Karnataka High Court
Pramod Mehra vs Vivek Textile Mill Karmikara Sangha And ... on 24 July, 1999
Equivalent citations: (2000)ILLJ631KANT
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER V. Gopala Gowda, J.
1. The petitioner who was a Director of Vivek Textile Mills Private Limited is before this Court seeking for issuance of a writ or certiorari to quash the order of sanction granted by the 1st respondent-State Government persuant to the complaint vide at Annexure-A and further sought for a declaratory relief by issuing a writ of mandamus to declare that the award passed by the 3rd respondent Labour Court in Ref. No. 61/1984 dated January 28, 1987 is not binding on him or the same is not valid as per the principles of natural justice and further sought for issuance of a writ of certiorari to quash the award passed in Ref. No 61/1984 and further issue a direction to 5th respondent to furnish the particulars of the assets of the petitioner and the amounts realised therein by the sale of the petitioner's assets in respect of its Textile Mill at Peenya and also direct the said Corporation to meet the statutory closure compensation payable under Section 25-FFF of the I.D. Act to the workmen of the Mills urging various facts and legal contentions.
2. Necessary brief facts for the purpose of considering the case of the respective parties and to answer the rival contentions urged in this petition are stated as hereunder:
3. The petitioner was one of the Directors of Vivek Textile Mills Private Limited which was carrying on commercial business of manufacturing textiles at 1st Phase, Peenya, Bangalore. It is stated that it had employed less than 100 workmen. It is further alleged that the Company was running under heavy loss and it had borrowed money from the 5th respondent Corporation (hereinafter referred to as the 'Corporation' for short) to meet its financial commitments due to the loss sustained by it. It had invoked its power u/ Section 29 of the State Financial Corporation Act, 1951 (for short SFC Act 1951) and sealed the textile mills in Peenya in the month of February 1982. Therefore, there was no way for the petitioner to enter the premises and could not (sic) do anything in locking of the mills by the Corporation. Corporation had auctioned the property including the land property and plant and machinery to adjust their loans advanced to the said mills. It is stated that the amount due to the Corporation by the Mills as on January 1, 1984 was Rs. 85,14,724.97. The Company was sold and the sale was confirmed on March 25, 1985 as Corporation itself was the purchaser in the public auction. After the property was purchased, the plant and machinery and the land was purchased by the Corporation, it had sold to the Gemini Dyeing and Printing Company which is at present running the industry. In the month of February 1998, Yeshwanthpur Police arrested the petitioner with arrest warrant in connection with a criminal case No. 1095/1997 which was registered against him by the 1st respondent Sangha for the alleged offence under Sections 29-D r/w 32 and 34, of I.D. Act, 1947 (for short called as 'I.D. Act'). The said criminal prosecution was initiated by the 1st respondent Sangha on the basis of the authorisation given by the State Government under Section 34 of the I.D. Act for having violated the terms and conditions of the award passed by the 4th respondent Labour Court in Ref. No 61/1984. It is stated that either the copy of the complaint or the connected documents in respect of the criminal proceedings referred to above were served on him. It is further stated that after obtaining the certified copies from the Magistrate Court namely the complaint and the connected documents produced along with the complaint, he came to know that the award was passed by the 4th respondent Labour Court in reference referred to above. That award came to be challenged by the first respondent Sangha before this Court in W.P.No. 13019/1987 and this Court passed an order on September 25, 1995 by modifying the award that the workers are entitled to backwages from the date of closure namely January 31, 1984 till the date of award dated January 28, 1987. Further, it is observed that the workers can claim this amount from the company. It is stated that this petitioner had no knowledge of the proceedings in respect of the reference proceedings before the 4th respondent. It is further stated that the notice of the proceedings referred to above are not received by the petitioner as the address given in the said writ petition was also the address of the Vivek Textile Mills. Therefore, he was unaware of the proceedings either before the Labour Court or before this Court. On the basis of the letter submitted by the 1st respondent Sangha on January 22, 1986, the address of the petitioner was given as Indiranagar. The said address is also not correct. After perusing the documents obtained by the petitioner from the Magistrate Court, proceedings of the Labour Commissioner dated October 14, 1996 granting sanction in favour of the 1st respondent Sangha for prosecution of the petitioner. He has not received the notice in the said proceedings though there is recital to the effect that the notice was sent to him.
