Gujarat High Court
Sanjay Hasmukh Shah vs Girdhar Vinayak Machhi on 25 January, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3915 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3916 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3917 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3918 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3920 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3922 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3924 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3926 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3927 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3929 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3930 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3932 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3934 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3936 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3937 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3938 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3940 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3942 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3944 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
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NEUTRAL CITATION
C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SANJAY HASMUKH SHAH
Versus
GIRDHAR VINAYAK MACHHI & 1 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Petitioner(s) No. 1
MRS SANGEETA PAHWA for THAKKAR AND PAHWA ADVOCATES(1357)
for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 25/01/2023
ORAL JUDGMENT
1. RULE. Learned Advocate Mrs.Sangeeta Pahwa waives service of Rule on behalf of respondent No.1
2. This group of petitions is filed essentially against an ex- parte order passed by the Labour Court.. The say of the petitioners it that the petitioner is the son of the erstwhile employer who has expired and that petitioner is an independent person not connected with the 'industry/establishment' in any manner and therefore, any statutory liability of his father and the industry/establishment may Page 2 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined not be shifted on his shoulder.
3. Since common question of law and facts are involved in these matters, with the consent of both the parties, all the matters are taken up jointly for hearing. The facts are recorded from the lead matter i.e. Special Civil Application No.3915 of 2019.
4. The prayers read as under:-
"(a) Be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction in the like nature quashing and setting aside the ex-
parte award and order dated 28.11.2002 passed by the Labour court, Valsad in T Application No. 80 of 1990; ex-parte common order dated 05.02.2013 passed by the Labour Court, Valsad in common Recovery Application No. 152 of 2004 and the order dated 26.10.2018 passed by the Labour Court, Valsad in the Recovery Application No. 4 of 2013 at Annexure A collectively;
(b) Be pleased to stay the execution, operation and implementation of the ex-parte award and order dated 28.11.2002 passed by the Labour court, Valsad in T Application No.80 of 1990; ex-parte common order dated 05.02.2013 passed by Labour Curt, Valsad in common Recovery Application No.152 of 2004 and the order dated 26.10.2018 passed by the Labour Court, Valsad in the Recovery Application No.4 of 2013 at Annexure A collectively during the pendency of Page 3 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined admission, hearing and final disposal of the petition;"
5. The challenge therefore is against order dated 26.10.2018 passed by the Labour Court, Valsad (herein after referred to as 'the Labour Court') in Recovery Application No. 4 of 2013 filed under section 33-C(1) of the Industrial Disputes Act, 1947 (herein after referred to as 'the Act') by the respondent No.1 by which the Labour Court ordered that the petitioner owes Rs.
4,83,929/- to the respondent No.1 and also directed the petitioner to pay Rs. 3,000/-towards costs to the respondent No.1 though the petitioner was not successor of Shri Textiles (herein after referred to as 'the establishment') and the petitioner was neither party in proceedings filed under the provisions of the Bombay Industrial Relations Act, 1946 (herein after referred to as 'the BIR Act') nor party in the proceedings filed under the provisions of section 33-(C) (2) of the Act. The Labour Court also ordered that if the petitioner fails to pay the above said amount to the respondent No. 1 within 30 days of passing of the order, the competent authority shall have to issue recovery certificate.
5.1 The present petition is also filed against the common ex-parte order dated 05.02.2013 passed by the Labour Court in common Recovery Application no. 152 of 2004 filed under section 33-C(2) of the Act by 25 workmen, by which the Labour Court Page 4 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined computed the total amount of Rs. 39,89,070/- for all 25 workmen and held that the said amount was due to all applicants-workmen from the opponents in the said application and in case of respondent No.1 it became due of Rs. 4,83,929/- and also ordered to pay costs of Rs. 2,000/- to the applicants-workmen in the said application. The present petition is also filed challenging the legality, validity and propriety of the ex-parte award and order dated 28.11.2002 passed by the Labour Court in T Application No.80 of 1990 (hereinafter referred to as 'the T application) filed by Shri Girdhar Vinayak Machhi, respondent No.1 workman under section 78 and 79 of the BIR Act, by which the Labour Court directed the establishment to reinstate the respondent No.1 on his original post with continuity of service and full back wages from 15.04.1987 and further to pay costs of Rs. 500/-.
