Gujarat High Court
Devtadin Zurai Yadav vs Manager on 4 February, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022
N THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10724 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10548 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10546 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10580 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10579 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10578 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10577 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10554 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10552 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10551 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10550 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10549 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10547 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10555 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10553 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10584 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10581 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10587 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10588 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10585 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10586 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10582 of 2018
Page 1 of 34
Downloaded on : Tue Feb 08 21:16:52 IST 2022
C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
DEVTADIN ZURAI YADAV
Versus
MANAGER & 2 other(s)
==========================================================
Appearance:
MR PRABHAKAR UPADYAY(1060) for the Petitioner(s) No. 1
MR.K.M.PATEL, SR ADVOCATE with
MR VARUN K.PATEL(3802) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 04/02/2022
CAV JUDGMENT
1. As the issue involved in this group of petitions is common and as the orders under challenge in this group of petitions are the common orders passed by the Labour Court as well as the Industrial Court, all these matters are heard together and are decided together. 1.1 Rule. Learned advocate Mr.Varun Patel waives Page 2 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 service of notice of rule on behalf of the respondents. By consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing.
2. Both the learned advocates, viz. Learned advocate Mr.Prabhakar Upadhyay for the petitioner as well as learned senior advocate Mr.K.M.Patel assisted by learned advocate Mr.Varun Patel for the respondents have jointly submitted to treat Special Civil Application No.10724 of 2018 as lead matter in this entire group of petitions and both of them have relied upon and referred to annexures of the aforesaid Special Civil Application No.10724 of 2018 and requested this Court to treat Special Civil Application No.10724 of 2018 as lead matter and hence the facts are taken from Special Civil Application No.10724 of 2018. All the petitioners in this group of petitions who are workers of Ahmedabad New Cotton Mill No.2 ('Mill Company', for short) were working in weaving department of the said mill. Ahmedabad New Cotton Mill No.2 is joined as Respondent No.1 in the group of petitions as Manager and will be referred to hereinafter Page 3 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 as 'mill company'.
2.1 By way of this group of petitions, the petitioners herein have challenged the impugned common order dated 06.02.2013 passed by the learned Presiding Officer, Labour Court No.4, Ahmedabad in Application No.249 of 1997 and allied matters (below Exh.46) whereby the Labour Court, Ahmedabad dismissed group of BIR Application No.249 of 1997 and 34 allied matters wherein the present petitioners prayed for quashing and setting aside the order of their termination and further prayed for their reinstatement with back-wages and all consequential benefits. The aforesaid common oral order dated 06.02.2013 passed by the learned Presiding Officer, Labour Court No.4, Ahmedabad was carried in appeal before the Industrial Court at Ahmedabad by way of an Appeal (IC) No.9 of 2013 to Appeal (IC) No.38 of 2013 below Exh.7 by the present petitioners who are appellants therein and the Member, Industrial Court, Ahmedabad vide order dated 24.01.2014 dismissed all the appeals and, therefore, being aggrieved by and dissatisfied with these two orders, petitioners have, by Page 4 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 way of writ petition under Article 226 and 227 of the Constitution of India, challenged the aforesaid common orders and prayed for quashing and setting aside of both the impugned orders referred to hereinabove by issuance of writ of certiorari or any other appropriate writ, order or direction.
3. Brief facts leading to the filing of the present group of petitions are stated as under:
3.1 The present petitioners were appointed in weaving department of the respondent mill company and according to the petitioners they continuously worked with the mill company till the mill company closed down the production activities and worked till their termination continuously. It is the case of the petitioners that the respondent mill company closed down the production activities illegally with effect from 10.02.1995 and the services of the petitioners came to be illegally terminated with effect from 17.01.1997 and the present petitioners sent the approach letter dated 04.03.1997 to the respondent mill company by RPAD under Section 42(4) of Page 5 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 Bombay Industrial Relation Act, 1946 ('BIR Act', for short). As the respondent mill company closed down its production activities from 10.02.1995, it approached the Board for Industrial and Financial Reconstruction under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 ('SICA', for short), which came to be registered as Case No.18 of 1995. The BIFR was pleased to pass an order dated 16.10.1996 whereby the rehabilitation scheme of the mill company was sanctioned. In view of the order dated 16.10.1996 passed by the BIFR, a settlement was arrived at between the mill company and the Textile Labour Association (TLA) under the provisions of Gujarat Industrial Relations Act, 1946 and settlement was recorded in Reference (IC) No.1 of 1997 before the Industrial Court at Ahmedabad. In view of the aforesaid settlement, which was arrived at on 08.01.1997 and the order dated 16.10.1996 passed by the BIFR, the present petitioners were issued termination order dated 17.01.1997 by the mill company and, therefore, it is the case of the petitioners that in view of section 42(4) of Gujarat Industrial Relation Act, 1946 Page 6 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 when they sent an approach letter dated 04.03.1997 by way of RPAD to the mill company, within a period of six months from the date of their termination, it was well within time prescribed under the Act.
