1 31 wp 7906.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7906 OF 2010 The Crompton Greaves Ltd. ..Petitioner. Vs. Noor Mohamad Ibrahim Shaikh Kumbhar Ali & Ors.. ..Respondents. Mr.K.R.Naik i/b Mr.Sujeet P. Salkar for Petitioner. Mr.Harshad Shaikh i/b Mr.Rakesh D.Dave for respondent no.1 CORAM : K.K.TATED, J. DATED : 14/03/2011. PC: 1 By consent matter is taken on board for final hearing. 2 Heard the learned counsel for the parties. 3 By this petition under Article 226 and 227 of the Constitution of India, the Petitioner is challenging the order dated 17th March, 2010 passed by the Industrial Court, Thane in Revision Application (ULP) No.63 of 2009 by which the Industrial Court directed Petitioner to pay full wages to the Respondent from February, 2008 up to 31st May, 2009 i.e. till the date of his superannuation and also to pay him the legal 2 31 wp 7906.10.doc dues/retiral benefits i.e. gratuity and other dues, for which the Respondent is entitled to, presuming that the Respondent was permanent employment of the Petitioner up to 31st May, 2009. The Industrial Court further directed petitioner to make the payment within 30 days and on depositing or paying the said amount the Labour Court, Thane to dispose of original Complaint (ULP) No.389 of 1998. 4 A few facts of the matter are as under: The Respondent-original complainant filed Complaint (ULP) No.389 of 1998 before the Third Labour Court, Thane, alleging that Petitioner is Labour following within Item no.1(b), (d) and (f) of Schedule IV of the MRTU & PULP Act. In the said complaint, Respondent preferred an application being Exhibit-2 for directing Petitioner either to allow the Respondent to resume his services or make the payment of his wages every month. The said application below Exhibit 2 was decided by Third Labour Court, Thane on 18th December, 1999 directing Petitioner to allow the Respondent to resume his duties providing work and pay him wages every month regularly till final disposal of the Complaint. It is further held by the Third Labour Court that if the Petitioner do not want to utilize the services of the Respondent, then they have to pay 90% of his last drawn wages 3 31 wp 7906.10.doc till final disposal of the complaint. The said order was challenged by the Petitioner before the Industrial Court and thereafter, by filing Writ Petition No.9372 of 2006 before this Court. In Writ Petition, this court upheld the order passed by the Third Labour Court, Thane dated 18th December, 1999. 5 Being aggrieved by the order passed by the learned single Judge in Writ Petition No.9372 of 2006, the Petitioner preferred Letters Patent Appeal No.136 of 2006. The said Letters Patent Appeal was disposed of by Division Bench, consisting of Ladyship Smt.Ranjana Desai and A.P.Deshpande, JJ. on 8th August, 2006 in the following terms: “4. In the circumstances of the case, in our opinion, the following order will meet the ends of justice: a) The appellant shall deposit 90% of the wages of the complainant in the Labour Court, Thane as directed by the third Labour Court, Thane, by its order dated 18.09.1999. b) The complainant shall file an undertaking in this Court to the effect that in the event of the 4 31 wp 7906.10.doc appellant succeeding in the complaint, he shall bring back the amount withdrawn by him pursuant to the above mentioned order of the Labour Court. The undertaking be filed within two weeks from today. The complainant shall intimate the fact that he has filed the necessary undertaking in this court to the Labour Court and the Labour Court will then allow the complainant to withdraw the deposited amount. c) The order dated 20/12/06 passed by the third Labour Court is set aside to the extent to which it strikes off the defence of the appellant. The appellant is permitted to file written statement. The complaint shall then proceed. d) The Labour Court shall deal with the complaint independently and without being influenced by any observations made by the learned Single Judge in his order dated 20/4/06. e) Letters Patent Appeal is disposed of.” 5 31 wp 7906.10.doc 6 Thereafter, the Petitioner by his letter dated 6th February, 2008 called upon Respondent to join the services within four days from the receipt of the said letter. As the Respondent failed to report on duty, the Petitioner stopped depositing the 90% of wages in the Labour Court. 7 Thereafter, the Respondent preferred an application dated 30th June, 2009 for a direction to the Petitioner to pay 90% of wages every month as per the order dated 18th December, 1999, passed by Third Labour Court, Thane. The said Application was decided by the Labour Court by an order dated 16th September, 2009, directing Petitioner to deposit 90% of wages as per order dated 18th December, 1999. 8 Being aggrieved by the order dated 16th September, 2009, the Petitioner preferred Revision Application No.63 of 2009 before the Industrial Court, Thane. The Industrial Court directed Petitioner to pay entire wages i.e. 90% plus 10% and other benefits to the Respondent within 30 days from the impugned order dated 17th March, 2010. The Court further held that on depositing and/or payment of the said amount to the Respondent, the Labour Court, Thane shall dispose of the Complaint (ULP) No.389 of 1998. 