Bombay High Court
Girni Kamgar Sangharsha Samiti And Ors. vs Khatau Mackanji Spinning And Weaving ... on 28 January, 1998
Equivalent citations: [1998(79)FLR568], (1998)IILLJ264BOM
Author: S. Radhakrishnan
Bench: S. Radhakrishnan
ORDER
1. Rule.
2. As far as interim relief is concerned, it is undisputed that the wages of workmen for the period of March 1997 and onwards are payable and the same have not been paid. Respondent No. 6 which is a representative union as per the case of the petitioner is not taking effective steps to recover the aforesaid dues. As far as petitioners are concerned, they not being representative unions have no locus standi to move the Industrial Court under the MRTU and PULP Act. Though the B.I.F.R. is a statutory body and the proceedings have been initiated at the instance of Respondent No. 6, no relief so far has been granted. It is therefore left with no option but to approach this Court in writ jurisdiction. In the instant case, over 5000 workers are involved and wages for the period from March 1997 till date have not been paid, driving the workers to a dire penury state.
3. It is no doubt true that the proceedings in respect of Respondent No. 1 is pending before the B.I.F.R. It is not disputed on behalf of Respondent No. 1 that the wages are due and they have remained to be paid. All that is contended is its inability. It is further conceded on behalf of Respondent No. 1 that the Board of Directors of Respondent No. 1 is at present not functioning effectively as the 4th Director has been withdrawn by the State Bank of India. Hence, 1 the directions issued by B.I.F.R. for sale of stock for the purpose of satisfying the dues to wards the wages and also to meet the liabilities of financial institutions, have not been implemented.
4. In the peculiar situation which has arisen, we find that the petitioners are entitled to the interim relief, and passing of directions mainly for payment of wages deserves to be considered.
5. The Gujarat High Court in the case of Textile Labour Association v. State of Gujarat (1994-II-LLJ-303) has held as under:
Paragraph No. 20......
"The question involved in this petition is of right to life and livelihood of 2700 workmen and their families. The Court cannot be oblivious of the fact that on account of closure of numerous mills in Ahmedabad, utterly miserable conditions have resulted for the families of the unemployed workmen. There have been instances of suicides because of utter economic hardships on account of unemployment of such mill workers. There have been cases of premature deaths because of lack of economic support, medical treatment and medicines. Many other undesirable consequences follow even driving the people to criminal activities including prostitution. In such miserable circumstances, if right to livelihood and a bare necessity of human dignity cannot be enforced, though guaranteed by the Constitution, the Court cannot justify its existence for the enforcement of fundamental rights. Article 21 guarantees at least that minimal."Paragraph No. 21
"In the present case, it is not in dispute that the workers have worked for these months and are entitled to wages. This fact is not disputed by the Employer and cannot be disputed by anyone. When the Supreme Court observed in the aforesaid case that the workers have contributed their labour and it is as a result of their hard work that the stocks could be produced, therefore, it would rank in priority, the Supreme Court has recognised a kind of lien on the goods in respect of the wages of the workmen in respect of their unpaid wages and the goods produced by their labour. The Supreme Court was not deciding the question of priority in time as to whether this payment was required to be made as a preferential payment in view of its urgency. The contest was between the claim of wages of the workmen and the claim of secured creditors. There was no question about the preference in point of time, but the question was of priority or superiority of the claim and the Supreme Court has held that the subsistence and living of the workmen is of paramount importance and has to rank with highest priority. It is true that the Supreme Court has done this in the peculiar facts of the case and by a subsequent order has further stated that it shall not be treated as a precedent. Nonetheless, when the facts are identical, if the High Court adopts the same procedure, reasoning and approach, the High Court will be acting perfectly in accordance with law and justice. If High Court were to act otherwise it would be against law and justice."Paragraph No. 24
"The contention that the peculiar facts of Rohtas Industries case were different has also no merit. It is submitted that in that case, the petition was under Article 32 of the Constitution, there was winding up petition pending and a revival scheme was being evolved and the Supreme Court had found that other securities were sufficient and the interest of the Bank would not be jeopardised. These are the differences without distinction. None of these is a material difference. The relevant and material facts are identical, namely that thousands of families of workmen were deprived of their livelihood inspite of having actually worked and 'produced goods and out of sale proceeds of those goods, they were not being paid their wages. In view of these peculiar and crucial facts, the Supreme Court had passed the order and while doing so, the Supreme Court had brushed aside various claims of financial institutions which were secured creditors. Not only that, the Supreme Court has gone further and brushed aside even the higher priority of dues of public revenue and taxes and directed that the workmen should be paid their wages first and thereafter if there is any surplus, it would be paid towards the sales tax and excise duty and the claim of the secured creditors would come thereafter and ' for going to that extent and fixing priorities, the Supreme Court has observed that the saving of human lives should be paramount and that view has been endorsed again in the case of Rohtas Industries, reported in (1987-'. II-LLJ-1), and it was observed that even the payment of public dues has to be postponed for saving human lives."Paragraph No. 25
"A similar view has been taken by another Division Bench of this Court in the case of Amruta Mills, referred to earlier. In that case also, following the Supreme Court judgment, the High Court had given priority to the payment of wages for the period for which the workers have already worked, over the claim of secured creditors."
6. In the case of Workers of M/s. Rohtas Industries v. Rohtas Industries Ltd. (1987-II-LLJ-1) the Apex Court in its Judgment has observed atp.2:
"6. After the sale proceeds are received by the Official Liquidator, if he finds that sufficient surplus funds remain in his hands after paying the wages as directed, he would pay the taxes, sales tax and the excise duty. In case there be no surplus, payment of the taxes may be deferred for some time and the Official Liquidator is directed to explore possibilities of tapping other sources for raising fund to meet those liabilities. The workmen have been facing challenge to their lives and this Court on the earlier occasion indicated that in fixing priorities, saving of human lives should be paramount. We endorse that view. That has been the consideration for postponing payment of the public dues, if necessary".
7. The above proceedings would make it clear that in a situation like the one arising in the present case the remedy of writ petition was resorted to both by the Supreme Court of India and Gujarat High Court. This Court (Co-ram: Srikrishna, J.) in the case of Bapurao P.Tawade and Ors v. HFS Ltd. Bombay and Ors. (1995-III-LU (Suppl)-265) after making a reference to the case of Modi Industries (1994-1-LLJ-383) (SC) 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 contentions that the payment or earned wages to the workmen (it cannot be disputed that payment under settlement would be "wages within the meaning of Section 2(ii) of I.D.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 SIC A 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."
8. Having regard to the aforesaid pronouncement, we prima fade found that, in a case where wages are undisputedly due, financial inability is no defence for non-payment. In the circumstances, we direct the 1st respondent to make payment of workers who have attended and signed the muster for the period March, 1997 and onwards. This be done within a period of six weeks from today.