3.2 The petitioners thereafter preferred an application under Section 78/79 of the BIR Act, 1946 before the Labour Court, which came to be registered as B.I.R. Application No.249 of 1997 and allied matters. In the aforesaid applications, it was alleged that the mill company had stopped production from 10.02.1995 and though the petitioners were regularly going to mill company as per their shift, their presence were not marked in the muster roll and they were not paid salary as per their entitlement. It was alleged that the aforesaid action of the respondent mill company would amount to illegal closer of the company and, therefore, the respondent mill company is required to pay full salary for the said period and, therefore, they may be reinstated on their original posts with back-wages and all consequential and incidental benefits.
Page 7 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 3.3 After the pleadings were over, after leading the evidence, learned Presiding Officer, Labour Court No.4, Ahmedabad vide its order dated 06.02.2013 dismissed BIR Application No.249 of 1997 and allied matters which was confirmed vide order dated 24.01.2014 passed in Appeal below Exh.7 by the Industrial Court, Ahmedabad which are under challenge by this group of petitions.
4. Heard learned advocate Mr.Prabhakar Upadhyay for the petitioners and learned senior advocate Mr.K.M.Patel assisted by learned advocate Mr.Varun Patel for the respondent No.1 Mill company.
5. Learned advocate Mr.Prabhakar Upadhyay submitted that one of the reasons weighed with the Labour Court to dismiss the application preferred by the petitioners was that the petitioner did not send approach letter within the period of six months as contemplated under the provisions of BIR Act, 1946 and, therefore, the application sent by the petitioners was barred by limitation. He submitted that the aforesaid findings of the Labour Court are bad and the Labour Court has failed to Page 8 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 appreciate the fact that, in any way, the petitioners' services could not have been terminated with effect from 10.02.1995. In support of the aforesaid contention Mr.Upadhyay submitted that the BIFR was pleased to pass an order dated 16.10.1996 in Case No.18 of 1995 whereby the rehabilitation Scheme of the mill company was sanctioned. In the order dated 16.10.1996 the provisions are made for the employees and as per Para:F(v) [Page:132 of the compilation] of the said order during the closer period of the mill company with effect from 1995 till the sanction of the scheme, the workers would not claim any wages / compensation. As per the settlement dated 08.01.1997, it was decided that the workers, whose names are there on the muster roll of the mill company on 10.02.1995, would be granted benefits as per the sanctioned scheme. The respondent mill company, after taking into consideration the order dated 16.10.1996 and settlement dated 08.01.1997, passed the order dated 17.01.1997 whereby the services of the workmen were terminated with retrospective effect i.e. from 10.02.1995. In view of the aforesaid order dated Page 9 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 17.01.1997, the present petitioners were paid certain amount by the mill company which they accepted without prejudiced to the rights and contentions to challenge the order of termination dated 17.01.1997. It is submitted by Mr.Upadhyay that when the order of termination was issued on 17.01.1997 terminating the services of the petitioners with effect from 10.02.1995, the limitation would start from the date of the order and not from the date of termination. Mr.Upadhyay submitted that conjoint reading of section 42(4) of the Gujarat Industrial Relations Act, 1946 read with Rule 53 of Bombay Industrial Relation (Gujarat) Rules, 1961 would clearly indicate that the application for change in respect of orders passed by the employer under the Standing Order be made within six months from the date on which such order is passed and, therefore, the Labour Court, Ahmedabad committed error by treating the notice of change given by the present petitioner to the respondent mill company as time barred though the same was sent very much well within time. Therefore, the order passed by the Labour Court confirmed by the Industrial Tribunal Page 10 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 is bad and contrary to the provisions of law and, therefore, deserves to be quashed and set aside. He submitted that the Labour Court has arrived at finding that the cause of action had arisen on 10.02.1995, is factually incorrect as on 10.02.1995 no employees were even knowing that their services are terminated. For the first time by way of order of termination dated 17.01.1997, the petitioners came to know about their termination with retrospective effect from 10.02.1995 and, therefore cause of action can be said to have started from 17.01.1997 and not from February, 1995 and, therefore, approach letter dated 04.03.1997 issued by the petitioners to the mill company was well within time and, therefore, the impugned orders are bad in law and deserves to be quashed and set aside.
