- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.3135 OF 2009 Cimco Birla Limited ... Petitioner vs Rowena Lewis ..Respondent .. Mr.Ashok Shetty for Petitioner Mr.C.R.Naidu i.b Mr.Santosh Shetty for Respondent .. CORAM : V.M.Kanade, J DATED : 15th June 2009 ORAL JUDGMENT: 1. Heard. Rule. By consent of parties, Rule made returnable forthwith. 2. This petition is filed under Article 226 and 227 of the Constitution of India. The petitioner is challenging the judgment and order passed by the Industrial Court, Mumbai in complaint (ULP) NO.588 of 1996 dated 16th April 2007. By the said judgment and order the Industrial Court, Mumbai was pleased to allow the complaint ULP No. 588 of 1996 filed by the respondent herein and declared that the petitioner herein had committed unfair labour practice under item 9 schedule IV of MRTU AND PULP Act, 1971 and further directed the petitioner to comply with the order passed in complaint (ULP) NO.339 of 1987. - 2 - The brief facts in a nutshell are as under: 3. The respondent was appointed as Secretary-cum- Stenographer by the petitioner on 1st September 1976. Her services were terminated by the petitioner on 30th December 1987. Thereafter, a complaint was filed by the respondent in complaint (ULP)NO.339 of 1987 in the Labour Court challenging the said termination. The Labour Court by judgment and order dated 25th March 1996 declared that the petitioner had engaged in unfair labour practice under item 1(a) 1(b) 1 (d) and 1 (f) of Schedule IV of MRTU AND PULP Act, 1971. The petitioner was directed to reinstate the respondent with full back wages and continuity of service. It is the case of the respondent that pursuant thereto the respondent wrote letters requesting the petitioner to reinstate her and to implement the order dated 25th March 1996. In the meantime the petitioner had filed a revision application against the order dated 25th March 1996 vide Revision Application No.72 of 1996. Since the order passed by the Labour court was not implemented a complaint under item 9 of schedule IV of the said Act was filed by the respondent vide complaint (ULP) No.588 of 1996. In the meantime, revision application filed by the petitioner against the order of the Labour Court in the first complaint filed by the respondent was rejected on 8th - 3 - October 1996. The Industrial Court directed the petitioner to deposit up to date wages as per order of the Labour court dated 25th March 1996 within one month. 4. The petitioner filed two petitions in this Court being Writ Petition No.6060 of 1996 and 6064 of 1996. In Writ Petition No.6060 of 1996 the impugned order passed by the Labour Court dated 25th March 1996 and Industrial court in Revision Application No.723 of 1996 was challenged and whereas in Writ Petition No. 6064 of 1996 interim order passed against the petitioner herein was challenged. Both the petitions were admitted and impugned orders were stayed subject to the petitioner depositing the entire back wages in this Court and further on condition of the petitioner paying the respondent last drawn salary at the time of retrenchment every month from December 1986. Accordingly, it is an admitted position that the petitioner herein had been paying the last drawn salary from month to month till the month of January 2006. 5. In the meantime, the advocate for the respondent filed a praecipe in the Labour court seeking withdrawal of her complaint (ULP) NO.588 of 1996. The respondent immediately thereafter filed an application for restoration of the complaint inter alia on the ground that she had not authorised her advocate to withdraw the - 4 - complaint. This application was dismissed by the Industrial C Court which was challenged in Writ Petition No.2598 of 2005. Thereafter, another Writ Petition bearing NO.296 of2006 was filed challenging the order passed by the Industrial Court dismissing complaint (ULP) No.588 of 1996. 6. It appears that during this time Writ Petition NO. 6060 of 1996 and 6064 of 1996 were dismissed for default by this Court by an order dated 2nd April 2004. and as such order of the Labour Court granting reinstatement with back wages became final. 7. In the meantime, again Writ Petition No.2598 of 2005 and Writ Petition NO.296 of 2006 filed by the respondent challenging the order dated 2nd December, 2004 and 26th July 2005 came up for hearing and the learned Single Judge was pleased to allow the said Writ Petitions by restoring complaint (ULP) No.588 of 2006 and asking the Industrial court to dispose of the complaint within six months. It is to be noted here that in the said complaint (ULP) NO.588 of 1996 the respondent had already filed written statement in 1999 after a direction was given by this Court to the Industrial court for disposal of the complaint within six months. Thereafter, affidavit in lieu of the evidence was filed by the respondent in February 2007. She was cross examined by - 5 - advocate for the petitioner. 8. The dispute and the controversy which is raised in this writ petition commenced after the petitioner filed an application to file additional written statement on 17th February 2007 in which for the first time it was alleged that the company had closed its business in Bombay and as such there was closure within the meaning of section 25 O of the Industrial Dispute Act. Thereafter, cross-examination of the respondent was over on 17th February 2007. The petitioner did not lead any evidence in the matter and the Industrial Court by judgment and order dated 16th April, 2007 directed the petitioner to comply with the order of the Labour court in complaint (ULP) NO.339 of 1987. An application for filing additional written statement which was taken out by the petitioner herein was rejected. The respondent in the meantime took out Misc. Criminal complaint ULP No. l95 of 2007 since the petitioner failed to comply with the order of the Labour court and the Industrial court. Thereafter, recovery proceedings were initiated on 30th November 1997 and Recovery Application (ULP) No.18 of 2007 is filed by the respondent in the Industrial court, Mumbai and finally an order was passed by the Industrial court on 30th August 2008 and recovery certificate was issued against the petitioner herein. The petitioner thereafter filed a petition in this court chellenging the - 6 - order dated 3rd March 2009 challenging the impugned order dated 16th April 2007. It is almost after a lapse of two years. 