1 Cr.W.P. 1462.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO.1462 OF 2010 K.V. Mohanan, C/o. Killick and Allied Companies Employees Union, Mumbai. ... Petitioner. V/s. Killick Nixon Limited & Ors. ... Respondents. ALONGWITH CRIMINAL WRIT PETITION NO.1463 OF 2010 Robinder Madhav Chandani. ... Petitioner. V/s. Killick Nixon Limited & Ors. ... Respondents. Mr. N.M. Ganguli for the Petitioner. Mr. Avadhesh M. Nathani for Respondent Nos.1 and 2. Mr. A.S. Shitole, APP for the State. CORAM : K.U. CHANDIWAL, J. RESERVED ON : 07TH SEPTEMBER 2011. PRONOUNCED ON : 20TH SEPTEMBER 2011. P.C. :- Heard finally. Rule returnable forthwith. On 23rd February 2011, the learned Counsel had accepted for listing the matter for final hearing at admission stage. 2 Cr.W.P. 1462.10.sxw 2. The Petitioner was in employment of Respondent No.1 – a public limited company. There was a Memorandum of Understanding dated 4th January 2005 with the Union of Workmen employed with Respondent No.1 – Company, whereby the management had agreed to continue the company without affecting employment to the employees/Petitioner. The Petitioner submits that Respondent Nos. 1 and 2 did not comply with the conditions stipulated in the above referred Memorandum of Understanding dated 4th January 2005. Consequently, the Union filed a complaint under Section 238 r/w. Item 9 of Schedule IV of M.R.T.U and P.U.L.P. Act alleging unfair labour practice on the part of Respondent Nos.1 and 2 by breach of the agreement of employment and by not paying the dues in the schedule. Interim order was passed on 25.4.2006 by the Industrial Court. On 23rd June 2006, a lay off notice was displayed by Respondent No.1 in respect of 34 named workmen including the Petitioner with effect from close of working hours dated 23rd June 2006, until further decision of the Management. The said Complaint (ULP) No.72 of 2006 and others were heard and disposed of by the Industrial Court by its order dated 16th January 2009. The orders of the Industrial Court were challenged by the Petitioners – Union and also by Respondent No.1 being Writ Petition Nos.668 of 2009 and 933 of 2009 respectively. The order dated 16th January 2009 by the Industrial Court was stayed while admitting the Writ Petition. The Union challenged the same before the Division Bench and by order dated 31.08.2009, the Respondent No.1 was directed 3 Cr.W.P. 1462.10.sxw to deposit in the Court the amount awarded by the Industrial Court to secure claims of the workmen. The learned Counsel for the Petitioner exhaustively read the orders in the Writ Petition dated 31.08.2009 to insist that lay off by the Company will not mitigate the effect of order dated 25.04.2006 in the Case No.72 of 2006 by way of interim arrangement, even if the Petition is disposed of on 17th January 2009. 3. The orders dated 25.04.2006 were complied by Respondent No.1 till the notice dated 23.06.2006 was issued. They did not comply the same for the subsequent period. The Petitioners felt, that by non-payment of wages on the due dates, the Respondent committed breach of order dated 25.04.2006 passed by the Industrial Court which amounts to an offence punishable under Section 48(1) of M.R.T.U. & P.U.L.P. Act. This gave rise to Complaint (ULP) No.132 of 2006 and consequently, process was issued against Respondent Nos.1 and 2. This order of issuance of process was challenged by Respondent Nos.1 and 2 by Revision Application (ULP) No. 250 of 2006, which was dismissed by the Industrial Court by the Judgment and Order dated 11.07.2007. The Review Application No.8 of 2008 was moved by the Respondent Nos.1 and 2 before Labour Court challenging maintainability of said complaint. However, the learned Judge, Labour Court rejected said Misc. Application on 07.08.2008. This was challenged by Respondent Nos.1 and 2 by revision under Section 44 of M.R.T.U. & P.U.L.P. Act being Petition No.138 of 2008 and the 4 Cr.W.P. 1462.10.sxw Industrial Court by its order dated 17.12.2009 allowed the Petition of the Respondent Nos.1 and 2 and dismissed Criminal Complaint No.132 of 2006. 4. The learned Counsel for the Petitioner submits, in view of law laid down by the Hon’ble Supreme Court in the matter of Workmen of M/s. Firestone Tyre & Rubber Co. of India (P) Ltd. V/s. The Firestone Tyre and Rubber Company, reported in 1976 LAB. I.C. 1154 - AIR 1976 S.C. 1775, the employees are entitled to compensation of lay off period and therefore, according to the learned Counsel, the Respondent No.1 could not have dis-obeyed the initial order dated 25.04.2006 and should have faced the prosecution for non-compliance thereof. 