1 WP 1071-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1071 OF 2011 Chandrama Tribuvan Singh ...Petitioner vs. The State of Maharashtra & Ors. ...Respondents Ms.Seema Chopda for the Petitioner. Mr.J.S. Saluja, AGP for Respondent Nos.1 and 2. Mr.Rajesh Gehani for Respondent Nos.3 and 4. CORAM : D.B. BHOSALE AND M.L. TAHALIYANI, JJ. OCTOBER 17, 2011 P.C :- 1 Heard Ms.Chopda, learned Counsel for the petitioner, Mr.Saluja, learned AGP for respondent Nos.1 and 2 and Mr.Gehani , learned Counsel for respondent Nos.3 and 4. Learned Counsel Mr.Gehani has not filed his appearance. He undertakes to file appearance within a period of one week. The statement is accepted. 2 The petitioner was one of the employees of respondent nos.3 and 4. It is alleged by the petitioner that his services were illegally terminated by 2 WP 1071-2011 respondent nos.3 and 4. The petitioner had, therefore, raised an industrial dispute for reinstatement with full back wages and other benefits. The Government of Maharashtra had made a reference (IDA) No.207/2006 under the Industrial Disputes Act, 1947 to the 8th Labour Court, Mumbai. It appears that the same was heard exparte as respondent nos.3 and 4 did not appear though served. It was directed by the Labour Court by its order dated 22nd July, 2008 that the petitioner be reinstated on the post of AC Plant Operator cum-Electrician with continuity of service and full back wages for the period from 21st August, 2003 till the date of reinstatement. Respondent Nos.3 and 4 however refused to follow the order. The petitioner had, therefore, filed an application under Section 33C(1) of the Industrial Disputes Act before the Deputy Commissioner of Labour, Mumbai, for recovery of money due from respondent nos.3 and 4. A certificate was issued by the Assistant Commissioner of Labour, Mumbai, stating interalia that a sum of Rs. 2,56,000/- was due to the applicant from respondent nos.3 and 4 and directed that the Collector of Mumbai should proceed to recover the said amount from respondent nos.3 and 4 as if the same was arrears of land revenue. - 3 The petitioner has filed this writ petition on account of inaction on the part of respondent nos.1 and 2 for recovery of the said amount from 3 WP 1071-2011 respondent nos.3 and 4 by way of land revenue. It appears that later on a cheque of the amount due to the applicant was issued by respondent nos.3 and 4 and the same was lying with the Tahsildar working under the Collector- respondent no.2. 4 When the matter came up for hearing before this Court on 29th July, 2011, this Court (Coram : A.M. Khanwilkar and R.Y. Ganoo, JJ.) had made the following observations at para 1 :- " The grievance made in this Petition is that although the Petitioner had submitted recovery certificate issued by the Deputy Commissioner of Labour, Mumbai in favour of the Petitioner against his employer in the office of the Tahsildar - Mr.K.B. Kale, Mumbai, as early as till 7th August, 2010, no steps were taken by that Officer for recovery of the said amount which was around Rs.2,77,000/- receivable by the Petitioner. As a matter of fact, the Tahsildar could have proceeded against the employer by resorting to such measures as was necessary to recover the subject amount as arrears of land revenue. However, the Tahsildar chose to issue notice to Respondent Nos.3 and 4 employer of the Petitioner only on 16th September, 2010. Even if, we were to exclude the inaction of the Tahsildar for the period between 7th August, 2010 till 16th September, 2010 it is not clear as to what prevented the Tahsildar to take the proceedings of recovery forward against Respondent Nos.3 and 4 with promptitude. There is no explanation forthcoming in that behalf. On the basis of the entry in the original file, the Learned AGP points out that the Tahsildar issued 4 WP 1071-2011 warrant of attachment on 23rd October, 2010. However, thereafter, the Tahsildar just slept over the matter in spite of the fact that it was his obligation to recover the amount from Respondent Nos.3 and 4 with promptitude which amount was payable to the petitioner towards his wages as ordered by the Commissioner of Labour. The Court further said in paras 5 and 6 as under :- "5. Even though the amount has now been recovered from Respondent Nos.3 and 4 subject to realization of the cheque which would be then made over to the Petitioner in due course, even then we are of the opinion that considering the facts and circumstances of the present case, the Collector-Mumbai City should conduct preliminary enquiry "himself" and submit his report to the Court in sealed cover and also take appropriate action against the concerned Tehsildar if the situation so warrants. For the time being, we are deferring the hearing