6. Learned Advocate for the petitioner submits that the petitioner is son of Shri Hasmukh M. Shah. The said Shri Hasmukh M. Shah was proprietor of Shri Textiles, which was engaged in the business of cloth weaving. It is submitted that his father Hasmukh M. Shah died on 16.02.2013. The petitioner is neither heir of his deceased father as per the Hindu Succession, Act 1956 nor is the petitioner of successor of establishment. The petitioner was not aware about any proceedings filed under section 78 and 79 of the BIR Act. The petitioner further states that the petitioner was also Page 5 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined not aware about any proceedings being common Recovery Application No. 152 of 2004 filed under section 33-C(2) of the Act. 6.1 The petitioner came to know about the proceedings filed under the provisions of the BIR Act and of the proceedings filed under section 33-C(2) of the Industrial Disputes Act only when the petitioner was served with the notice in the proceedings being Recovery Application No. 4 of 2013.
6.2 No industrial dispute ever existed between the petitioner and the respondent no.1 since no employer-employee relationship between the petitioner and the respondent No.1 ever existed.
6.3 Learned Advocate submits that the petitioner filed reply dated 10.03.2014 to the above said recovery application. In the reply the petitioner denied the allegations made in the recovery application. The petitioner stated that no cause of action had arisen against the petitioner. The petitioner further stated that the petitioner was not aware about any facts as mentioned in para 1 of the said recovery application. The petitioner denied that the petitioner was heir of his deceased father Shri Hasmukh M.Shah as alleged. It was also denied that the petitioner had inherited any movable or immovable property of his deceased father. The petitioner also stated that the petitioner had not succeeded the Page 6 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined business or establishment of his deceased father as successor. The petitioner stated that the petitioner, being son of his deceased father, is not liable to pay any dues of any person. In his reply, the petitioner also stated that the petitioner was not party in the proceedings as mentioned in para 3 of the said recovery application. The petitioner further states that the petitioner had not been served with any notice as alleged in para 3 of the recovery application. The petitioner further states that no order has been passed against the petitioner and therefore, in the proceedings filed under section 33-C(1) of the Act, the petitioner cannot be held liable. The petitioner stated that no industrial dispute ever existed between the petitioner and the respondent no. 1 as there was no employer-employee relationship between the petitioner and the respondent No. 1 and hence, the Labour Court had no jurisdiction to proceed with the said recovery application. Thus, the petitioner stated that the petitioner is not liable to pay any amount to the respondent no. 1 nor the respondent no. 1 is entitled to receive any amount from the petitioner.
6.4 Learned Advocate further submitted that the petitioner filed his affidavit dated 19.06.2017 before the Labour Court. In his evidence the petitioner stated that his deceased father Shri Hasmukh M. Shah had factory of cloth weaving in the name of Shri Textile when he was student. He stated that he had not inherited Page 7 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined any property, movable or immovable, of his deceased father. The petitioner also stated that his father did not own any property, movable or immovable, at the time of his death. In his evidence, the petitioner also stated that he was not heir of his deceased father. The petitioner also stated that he was never helpful to his father in his business. The petitioner also stated that he had not vested any right or interest in the business of his deceased father. The petitioner stated that the factory was closed down. The petitioner further stated that he was not aware as to for what reasons factory was closed down. The petitioner stated in his evidence that he was not aware about any allegations made by the respondent no. 1 in his evidence. The petitioner stated that since he was not heir of his deceased father, he was not legally liable to pay any dues. 6.5 It is argued that order passed by the Labour Court in recovery application filed under section 33-C(1) of the Act is without jurisdiction. It is submitted that no employer-employee relationship ever existed between the petitioner and the respondent No. 1 and hence, no industrial dispute ever existed between the petitioner and the respondent No. 1 and therefore it is submitted that the Labour Court had no jurisdiction to pass any order. That in the absence of the petitioner being impleaded as party in the proceedings under section 33-C(2) of the Act, the Labour Court cannot pass any order against the petitioner in the Page 8 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined proceedings under section 33-C(1) of the Act since no proceedings under section 33-C(2) of the Act was initiated against the petitioner. The Labour Court ought not to have entertained common recovery application filed under Section 33-C(2) of the Act since the same was filed as common application by all the workmen. It is submitted that nothing under the Act provides for filing of common application. It is further submitted that even otherwise such kind of application is not maintainable since each workman had filed different T application in which separate award was passed by the Labour Court.