5.1 Mr.Upadhyay then submitted that the Labour Court as well as Industrial Tribunal have committed an error by dismissing the application and appeal preferred by the present petitioners on the ground that petitioners and other co-workers have not obtained any prior permission from BIFR under Section 22(1) of SICA Act, 1985. He Page 11 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 relied upon section 22 of the SICA which reads as under:
"22. (1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof 31 [and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company] shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority."
5.2 By relying upon the language of section 22 of the SICA, it was submitted by learned advocate Mr.Upadhyay that provisions of section 22(1) of SICA would be applicable only in the cases where the proceeding is pending for execution, distress or like against any property of the company or appointment of Receiver in respect thereof or recovery of suit or for enhancement of any security against the industrial company. There was Page 12 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 no execution proceeding which was pending either by the petitioner or co-workers against the mill company and, therefore, provisions of section 22(1) of the SICA 1985 would not be applicable in the facts of the present case and, therefore, no prior permission was required from BIFR before filing an application before the Labour Court by the petitioners. He submitted that Labour Court has wrongly relied upon the judgment in the case of Morarji Desai Textile Labour Co Operative Industries Limited vs. Thakorebhai Dhulabhai Patel reported in 2003 (2) LLJ 129 as the facts of that case and facts of the present case are different. In the case of Morarji Desai (supra) it was the case related to issue in respect of recovery of wages from mill company which is not the case here and, therefore, the ratio laid down in case of Morarji Desai (supra) would not be applicable in the facts of the present case and, therefore, the Labour Court has wrongly relied upon the same. Mr.Upadhyay further relied upon the case reported in 1993 (2) SCC 144 in the case of Maharashtra Tubes vs. State Industrial and Investment Corporation of Maharashtra Limited, more Page 13 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 particularly paras:10 and 12 of the said judgment. 5.3 Learned advocate Mr.Upadhyay submitted that respondent mill company has illegally closed down the company without following due procedure as contemplated under the provisions of Chapter - V-B of the Industrial Disputes Act, 1947 ('ID Act', for short). He submitted that as contemplated under Section 25(O) of the 'ID Act', the mill company was required to obtain permission from the competent authority by following due procedures. He submitted that respondent mill company has also failed to comply with the provisions of Section 25(N) of the 'ID Act'. The aforesaid provisions of section 25 (O) and 25 (N) of the 'ID Act' being mandatory provisions which are violated by the respondent mill company, the closure of the mill is illegal. However, though the aforesaid aspects were pointed out to the Labour Court as well as Industrial Court, both the Courts below have not taken aforesaid aspects into consideration in its true perspective. In support of the aforesaid contention, learned advocate Mr.Upadhyay relied upon the judgments of the Hon'ble Supreme Court in the case Page 14 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 of Hindustan Wire Products Limites vs. Jaspan Singh reported in 2002 (9) SCC 758 and in case of Oswal Agro Furane Ltd. vs. Oswal Agro Furane Workers Union reported in 2005 (3) SCC 224. He submitted that both the Courts below ought to have taken into consideration the facts that petitioners of these petitions have not tendered voluntary resignation and, therefore, there is violation of section 25G and 25H of the 'ID Act' which has not been properly considered by both the Courts below. He submitted that both the Courts below were required to take into consideration section 25(SS) as amended by Gujarat Act, 20 of 1984 dated 20.10.1972. According to Mr.Upadhyay findings recorded by the Labour Court, which are confirmed by the Industrial Court, are contrary to provisions under Section 25(SS) of the 'ID Act'. 5.4 By making aforesaid submissions Mr.Upadhyay prayed for quashing and setting aside the orders impugned in this group of petitions and praying for allowing these petitions.
