Bombay High Court
Ranjan Bhagwant Kedar And Anr. vs Hmp Engineers Ltd. And Ors. on 10 February, 2004
Equivalent citations: (2004)IIILLJ939BOM
Author: S.C. Dharmadhikari
Bench: A.P. Shah, S.C. Dharmadhikari
JUDGMENT S.C. Dharmadhikari, J.
1. Petitioners seek a Writ of Mandamus directing respondent No. 4 to initiate proceedings against respondent No. 1 for recovery of Rs. 24,34,773/- mentioned in Recovery Certificate dated June 26, 1998. We are informed by learned counsel appearing for respondent No. 1 that respondent No. 2 is dead. Respondent No. 3 is not present, though served. We have heard Ms. Gayatri Singh learned counsel for petitioner, Mr. Kharawala for respondent No. 1 and Ms. M. Kajle AGP for respondent Nos. 3 and 4.
2. Petitioner No. 1 is employee of respondent No. 1 and petitioner No. 2 is a registered Trade Union representing employees of respondent No. 1. It is their case that respondent No. 1 took over the undertaking of Rallis India Ltd. by an agreement dated April, 4, 1991. Petitioners had filed Complaint (ULP) No. 477 of 1997. On December 11, 1997 an order was passed by Industrial Court on an undertaking given by respondent No. 1 company that salaries for the month of May_ 1997 will be paid to all the employees. The company has failed to comply with this undertaking. It is the case of the petitioners that company did not make payment of salaries and therefore, a criminal complaint was filed before Labour Court, Thane. Even when this complaint was heard respondent No. 1 was not present. In the meanwhile, petitioners filed Miscellaneous Application (ULP) No. 37 of 1997 under Section 50 of the Maharashtra Recognition of Trade Unions and Prevention of; Unfair Labour Practices Act, 1971. By order dated June 23, 1998, the Industrial Court issued a Recovery Certificate.
3. The procedure prescribed by law of forwarding such a certificate to Collector for recovery of the dues mentioned therein as arrears of Land Revenue from the defaulter was initiated by forwarding said Certificate to the Collector. However, the grievance is that no steps have been initiated by the Collector to recover the dues. Consequently, petitioners have not received any amounts which were due and payable as salary for the work and services rendered by them.
4. An affidavit has been filed by the Naib Tahsildar, Recovery of Dues, in the office of Mumbai Suburban District, affirmed on January 23, 2004. The said affidavit does not dispute receipt of Recovery Certificate but proceeds to state that steps have been initiated to recover the dues by placing encumbrances on the property card of Rallyfan Company. Insofar as recovery proceedings against respondent Nos. 2 and 3 are concerned, it is contended that the office of Collector intimated to the Registrar, Industrial Court, Mumbai, on July 11, 2002 to issue Revenue Recovery Certificate in the name of Collector at Kolkata (West Bengal) so that the said authority can initiate recovery proceedings. It is pointed out that insofar as respondent No. 1 is concerned, no coercive action can be taken because proceedings under Sick Industrial Companies (Special Provisions) Act, 1985 have been initiated, and Board of Industrial Finances and Reconstruction (hereinafter referred to as "the BIFR" for the sake of brevity) is seized of the matter. It is also stated that as regards attachment and auction of movable and immovable properties of the company (respondent No. 1) is concerned, the Industrial Court has not furnished details, and therefore, steps in that behalf could not be initiated.
5. Affidavit has been filed on behalf of respondent No.l. It is contended that respondent No. 1 has made reference to BIFR and it is registered as Case No. 164 of 1998. It is contended that the company is declared as a Sick Industrial Company and Indian Bank has been appointed as an operating agency. It is contended that revival of respondent No. 1 is not possible and now the BIFR is contemplating winding up of respondent No. l. It is pointed out that during pendency of proceedings before BIFR/AAIFR, no sale of the assets can take place and as and when directions are issued in that behalf, steps would be taken to sell or dispose off the assets and dues of the workers would be discharged from the proceeds thereof.
6. In our view, the stand of respondent No. 1 that proceedings before BIFR are pending and, therefore, liability of workers dues cannot be fastened on to it, is wholly untenable. This Court has consistently taken a view that Parliament could never have intended that industrial unit under the garb of sickness or for any like difficulty, may be allowed to shirk its liability to pay the wages to its workers 5 for the work they have done. It is observed that if such a position is allowed to prevail, a Sick Company could defeat legitimate claims of workmen for wages and other dues by not paying them in the first instance, then forcing the workers to resort to remedies and thereafter pleading bar under Section 22(1) of SICA. Section 22(1) of SICA has been interpreted to mean that the bar thereunder should apply only to such proceedings which are not required for day to day running of the sick industrial company. The decision of the Apex Court in Tata Davy Ltd. v. State of Orissa & Ors. was also distinguished. In our view, therefore, Section 22(1) can have no application to the instant recovery. Similarly, the contention that respondent No. 3 has resigned way back on May 3, 1997, and therefore, no recovery can be made from him, also need not detain us. This plea can very well 25 be raised by respondent No. 3, if so advised, before respondent Nos. 4 and 5 during the course of recovery proceedings.
7. Insofar as the contention of respondent Nos. 4 and 5 that a Recovery Certificate to the Collector/Appropriate Authority at Kolkata (West Bengal) is necessary, in our view, a direction to that effect is not required to be issued by us presently. There is substance in the complaint of Ms. Singh that factory 35 premises of respondent No. 1 are situate at LBS Mare, Mulund, Mumbai. It is also clear from affidavit that an encumbrance on the said property appears to have been created already by making an endorsement in the Property 40 Card. Therefore, it is not necessary at this stage to issue a direction to the authorities for forwarding a Revenue Recovery Certificate in the name of Collector/Appropriate Authority at Kolkata. The ends of justice would be met, if 45 we direct the Industrial Court, Mumbai to furnish to the office of Collector, Mumbai Suburban District particulars of movable and immovable property of the company so that further steps can be taken to attach and/or sell the same to recover the dues under the Recovery Certificate in question.
8. We also deem it fit to grant liberty to the petitioner and respondent Nos. 4 and 5 to pursue the application for issuance of Revenue Recovery Certificate in the name of Collector, Kolkata as and when they deem fit at a later stage.
9. In the light of above, we pass following order:
(A) Respondent No. 4 is directed to initiate proceedings against respondent No. 1 for recovery of amounts mentioned in the Recovery Certificate dated June 26, 1998 within a period of four weeks from today.
(B) We also direct Industrial Court, Mumbai to comply with the requisitions contained in the fetter dated July 11, 2002 addressed by respondent No. 4 and furnish particulars of movable and immovable properties of respondent No. 1 within a period of two weeks from the date of receipt of a copy of this order by it from the office of Collector, Mumbai Suburban District. The Collector, Mumbai Suburban District (respondent No. 4) is directed to furnish a copy of this order to the Registrar, Industrial Court, Mumbai for necessary compliance.
(C) Liberty to petitioner and respondent No. 4 to initiate steps even against respondent No. 3 for recovery of dues mentioned in the Recovery Certificate in accordance with law. Needless to state that petitioners and respondent No. 4 would be at liberty to pursue the application for issuance of Revenue Recovery Certificate in the name of Collector/ Appropriate Authority at Kolkata to enable him/ it to initiate appropriate steps to recover the dues mentioned in the Recovery Certificate dated June 26, 1998.
10. Petition disposed of with the above directions. No order as to costs.