Karnataka High Court
M/S.Chelpark Company (P) Ltd vs Sri Christopher Dass on 6 June, 2011
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
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1
THIS W.?i ES FILED UNDER ARTICLES 226 AND 22'? 0F
THE CONSTITUTION OF INDIA PRAYING TO QUASH T
DT.30.10.00 IN I.D.NO.35/1994 PASSED BY THE
LABOUR COURT, BANGALORE ATANN--G. ' at
THIS we IS COMING ON roe pRi,.HeAR_i_NoV ::$A'i;,
THE COURT MADE THE FoLi,oWiNc':""' « .
0 R4) E R,
Petitioners a compan_3f'-incorporated under the
Companies Act, ¢ar£'y:n'g "'----Vph1i'siness in textile
processing, engaged:-th'e--services' 3350':-kmen, of Whom
the 131 was 'WOIkH1ELI'1mf1"OII1 the year 1980
onwards, _ "'V.__"Pet'i:tio1i.ei'.__:Vhaving served a notice dt.
1/8/ of of the W respondent due to
"chronicre¥organizatiQn" called upon him to secure é_ sefiiernent ofhis..C_1ues, which when not accepted, led to ' filing petition on 17/ 10/ 1989 invoking Sec;tiO(44i§;}_V..oi the Industrial Disputes Act, 1947, for short.vV"the 'Act', registered as i.n.No.2e2/so and A t.hereafter as I.D.No.35/94, before the Presiding Officer, {Labour Court, Bangalore. Petitioner arraigned as 2%? § K») I party in the Said proceedings, on notice, entered appearance through Counsel, filed a counter statement denying the allegations and asserted industry. Labour Court, in the premiselofx partiesg framed .2 issues, one ot7.Awhi_-chfivwas; .'fl>Vhet'h_er=:.the closure of the factory with.*e;-gffect IV3 and binding?" Respondent and another witness as pw%hiVle"'--the>"petitioner did not tender either oral or The Labour Court, by allowed the Reference in part,__.cs_et 1 / 8 / 1989 and directed Worlilnan together with 50% backwaglest .
V. Petitioner' having not implemented the award I eorne into force 30 days after its publication under..._'tr1e«:Aet and Karnataka Industrial Dispute Rules, led tothe respondent filing application No. 14,/02 under '7.l§l'5ee.:33[c){2) of the Act for computation in terms of money the benefits under the award dt. 30';/:' arraigning the petitioner as gresponddent. in'._thef2sé1éd 9 proceeding. On notice, resp'ondent's "represe'nt'e.tii;'ep appeared, before the Coiirt_ "t'ir;r1e and'? thereafter did not psrtieiptatef"p;n"'--»the .proeee.d§ing. The Labour Court, having' testimony of the respondent~workrnan';' /2002, allowed the petitioner to pay benefits due to the worknian; if not implemented, led to filing VvdofpppfianVap.piiesti:on:':in<roking SeC.33(C)[1) of the Act, before the"C_ornn1issiof1er for Labour for a certificate to refe5*oVe.r the arriounts computed in terms of money by L_a"'e«otir'* .._Court. To a ShOW Cause notice dt.
".Annex.M, petitioner--eompany responded by"---1etter-rift; 2'7/5/2010 stating that efforts were being remade-.tto challenge the award at 30/10/2000 in 'it.i_):£\Io.35,/ 1994 on the assertion, "was not within their déinowiedge tiii February 2010". In addition it was stated :/3 § 'i I ,/V x that petitioner was to file a writ petition order dt. 28/2/2008 in Application "'-ll};/l{}§Zv"si1ieé".
that order too was not within '*A::till February 2010. As regards-._the eiaifn for.'E;{s3 by the respondent, it is that was not adjudicated upon gt'/i.(;§_{1rtpan<:llAtherefore the authority has no a recovery certificate in 'ligli._t of the Apex Court in Mom OF U.P. & OTHERS1 and aiithorirtyr»tolawait the orders of this court, The for Labour, by order dt.
26/5/ the application and issued a_§:'erti.ficate"' .. recovery of Rs.€>,37,085/-- following njot.iee~AnneX.Q was issued to the petitioner for 'recovery "of-._tl.ie amount as arrears of land revenue. llencev.thislpetition calling in question the award in I.D.lxlol§'35l/94 - AnneX.C, the order (it. 28/2/2008 in 299441; [LI 383 {SC} ,5- Application No. 14/02 - Ann_e2<;,K_ and 26 / 5 / 20 10 of the Labour Comrniseiienfieiut :1 it
3. The first eonteialtien of learned Counsel for, the petiti"on'e';r,. that'it-hevvfipetitioner was not aware Of"4--.£fie 30/ 10/2000 in l.D.No.35/94, to be rejected.
