WP/5475/2010 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5475 OF 2010 S.M. Puthran ... Petitioner V/s. M/s.HMP Engineers Ltd. & Ors. ... Respondents Mr.J.P. Cama with Ms.S.Kher, Mahesh Londhe, Ms.Pallavi Dedhia i/b M/s.Sanjay Udeshi & Co. for Petitioner Mr.S.S. Pathak for Respondent No.1 Mr.A.V. Bukhari with N.R. Patankar with Prabhakar Jadhav i/b Mr.V.P. Sawant for Respondent Nos.5 to 7 Mr.B.H. Patel i/b Mr.R.J. Mane for Resp. No.8 CORAM: SMT.NISHITA MHATRE, J. DATED: JANUARY 13, 2011 P.C.: 1. The petition arises from the order dated 28.5.2010 in Complaint (ULP) No.176 of 2007. By the impugned order, the Industrial Court while deciding the complaint filed by the petitioner under Items 9 and 10 of Schedule IV of the MRTU & PULP Act has allowed the claim of the petitioner against the respondent Nos.6 to 8 in the complaint who are respondent Nos.5 to 7 in the present petition. They have been directed to pay an amount of Rs.96,135/- as gratuity along with interest @ 10% p.a. from 13.9.2004 till 10.5.2007 aggregating to Rs.1,25,000/-. The Industrial Court then granted liberty to the petitioner to execute his claim against respondent No.2 in the complaint i.e. respondent No.1 in the present petition under the order passed in complaint (ULP) No.681 of 2004 on 26.6.2006. WP/5475/2010 : 2 : 2. The petitioner was employed from 3.3.1964 as an operator with M/s.Rallis India Limited i.e. Respondent No.8 (for short, hereinafter referred to as `Rallis’). He was suspended on 17.7.1989 for certain acts of misconduct. The suspension order indicated that he would be entitled to receive the subsistence allowance in accordance with the Certified Standing Orders applicable to the employees of the company. A chargesheet was issued against the petitioner on 7.8.1989 alleging that he had committed acts of misconduct under the Certified Standing Orders 24(a), 24(c), and 24(l). The petitioner denied these allegations in his reply dated 17.8.1989. 3. Complaint (ULP) No.918 of 1989 was filed by the petitioner under Items 9 and 10 of Schedule IV of the MRTU & PULP Act. It appears that the main contention of the petitioner in this complaint was that he had not been paid wages or the subsistence allowance due to him; this amounted to an unfair labour practice. He also contended that the enquiry had been prolonged without reason. The Industrial Court dismissed the complaint on 13.1.1998. That order was impugned in Writ Petition No.692 of 1997 by the petitioner. While deciding the writ petition, a learned Single Judge of this court (Rebello, J. as he then was) accepted the statement made by Rallis that it would as soon as possible furnish the report of the enquiry officer to the petitioner. It was, therefore, held that the grievance of the petitioner that the pendency of the enquiry since 1989 amounted to an unfair labour practice, did not survive. The Court then observed that subsistence allowance was required to be paid to the petitioner in terms of section 10A of the Industrial Employment (Standing Orders) Act. According to the petitioner, this amount was not paid to him despite the order. WP/5475/2010 : 3 : 4. In the meantime, on 4.4.1991 Rallis sold its Engineering Division to M/s.HMP Engineers Ltd., Respondent No.1 herein (for short, hereinafter referred to as `HMP’). All the assets and liabilities of the Engineering Division of Rallis were taken over by HMP. It was also agreed that the services of the employees would be retained by HMP. The Petitioner in the meantime retired from service on attaining the age of superannuation. According to him, no order was passed as a consequence of enquiry held against him and he continued to be on the rolls of the Company till he attained the age of 60 years on 2.12.1999. The petitioner claims that he was not paid subsistence allowance from 17.7.1989 to 2.12.1999. As the order passed by Rebello,J. was not complied by Rallis, the petitioner filed Contempt Petition No.46 of 2000. A reply was filed by one V.Vishwanathan, Deputy General Manager of Rallis in which he disclosed that the Engineering Division of Rallis had been taken over by HMP. He also averred that the services had been taken over by HMP and that the petitioner was no longer an employee of Rallis. The contempt petition was disposed of with liberty to the petitioner to prosecute appropriate substantive proceedings under the relevant provisions of law to recover the amounts due to him. 5. The petitioner made several attempts to recover subsistence allowance due and payable from 17.7.1989 to 2.12.1999. Since his attempts to resolve the matter amicably failed, the petitioner filed complaint (ULP) No.681 of 2004 under Items 9 and 10 of Schedule IV of the MRTU & PULP Act claiming that HMP had committed unfair labour practices by defaulting in payment of the subsistence allowance. This complaint was filed in October 2004. By an ex-parte order passed on 26.6.2006, the Industrial Court allowed the complaint partly. The Industrial Court directed the HMP WP/5475/2010 : 4 : to pay wages / subsistence allowance in accordance with the provisions of law till the petitioner attained the age of 60 years. 