9. Mr.Shetty, learned counsel appearing on behalf of the petitioner submitted that in the interest of justice the Labour court ought to have permitted the petitioner to file additional written statement in which a specific plea was raised by the petitioner herein that there was closure of the establishment at Mumbai and even factories at other places i,.e., factory at Gwalior. It is submitted that in view of the closure of the establishment in Mumbai question of payment of back wages and reinstatement of the respondent did not arise. It was submitted that this plea inadvertently was not raised earlier. The Labour Court framed that all the workmen in the said establishment had resigned and the respondent was the only workmen who had continued. It was submitted that in fact in view of the interim order passed by this court the petitioner had continued to pay last drawn wages of the respondent till January 2006. Mr.Shetty, learned counsel appearing for the petitioner submitted that it is settled position in law that on the closure of the establishment the workman was not entitled to claim reinstatement on monthly wages after the date of closure. In support of the said submission he invited my attention to various judgments of this court and of the apex court - 7 - and submitted that since no opportunity was given by the Labour court to file additional written statement and to cross examine the respondent on the plea raised in the amended written statement namely closure from the establishment this fact could not be brought on record and as such no finding could be given by the Labour court in favour of the petitioner company. He submitted that therefore substantial injustice has been caused on account of rejection of the petitioner s application from bringing the additional written statement on record and not permitting the petitioner to cross examine the witnesses on this point. It was therefore, earnestly urged that this opportunity should be given to the petitioner with a further direction to decide the case in a time bound schedule. 10. Mr.Naidu, learned counsel for the respondent on the other hand vehemently opposed the said submission made by counsel for the petitioner. He submitted that at the fag end of the hearing of the complaint an application for filing additional written statement was filed then this fact was very much within their knowledge even when the first written statement was filed in 1999. He submitted that it is the case of the petitioner that the establishment was closed down in 1996. This fact ought to have been reflected in the first written statement which was filed in 1999. He submitted that this - 8 - application for bringing the additional written statement was malafide and the intention was only to protract the proceedings and that to after the respondent was constrained to file criminal complaint and notices were issued in the said complaint. He also invited my attention to the order passed by the Presiding Officer, Ist Labour court, Mumbai in complaint (ULP) No.339 of 1987 wherein the plea of the petitioner about closure was not accepted and specific finding had been recorded in para 41 of the said order. He submitted that even writ petition which was filed against this order contains a specific averments in para 19. It was submitted that therefore this fact ought to have been pleaded in the writ petition earlier and this fact was very much within their knowledge. It was therefore submitted that this petition was liable to be dismissed in limine and with costs. 11. In my view, there is no merit in the submission made by counsel for the petitioner. The chronology of events clearly reveals that the plea of  closure would have been raised by the petitioner in 1999 when the written statement was filed. However, no such plea was raised. In the order passed by the Labour court in complaint (ULP) NO.339 of 1987 in para 40 and 41 following observations have been made : 40. The company s stand that Bombay office is not - 9 - in existence and everybody has resigned. On the other hand, it is argued on behalf of the complainant that Bombay office is in existence and i.e. Merged with other divisions of the company. Learned Advocate Mr.Shridhar Poojari has answered this in his written argument at Exh U-41 at page 11 para (I) wherein he stated that : Mr.Trasi, respondent s sole witness has stated at the bottom of para 7 of Exh C-26 that as of today, the Bombay office is not in existence as everybody has resigned including Mr.Pillai who was the last to resign. During the cross examination the said witness has admitted at para 25 of Exh C-26 that Bombay office was shifted to the premises of shuttle division and started functioning from 1.5.1992. He also admitted that one Mr Pundalik Peon is still working. He further stated on seeing the pamphlet at Exh U-38 that after the amalgamation of the textiledivision with the shuttle division the said division was called Cimmco Ltd -Light engineering and Marketing Division . Over and above, he stated that he was appointed as an agent for selling the products of the respondent company and the said agency was still continued. Further, he stated that as on today, Mr D.R.Tandon is working as Vice President of the company for light engineering and Marketing Division (see para 25 of Exh C-26) Though the witness attempted to show that the textile division was closed with ulterior motive to deny the reinstatement and back wages but, the witness cold not stand in the cross and had to admit that the company is still existing. If the last sentence of para 25 of Exh C-26 is perused that Mr D.K.Tandon is the Vice President of Group Division i.e Cimmco Ltd Light Engg and Marketing Division (Textile Division + shuttle division-Light Engineering and Marketing Division) since May, 1992 which establishes that the post of V ice President is filled in but the complainant was not called back even till date. This fact further belies the stand of the respondents. 