6. Per contra, learned senior advocate Mr.K.M.Patel Page 15 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 appearing with learned advocate Mr.Varun Patel submitted that by agitating the issue about application preferred by the present petitioners were not time barred as the order of termination was passed by the respondent no.1 Mill company on 15.01.1997, the petitioners are trying to mislead this Court. He submitted that there are concurrent findings of facts by the labour Court which are confirmed by the Industrial Court. The applications preferred by the petitioners were not maintainable as they are time barred. It is the finding of fact by labour Court as confirmed by the Industrial Court that workmen did not give approach letter as required by proviso to Section 42(4) of the Gujarat Industrial Relations Act, 1946 read with section 53 of Bombay Industrial Relation (Gujarat) Rules, 1961, within a period of six months. Both the courts below, after appreciating the pleadings and oral as well as documentary evidence, have concurrently held that the cause of action for the relief prayed for was arisen for the first time on 10.02.1995. He submitted that according to the averments made in the pleadings by the workmen themselves mill was closed down on 10.02.1995 Page 16 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 without paying them legal dues. He submitted that it was the case of the workmen that they were not paid any wages and their presence were not marked from the year 1995. He submitted that in view of the aforesaid pleadings and averments, the approach letter ought to have been sent by the petitioners within six months from 10.02.1995, which was actually given on 12.03.1997. He submitted that just to make the applications preferred by the petitioners within time frame, the petitioners are referring to communication dated 17.01.1997, which is nothing but a payment advice regarding the amount payable as per the BIFR Scheme. He submitted that the petitioners were very well aware about the fact that there is no provision of condonation of delay as per the scheme of the Bombay Industrial Relations Act, 1946 and, therefore, to bring the application preferred by the petitioners within limitation, it is conveniently canvassed by the petitioners that vide communication dated 17.01.1997, their services were terminated with retrospective effect from 10.02.1995. Learned Senior Advocate Mr.Patel took this Court to the language of Page 17 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 communication dated 17.01.1997 which is heavily relied upon by the petitioners and from aforesaid submission pointed out that the aforesaid communication refers to scheme sanctioned by the BIFR under the SICA and it refers to entitlement of the benefits payable to the petitioners. He drew attention of this Court to the language of the communication dated 17.01.1997 whereby in the beginning, it is categorically stated that the petitioners have already been discharged from the services and on page:181 against the column date 'discharge from service' it is specifically stated " from 10.02.1995 as per the scheme approved by BIFR". On the basis of the aforesaid communication dated 17.01.1997, learned senior advocate submitted that since the aforesaid communication is only a payment advice and given details about the calculation of the benefits available to the petitioners as per their entitlement, the same cannot be treated as an order of termination and, therefore, it cannot be construed that cause of action arose from 17.01.1997. The aforesaid communication is nothing but payment advice in consonance with the Page 18 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 scheme under SICA approved by BIFR. Mr.Patel thereafter took this Court to the application preferred under Section 78 / 79 of the BIR Act and by referring to Annexure - A application No.249 of 1997 preferred by Devtadin Yadav referred to the averments made in Para:2 of the said application and submitted that it is categorically stated in para:2 by the petitioners that production activities of mill were closed down from 10.02.1995. He submitted that though in the application it is alleged that though the petitioners were regularly attending the mill, they were not given any wages and their presence were not marked in the muster roll. By pointing out to the aforesaid averments made in the application, learned senior advocate submitted that Act contemplates straight jacket formula for availing remedy for redressal of grievances i.e. i. Approach letter within six months from that of cause of action [ Rule 53(1) ].
ii. 15 days for arriving at settlement [ Rule 53 (2) ] Page 19 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 iii. If no settlement is arrived at, application to Labour Court within 3 months of arising of dispute [ section 79 (3) (a)].
iv. The dispute is deemed to have arisen if no agreement is arrived at within the prescribed period i.e. 15 days [ Explanation to section 78 (1) (C) ]. 6.1 By making aforesaid submissions, learned senior advocate Mr.K.M.Patel submitted that by clever drafting the actual or real cause of action cannot be permitted to bring the application wihtin time frame provided under the Act as the actual or real cause of action is required to be seen and submitted that therefore both the Courts below have rightly dismissed the petition as having been time barred.
6.2 Thereafter learned senior advocate Mr.Patel submitted that in the instant case, vide the scheme of rehabilitation to take over the textile mill of Ahmedabad New Cotton Mill by Ashima Group was sanctioned by BIFR on 16.10.1996. The scheme envisaged rationalization of surplus labour force on payment of legal Page 20 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 dues. As per the scheme, all the existing equipment of weaving or processing department were to be sold. Meaning thereby, the scheme envisaged closure of weaving and processing department. Pursuant to the sanctioned scheme, the Respondent No.1 mill company entered into settlement with Textile Labour Association on 08.01.1997 and an award was made by the Industrial Court in terms of settlement arrived at between Respondent No.1 and Textile Labour Association in Reference (IC) No. 1 of 1997. In view of the aforesaid settlement, which provided for closure of weaving department on payment of legal dues to the petitioners, however it did not provide for continuance employment of the petitioners. The settlement was arrived at between representative Union and respondent no.2 and hence it is binding on all workmen. All the petitioners herein were from weaving department which was closed pursuant to the sanctioned scheme and they have been paid legal dues and retrenchment compensation as per scheme and settlement. The relief prayed for by the petitioners of this group of petition is contrary to the provisions of the Page 21 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 sanctioned scheme. The scheme was sanctioned after being heard that all concerned parties including stockholders including the representative of TLA as well as the representative of separate committee of workers formed by the employees who were not members of TLA. The petitioners of Special Civil Application No.10724 of 2018 viz. Devtadin was also one of the members of the committee. The sanctioned scheme by the BIFR was also challenged by the persons in the management of Ahmedabad New Cotton Mills by way of an appeal and even that appeal has also been dismissed by AAIFR. He submitted that even during hearing it was urged that Court may grant any relief which is in consistent with the scheme of BIFR and which is upheld in appeal and award dated 08.01.1997 of the Industrial Court in terms of settlement with representatives of TLA. However, no such relief was granted.
6.3 Learned senior advocate Mr.Patel submitted that the Respondent No.1 is the group i.e. Ashima Group which has taken over the mill company and the group has taken over the company as per the sanctioned scheme Page 22 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 and, therefore, if any relief is sought for by the petitioner is granted it would amount to compelling the respondent to bear liability which were not contemplated or provided by the sanctioned scheme. Learned senior advocate submitted that once the scheme was finalised, confirmed and upheld in appeal and pursuant thereto once the mill company is taken over by Ashima Group, the labour Court as well as Industrial Court have rightly held that they have no jurisdiction to sit in appeal over the order dated 16.10.1996 sanctioning the scheme. He submitted that the award of Industrial Court in terms of settlement is binding on Labour Court.
6.4 Learned senior advocate submitted that the allegations made by the petitioners in respect of violation of Section 25F and 25G of the 'ID Act' are bald allegations and without any basis and this method is adopted by the respondent mill company and as such the respondent company has acted in good faith and closed the weaving department pursuant to sanctioned scheme as per the settlement arrived at between the respondent and representative of TLA and, therefore, the said Page 23 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 contention may be rejected considering the fact that there is no documentary evidence produced by the petitioner showing any violation of Sections 25G and 25H of the ID Act.
6.5 Learned senior advocate submitted that even contention of petitioners regarding violation of section 25F of the 'ID Act' has also no legs to stand. He submitted that the Labour Court as well as Industrial Court do not have any jurisdiction to sit in appeal over the order of the BIFR. The State Government was very much party to the proceedings before the BIFR and State Government supported the scheme in which weaving and processing department provided rationalization of surplus labour was proposed on payment of legal dues and even appeal before AAIFR, State Government and representative Union supported the sanctioned scheme and, therefore, once the State Government itself as well as representative unions, who are party before the proceedings before BIFR and AAIFR in the Appeal, it can be inferred that there was permission of the State Government and, therefore, argument in respect of Page 24 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 breach of Sections 25N and 25O of the ID Act are untenable.