I say so that petitioner, when arfaighed party the said proceeding before the_ 'L,abo:g.r Court, 'wae<' represented by learned Courlse1*-- a11dV"Veojnntoe4f'--_etatement when filed, led to the framingof an tuhether the factory was in fact clo:§e'd_with fhoni 13/ 04/1990'? It is also not in .diSoute that thewpetitioner did not adduce evidence, » ppbot ..o1<ai«._an_d doeumentaryi to prove closure of the also not in dispute that the award dt. was not called in question at any point of it "tithe tintil filing this petition on 23/3/2011. Thus the "'V.a'ss'ertion that the petitioner had no knowledge of the 5% award (it. 30/ 19/2000 till February 2010, is unacceptable.
4. In the admitted factuai there is no justification to'~iri'terfere dtf 30/10/2000 of the VL?;l3OL1j?"Colilflil"B.angell€)1"6;"Vln l.D.No. 35/94, even on did not lead evidence not-ipgprodtilceg r_"elex_7an_t.._ material, constituting substantial 'iltlayei fact in issue as to, whether th:e"'~--faQtoryg'iifas w.e.f. l3/4/ 1999 and sold; Exc'ept_fo17_ the"«..statement that the factory was closed} and Gemini Dying 8: Printing Industrieis'~.Whicl'i;., to the learned Counsel was A a=:i_i'i1it5li_téCl.,by \7}7\"'af...Q..ij'n his deposition in I.D.No. 35/94, I ' .iaiii.gafrai(i;.is-._unacceptable since the Labour Court in °the'lla\}v9ar':l~l.5;nneX.G at paragraph 6 while recording a fineiing.. issue No.2, extracted the contention of the 'iearneel Counsel who represented the petitioner that was not an employee and therefore his evidence é 3 fix:
could not be believed. This, according to the learned Ceunsel for the petitioner is incorrect sine_e"t.the suggestion to WW~2 was that the factory sold, hence constitutes ample admission.,.o:f,a*~fact. fact in issue is required to be Vprovedfivby,.the"-personagaii whom the burden is cast.=.__ In the instantv.c_ase3, the burden was on the petitione_r_l:t:o:;:>roVe well as, sale of the factory-....l:neithe%r' o'1*al::'ii.,or documentary evidence is pinduced' Petitioner cannot the evidence led in Absence of inde1d'endentV prove the issue cannot be diluted that WW~2 admitted the said faffis. 1__ln_fact"ia«pe_1fusal of the statements in the cross of WW~l apparently discloses that the sale efthe factory.
woi'ikinan'r:i§zas not aware of the closure, much less the % / *1»
-9» 5, The next contention that the petitioihero aware of the order (it. 28/2/2OO3»--V~Ahne§r;Ki within the knowledge of the pefiticgher s«ih'ee:'theV:fe.oié:ry was sold to M/S. Gemini 3')y"i.r1g 8r'Printirxghhlhdupstriesd the year 1992, and it was the said purchaser who appeedrepd Court on receipt of the court ho_t_iVe_e,V consideration. Labour at paragraph 2, records i:h11s.f" ~ . " " ° 'off'ap:plicaiio'ndV4 was duly served on The representative of rr'espL7nderzt;eondpany had appeared on ' 430/ and had prayed for time.
fl'hereafter,""';'1one appeared for the respondent objections were filed. Hence, vVre§poi~fi:dent~oompany was placed exparte on :21 ,5 12/ 2002. "
In thegfaee of this order, it is too farfetehed for the A'pei:§tioVhrer to contend that it had neither notice nor .' representation before the Court, and that K representation was by M/S. Gemini Dying"<3:.._P":?iri1:,if;gi*. Industries, the subsequent purchaszer, relevant material constituting S'i.ibStAai"itiai~.iegai Aexiiiderifie of that fact. T hat c0ntenti§:i_ii"--~tQo fail;
6. Having regard {:3 * the award followed by the order to pay the amounts __c0mp1,1te:d:--.._ up to 31/10/2006)" hdaite ieff full wages, with similar up to June 2003, " _(,'fl-drdiirnissioner exercising a jurisdict_i0'nV of the Act, issued a certificateizwr re.c'oi/deijf"'('.)f Rs.6,37,085/---- by the order (it. . 2_e;i5/2010 ~ A:rm_ex..vP.
Iiiv.--the circumstances, name of the orders impugned A call for interference in exercise of extraiorriiinary writ jurisdiction under Art. 227 of the CRi3i.i'i_8"ti'[t1'EiOI1 ef India.