6.6 It is argued that the recovery application under section 33-C(1) of the Act is not maintainable before the Labour Court. It is submitted that once the Labour Court determines the amount in recovery application under section 33-C(2) of the Act, no any recovery application under section 33-C(1) of the Act lies before the Labour Court. Thus, it is submitted that the Labour Court exceeded its jurisdiction. That no notice was served to the establishment and Shri Hasmukh M. Shah was not party in the proceedings of the T application. Thus, the impugned order passed in the common recovery application was in violation of principle of natural justice. Since Shri Hasmukh M. Shah was not party in the proceedings of the T application, the Labour Court ought not to have entertained the common recovery application against Shri Page 9 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined Hasmukh M. Shah.
7. As against this, learned Advocate for the respondents submitted that the petitioner-employer has challenged the ex-parte award dated 28.11.2002, ex-parte order dated 5.2.2013 u/s. 33(c) (2) of Industrial Disputes Act, 1947 and the order dated 26.10.2018 passed against the petitioner u/s. 33(c)(1) of ID Act. The order u/s. 33(c)(1) and 33(c)(2) is in pursuance to ex-parte order dated 28.11.2002. The ex-parte award cannot be challenged before this Court and the petitioner has to approach the Labour Court u/s. 118(B) of the Bombay Industrial Relations Act. Assuming that the ex-parte award can be challenged before this Court, then also, there is a delay of 17 years and as per Sec.118(B) of BIR Act, the ex-parte order has to be restored within 30 days. It is submitted that the ex-parte order cannot be restored after the recovery certificate is issued. Assuming that the ex-parte award can be challenged without approaching the Labour Court under Section 118(B) of BIR Act, then also, the petitioner has to file appeal against the ex-parte award before the Industrial Tribunal under Sections 84 and 85 of BIR Act since the Labour Court has passed the award under Section 78 of the BIR Act. The contention of the petitioner that under Section 33(C)(1) of the ID Act only appropriate Government has power, is not just and proper because it appears that the State Government has given this power to the Page 10 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined Labour Court. In all the mattes, the Labour Court sends the order passed under Section 33(C)(2) to the Collector for issuing recovery certificate. In the present case also, the Labour Court has sent the order passed under section 33(C)(2) to Collector. The contention of the petitioner that notice given by the worker which is produced @ Pg.48 of the record of the petition is as per Section 42(2) and Rule 53(1) whereas, it should have been under Section 42(4) and therefore, contention may not be accepted.
8. As per Section 42(2) of the BIR Act, a notice has to be given when the dispute does not fall in Schedule-I or Schedule-III. Section 42(4) provides that a notice has to be given in particular form if dispute falls in Schedule-III. Schedule-I provides the dispute raised under Section 35. Schedule-II and Schedule-III provides for dispute raised under Section 42. In the present case, the dispute raised by the worker is of dismissal, which is provided in Schedule- II Clause 3 and therefore, notice under Section 43 is just and proper. Assuming without admitting that notice is to be given under Section 42(4) then also, the notice is given by the worker on 9.5.1987 regarding illegal termination, which is produced @ Pg.48 of the record and thus, the notice of dispute is given to the employer. Nomenclature of such section would not make any difference. In substance, notice has to be given, which is given by the worker in the present case.