4. It is further alleged, that for no fault of his, he has to face the criminal prosecution initiated by the 1st respondent for the alleged contravention of the Award referred to above. Therefore, the authorisation accorded by the Labour Commissioner under Section 34 in favour of 1st respondent for initiating criminal proceedings are void, inoperative or the same is in contravention of law. Therefore, he has sought for quashing of Annexure-'A'. At the request of the learned counsel for the petitioner, the record in W.P.No 13019/1987 was directed to be put up in this writ petition for the purpose of perusing the record in the said petition. From Annexure-D of the said writ petition it is noticed that the fifth respondent Financial Corporation has filed a statement of counter wherein it has admitted the liability of the Mills as on January 1, 1984 a sum of Rs. 65,14,724.97 pursuant to the certificate issued by the Managing Director of the Corporation under Section 3 of the Karnataka Public Money (Recovery of Dues) Act, 1979. The Revenue Authorities conducted the auction of sale of the properties referred to above on November 15, 1984 and it has purchased certain assets of the company for a sum of Rs. 80 lakhs and odd. The said sale was confirmed by the Asst. Commissioner on March 25, 1985.
5. The auction sale includes only the plant and machinery, land and building and further at para. 7 of its statement of objections it has been stated that the Corporation is not the successor of interest of the company and further stated that there has been no transfer of ownership or management of the company's undertaking from the employer to a new employer. Therefore, provision of Section 25-FF of the I.D. Act is not attracted. The dispute referred by the Government to the 4th respondent/Labour Court was between the 1st respondent Sangha and the company as the dispute was in relation to the action taken by the company long before the Corporation purchased assets of the company. Therefore, it has stated that the Corporation is neither a necessary party nor a proper party and it is not a necessary party to the proceedings before the Labour Court to adjudicate upon the said dispute. Therefore, 5th respondent requested the Labour Court to reject the application filed by the 1st respondent Sangha to get impleaded as supplemental 2nd party in the proceedings before the Labour Court. After considering the objection statement 4th respondent-Labour Court allowed the application.
6. All the parties participated in the adjudication proceedings before the 4th respondent-Labour Court. The award was passed. Even in the writ petition proceedings filed by the first respondent-Sangha, the Corporation was one of the party respondents. It has filed a detailed objection statement and the additional statement of objection stating that, the relief sought for in this writ petition by the petitioner cannot be granted particularly the prayer made at para. 18(a) of the Writ Petition, It is stated that Vivek Textile Mills was jointly financed by KSFC and KSIIDC by advancing a sum of Rs. 29 lakhs and 38 lakhs respectively. In view of the default committed by the Mill after compliance of the process of law, the recovery certificate was issued to the Deputy Commissioner, Bangalore under Section 3 of the Karnataka Public Money (Recovery of Dues) Act of 1979. Pursuant to the said certificate, the Tahsildar brought the mortgaged and the hypothecated properties of the Mills for sale as there were no bidders. The Corporation itself with the permission of the Deputy Commissioner purchased the property that were brought to sale for Rs. 81 lakhs and the sale was confirmed in favour of the Corporation on March 25, 1985. At para. 2 of the Additional Statement it is stated that, the amounts were due to the two financial institutions besides the same, the amount was due to the KIADB having allotted the land for starting the Industry and the amount due to the KEB was paid.