of this Petition to 6th September, 2011 to be listed under caption "directions" in anticipation that Collector's report will be made available to the Court in a sealed cover by that date. 6. We make it clear that pendency of this petition does not mean that the amount which is recovered from Respondent Nos.3 and 4 should be withheld. The same be paid to the Petitioner by the appropriate authority as per law. " 5 When the matter came up before us for further hearing, a grievance was made that the cheque given by respondent nos.3 and 4 was dishonoured by the bankers of respondent nos.3 and 4. In view of dishonour of cheque, the petitioner could not get the money despite the directions issued 5 WP 1071-2011 by this Court. 6 The inquiry was conducted as directed by the Court and report was submitted by the Collector. It appears from the report of the Collector that the Tahsildar did not take further steps in the matter in view of the application filed by respondent nos.3 and 4 before the Labour Court for staying the execution of Award dated 22nd July, 2008. The said report is taken on record and marked “X” for identification. It can further be seen from the documents placed before us that the application for grant of stay was disposed of and the effect and operation of the order of payment of back wages was stayed subject to respondent nos.3 and 4 depositing Rs.2,78,000/- in the Labour Court. 7 We are informed by the learned Counsel for respondent nos.3 and 4 that the said amount has been deposited by respondent nos.3 and 4 in the Labour Court. The learned Counsel for the petitioner, therefore, prayed that the petitioner may be allowed to withdraw the said amount. The learned Counsel for respondent nos.3 and 4 opposes the prayer and states that the exparte order was obtained mischievously by the petitioner and that respondent nos.3 and 4 are entitled for hearing before the Labour Court against the exparte Award. We do not want to enter into the said controversy 6 WP 1071-2011 raised by respondent nos.3 and 4 as the same is not subject matter of the present writ petition. The issue before this Court was whether respondent nos. 1 and 2 through their officers i.e. Tahsildar and other officer working under him were under obligation to recover the amount by way of land revenue or not and whether they have discharged their duties properly and whether interference by this Court was needed. 8 During the course of hearing, it was noted by this Court that respondent no.3 and 4 appeared to have made an attempt to frustrate the order of this Court. To some extent, negligence on the part of the revenue authorities had helped respondent nos.3 and 4 to succeed in blocking the recovery directed by the Assistant Commissioner of Labour. Respondent nos.3 and 4 could not have stopped payment of cheque amount. There was no such order from the Labour Court or from this Court. On the contrary, This Court had earlier observed that there was an inaction on the part of Tahsildar. We in fact, could have taken a serious view of the matter as against revenue authorities and respondent nos.3 and 4 both. However, we are inclined to take lenient view in the peculiar circumstances that the Award was passed exparte. At the same time, we do not want the petitioner to suffer unnecessarily for no fault of his. 7 WP 1071-2011 9 In view of what has been stated by us hereinabove, the learned Counsel for respondent nos.3 and 4 has agreed that the petitioner may be unconditionally allowed to withdraw 50% of the amount deposited by respondent nos.3 and 4 in the court and may be directed to furnish security for the rest of the amount if he wanted to withdraw the same. 10 The learned Counsel for the petitioner does not oppose the proposal. As such, it is necessary to be made clear that unconditional withdrawal of 50% amount shall not be subject to the order passed by the Labour Court on the application submitted by respondent nos.3 and 4. It follows that withdrawal of rest of the amount on furnishing security will be subject to the said order. 11 In view of the submissions made on behalf of the learned Counsel for the petitioner and respondent nos.3 and 4, we pass the following order :- a) The petitioner be allowed to withdraw unconditionally 50% of the amount deposited by 8 WP 1071-2011 respondent nos.3 and 4 in the office of Labour Court, Mumbai, in Misc.Application (IDA) No.8/2011 in the matter of exparte Award dated 22nd July, 2008 passed in Reference NO.(IDA) No.207/2006, b) The remaining 50% amount is allowed to be withdrawn by the petitioner on furnishing security of the equal amount to the satisfaction of the Labour Court. 12 The petition, accordingly, stands disposed of. (M.L. TAHALIYANI, J.) (D.B. BHOSALE, J.)