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NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined 8.1 Extensive reliance is placed on the judgment of this Court in case of (Shri) Dhirajlal Madhvlal Bharati Vs. Shri R.S.Shukla, The Presiding Officer, First Labor Court, Ahmedabad & Ors., reported in 1981 GLH, 89 in support of the argument of not to condone delay as it would result in injustice. 8.2 During the course of argument against the learned Advocate has placed a copy of recovery certificate dated 03.4.2019 and submitted that after this step, the clocks cannot be set back.
9. Having heard learned Advocates for the parties and having perused documents on record, it appears that respondent No.1 filed T-Application No.80 of 1987 dated 31.08.1987 before the Labour Court, Navsari under Section 78 and 79 of the BIR Act. In the said T application, it was alleged that various demands were made by the respondent No.1-workman along with the other workmen to the establishment. It was also alleged that since the establishment did not agree to meet with the demand No. 2 in respect of dearness allowance, the settlement could not be materialized. It was further alleged that the establishment, without making payment of any dues or issuing any notice to the respondent no.1 and other workmen, closed down its undertaking/factory. It was further alleged that the respondent no. 1 issued letter, under section 42(4) of the BIR Act, requesting the Page 12 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined establishment to reinstate with back wages. Thus, the respondent No.1 sought prayer from the Labour Court against the establishment to reinstate him with continuity of service and back wages and also to hold that the action of the establishment terminating the respondent No.1 from 15.04.1987 was illegal. In written statement dated 19.04.1988 filed by the establishment, the establishment denied allegations made in the T application. It was stated in the written statement that the approach letter as alleged was not sent to the establishment. It was further stated that since settlement in respect of the demand was not materialized, in order to pressurize the establishment, the respondent No. 1 and other workmen went on illegal strike on 15.04.1987. It was also stated in the written statement that to hold the strike illegal, the establishment had filed proceedings being application no.4 of 1987 before the Labour Court, however, the petitioner is not aware about any such proceedings. It was stated in the written statement that the T application was filed as counter blast to the application no.4 of 1987 filed by the establishment. In his evidence, the respondent no.1 stated that he was terminated from services from 15.04.1987 without any notice or without holding any inquiry. The respondent No. 1 further stated that he was terminated by Shri Hasmukh M. Shah who was owner of the establishment.
10. The Labour Court, by ex-parte award and order dated Page 13 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined 28.11.2002, entertained the T application and directed the establishment to reinstate the respondent No. 1 on his original post with continuity of service and full back wages from 15.04.1987 and further to pay costs of Rs.500/-. The petitioner states that advocate of the petitioner remained negligent and did not remain present after filing of reply in the proceedings filed by the respondent no.1 under the provisions of the BIR Act and therefore, the establishment could not lead evidence. The petitioner further states that no notice was issued by the Labour Court to the establishment prior to closing the stage of evidence of the establishment and/or to passing of the award and therefore the award passed against the establishment was in violation of principles of natural justice.
11. Respondent no.1 along with other twenty four workmen filed common recovery application No. 152 of 2004 under section 33-C(2) of the Act against the establishment and Shri Hasmukh M. Shah though Shri 4 Hasmukh M. Shah was not party in the proceedings of the T application before the Labour Court. The petitioner states that the said recovery application is not maintainable against Shri Hasmukh M. Shah. In the said recovery application, the respondent no. 1 along with other workmen claimed an amount of Rs.43,59,112/-.