7. It is the further case of the Corporation that, it did not take over the Company as such taking of assets or liabilities it had brought over to the sale only of the hypothecated properties. At the time when the properties were brought to sale, there is no winding of the Company. Subsequently also, no winding up petition is filed. There was no claim whatsoever by secured creditors or unsecured creditors either to the KSFC or to the KSIIDC. The Corporation is not successor- in-interest of the Company. It is further stated that, as on January 1, 1984, the Company was liable to pay to the Corporation Rs. 65,14,724.00 which amount was mentioned in the recovery certificate. The Corporation did not state what was the amount due to the KSIIDC which had also advanced the loan along with the Corporation on 'Paripasu' basis. It is further stated that no sale proceeds were remained over with KSFC on the other hand, it is stated that, an amount of Rs. 32 lakhs is due from the Company to the Corporation. It is stated that, steps are taken to file the Miscellaneous Application under Section 31(1)(a) of the State Financial Corporations Act, 1951. Therefore, the prayer made by the petitioner at para. 18(a) cannot be granted and hence it sought for dismissal of the writ petition.
8. On July 29, 1999 after dictating a portion of order, the learned Addl. Govt. Advocate was directed to produce the records in Reference No. 61/1984 from the Second Additional Labour Court to ascertain whether notice was served in that reference to the petitioner management herein or not, since the principal ground on which the impugned award is questioned is that the petitioner was not issued any notice by the Labour Court. The learned counsel for the Corporation was directed to make submission as to how the sale proceeds has been apportioned betweenthe Corporation and the K.S.I.I.D.C and to produce the part pasu agreement between them.
9. On August 6, 1999 the counsel for the Corporation has filed a memo along with the copy of the agreement entered into between the Corporation and Vivek Textile Mills. The copy of the agreement as directed is not produced by Corporation.
10. On August 16, 1999 learned counsel for the petitioner has filed an affidavit of the petitioner along with a xerox copy of the passport of the petitioner. In the affidavit it is stated that in the records of the Labour Court there is a postal acknowledgement bearing the seal of Vivek Textile Mills with address No.6, St. John's Road, Bangalore-42 but the postal aknowledgment bearing the date April 18, 1985 is never that of the company and company did not have the seal of the said address. It is further stated that the signature therein is not one of the officials of the company. It is reiterated inter-alia that the petitioner was not aware of the proceedings before the Second Additional Labour Court.
11. Further arguments of the learned counsel appearing for the parties heard. Perused the original file of the Second Additional Labour Court and the documents produced by the parties.
12. The main grievance putforth by the petitioner is that he had no notice of the proceedings before the Labour Court and he was not at all aware of the same. On the other hand, the first respondent workmen contended that notice was in fact served on Vivek Textile Mills. In paragraph 4 of the affidavit dated August 10, 1999 filed by the petitioner on (August 11, 1999 the petitioner has stated on oath that he was not aware of the proceedings before Second Additional Labour Court and that if he had received the notice, certainly he would have participated in the proceedings and putforth his case effectively. Therefore, the important aspect of the case of the petitioner to be considered is, whether notice was served by the Second Additional Labour Court upon Vivek Textile Mills and if not served, whether the petitioner was aware of the Proceedings before the Labour Court.
13. It is not in dispute that the State Government has referred the industrial dispute between the petitioner Company and the first respondent workmen was referred to the Second Additional Labour Court. Vivek Textiles Mills, represented by its Director, was the second party in the said dispute. The Director is none other than the petitioner herein. The Second Additional Labour Court issued notice to the second party. From the records of the Labour Court it was found that there is a postal acknowledgement for having served the notice on the second party who is the petitioner company on April 18, 1985 at the Peenya address but received at No. 6, St. Johns Road, Bangalore. Mr. K. Kasturi, learned counsel for the Petitioner, disputes the said acknowledgement and even the affidavit of the petitioner has been filed denying receipt of notice, stating that the signature found therein was not of any of the employees of the Mills. In this background, this Court verified the order-sheet maintained by the Labour Court. Though the Labour Court has passed an ex parte award against the Mills, it is seen that the Mill was not placed ex parte by the Second Additional Labour Court as required under Rule 23 of the Karnataka Industrial Disputes Rules, 1957. The Second Additional Labour Court has not even stated that the Mill was duly served. In the Award passed by it on January 28, 1987 it is merely observed that the second party Vivek Textile Mills has not contested the proceedings.