6. While this complaint was pending before the Industrial Court an agreement was entered into between Runwal Constructions i.e., Respondent No.5 and HMP Engineers Limited Employees Union, a union which claimed to represent the workers employed in HMP. The agreement indicates that the union was a recognised union. It appears from the agreement that Runwal Constructions had purchased the unit of HMP in which the petitioner had been employed by paying the full consideration in a bank suit pending before the Debt Recovery Tribunal. However, this purchase was made subject to the claims of the workers. The agreement also stipulates that the union and Runwal Constructions had agreed that the workers would be paid Rs.6 crores for all pending dues and claims of any nature whatsoever. The union had furnished the details of workers and their pending dues which were to be paid by Runwal Constructions. All proceedings pending in the Labour Court and/or criminal proceedings and/or judicial and quasi judicial proceedings filed against Runwal Constructions were to be withdrawn. Significantly, the statement which was annexed to the agreement showing the list of workers and other employees bears the name of the petitioner at serial number 224. An amount of Rs.92,135/- is shown as due and payable to him. However, there is no amount shown payable to him as retirement benefit or as salary for the month of May 1997. Rs.4,000/- has been shown as the amount deducted and paid to the union. 7. It appears that Runwal Constructions paid the legal dues to all other workers except the petitioner. He therefore filed complaint (ULP) No.176 of 2007 seeking a WP/5475/2010 : 5 : direction against HMP and Runwal Constructions. The reliefs sought by the complainant against HMP and Runwal Constructions were to the effect that no construction in the factory site at Mulund be allowed to be undertaken and to deposit his legal dues together with interest. Evidence was led before the Industrial Court by both the petitioner as well as the representative from Runwal Constructions. 8. By the impugned order dated 28.2.2010, the Industrial Court allowed the complaint partly and directed that the amount of Rs.96,135/- as gratuity alongwith interest should be paid to the petitioner. The Court calculated this total claim of the petitioner would be entitled to Rs.1,25,000/- in the aggregate. The petitioner was granted liberty to execute his claim which was allowed in complaint (ULP) No.681 of 2004, against HMP . 9. It appears that the petitioner had also filed an application u/s 33-C(2) of the Industrial Disputes Act. However, that application was withdrawn on 14.7.2010 by him. 10. The issues which arise in the petition are: (i) whether the Petitioner is entitled to (a) subsistence allowance or (b) full wages till he retired from service on 2.12.1999; and (iii) whether all the Respondents are liable for payment of these dues. 11. I will first deal with the issue as to whether the workmen is entitled to full wages upto 2.12.1999 or subsistence allowance. Mr.Cama, appearing for the petitioner, submitted that although the workman was under suspension till he attained the age of superannuation he would be entitled to full wages and not merely the WP/5475/2010 : 6 : subsistence allowance for this period. He submitted that in terms of the Certified Standing Orders governing the employees working with Rallis, the workman would be entitled to full wages upto the date he attained the age of superannuation. He has pointed out that the services of the petitioner were never terminated after holding the enquiry against him. He drew my attention to Standing Order 25(5) of the Certified Standing Orders and submitted that where an enquiry is not followed by any action against the delinquent workman he is entitled to full wages and all privileges for the period of suspension. According to Mr.Cama, the very fact that no action was taken by the employer of the petitioner after a statement was made before this Court in the aforesaid Writ Petition that the report of the enquiry officer would be furnished to the petitioner within a few days, indicates that the workmen would be entitled to full wages in accordance with the Certified Standing Orders. 12. A perusal of the Certified Standing Orders supports the submission of Mr.Cama. Standing Order 25(5) reads as follows: 25(5) A workman against whom any action is proposed to be taken under sub-clause (b), (c) or (d) of clause (1) may be suspended pending the inquiry or for the period, if any, allowed to him for giving his explanation. The order of suspension may take effect immediately on its communication to the workman. If as a result of the enquiry held or explanation tendered, it is decided not to take any action under clause (1) the workman shall be deemed to have been in duty and shall be entitled to full wages and all privileges for the period of suspension. 