41. It shows that since May 1992 there is amalgamation of few divisions of the work of the company working at Bombay and under such circumstances, stand of closure is not - 10 - acceptable. 12. From the aforesaid observations, it is apparent that the plea of closure was raised by the petitioner and the said plea was not accepted by the Labour court in complaint (ULP) No.339 of 1987. Against this order writ petition no.6060 of 1996 was filed. In the said writ petition in para 19 following averments have been made : 19. The Textile Machinery Division at Bombay to which the said order of the Labour Court applied had been closed as aforesaid. In the circumstance the Light Engineering &Marketing Division of the Petitioner at Bombay forwarded the said two letters to Gwalior office of the petitioner By his letter dated 28.04.1996 Shri P.C.Thomas the Vice President (Sales)of the Textile Machinery Division at Gwalior informed the 1st Respondent that they were moving the Industrial Court in revision against the order of the Ist Labour Court. Annexed hereto and marked as Exhibit F is a copy of the said letter dated 28.04.1996. 13. The said writ petition also has been dismissed for default and therefore the finding recorded by the Labour court in complaint (ULP) NO.339 of 1987 as of today has become final. It is therefore not open now for the petitioner to again file an application raising plea of closure of the establishment in 1996 when such a plea was not taken in the first written statement which was filed in 1999. 14. If the establishment had been closed down in 1996 - 11 - at the first available opportunity this plea would have been raised in the complaint by incorporating it in the written or at least invoking this court in writ petition on.6060 of 1996 after interim order was passed by this court directing the petitioner company to pay last drawn salary to the respondent from month to month. It is quite surprising to note that the petitioner company continued to pay this amount till January 2006 and did not inform this court by filing an application and pointing out that as a result of the closure of the factory question of further making payment to the respondent did not arise. It is obvious that such an application was not made and the Labour court in complaint (ULP) NO.339 of 1987 had not accepted the theory of closure which was advanced by the petitioner. 15. The petitioner company not having therefore raised this plea in the first written statement which was filed in 1999 was therefore, not permitted to file additional written statement and in my view, rightly by the Labour Court at a belated stage when the matter was to be decided within six months as directed by this court in writ petition No.2595 of 2008 and in Writ petition No. 296 of 2006.Under these circumstances,therefore the court was justified in coming to the conclusion that application was made with sole intention to protract the proceedings. The court also has as rightly observed that - 12 - normally additional evidence is permitted to be brought on record if subsequent events takes place after filing of the first written statement. In this case,however no explanation could be given as to why this plea of closure was not raised when it was very much in their knowledge when the first written statement was filed in 1999. Submission made by Mr.Shetty, learned counsel for the petitioner that the old directors having retired and present directors being based in Delhi were not in a position to know various proceedings which were pending in various courts and therefore the said inadvertent mistake had taken place. In my views, the petitioner had ample opportunity to incorporate such a plea when the first written statement was filed and therefore the Labour court was justified in rejecting the application for filing additional written statement. Learned counsel for the petitioner handed over a closure notice dated 15th September 1996 across the bar. It is quite surprising that even this closure notice does not form part of the additional compilation which has been filed by the petitioner herein. 16. Taking into consideration the aforesaid facts and circumstances in my view, no case is made out for interfering with the impugned order passed by the Labour court. The Labour Court has given cogent reasons while allowing the complaint and rejecting the application for - 13 - filing additional written statement. The writ petition is accordingly dismissed. Under the circumstances, no order as to costs. 17. At this stage, learned counsel for the petitioner seeks stay of the further proceedings which are pending in criminal court being Misc.criminal complaint NO.95 of 2007 for a period of eight weeks. Mr.Naidu learned counsel appearing for the respondent on instructions from the respondent who is present in court submits that she shall not pursue the said Misc.criminal complaint till 10th August, 2009. The accused however, shall attend the criminal proceedings after 10th August 2009 on the date on which it is so fixed. { V.M.Kanade, J } - 14 - - 15 -