14. The Second Additional Labour Court passed the award holding that the management was not justified in closing the Mills on January 31, 1984. However, it has held that the workmen are not entitled to closure compensation as per law. Aggrieved by that award, the workmen through the first respondent have filed W.P.No. 13019/1987 challenging that portion of the award holding that the workmen were not entitled for closure compensation. In the said writ petition Vivek Textile Mills was the first respondent. The 5th respondent K.S.F.C was the 2nd respondent in that writ petition. Since notice was not served on Vivek Textile Mills, I.A.I was filed for substituted service by way of paper publication. The said application was allowed on March 28, 1990. Accordingly, notice was published in Deccan Herald dated April 17, 1990. It is seen from the records of the said writ petition which records were produced alongwith this petition that even in those proceedings it was not held that service on Vivek Textile Mills was sufficient. But, the fact remains that it has been notified about the proceedings by paper publication. Inspite of that, the representative of the Mill remained absent. This Court having found that the Second Additional Labour Court held that closure of the mill was illegal, denial of closure compensation was held to be unsustainable. Consequently, it was ordered that the workers are entitled to back wages from the date of closure dated January 31, 1984 till the date of award dated January 28, 1987. The award of the Labour Court as modified by this Court in W.P.No. 13019/1987 was not challenged by any of the parties and that has become final. It follows that the workmen are entitled to the relief as ordered by this Court.
15. The plea putforth by the petitioner in this writ petition that he was not aware of the award passed by the Labour Court cannot be accepted for more than one reason. Assuming that there was no service of notice by the Labour Court on Vivek Textile Mills and petitioner was not aware of those proceedings, atleast the petitioner could have entered appearance in the earlier W.P.No. 13019/1987 after the publication of notice in the Deccan Herald newspaper. That has not been done. Added to this, Mr. Leela Krishnan, learned counsel for the first respondent Sangha has filed statement objections to the writ petition alongwith certain documents marked as Annexures R-1 to R-8. Annexure-R-5 is the legal notice dated December 1, 1995 issued by the counsel of the first respondent to the petitioner herein and another director Ashok Mehra narrating facts and calling upon them to settle the dues of the workmen. That was followed by another legal notice at Annexure-R-6 dated January 22, 1996 wherein reference is made to the first legal notice and the statement containing the details of the amount payable to the workmen had been enclosed. For this second legal notice, Sreevatsa Associates represented by Mr. Sreevatsa had replied as per Annexure-R-7 dated January 24, 1996, the contents of which are as follows ;
"Reference to the legal notice dated January 22, 1996 issued by you on behalf of your clients, and hand delivered to our client Sri Pramod Mehra on January 23, 1996, and reference to the talks between yourself and Sri S. Sreevatsa in the High Court premises on January 23, 1996, we write to inform you that as Shri S. Sreevatsa is out of the country we shall send a detailed reply to the aforesaid notice by February 6, 1996, at the latest".
From these legal notices exchanged, it becomes abundantly clear that petitioner was aware of the award passed by the Second Additional Labour Court which was modified by this Court in the earlier writ petition filed by the first respondent Sangha. The legal notices exchanged between the counsel in the matter is not in dispute. So, it can be safely taken that the petitioner had the knowledge of entire proceedings immediately after service of the second legal notice in the starting month of 1996. Inspite of this, the; petitioner has not taken any steps immediately in the matter. He has filed this writ petition only on September 4, 1998. From January 1996 to beginning of September 1998 he kept quiet and in the present writ petition he came forward with an unbelievable plea that he was not at all aware of the matter. Be that as it may, from the facts narrated above, it is clear that the petitioner had knowledge of the proceedings.