12. Respondent No.1 led his evidence by affidavit dated 16.10.2007 (Exh.12) before the Labour Court in common Recovery Page 14 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined Application No.152 of 2004. In this affidavit, the respondent No.1 stated that he made claim of Rs.5,31,981/- as per the award. The Labour Court, by ex-parte order dated 05.02.2013, computed different amount in respect of each workman and into the Labour Court computed an amount of Rs.39,89,070/- and thereby entertained the common recovery application No.152 of 2004 and directed the opponents of the said application to pay the difference amount so computed to each workmen and further to pay costs of Rs.2,000/- to the workmen. Though the establishment was not served with the notice and the recovery application was not maintainable against Shri Hasmukh M. Shah, the Labour Court entertained common recovery application. The respondent No.1 filed recovery application No.4 of 2013 before the Labour Court under Section 33-C(1) of the Act for issuance of recovery certification of RS.4,89,929/- as per the order passed in common Recovery Application No.152 of 2004. The respondent no. 1 was aware of the fact that Shri Hasmukh M. Shah died, the respondent No.1 impleaded the said deceased as opponent no. 1 in the recovery application. The petitioner further states that though the petitioner, neither in the proceedings of the T application nor in the proceedings filed under section 33-C(2) of the Act, was party, the respondent no.1 allegedly impleaded the petitioner as Opponent No.2 in the proceedings of recovery application under section 33- C(1) of the Act. In the said recovery application, the respondent Page 15 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined No.1 stated that the establishment was closed down for a very long time. In the said application, the respondent No.1 alleged that the petitioner is heir of deceased Shri Hasmukh M. Shah. It was stated in the said application that notice dated 13.04.2013 sent to Shri Hasmukh M. Shah through advocate was returned with postal endorsement Expired.
13. Considering the chronology, the proceedings though have proceeded being intermittently attended by this establishment and more particularly by the petitioner who was brought into the litigation just on account of the broad relation and the petitioner has also intermittently participate, though much reluctantly, the core issue that would require consideration of the very First Court is whether the petitioner can be proceeded against in place of his father, who was heading the establishment where the respondent was employed.
14. This Court will take into consideration decision in case of Rasulbhai Pirbhai Shaik Vs. Jasumatiben Indravadan Trivedi, reported in 1993 (1) GLR 519, the Division Bench of this Court has held in Para-6 as under:-
"6. That was a case where the workman had died during the pendency of the reference. The Madras High Court was called upon to examine, whether the heirs or legal representative of the workman could continue the Page 16 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined said proceedings. It was in that context that the above observations were made by the Madras High Court while interpreting Section 18(3) of the Act. Consequential effect on the adjudication proceedings on the death of an employer would be quite different from the consequences following the death of a workman. Even if an employer dies, his industrial establishment may continue in the hands of his heirs and legal representatives. The claim which the workman makes against the employer, is qua the employer, not of a personal nature but because he happens to be the owner of the industrial establishment. The relief which the workman may be claiming can be granted even after the death of the employer, if the industrial establishment either remains in the hands of the successor in interest or in the heirs and legal representatives of the deceased employer. Merely because the name of the employer would thereafter change, it cannot be said that there is a substitution by a fresh dispute of the dispute, which was referred earlier to the Court by the Government. Section 18 of the Act provides that a settlement or an award, once it has become enforceable and if the employer is a party to it, shall be binding on the employers, heirs, successors, assigns in respect of their establishment to which the dispute relates. The rights of the workman against the employer qua his establishment cannot be made to die with the death of the employer. There does not appear to be any justification for taking such a view. Neither the provisions of the Industrial Disputes Act nor any Page 17 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined principle of law requires us to take such a view. On the contrary, we are of the opinion that it would be consistent with the provisions of the Industrial Disputes Act to hold that the rights of the workman would survive even against the heirs and legal representatives of the employer, no doubt, qua the establishment to which the dispute relates, either because they have not inherited the said establishment or for any other reason, then, obviously, they cannot be joined as parties to the proceedings. But that is quite different from saying that the Labour Court has no power to bring the heir or legal representative of the employer on record in a matter which is referred to it under Section 10 of the Act. In our opinion, the observations made by this Court in the case of Management of Bank of Baroda's case (supra) and those of the Supreme Court in Hochtief Gammon's case referred to above, do lend support to this view."