5. The learned Counsel also submits that the learned Member, Industrial Court was not justified in rejecting the order passed by the Labour Court dated 07.08.2008 on Application Exhibit G-5 and dismissing Criminal Complaint (ULP) No.132 of 2006 before the Labour Court. The Learned Counsel submits there was no provision of revision to pass such orders. 6. Identical point about jurisdiction of the Revisional Court i.e. Industrial Court, Maharashtra raised in Special Civil Application No.3665 and Division Bench of this Court in the matter of Anusuya Vithal and Ors. V/s. J.H. Mehta and Anr. decided on 20th June 1959 held that Revision is 5 Cr.W.P. 1462.10.sxw maintainable and also held, in paragraph 5 as under :- “5. As, therefore, compensation payable for layoff is not remuneration and is also not payable to a worker in respect of his employment or work done in such employment, it is not “wages” within the meaning of this term give in the main part of the definition. In this view, it is not necessary to consider whether such compensation is payable by reason of the terms of employment being fulfilled.” 7. The observations of the Supreme Court in the matter of Workmen of Firestone is concerned, deal with the situation of non-payment to the workmen during the period of layoff, which is called as compensation payable for lay off. 8. The present case projects a picture of wages during the interim arrangement effective from 25.04.2006 by virtue of declaration of lay off on 23.06.2006, the wages will not be effective to be paid but it would be compensation payable for lay off which is not a remuneration as a whole. The Hon’ble Supreme Court in paragraph 12 dealt with this legal position and observed in paragraph 17 as under :- “ In a case of compensation for lay-off the position is quite distinct and different. If the term of contract of service or the statutory terms engrafted in the Standing Orders do not give the power of lay-off to the employer, the employer will be bound to pay compensation for the 6 Cr.W.P. 1462.10.sxw period of lay-off which ordinarily and generally would be equal to the full wages of the concerned workmen. If, however, the terms of employment confer a right of lay- off case of any industrial establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein. But compensation or no compensation will be payable in the case of an industrial establishment in which the provisions of Chapter VA do not apply, and it will be so as per the terms of the employment. 9. The order of Industrial Court in Complaint (ULP) No.72 of 2006 dated 25.04.2006 was an interim order directing the Respondent to pay wages to the employees of the said Company represented by Union till disposal of the main complaint. There is no controversy that said order was complied for the month of April and May 2006. The wages could not be paid due to the lay off notice which was compelled to be issued owing to financial crunch faced by the Respondent. Even the lay off compensation was not paid which gave rise to Misc. Criminal Complaint (ULP) No.132 of 2006 before the Labour Court. 10. Basically, the clarification made in the Review Application No. 8 of 2008 by the Industrial Court has removed the mist in the matter when it is informed, the position of the wages means those of the employee, who was in the employment of the Company and in fact, in the light of such clarification in the Review Application, the Application Exhibit 7 Cr.W.P. 1462.10.sxw C-5 should have been entertained by dismissing Complaint (ULP) No.132 of 2006. The observation of the learned Labour Judge that once the process is issued, the Respondents are liable for either conviction or acquittal on merits as the case may be. These observations, certainly are contrary to the record as the clarification made by the Industrial Court in Review Application and also the final Judgment, the Misc. Criminal Complaint (ULP) No.132 of 2006 itself was not maintainable as the interim relief of the Industrial Court by virtue of orders in Review Application and the final judgment of Complaint (ULP) No.72 of 2006 has merged in the final order. The change circumstances ought to have been considered by the Courts and not to have entertain the Complaint (ULP) No.132 of 2006. Taking these aspects, the learned Member, Industrial Court rightly rejected the Criminal Complaint (ULP) No. 132 of 2006. No perversity or apparent error is seen in the said order. Hence, Writ Petition lacks merit. Dismissed. Rule discharged. 11. The other Writ Petition No.1463 of 2010 being raising identical grounds and contentions is also rejected. (K.U. CHANDIWAL,J.)