, the Respondent workman was compelled to file the said Complaint of unfair labour practice under section 28 read with Item 9 of schedule IV of the MRTU and PULP Act, 1971, seeking implementation of the said Judgment/Award. 4. The Petitioners opposed the said Complaint and inter alia, contended before the Industrial Court that the Petitioners could not comply with the judgment and order passed by the Labour Court dated 11 th January, 2008 since the Petitioner Company was before the BIFR and the Bankers had taken symbolic possession of the assets of the Petitioner Company under the Securitisation Act and the Petitioners were awaiting the Rehabilitation order of the BIFR. It was further submitted that the Petitioner Company is not doing any business and has no income. It was also submitted that the Respondent is not a workman since he was handling software and therefore the complaint is not maintainable. It was further contended by the Petitioners that due to fire in the office of the Petitioner company, the Petitioners are not in a position to produce the documents and therefore no orders should be passed till the decision of the BIFR. The only document pertaining to the BIFR produced by the Petitioner Company was a notice dated 14th January, 2002 issued by the BIFR to the Petitioners. 4 wp-1985-10 5. In the said Complaint the learned Member of the Industrial Court, by its Judgment and Order dated 16th January, 2010 held that the Respondent has proved that the Petitioners have not complied with the award passed by the Sixth Labour Court in Reference (IDA) No. 807 of 2003 dated 11 th January, 2008. It is also recorded that the Petitioners failed to satisfy the Industrial Court that the defence of pendency of BIFR proceedings is available to the Petitioners in the proceedings under Item 9 of schedule IV of the MRTU & PULP Act. It is also held that in Reference (IDA) 807 of 2003 the Labour Court has granted the relief to the Respondent treating the respondent as workmen and hence the plea that the Respondent is not a workman cannot be accepted. The Industrial Court therefore passed the following order: “1.The Complaint filed by the Complainant is hereby partly allowed. 2. By not complying the Award passed in Reference (IDA) No.807 of 2003 dated 11.1.2008 the respondents have committed unfair labour practice under Item 9 of Schedule IV of the MRTU and PULP Act, 1971. 3. The respondents are hereby directed to cease and desist from the proved unfair labour practice and to take affirmative action by making the payment of 50% back wages for the period 5.10.2002 to 13.5.2003 with 12% simple interest from 12.1.2008 till the actual payment to the complainant made by the respondents 5 wp-1985-10 or till the respondents deposit the amount of back wages in the Court. 4. The claim of the complainant for the unpaid salary of September, 2002 is hereby rejected since it is not covered in the Award. 5. Parties to bear their own costs.” 6. It is an admitted fact that the Petitioners have not impugned the judgment/Award, dated 11 th January, 2008 in the last two years nine months, whereby the Petitioners were directed to pay 50% back wages to the Respondent for the period commencing from 5th October, 2002 to 13th May, 2003 i.e. for about seven months. The Petitioners have not given any explanation to the Industrial Court as to why the Award dated 11 th January, 2008 was not challenged. Even in the present Writ Petition, the Petitioners have not explained as to why the impugned Award was not challenged in the last two years nine months. In fact the argument advanced on behalf of the Petitioners before the Industrial Court in the said Complaint is that the Award dated 11 th January, 2008 was not complied with by the Petitioners since the Petitioner Company was before the BIFR and not because they wanted to impugn the said Award. Without impugning the Judgment of the Labour Court dated 11th January, 2008, it was also sought to be contended by the Petitioners before the Industrial Court that the Respondent was not 6 wp-1985-10 a workman which issue was already decided in favour of the Respondent in the Judgment dated 11th January,2008. 7. The learned Advocate appearing for the Respondent has informed the Court that the Petitioner Company is no longer before the BIFR. When this Court inquired from the learned Advocate for the Petitioners, the period during which the Petitioner Company enjoyed the protection under Section22 of the Sick Industrial Companies Act, 1985 (SICA), the learned Advocate appearing for the Petitioners informed the Court that he is not in a position to provide the said particulars to the Court. In any event admittedly the Respondent Company is not before the BIFR as of date. 8. Under the circumstances, I am satisfied that the Petitioners are determined not to pay the back wages amounting to Rs. 44,000/-(approx.) to the Respondent as ordered in the Judgment dated 11th January, 2008 passed by the Sixth Labour Court, Mumbai. It is also no where explained why the said Judgment and Order dated 11th January, 2008 was not impugned by the Petitioners till date. Even if the Petitioner Company was before the BIFR, nothing prevented the Petitioners from challenging the Award of the Labour Court dated 11 th January, 2008. The Respondent was therefore, left with no other alternative but to file a complaint alleging 7 wp-1985-10 unfair labour practice against the petitioners before the industrial Court. The order of the Industrial Court dated 16 th January, 2010 is an obvious consequence of the Petitioners not complying with the Award dated 11 th January, 2008. In any event, though the Industrial Court passed its order on 16 th January, 2010 against the Petitioner, the present Petition is filed by the Petitioner only on 20 th July, 2010. Despite the Office having raised objections immediately on 23 rd July, 2010, the said objections were removed by the Advocate for the Petitioner only on 16 th September, 2010, after which the Petition could be numbered and placed before this Court for admission. Under the circumstances, no case is made out for interference by this Court with the Judgment and Order dated 11 th January, 2008 passed by the Labour Court, Mumbai and the Judgment and Order dated 16th January, 2010 passed by the Industrial Court, Mumbai. 9. The Writ Petition is therefore dismissed on the grounds of delay and latches. No order as to costs. ( S. J. KATHAWALLA, J.)