IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.1491 OF 2008 OF MOTION NO.1491 OF 2008 OF MOTION NO.1491 OF 2008 IN IN IN APPEAL APPEAL APPEAL NO.685 OF 2007 NO.685 OF 2007 NO.685 OF 2007 IN IN IN WRIT WRIT WRIT PETITION NO.445 OF 2007 PETITION NO.445 OF 2007 PETITION NO.445 OF 2007 Shri Laxman Bhairu Nikam & Ors. ..Appellants V/s. Modern Home Credit & Capital Ltd. ..Respondents ....... Mr. Arshad Shaikh i/by R.M. Pethe for appellants Mrs. Neeta Karnik for respondent No.3 Mr. R.V. Paranjape for respondent No.1 ....... CORAM CORAM CORAM : SMT RANJANA DESAI & : SMT RANJANA DESAI & : SMT RANJANA DESAI & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE :2ND DECEMBER, 2008 :2ND DECEMBER, 2008 :2ND DECEMBER, 2008 P.C.: 1. In Writ Petition No.445 of 2007, the appellants had challenged Award dated 5.11.2004 passed by the Industrial Tribunal, Bombay, Maharashtra. The said award is passed by the Industrial Tribunal in terms of the settlement dated 5.11.2004. The legality of the said settlement was questioned by the appellants in Writ Petition No.445 of 2007. According to the appellants it is a collusive settlement, not accepted by a large number of workmen. 2. The said writ petition was disposed of in limine : 2 : by learned Single Judge of this court by order dated 13.3.2007 on the ground that the petition filed at the instance of individual workmen is not maintainable. The said order is challenged in this appeal. 3. Notice of Motion No.1491 of 2008 is taken out in this appeal by the appellants praying that respondent No.3 i.e. Bombay Labour Union be directed to deposit the amount which is payable to the appellants and received by respondent No.3 from respondent Nos.1 and 2 who are the companies involved in this litigation towards alleged settlement dated 5.11.2004. The appellants have prayed that the said amount be deposited alongwith interest. The appellants have also prayed that they may be permitted to withdraw the said amount if deposited in this Court by the respondents. 4. On 19.9.2008, Division Bench of this Court (Justice S.B. Mhase and Justice R.V. More) directed respondent No.3 i.e. the Union to deposit the amount which is payable to the appellants alongwith the interest accrued on the said amount, in this Court. Respondent No.3 was also directed to produce bank statement. The respondents were directed to give split-up of the accounts of each of the appellants. : 3 : Learned Counsel appearing for the employer was directed to submit the particulars of claim of each of the appellants, in this Court. It appears that after the order was passed, respondent No.3 deposited an amount of Rs.63,54,403/- by pay order dated 3.10.2003 in this court. 5. Mr. Shaikh, learned Counsel for the appellants submitted that in fact an amount of Rs.1,40,31,673/- ought to have been shown in the bank account of the 3rd respondent as having been deposited by the 1st and 2nd respondents. He drew our attention to the bank statement of the 3rd respondent Union filed pursuant to the order of this court. Learned Counsel submitted that the 1st and 2nd respondents are shown to have only deposited an amount of Rs.1,06,96,444:95/- Therefore, the entire amount has not been deposited. He further submitted that the Division Bench had directed that the amount should be deposited with interest. However, that order has not been complied with. He submitted that explanation given by the 3rd respondent is that the said amount is deposited in the current account and, therefore, no interest has accrued thereon. Learned Counsel submitted that the 3rd respondent ought not to have deposited the amount in the current account so as : 4 : to cause loss to the appellants. Mr. Shaikh further submitted that without prejudice to the rights and contentions of the appellants, they may be permitted to withdraw the amount as per their respective shares. Mr. Shaikh submitted that the services of the workmen are terminated pursuant to the settlement dated 5.11.2004 and the statutory dues of the workmen as per the said settlement were to be deposited with 3rd respondent Union who was to disburse the said amount. Mr. Shaikh submitted that if the appellants fail in their challenge to the settlement, even as per the case of the respondents, they would be entitled to the said amount and hence the appellants be permitted to withdraw the said amount. 6. Ms. Karnik learned counsel for respondent No.3 on the other hand submitted that amount of Rs.1,06,96,444:95/- was credited to the account of the 3rd respondent by cheque given by one Mr.Sundeep S., who is the advocate for respondent Nos.1 and 2. She submitted that remaining amount of Rs.33,40,000/- was given in cash. She has tendered in the Court a copy of receipt issued by the 3rd respondent in favour of the 2nd respondent company for a sum of Rs.33,40,000/-. Learned Counsel drew our attention to the break-up given : 5 : by the 3rd respondent Union as per order of this Court. She submitted that this break-up indicates that the 3rd respondent has paid the dues as per the agreement to those workers who had approached them in cash as well as by cheque. So far as the prayer for withdrawal is concerned, learned Counsel submitted that conduct of the appellants dis-entitles them from getting this relief. She submitted that the appellants have challenged the agreement. She submitted that learned Single Judge has held that the petition itself is not tenable. In the circumstances, the appellants may not be permitted to withdraw the amount, which they are entitled to get under the agreement dated 5.11.2004. 7. It is true that the appellants have challenged the agreement dated 5.11.2004. But the amount which is deposited in this court are the legal dues of the appellants and even as per the case of the respondents the appellants are entitled to the same. The prayer for withdrawal of the said amount made by the appellants is opposed on the ground that the appellants cannot blow hot and cold. If they choose to challenge the settlement, they cannot be allowed to withdraw the amount to which they are entitled under the said settlement. : 6 : 8. At first blush, this argument appears to be attractive. But on a closer scrutiny, we are not inclined to accept it. Under the said settlement the services of the appellants are said to have been terminated. In the affidavit in support of the motion, it is stated that since November, 2004, the appellants have neither received their wages nor any legal dues. Besides if the case of the respondents is accepted in its entirety, the appellants would be entitled to the amount which comes to their share as per annexure "A" to the terms of settlement. In such circumstances, we feel that without prejudice to the right and contentions of both sides the appellants should be permitted to withdraw 50% of the amount due to them under the said settlement. Rest of the amount must be directed to be invested. 9. Ms. Karnik learned counsel for the 3rd respondent has pointed out that due to oversight the 3rd respondent has deposited an amount of Rs.6,16,476/- which pertains to 7 other workers who are not concerned with the present appeal. The appellants are permitted to withdraw only 50% each of the amount which is due to them. Rest of the amount is to be invested. Needless : 7 : to say that Rs.6,16,476/- which are stated to have been inadvertently deposited in this court, would also be invested and appropriate orders in connection with that amount can be obtained at the final hearing of the appeal. 10. Hence, following order :- O R D E R R D E R R D E R (a) The appellants are permitted to withdraw 50% of the amount due to each one of them as per annexure "A" to the terms of settlement dated 5.11.2004 from the amount which is deposited in this court by the 3rd respondent. (b) Office is directed to invest rest of the amount in any nationalized bank on usual terms. (c) Needless to say that the amount withdrawn by the appellants and the amount invested by the office shall abide by the final order that may be passed in the appeal. : 8 : (d) All contentions of both the sides are kept open. We make it clear that we have not expressed any opinion on the merits of the case. (e) Notice of motion is disposed of in the aforestated terms. 11. At this stage, learned counsel for the respondents states that the present order be stayed for a period of 6 weeks as the respondents are desirous of challenging it in the Supreme Court. The order is stayed for 6 weeks. JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE