Gujarat High Court
Anil Synthetics (Unit Of Kanoria ... vs Fatesing Ulfatsing....Opponent(S) on 17 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/MCA/562/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 562 of 2017
In SPECIAL CIVIL APPLICATION NO. 18031 of 2003
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ANIL SYNTHETICS (UNIT OF KANORIA CHEMICALS &
INDUSTRIE)....Applicant(s)
Versus
FATESING ULFATSING....Opponent(s)
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Appearance:
MR DG CHAUHAN, ADVOCATE for the Applicant(s) No. 1
MR HEMAL K ACHARYA, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 17/07/2017
ORAL ORDER
1. The respondent in Special Civil Application no. 18031 of 2003 has filed note dated 06.07.2017.
2. The said note is filed in connection with the judgment dated 23.08.2016 in the said petition and on strength of observations by this court in Paras - 9.5 and 9.6 in the said judgment dated 23.08.2016.
3. Two employees of company had filed two Page 1 of 11 HC-NIC Page 1 of 11 Created On Mon Aug 14 10:09:46 IST 2017 C/MCA/562/2017 ORDER petitions i.e. Special Civil Application no. 18319 of 2003 and Special Civil Application no. 18031 of 2003. The said petitions came to be decided by this court vide order dated 23.08.2006. In the said judgment this court observed, interalia, that,
9. In this context, it is relevant to note that there is no evidence on record that the workmen had asked for alternative work in any other department and/or they were ready and willing to accept alternative work in other department. The learned Labour Court failed to take into account the fact that the claimants could not establish that though they were willing to accept alternative work, the company did not provide them alternative work. This aspect/fact is noticed by the Industrial/Appeal Court from the material available on record.
9.1 The learned Labour Court decided the two applications on the premise that if the resignations were submitted to the representative union, then, its acceptance should have been conveyed to the concerned workmen through representative union. The learned Labour Court also proceeded on the premise that the workmen had withdrawn the resignation vide letter dated 13.2.1992 and even the representative union had requested the company to allow the workmen to withdraw the resignation as per their request in the letter dated 13.2.1992. Page 2 of 11 HC-NIC Page 2 of 11 Created On Mon Aug 14 10:09:46 IST 2017 C/MCA/562/2017 ORDER 9.2 However, the learned Labour Court seems to have overlooked the fact that according to the company, the resignations were accepted vide order / decision dated 8.2.1992 and even the bills / vouchers for payment of the amount in accordance with the settlement with the union were prepared. 9.3 The learned appellate court examined the said judgment by the learned Labour Court and noticed the errors in the judgment. The learned industrial court took into account the allegation of the workmen that they had submitted their request / intimation for withdrawal of the resignation on 11.2.1992. Having taken into account the said allegation by the workmen, the learned industrial court has, then, recorded, on examination of the material on record that the workmen failed to establish that they had submitted an application to the company on 11.2.1992. The learned Labour Court, on examination of the record, has observed in the judgment that there is nothing in the communication of the union which would convey that the workmen desired to withdraw the resignation and had conveyed such decision to the union or to the company.
9.4 Thus, from the record of the case and from the decision by learned industrial court, it comes out that the claimants / workmen failed to establish that the company had not accepted their resignation and/or that before the resignations were accepted, they had conveyed their decision to withdraw the resignations. From the list of the documents filed by Page 3 of 11 HC-NIC Page 3 of 11 Created On Mon Aug 14 10:09:46 IST 2017 C/MCA/562/2017 ORDER the respondent company before the learned Labour Court, it appears that the respondent company had placed on record communication dated 8.2.1992 whereby it conveyed the acceptance of resignation, however, the learned Labour Court seems to have lost sight of the said communication. In this view of the matter, any ground to interfere with the decision by the learned industrial court is not made out. When the fact that the resignations were tendered by the workmen in pursuance of the agreement with the representative union and the fact that pursuant to the agreement with the union entire department is closed down and subsequently, even the company is closed down (i.e. manufacturing activity of the company are discontinued in totality) and that there is no material on record to establish that the workmen had withdrawn the resignation before the resignation were accepted and acted upon by the company, the decision by the learned industrial court cannot be faulted. The learned counsel for the workmen has failed to show any material from the record or any error from the judgment of the learned industrial court which would convince this court to take different view from the decision of the learned industrial court and/or to restore the decision of the learned Labour Court. Apparently, the learned Labour Court did not take into account certain relevant facts and certain documents on record and proceeded on erroneous premise. In this view of the matter, the decision of the learned industrial court cannot be faulted. The petition fails and deserves to be rejected.
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4. Having regard to the facts and circumstances of the case, the court made certain further observations in the said judgment. The said observations are found in Paras - 9.5 and 9.6. The said Paras - 9.5 and 9.6 reads thus:
9.5 However, before concluding this decision, it is necessary and appropriate to mention that during the hearing of these petitions, learned counsel for the respondent was asked to inquire from the company as to whether the company is ready and willing to honour its earlier offer/commitment (i.e. pay the amounts to the workmen) or not. Initially, learned counsel for the respondent company, after taking instruction from competent officer, submitted that whatever amount was payable to the workmen as per the terms of the settlement was offered to the workmen at the time when their resignations were accepted and the same can be paid to the workmen and the company is ready to pay such amount. This would translate into the fact that the company was ready to pay Rs.63,360/ to Mr. Radheshyam Chhatrapal and Rs.50,688/ to Mr. Fatesinh Ulfasingh. However, having regard to the fact that long time has passed since the said payment was offered (which was not accepted by the workmen), the court inquired as to whether the company will pay some additional amount to the concerned workmen or not. After inquiry with the Page 5 of 11 HC-NIC Page 5 of 11 Created On Mon Aug 14 10:09:46 IST 2017 C/MCA/562/2017 ORDER competent officer, Mr. Chauhan, learned counsel, submitted that if the workmen are ready and willing to accept the amount towards full and final settlement of all claims, dispute, rights, etc., the company is ready to pay Rs.1 Lakh to each claimant. However, learned counsel for the petitioner workmen informed the court that the workmen are not inclined to and have refused to accept the said amount as full and final settlement (despite the fact that not only the department, but entire manufacturing activity of the company and even the company is closed down).
9.6 In this view of the matter, the court is of the opinion that the company should be bound by its offer for some reasonable time and the window for the workmen to accept the said offer of the company should be kept open for some time.
Therefore, while concluding present petition, this court deems it appropriate to direct the company to keep the offer open for the period of two months from the date of receipt of certified copy of this judgment.
On this count, it is clarified that if the concerned workmen submit written application, directly or through learned advocate, and convey their decision to accept Rs.1 Lakh in full and final settlement of all claims, disputes, demands, rights, etc. within period of two months from the date of receipt of certified copy of this judgment, then the company will accept the said intimation and it Page 6 of 11 HC-NIC Page 6 of 11 Created On Mon Aug 14 10:09:46 IST 2017 C/MCA/562/2017 ORDER shall pay Rs.1 Lakh to the workmen (i.e. the workmen who conveys his decision to accept the said amount towards full and final settlement) within 4 weeks from the date when it receives such intimation.
5. By virtue of said observation, the Court recorded the submission and statement by Mr.Chauhan, learned advocate for the company and the Court also observed that claimants i.e. if the petitioners desire to put an end the litigation and if they are interested in accepting Rs.1,00,000/ in full and final settlement of all claims, disputes, demands, rights etc. then they may approach Company and make necessary request by submitting an application. Alternatively the company may deposit amount with the Registry of this Court and if claimants desire to accept the payment in full and final settlement of claims, disputes demands, rights, then within two months they may submit an application to the Registry.
6. The learned counsel for the workman and Page 7 of 11 HC-NIC Page 7 of 11 Created On Mon Aug 14 10:09:46 IST 2017 C/MCA/562/2017 ORDER the company submitted that one of the two workmen i.e. petitioner in Special Civil Application no. 18319 of 2003 accepted the said amount by declaring that he accepts said payment in full and final settlement of all claims, disputes, demands, rights etc. however, other workman i.e. petitioner in Special Civil Application no. 18031 of 2003 did not come forward to accept the amount in full and final settlement of all claims, disputes, demands, rights etc. within the time limit mentioned in the judgment dated 23.08.2006.
7. It appears that now the said claimant also i.e. petitioner in Special Civil Application no. 18031 of 2003 wants to receive said amount and to settle the dispute. Therefore, now in July, 2017 the said other workman i.e. petitioner of Special Civil Application no. 18031 of 2003 has submitted a letter / application dated 06.07.2017 to the Registry.
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8. He has mentioned in the application that the said amount of Rs. 1,00,000/ may be paid to him.
9. The Registry has circulated said letter dated 06.07.2016 under office note dated 12.07.2017.
10. On reading said application / letter dated 06.07.2017, it comes out that workman is ready to accept however he has not mentioned clearly that he will accept said amount in full and final settlement towards all claims, disputes, demands, rights etc.
11. However, Mr.Acharya, learned advocate for the workman clarified and submitted and declared that the said workman is also ready and willing to accept the said amount in full and final settlement of all claims, disputes, demands, rights etc.
12. Therefore, following order is passed.
13. The applicant (i.e. petitioner in Special Civil Application no. 18031 of 2003, Fatesingh Ulfatsingh) shall within 1 week, Page 9 of 11 HC-NIC Page 9 of 11 Created On Mon Aug 14 10:09:46 IST 2017 C/MCA/562/2017 ORDER submit an undertaking and declaration to the Registry declaring that he is ready and willing to accept Rs.1,00,000/ in full and final settlement of all claims, disputes, demands, rights etc. including the relief / demand claimed by him in Special Civil Application no. 18031 of 2003.
14. After the applicant submits such undertaking / declaration, the Registry shall examine the proof of identity of the claimant and after examining proof of identity and upon being satisfied the Registry may release the said amount and pay / disburse the said amount sum of Rs. 1,00,000/ to the applicant who has submitted letter dated 06.07.2017. The amount shall be paid by A/c Payee cheque and receipt acknowledging the payment shall be taken from the workman.
15. Mr. Chauhan, learned advocate submitted that the company has no objection if the amount is paid in favour of the said claimant.
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16. Therefore, with the aforesaid direction, note in Misc. Civil Application no. 562 of 2017 is disposed of.
(K.M.THAKER, J.) Nabila Page 11 of 11 HC-NIC Page 11 of 11 Created On Mon Aug 14 10:09:46 IST 2017