13. Undoubtedly, the enquiry has been held against the petitioner as can be seen from the judgment in Writ Petition No.692 of 1997. However, no consequential action has been taken by any of the respondents and, therefore, the workman is deemed to be entitled to full wages and privileges for the period of suspension. WP/5475/2010 : 7 : Under the Standing Orders, a workman is entitled to subsistence allowance as long as he is under suspension. However, if the company does not desire to take any consequential action against the workman after suspending him, it must pay full wages to the workman for the period that he was on suspension. Undoubtedly, in the present case, the workman's services have been terminated on 2.12.1999 on account of his having attained the age of superannuation, without any punitive action being taken against him. He would thus be entitled to full wages during the period of suspension i.e. from 17.7.1989 when he was suspended till he attained the age of superannuation. 14. The next issue is on whom does the liability fall for making the aforesaid payment. Rallis had sold their engineering division to HMP on 1.4.1991 i.e. after suspending the Petitioner. HMP then obtained loans from various banks in order to run the business. A suit was filed by bank against HMP before the Debt Recovery Tribunal, Calcutta. Runwal Constructions agreed to purchase the aforesaid property without prejudice to the claims of the workmen. Runwal Constructions agreed to pay an amount of Rs.6 crores to settle the dues of the workmen, including the Petitioner. An agreement between the HMP Engineers Ltd. Employees Union (Rallifan Factory) and Runwal Constructions stipulates in no uncertain terms that the Debt Recovery Tribunal and the Bank had put Runwal Constructions into possession of the unit, subject to the claims of the workers. Therefore, in my opinion, it is Runwal Constructions which would be liable for payment to be made to the petitioner towards his legal dues. WP/5475/2010 : 8 : 15. Mr.Bukhari contends that the petitioner had filed an application u/s 33-C(2) before the Labour Court for the same relief and, therefore the complaint is not maintainable. He points out that the application under section 33-C(2) was withdrawn by the workman on 14.7.2010. This submission of Mr.Bukhari is based on provisions of section 59 of the MRTU & PULP Act. However, it appears from the documents filed before this court that the application u/s 33-C(2) was filed by the workman to claim subsistence allowance @ 75% on the basis of the order passed by the Industrial Court in Complaint (ULP) No. 681 of 2004. The present complaint i.e. Complaint (ULP) No.176 of 2007 has been filed for a declaration that the Respondents have committed an unfair labour practice by not paying the workman wages at the full rate for the period during which the petitioner was under suspension. This claim was made by the petitioner on the basis of the Certified Standing Orders as no final order of any punitive action was passed against him till he reached the age of superannuation. The submission of Mr. Cama that complaint (ULP) Nos. 681 of 2004 and 176 of 2007 are totally different is correct. As I have already held that the workmen would be entitled to full wages, the contention of Mr.Bukhari is unsustainable. The reliefs sought in the application under section 33C(2) were not the same as those sought in Complaint (ULP) No.176. Therefore the bar of Section 59 of the MRTU and PULP Act would not be applicable. The workmen would be entitled to full wages until he reached the age of superannuation since no punitive action had been taken by the management even after an enquiry was held against the petitioner. 16. The liability being that of Runwal Constructions, in my opinion, it must pay WP/5475/2010 : 9 : the amount to the workmen. The petitioner would therefore be entitled to full wages upto the date of superannuation as his employer had chosen not to take any punitive action against him after completing the enquiry. 17. Various calculations have been produced before this Court by both the Petitioner and the Runwal Constructions to indicate the amount which the petitioner would be entitled to in case full wages are granted. 18. In my opinion, once it is held that the workman is entitled to full wages for the period during which he was placed under suspension the matter would have to be remanded to the Industrial Court to calculate the exact amount payable to the petitioner as there is a difference in the calculations tendered by both the parties. The Industrial Court will calculate the amount of full wages payable to the workmen from 17.1.1989 upto 12.12.1999. The Petitioner will also be entitled to gratuity till this date, besides his provident fund contributions which have been deducted earlier as well as bonus and other legal dues which remain to be paid. The amount already paid to the petitioner for this period shall be deducted from the total sum payable to him. The amount so calculated shall be paid by Runwal Constructions to the Petitioner. 19. Accordingly, the petition is allowed. The matter is remanded to the Industrial Court to calculate the amount payable to the workman within six weeks from today. The parties shall appear before the Industrial Court on 24.1.2011 at 11 am. They are at liberty to file their respective calculations before the Industrial Court within one week from that date. WP/5475/2010 : 10 : 20. Writ Petition is disposed of accordingly. 21. Mrs.Patankar, appearing for Runwal Constructions, seeks a stay of the order. Stay refused.