16. After the award of the Second Additional Labour Court as modified by this Court, since the reliefs granted to the workmen remained unattended or unsettled, the first respondent Sangha filed a complaint in C.C.No. 1095/1997 in the Court of the Chief Metropolitan Magistrate, Bangalore, for taking action under Section 29 of the I.D. Act against the petitioner and other Director Ashok Mehra of Vivek Textile Mills. On that complaint, the Labour Commissioner has granted permission to the first respondent Sangha by his order dated October 14, 1996 to initiate proceedings against petitioner herein and the other director for the violation of Sections 17A, 18, 19 & 29 of the I.D. Act. The first prayer in the writ petition is to quash the said order of sanction for initiating the penal proceedings against the petitioner and another Director.
17. The first relief sought for by the petitioner to quash the impugned order at Annexure-A dated October 14, 1996 cannot be granted as the petitioner is not entitled to the same on account of his own conduct and laches on his part. As already noticed, the petitioner had the knowledge of the award of Labour Court as early in January 1996 when the second legal notice at Annexure-R6 dated January 22, 1996 was served on the two Directors. After service of the impugned order at Annexure-A dated October 14, 1996 also, the petitioner did not wake up immediately. He filed this writ petition after a lapse of nearly two years and in paragraph 7 and 8 of the writ petition he asserts as under :
"7. On going through the complaint, the petitioner was surprised to see that there has been an award passed by the Labour Court, Respondent No. 4 herein, in Ref No. 61/1984 and the said award came to be challenged by the Karmikara Sangha, the Respondent No. 1 herein the Complainant before Magistrate in W.P.No. 13019/1987 and this Hon'ble Court would seem to have passed an order on September 25, 1995.
8. Petitioner submits that he has no knowledge of the said proceedings before the Labour Court nor proceedings before this Hon'ble Court in the writ petition preferred by Karmikara Sangha............."
The petitioner has made the above assertions completely suppressing the exchange of legal notices as per Annexures R-6 to R-8 long ago. In the light of those legal notices, it was not open for the petitioner to assert that he had no knowledge of the proceedings either before the Labour Court or the earlier writ proceedings in this Court. There is suppression of facts coupled with delay and laches in approaching this Court by the petitioner. Hence, the first prayer to quash the impugned order at Annexure-A dated October 14, 1996 passed by the Labour Commissioner granting permission to the first respondent Sangha to initiate proceedings against the petitioner and other director for the violation of the provisions of I.D. Act cannot be granted.
18. The second prayer sought by the petitioner, which was later amended, is to quash the award of the Labour Court dated January 28, 1987. That relief also cannot be granted for the reasons stated above. It is not in dispute that the said award was challenged by the first respondent Sangha in W.P.No. 13019/1987 and notice of the said writ petition was published in the Deccan Herald newspaper. The petitioner did not choose to enter appearance in that writ proceedings and putforth his case. In the said writ petition the award of the Labour Court was modified granting relief to the workmen. The relief granted is in accordance with law and the workmen are entitled to the same in view of the finding that the closure of the Mill was not justified. Therefore, the second prayer also cannot be granted to the petitioner. If at all the petitioner is aggrieved by the same, he should have filed writ appeal against the order passed in the writ petition as the award of the Labour Court is modified by this Court in writ petition. The subject matter of earlier writ petition and the order passed therein cannot be re-opened in the subsequent writ petition.
19. There is one more reason for this Court to decline to grant the second prayer. Admittedly the closure of mill is held not justified. Consequently, the workmen are entitled to closure compensation in accordance with the provisions of I.D. Act. That has been granted by this Court by modifying the award of the Labour Court. No consequential prayer is made by the petitioner to remit back the matter for fresh disposal after affording an opportunity to him. Only quashing of the award is prayed. If the said prayer is granted, there will be no opportunity to the workmen to work-out their claim for closure compensation. For this reason also the award of the Labour Court cannot be quashed as sought for by the petitioner.