15. The Apex Court in case of Central Inland Water Transport Corporation Ltd. Vs. The Workmen & Anr., reported in 1974 AIR (SC) 1604, has held in Para-20, as under:-
"20. The several problems raised by the above contentions involve in effect a major industrial dispute, an investigation in to which is quite outside the scope of Section 33(C)(2). Only on a detailed investigation would it be possible to determine whether the workmen had any right to a benefit and, if so, the, Corporation was liable to satisfy the same. The other question which would be necessary to decide is whether the Page 18 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined Corporation was a successor of the defunct Company. As pointed out in Anakapalli Co-operative case, already referred to, the question whether a transferee of an undertaking is a successor or not involves consideration of several factors as set Out at pages 737 to 738 of the report. Such an investigation would clearly be quite outside the, speedy individual remedy contemplated by section 33(C)(2). Assuming further that on such investigation, the court comes to the conclusion that the Corporation is a successor, that again will not settle the matter because, as pointed out in that case, in view of Section 25-FF the transferee even as a 'successor would be liable neither to pay compensation to nor to reemploy the workmen whose employment stood automatically terminated on the transfer. Where the operation of the law viz. Section 25-FF the employment of workmen stands terminated, it may be difficult to sustain it on the basis of a term in a settlement' prohibiting retrenchment, though statutorily binding on the transferee as a successor. It is perfectly arguable that such an argument would not have been available even against the transferor of the undertaking in view of Section 25-FF. In any event, the question is not one which the Labour Court could be expected to deal with in a proceeding u/s 33(C)(2) the principal business where-under is just computation of a benefit demonstrably existing. In short, the problems raised are appropriate for determination in an Industrial Dispute on a reference u/s 10 of the Act and cannot be regarded as merely 'incidental' to the computation u/s. 33(C)(2)."Page 19 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023
NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined
16. The Court is therefore of the view that the aforesaid issues were never addressed by the Labour Court full-fledgedly and in right perspective, thereby overlooking a very relevant contention of burdening the petitioner a liability with which the petitioner has no connection.
17. This, in the opinion of the Court, needs to be re-looked by the Labour Court in the light of the provisions of law and in light of the judicial pronouncements.
18. In the opinion of the Court in the facts of the case, the issue of delay will not be able to overreach the injustice caused to the petitioner, where the orders were passed ex-parte and that too against an entity with which the petitioner has no connect. The least that the petitioner deserves is to put his case before the very first forum, which has proceeded ex-parte and that too when the petitioner is not a party but has now to face the consequences in full as his stand alone burden. Therefore, it is all the more necessary for this Court to step in and set the proceedings right to enable the petitioner to agitate the issue afresh.
19. The Court for the aforesaid reasonings has no hesitation in setting aside the impugned awards and orders. Accordingly, the petitions are partly allowed. The impugned orders and awards dated 28.11.2002 passed by the Labour court, Valsad Page 20 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023 NEUTRAL CITATION C/SCA/3915/2019 JUDGMENT DATED: 25/01/2023 undefined in T Application No. 80 of 1990; ex-parte common order dated 05.02.2013 passed by the Labour Court, Valsad in common Recovery Application No. 152 of 2004 and the order dated 26.10.2018 passed by the Labour Court, Valsad in the Recovery Application No. 4 of 2013 are set aside. The case remanded back to the Labour Court to take up the respective T-Applications as each respondent afresh by issuing the notice to both the sides afresh.
20. Rule is made absolute to the aforesaid extent. No order as to costs.
Direct service is permitted.
(A.Y. KOGJE, J) SHITOLE Page 21 of 21 Downloaded on : Sun Sep 17 21:10:10 IST 2023