Bombay High Court
Modistone Ltd. And Ors. vs Deputy Commissioner Of Labour And Ors. on 15 July, 1999
Equivalent citations: (1999)IILLJ1043BOM
Author: A.P. Shah
Bench: A.P. Shah
JUDGMENT A.P. Shah, J.
1. Rule.
2. Learned counsel for the respondents waive service. By consent Rule taken up for final hearing.
3. This is a writ petition under Article 226 of the Constitution of India directed against an order dated March 5, 1999 passed by the Controlling Authority made under the Payment of Gratuity Act, 1972 and also the appellate order dated May 11, 1999 passed by the appellate authority under the said Act hereinafter referred to as the Act.
4. The only contention raised in this petition by the petitioners is that the petitioner company has been declared as a sick unit under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 and by virtue of Section 22 no recovery could be made in respect of the gratuity payable to the concerned employee.
5. The present proceedings are in respect of gratuity payable to respondent Nos. 3 to 41 who are ex-employees of the petitioner. On hearing the learned counsel I am of the opinion that this contention should be rejected. This very argument was canvassed before the learned single Judge of this Court in Baburao P. Tawade and Ors. v. H. F. S. Ltd. Bombay and Ors. reported in (1997- III-LLJ (Suppl. )-265) (Bom). The learned single Judge after making a reference to the case of Modi Industries, 1993 II CLR 963 has observed as under.
"Reliance is placed on the observation in the aforesaid case of Modi Industries to the effect that the Parliament could never have intended that the 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 for the work they have done. If such a position is allowed to prevail, the sick company could defeat the legitimate claims of workmen for their wages and other dues by not paying them in the first instance, forcing the workers to resort to their remedies and then pleading the bar in Section 22(1). No construction can be put upon the provisions of Section 22 which could result in a situation of exploitation of human beings, contrary to provisions of our constitutional directives. It is therefore not possible to accept the contention that the payment of earned wages to the workmen (it cannot be disputed that payment under settlement would be "wages" within the meaning of Section 2(rr) of ID. Act) was intended to be defeated by invoking the bar under Section 22(1) or to drive the workmen to run to New Delhi for seeking the consent of the BIFR, every time their monthly wages were required to be paid. The bar of Section 22(1) of SICA must be held to apply only to such proceedings which are not required for the day to day running of the sick industrial company, even under a sanctioned scheme or otherwise. Any other interpretation would lead to a ludicrous and unintended result".
6. In Modistone's case (supra) the learned single Judge of Allahabad High Court has observed:
"In my opinion, the purpose and object of Section 22 cannot be to cover those proceedings or actions which are necessary for running the industry irrespective of the fact whether it is sick or non-sick. If the industry cannot run without workers the workers also cannot expect to work without payment of their wages. The timely payment of the wages for which the provisions of the Act 1978 have been enacted would thus be a step helping rehabilitation and it cannot be said that it creates any obstacles in fulfilling the object for which the Act of 1985 has been enacted. Both the Acts are thus complimentary to each other."
7. In National Textile Corporation (South Maharashtra) Ltd. v. B.N. Jalgaonkar and Ors. reported in 1997 I CLR 1102, RHBHLLO, J. held that the language of Section 22 in no way would stand in the way of workers making recovery of wages much in the same way as recovery of tax by the Government as has been laid down by the Apex Court in the case of Deputy Commercial Tax Officer and Ors. v. Corromandal Pharmaceuticals and Ors. .
8. The decision in Baburao P. Tawade's case (supra) was approved in the case of Girni Kamgar Sanghatana Samiti and Ors. v. Khatau Mackanji Spinning and Weaving Co. Ltd. and Ors. in Writ Petition No. 97 of 1998 dated January 28, 1998. The Special Leave Petition filed against the same was rejected by the Supreme Court.
9. Thus it is a settled law that it is not open for the company to take shelter of Section 22 in respect of the workers' wages and other dues. A feeble attempt was made by Mr. Vasudeo to distinguish the above judgment by contending that the present case relates to payment of gratuity to the workmen and since such claim is in the nature of arrears, the case would be governed by the decision of the Apex Court in Tata Davy Ltd. v. State of Orissa and Ors. reported in (1997-II-LLJ-989) (SC). I am unable to accept the submission made by the learned 'counsel for the petitioners. By no stretch of imagination gratuity can be called arrears of wages. The basic minimum which the workman is entitled to get is the wages and gratuity and other statutory benefits.
10. In the result petition is dismissed. No order as to costs.