6.6 Learned senior advocate Mr.Patel submitted that the applications preferred by the petitioners before the Labour Court without taking into consideration any previous consent from BIFR and, therefore, those applications were not maintainable. The argument of petitioner that in view of Section 22(1) of SICA was amended with effect from 01.02.1994 by Act No.12 of 1994 by which even suit for recovery of money during the implementation of scheme requires prior permission of the Board and hence the judgment relied uopn by the petitioner in case of Maharashtra Tube (supra) has no applicability in the present case, the applications preferred by the present petitioners according to learned senior advocate were not maintainable as there was no prior consent from BIFR obtained by the petitioners. 7.1 On perusal of record as well as considering the arguments submitted by learned counsel for the parties, it transpires that Ahmedabad New Cotton Mill No.2 ('Mill Page 25 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 Company') stopped working on 10.02.1995 and hence the issue was raised before 'BIFR'. The 'BIFR' sanctioned rehabilitation scheme of 'Mill Company' on 16.10.1996 permitting the petitioner company tobe taken over by Ashima Group. Pursuant to that, a settlement was arrived at wherein the representatives of workers union i.e. TLA and Respondent No.1 - Ashima Group were parties on 08.01.1997 and an award was made by Industrial Court in terms of settlement under Reference (IC) No.1 of 1997. The claim of the present petitioners that vide order dated 17.01.1997, the services of the petitioners came to be terminated is the issue which would go to route of the fact as to whether the approach letter was given within the prescribed period of six months or not and, therefore, what is required to be considered is the pleadings of the present petitioners before the Labour Court as well as the language of communication dated 17.01.1997 which according to the petitioners is an order of termination, whereas according to the respondent is nothing but a payment advice in consonance with the scheme under 'SICA' approved by 'BIFR' and hence on perusal of the Page 26 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 applications made by the present petitioner before Labour Court [Annexure-A, page:29 and Annexure-B, page:36], and from particularly para:2 of the application, it reveals that in all the applications preferred by the petitioner of Special Civil Application No.10724 of 2018, wherein one of the petitioners himself viz. Devtadin Yadav has made specific statement that the mill is closed down.
7.2 Now in view of the same, if the contents of the communication dated 17.01.1997 are seen, what is termed as an order of termination by the petitioners is actually communication whereby the petitioner was informed about the amount of legitimate dues receivable by them. Para:1 of the communication dated 17.01.1997 (page:180 of the petition) makes specific reference about the proceedings before the 'BIFR' and refers that the petitioners are terminated from the services pursuant to the sanctioned scheme approved by 'BIFR' and the communication further states that as per the scheme sanctioned by 'BIFR', dues receivable by the petitioners Page 27 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 are stated thereof. Therefore, as far as contention of the petitioners in respect of the fact that the approach letter, which was given by the petitioners on 04.03.1997 pursuant to the termination of the petitioners with effect from 17.01.1997 was well within time, cannot be accepted in view of petitioner's own admission in his application dated 04.03.1997 [at page:36, para:2] as well as considering the contents of the communication dated 17.01.1997 and, therefore, as far as the issue whether the approach letter submitted by the petitioner on 04.03.1997 was time barred or not can be clearly held to be time barred as the petitioner himself has stated in the application that the 'Mill Company' closed down on 10.02.1995.
7.3 Therefore, the issue in respect of limitation of six months in giving approach letter by the petitioner was rightly decided by the Labour Court and confirmed by the Industrial Court by stating that the cause of action arose on 10.02.1995 and as per the provisions of Section 42(4) of the BIR Act read with Rule 53(1) of Gujarat Industrial Page 28 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 Relations Act, 1946, the workmen were required to give such approach letter within a period of six months from the date of cause of action arose. There is no provision of condoning the aforesaid delay as the petitioners failed to provide such approach letter within six months from 10.02.1995, an application was preferred by the respondent rightly held to be time barred by the Labour Court as confirmed by the Industrial Court. 7.4 As far as contention raised by the petitioners that the application preferred by the petitioner and co- workers was dismissed by the Labour Court on the ground that the petitioner and other co-workers did not obtain any prior permission from 'BIFR' under Section 2(2) of the 'SICA', in this regard the petitioners have relied upon the judgment reported in case of Maharashtra TubeS Ltd. vs. State Industrial and Investment Corporation of Maharashtra Ltd. and another as reported in 1993 (2) SCC 144, however, learned senior advocate Mr.K.M.Patel pointed out that the aforesaid judgment would not be applicable in the facts of the present case simply for the reason that aforesaid Page 29 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 judgment was delivered on January 29th, 1993 whereas thereafter by Act No.12 of 1994, Section 22 of the Act was amended with effect from 01.02.1994 and, therefore, in view of the amendment of SICA Act with effect from 01.02.1994, whereby even the settlement for recovery of money during the implementation of scheme requires prior consent of the Board.