20. The third prayer is to prohibit permanently the Chief Metropolitan Magistrate in proceeding with the complaint in C.C.No. 1095/1997. The prayer is misconceived. The authorisation is granted by the Labour Commissioner granting permission to the first respondent Sangha to initiate penal proceedings against the petitioner and other Directors for the violation of provisions of the Act as they have not implemented the terms and conditions of the award. Since it is already held that the first prayer to quash the order at Annexure-A cannot be granted for the reasons stated above, this Court cannot prohibit the Court of Chief Metropolitan Magistrate from proceeding further, if necessary, with the complaint in C.C.No. 1095/ 1997. Therefore, the third prayer sought for by the petitioner is hereby rejected.
21. The only other prayer that requires to be considered is the one sought in paragraph 18(e) of the writ petition. The said prayer is to direct the 5th respondent K.S.F.C to furnish the particulars of the assets of the petitioner and amounts realised therein by the sale of the petitioner's assets in respect of the textile mill at Peenya and also to direct the Corporation to meet the statutory closure compensation payable under Section 25FFF of the I D. Act to the workmen.
22. In view of the award of the Labour Court as modified by this Court in the writ petition, the workmen are entitled to closure compensation. The modified award is not challenged by any of the parties in any other proceedings and the same has become final. The grievance of the petitioner is that since the 5th respondent Corporation has taken over the industrial establishment of the petitioner under Section 29 of S.F.C Act and the petitioner is not liable to pay the compensation to the workmen.
23. Per contra, in the statement of objections filed on behalf of the 5th respondent it is stated after taking over establishment, the land, building, plant and machinery were sold in public auction. It is contended that there cannot be any claim against the 5th respondent Corporation. During the course of hearing, additional statement of objection was filed on behalf of 5th respondent stating that since there were no bidders to purchase the assets of the mills, the 5th respondent Corporation itself has purchased them for Rs. 81-00 lakh sand that the said sale was confirmed. Details have been furnished in paragraph No. 4 as to how the sale proceeds have been apportioned between the 5th respondent Corporation and K.S.I.I.D.C in addition to the payment made to K.E.B towards dues and the expenditure incurred. Consequently, it is requested to reject the prayer of the petitioner to direct the 5th respondent Corporation to meet the closure compensation awarded in the writ petition.
24. Several contentions were putforth by Mr. K. Kasturi, learned counsel for the petitioner and Mr. K. Gopal Hegde, learned counsel for the 5th respondent with regard to the apportionment of the sale proceeds and in the matter of payment of closure compensation to the workmen fastening the liability on the other side by both of them. It is not necessary to deal with all those contentions and refer to the decisions relied upon by them to enter into a long dialogue and discussion on the issue. The issue is straight and simple. Therefore, this Court need not venture upon all those aspects in great detail.
25. Admittedly, the amount due by Vivek Textile Mills to the 5th respondent Corporation as on March 25, 1985, the date of confirmation of sale, was Rs. 70,87,000-00. The property of the Mill was sold for Rs. 81,00,000-00. That means, the 5th respondent Corporation had realised Rs. 10,13,000-00 in excess of the amount due to them by the Mill. From the additional statement of objections filed by the 5th respondent it is clear that the sale proceeds had been apportioned as under :
1.K.S.F.C Rs.38,85,570-00
2.
K.S.I.I.D.C Rs.42,14,430-00 Total.
Rs.81,00,000-00 According to Mr. K. Gopal Hegde, learned counsel for the 5th respondent Corporation, the sale proceeds had been apportioned as above on pari pasu basis by virtue of the agreement dated April 19, 1979, copy of which is produced along with a memo dated August 6, 1999, entered into between the Corporation and the petitioner as Managing Director and N.K. Mehra, the Director of Vivek Textile Mills.