8. in the fact situation, it can harciitf that the petitioner was not awa:"ie"Uf .the'_4aWafd'passi€:dx'§.h ' the year 2000 until the ShOW caie;;sé.:::;e¢ie~ the year 2011. The intehtiQ:_ii~w..to dei:yf_ th$v3iV»'Q€3i':1§'fi'iS 'bf the L' award-AnneX.C, is transpa.1;ent"'..and.' The cohdiict of the direction at establishing intentienaih.ihdtieierrieijtfiiii 'believe it to be true which not believe it to be truefh upietitioner has practiced sugg32étio'i disentitling it to any reliefhinii n0n--imp1ementation of the award fer-4gh)%v'erra__deeadie smacks of unethical conduct of theitfietittioneiaihduettry tantamounting to Victimization. implement the award appears to me to be ::'}.;«17v1:'tt3.A1V."1:"'C.i:OI1E11 and deliberate. Petitioner having not any equitable relief.
ee.meV_}3efei"ei the court with clean hands is disentitled to "2.
9. T he assertien that the factory w.as'"0'i:2i year 1990 and was said in the in of relevant material is a ruse to tierif; the r€:s:p'ei1dentvtai'1..L lawful benefits arising in tenhis of the aw_a_rd";ai5id orderh of the Labour Court iiihpugneai
10. This.we0urte--n.:'30/ the follewing order: _ 25, 000/ -- {Rupees Five Thousand only) in the hregzls «vi -. weeks from today. "
That 0'rg1e"r_ad1:i1it.tediy____hot' complied with as on date, is Sdisobeyed anti},-heifeféfe this court could refuse to hear pAe,titiQner'h0ri""the merits of the ease for having "girder, as held by the Apex Court in '«PREsTIG0E&:._ LtGHTs LTD. VS. STATE BANK OF INDIA2. H't:~weVe'1i~.«-"'the court having considered that non»- .AeQmpi1'--anee was not grave and serious, opportunity of 0 gheafing was extended. V ' 'xv l " 'T2007 {8} see 449
11. At this stage, it is useful to extract the observation of the Apex Court in Prestige supra, which runs thus:
"A prerogative remedy igfnot'«ai}aile,ble'«.as":a matter of course. In power, therefore, a ttir_it'---rgourttwili indevedhib-ear--~3in l mind the conduct of invoking such jurisdictiorz.«_ Iffllthelegofaplicantvlldoves not disclose full liar' relevant materials" or . f misleading the the action without:_u_aolJttd the rrftaltter. The rule has :"been-- interest to deter from abusing the process of 'court z§y_ it. The very basis of the "'writ 'rests in disclosure of true, eorrzplete anldmcorrectfacts. If the material facts 'eandidlgl stated or are suppressed or ' the very functioning of the writ would become impossible."
if V (Para 33) "XXX X The High Court is exercising discretionary and extraordinary jurisdiction under Art.226 of the Constitution. Over and above, a eourt of Zciwfts also at Court of equity. It therefore, 'V' necessity that when (1 party approoeheejgi Court, he must place all as Court without any reserzhitit;-nit' V' suppression of materi<:tVZ::frz_r:ts ionathex "the applicant or tugisted -hqueihbeen ifilaced before the Cow;-.t:._"':A«the--'_Vi refuse to entertain the petitio_n' it without entering. "
lg {Paras 27 and 31) 'th'e:ease'._'ori'"hand, it is evident that there no --1r1ateria1._:"wh--atsoeVer to establish either olospre oréttésajive v0.f'--fetCtofjr, either before the Labour Court nor" this"*._eourt; "" "and therefore there has been said facts by the petitioner.
it , ii; that View of the matter, it cannot but be said A ff ithiéitéthe fiiing of the writ petition after a decade and one jgrear with a View to deprive the resperiderit-worlmiarl ?I£R¥% ;
s}\ % .tt§:'r«..
-15, from realizing the iegai and legitimate dues.A"'i<> * is etherwise entitled to and failure 5:0 §iI'1e§e]C$e'_j_the V' Creation of 331* party interest in the prejudicially effected the inferest of . r'ee.4;5CsI1'i::ient."' V These assertions ought aiéleast by prima facie material in View of the petitioner'::.hVaving Praying f01' <;iiscretioI1i'a.g'1V.3'/§:::h<«..gfigi. reliefs. In my consizfiieredeview, is entitled to none. Pefit__i4O11_ is' diVs.trIis?'s_.ed in Iimine. Cost quantified at gfigfe EUEGE