6 31 wp 7906.10.doc 9 The learned counsel appearing on behalf of Petitioner submits that the Industrial Court without considering the Division Bench order dated 8th August, 2006 passed by this court in Letters Patent Appeal No.136 of 2006 directed Petitioner to pay the entire wages to the Respondent. He further submits that the Industrial Court failed to consider that as an when they called upon Respondent by the letter dated 6th February, 2008 to join the services, he refused to do so and therefore, Respondent was not entitled even 90% of wages as agreed by them before this court in Letters Patent Appeal. 10 He submits that when the work was available they called upon Respondent to join but he failed to do so and therefore, Respondent was not entitled to wages for that period. 11 He further submits that the Industrial Court without any jurisdiction held that on depositing the entire arrears of Respondent the complaint filed by the Respondent to be treated as disposed of. He submit that the Division Bench of this court by an order dated 8th August, 2006 specifically directed Respondent to file an undertaking in this court to the effect that in the event of the Petitioner succeeding in the complaint, Respondent will pay back the amount withdrawn by him pursuant to the order passed by the Labour Court. 7 31 wp 7906.10.doc 12 On this submission, the learned counsel appearing on behalf of Petitioner submits that the impugned order passed by the Industrial Court dated 17th March, 2010 is liable to be set aside. 13 On the other hand, the learned counsel appearing on behalf of Respondent submits that the Petitioner with malafied intention wrote the letter dated 6th February, 2008 calling upon the Respondent to report to duty within four days from receipt of the letter, because the respondent’s son by his letter dated 24th September, 2007 intimated Petitioner that Respondent was not keeping well and he was suffering with Cerebral Hemorrhage with Aphasia and was totally bedridden unable to attend even to the court. He submit that when the Petitioner learnt that the Respondent was not in a position to recover from the ailments, the Petitioner malafiedly called upon the Respondent by the letter dated 6th February, 2008 to join duty within specific period. 14 It is admitted fact that this court in Letters Patent Appeal No.136 of 2006 directed the Petitioner to pay 90% wages to the Respondent till the hearing and final disposal of Complaint (ULP) no.389 of 1998 pending before the Labour Court at 8 31 wp 7906.10.doc Thane. This court by an order dated 8th August, 2006 made it clear that in case, the Petitioner succeeds in pending complaint, then Respondent to bring the entire back wages in the court. Therefore, in my view, the Labour Court erred in holding that on payment of the entire amount to the Respondent the Labour Court should dispose of the complaint without further hearing. 15 The submission made by the learned counsel appearing on behalf of Petitioner that though they called upon the Respondent to join their services by their letter dated 6th February, 2008, he failed to do so, and therefore, Respondent was not entitled for any wages from them. The bare reading of the letter dated 24th September, 2007 written by the Respondent’s son shows that the Petitioner with malafied intention issued letter dated 6th February, 2010 calling upon the Respondent to join the services because it was specifically stated in the letter dated 24th September, 2007 that the Respondent was bed ridden and he was neither able to attend the court nor able to join the services. Therefore, in my view, there is no substance in the submission made by the learned counsel appearing on behalf of the Petitioner that as the Respondent failed to join services as per the letter dated 6th February, 2008, he was not entitled to any wages. 9 31 wp 7906.10.doc 16 Considering the over all matter and in the interest of justice, I feel that in any case, as per first order dated 18th December, 1999 passed by the Labour Court, Thane, Respondent is entitled to 90% wages till the date of his superannuation i.e. 1st June, 2009. 17 Considering the averments made in the Writ Petition and in that circumstances, Writ Petition is disposed of at the stage of admission on following terms: i) Petitioner is directed to deposit the arrears of wages as per order dated 18th December, 1999 passed by the Labour Court till 1st June, 2009, within four weeks, in the trial court. ii) On depositing of the said amount by the Petitioner, Respondent is entitled to withdraw the same as directed by the Division Bench in Letters Patent Appeal No.136 of 2006. iii) The Third Labour Court, Thane is directed to dispose of Complaint (ULP) No.389 of 1998 within one year from the receipt of the writ from this court. 10 31 wp 7906.10.doc iv) Order passed by the Industrial Court dated 17th March, 2010 is modified to this effect. v) Writ Petition is disposed of. vi) No order as to costs. (K.K.Tated, J.)