26. The apportionment of the sale proceeds amongst the 5th respondent Corporation and K.S.I.I.D.C on pari pasu basis had been made ignoring the amounts payable to the workmen pursuant to the award of the Labour Court as modified by this Court in the writ proceedings. Learned counsel for the petitioner and the first respondent Sangha have rightly submitted that out of the sale proceeds, priority should have been given to dues of the workmen and reliance is placed on the judgment of the Supreme Court reported in Workers of Rohtas Industries Ltd. v. Rohtas Industries Ltd., (1987-II-LLJ-1) (SC) in support of their submission. The 5th respondent Corporation was aware of the award in favour of the workmen as modified by this Court. The Corporation was not justified in apportioning the sale proceeds as mentioned above without taking into consideration the claim of the workmen. In view of Section 525-A of the Companies Act and the law laid down by the Supreme Court, the apportionment of sale proceeds by the 5th respondent is bad in law. Virtually, such apportionments leave the workmen in streets even though there is an award in their favour for payment of closure compensation. It is to be borne in mind that the workmen have not been paid the said compensation legally entitled under the modified award for more than one and half decade. The 5th respondent Corporation should have either deposited the excess sale proceeds over their dues or should have paid the said amount to the workmen after obtaining necessary orders from the Court. That has not been done. The sale proceeds had been apportioned unilaterally. The learned counsel for the Corporation sought to justify the said apportionment on the basis of the agreement referred to above. The clause relating to pari pasu rank in the agreement between the Corporation and KSIIDC cannot have the effect of taking away the priority of the workmen for closure compensation. Such pan pasu clause shall not have the over-riding effect of the benefits conferred upon the workmen under the I.D. Act and the modified award in their favour. Therefore, the submission of Mr. K. Gopal Hegde in this regard cannot be accepted and the same is hereby rejected.
27. Yet another reason to reject the submission of learned counsel for the 5th respondent is, before apportioning the sale proceeds the Corporation did not consult the Directors of Vivek Textile Mills. It cannot be denied that whatever sale proceeds derived from the sale of assets of the Mill belongs to the Mill and the Corporation has got right only to recover its dues from the sale proceeds and nothing beyond that. It cannot pay the excess amount to others in any manner under the garb of pari pasu clause in the agreement between it and the KSIIDC. For these reasons also the apportionment of sale proceeds in the manner done is not correct.
28. In the instant case, the closure of the Mill was on January 31, 1984. The award of the Labour Court was modified by this Court on September 25, 1995 holding that the workmen are entitled to back wages from the date of closure until the date of award dated January 28, 1987. The sale was confirmed on March 25, 1985. Thus, from March 25, 1985 the 5th respondent Corporation has unlawfully denied payment to the workmen under the modified award. Since the Corporation has unlawfully apportioned the excess amount of the sale proceeds over its dues to other statutory bodies, it has to pay interest at 18% on the said amount from March 25, 1985 (date of confirmation of sale) upto the date of payment so that the workmen could be paid their legitimate dues under the modified award to the extent possible. In the interest of justice and equity and to safeguard the interest of the workmen, the relief is moulded in this manner having regard to the facts and circumstances of the case and the judicial philosophy reflected by LORD DENNING which is extracted in Journal Section, 'DEPARTURE OF LORD DENNING' by Justice C.K. THAKKER reported in 1999 4 SCC (J) which reads thus:
"LORD DENNING was a progressive Judge. He believed in doing justice to the case on hand. His judicial philosophy is reflected in the following statement:
"My root belief is that the proper role of the Judge is to do justice between parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the Judge to do all that he legitimately can to avoid that rule - or even to change it - so as to do justice in the instant case before him. He need not wait for legislation to intervene; because that can never be of any help in the instant case".
He was, however, conscious of the limitation of a Judge and hence proceeded to state: "I would emphasise, however, the word 'legitimately'; the Judge is himself subject to law and must abide by it."
29. Writ Petition is partly allowed in the manner indicated above. The 5th respondent Corporation shall pay the amount as above within eight weeks from today. The said amount shall be paid to the workmen by the first respondent Sangha proportionately on pro-rata basis pursuant to the modified award.
30. The parties are at liberty to work-out their rights as a result of this order for recovering the amounts due to them from those who are liable to pay before the appropriate forum in accordance with law. The legal contention urged by the petitioner's counsel with regard to the service of notice upon the petitioner by the fourth respondent can be urged before the Chief Metropolitan Magistrate Court, the same can be considered on its merits in the criminal proceedings keeping in view the observations made in this order.