7.5 In the instant case, the application was preferred by the present petitioner in the year 1997 i.e. much after amendment under Section 22 of the SICA in the year 1994 and therefore also since the petitioners did not obtain prior permission and consent from BIFR, the petition preferred by the petitioners was rightly held to be not maintainable by the Labour Court, which was confirmed by the Industrial Court.
7.6 As far as the contention of learned advocate Mr.Upadhyay in respect of the fact that the 'Mill Company' did not obtain prior permission as contemplated under Section 22(O) of the Industrial Page 30 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 Disputes Act and has not followed procedures prescribed under Section 25(N) of the Industrial Disputes Act is concerned, it was pointed out by learned senior advocate Mr.Patel that before the BIFR, the State Government was a party and it supported the scheme in which weaving and processing department provided rationalization of surplus labour was proposed on payment of legal dues. Section 25(N) of the ID Act is in respect of condition precedent to retrenchment of workmen and sub-clause 25(N)(i) provides for prior permission of Appropriate State Government or such authority as maybe prescribed by the Government whereas Section 25(O) provides for procedural for closing down an undertaking and there also Section 25(O) (2) provides that a prior permission from Government is required to be sought before closing down organisation or before the retrenchment of workman/workmen. In the instant case, the company had approached the 'BIFR'. Before 'BIFR' also the State Government as well as the Labour Union were parties. Therefore, it was well within knowledge of the State Government that company has closed down and the Page 31 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 workmen are sought to be retrenched. The scheme was sanctioned vide order dated 16.10.1996 by 'BIFR' after taking into consideration the input submissions and objections that were made by all the concerned parties and thereafter scheme was sanctioned on 16.10.1996. In fact, an appeal also was preferred against the order dated 16.10.1996 sanctioning the scheme by 'BIFR' before the AAIFER and even before AAIFER also scheme was supported by the workers as well as State Government and, therefore, once having ordered sanctioning the scheme dated 16.10.1996 passed by the BIFR as confirmed by AAIFER, Labour Court cannot sit in appeal over such order and therefore also such contention is without any basis and therefore requires to be rejected. 7.7 In fact, the learned Industrial Court has, in its judgment in para:10, while making reference about appeal preferred against the order dated 16.10.1996 by BIFR sanctioning the scheme, has categorically stated that the scheme which was sanctioned by BIFR was placed before AAIFER and the same was not challenged Page 32 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 by any of the party to the proceedings before the BIFR and ultimately while confirming the order passed by the BIFR, the AAIFER was pleased to observed as under:
" It is next contended by the counsel for the appellant that as a result of the scheme only 460 out of 2628 workers could be retained and this has resulted in large scale retrenchment of the workers. No challenge has made against the scheme by any of the workers. On the contrary Mr.Barot appearing for the workers (10th respondent) submitted that the workers whole heartedly support the scheme and the new management. He pointed out that 560 permanent workers and 130 workers are given employment by the new management, that 100% bonus was paid by the new management and the workers are extremely happy and having most cordial relationship with the new management. Further it is pointed out that Rs.12 crores was paid by the new management to the workers including payments to those workers who have tendered resignations. He submitted that when new machineries are installed it would provide work for 200 more persons."
And therefore in view of the above, contention of the petitioner in respect of non-adherence to the provisions as prescribed by Section 25(N) and (O) of the ID Act are also without any basis and hence require to be rejected. 7.8 In view of the above, the judgment relied upon by the petitioner in case of Hindustan Wire Products Ltd. vs. Page 33 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022 C/SCA/10724/2018 CAV JUDGMENT DATED: 04/02/2022 Jaspal Singh and others reported in 2002 (9) SCC 758 as well as in case of Oswal Agro Furane Ltd. and others vs. Oswal Agro Furane Workers Union and others reported in 2005 (3) SCC 224 are also not applicable in the facts of the present case.
8. In view of above discussion, it can be said that both the authorities below i.e. the learned Presiding Officer, Labour Court No.4, Ahmedabad while passing the order dated 06.02.2013 in Application No.249 of 1997 and allied matters and the Industrial Court at Ahmedabad while passing the order dated 24.01.2014 in Appeal (IC) No.9 of 2013 to Appeal (IC) No.38 of 2013 below Exh.7 have not committed any error which would require interference of this Court and, therefore, the present petitions being devoid of merits require to be dismissed.
9. In view of the above, all these petitions are dismissed. Rule is discharged. No order as to costs.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 34 of 34 Downloaded on : Tue Feb 08 21:16:52 IST 2022