Bombay High Court
Patel Gas Agencies, A Partnership Firm, ... vs Shri Manohar Son Of Shrawan Dongre ... on 19 December, 2007
Equivalent citations: 2008(2)MHLJ670
Author: A.H. Joshi
Bench: A.H. Joshi
JUDGMENT A.H. Joshi, J.
1. All these petitions involved a common question and hence are decided by a common order.
2. Present petition is a second round of petition to this Court. Petitioner had filed Writ Petition No. 3961 of 2007 challenging order passed by Industrial Court, Akola, in Complaint [ULP] No. 39 of 2007. Relevant record of Complaint [ULP] No. 39 of 2007 was filed by the petitioner in Writ Petition No. 3961 of 2007. Papers of said decided Writ Petition were called for reference.
3. Respondent filed on 20th April, 2007 Complaint [ULP] before Industrial Court, Akola, being Complaint [ULP] No. 39 of 2007, praying for the relief, which is relevant for this case, is as follows:
2. ...and further declare that the respondent No. 1 by not paying the salary during the pendency of the enquiry has committed serious unfair labour practice;....
4. In the Complaint [ULP] No. 39 of 2007, the complainant filed an application under Section 30[2] of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, and prayed for reliefs, amongst which one relevant for this petition reads as follows:
3. ...that the non applicant No. 1 employer may kindly be directed to pay the entire arrears of salary from 01.07.2006 and continue to pay the same during the pendency of the enquiry.
5. It is seen that the foundation of claim of interim relief quoted in the foregoing para is the averment contained in para No. 4 of said application for interim relief. Relevant averment reads as follows:
4. That it is pertinent to note that the non applicant No. 1/Management has not paid a single pie towards the salary to the complainant from 01.07.2006. The management has not suspended the applicant during the pendency of enquiry. Therefore, it is a mandatory duty of the non-applicant No. 1 to pay the salary to the applicant regularly in every month. In spite of personal as well as requests in writing, the non-applicant No. 1/management has not paid any heed and therefore, the applicant was compelled to prefer the application before the Enquiry Officer for directing the non-applicant No. 1 to pay salary to him. However, the non- applicant No. 2 Enquiry Officer has neither directed the employer no has passed any order on the said application....
6. The averment quoted in foregoing para is replied, however, without referring to para 4, though para 4 of reply deals with this aspect. What has been averred reads as follows:
4. It is specifically denied that the non-applicant No. 1 has not paid a single pie to the complainant was the salary from 1/7/2006. It is true that the complainant is not suspended. It is denied that the complainant is entitled to get the salary as alleged....
7. In the order passed below Exh.2, learned Member of the Industrial Court passed order on 18th July, 2007, and held that:
6. All the facts are admitted in this case. It is nowhere mentioned in the reply that the employee is placed under suspension. The employee contends that he is not placed under suspension so far and therefore he is in service. He is entitled to full salary but the employer has not paid him a single pie so far after the charge-sheet is issued to him i.e. 1-7-2006. It is admitted in the reply that they have gone ahead with the enquiry on charges of grave misconduct and they are within their rights to hold an enquiry. The reply does not state anywhere that they have suspended him. On the contrary they admit that they have not suspended him but denied that he is entitled to get salary as alleged. They state that the enquiry is over and misconduct is proved. The report is also about to be submitted an enquiry is at the fag end. The complainant himself is not cooperative and prolonging the matter unnecessary.
8. Consequent upon the finding quoted in foregoing para, the Court passed order as follows:
1] Application Exh.2 is allowed.
2] The respondent No. 1 is directed to pay full salary due to him as per the Minimum Wages Act for the period mentioned supra i.e. from 1-7-2006 to the passing of this order and to report compliance to this Court within seven days.
9. The petitioner then filed Writ Petition No. 3961 of 2007 challenging the order passed below 2 dated 18th July, 2007.
In the body of this petition, petitioner averred about non-payment etc. found by Industrial Court as follows:
III] The petitioner submits that as respondent did not do any work in the establishment of petitioner, since 4/5/2006, he remained continuously absent and consequently he was not entitled to recover any salary from petitioner, still the learned Industrial Court granted prayer made by respondent for grant of salary, with effect from 1/7/2006.
IV] Petitioner submits that the learned Industrial Court did not observe principle of no work no wages.
10. This Court has disposed of the Writ Petition No. 3961 of 2007 with two other petitions by a common order which reads as follows:
Heard Mr. Joshi, learned Counsel for the petitioner. What is under challenge is interim order dated 18.7.2007 below Ex.2 made by the Industrial Court in Complaint U.L.P. No. 39/07 directing the petitioner to pay salary from 1.7.2006 to respondent in accordance with the notifications under Minimum Wages Act within seven days.
2. In my opinion, in view of the serious dispute raised by the counsel for the petitioner about disentitlement of the respondent in receiving the said amount, it would be proper if the petitioner is directed to deposit the said amount with the Industrial Court. Upon such deposit, the Industrial Court shall adjudicate upon the merits of the case and decide the same in accordance with law within a period of four months from the date of receipt of writ of this Court. The Industrial Court shall also decide the quantum of the amount to which the respondent would be entitled. Petition disposed of accordingly. No costs.
11. From above quoted text and emphasized lines, it shall be clear and is conclusive that the petitioner was to deposit entire amount and the Complaint was to be decided within four months and directed the Industrial Court to decide as to what amount the complainant would be entitled to receive. Thus, in the result, the amount so deposited was to remain in deposit until decision of the case before Industrial Court.
12. Soon after this Court's order dated 4th September, 2007, petitioner herein has moved application dated 24th September, 2007 and has prayed for adjustment of advance of Rs. 25,000-00 allegedly paid to complainant in cash on 19th April, 2006. In this application [Exh.19], petitioner has given calculation of amount of salary payable to the respondent for the period for which salary is payable as per the order passed by the Industrial Court on 18th July, 2007 and claimed and has prayed for deduction therefrom and has prayed for stay of order of Industrial Court passed on 18th September, 2007, pending hearing and disposal of application Exh.19. This prayer can be seen at page 26 of paper-book of Writ Petition No. 5763 of 2007.
13. The application [Exh.19] was opposed by the workman by filing Say, wherein he has raised following objections disputing:
[a] the correctness of calculations given by the petitioner, and [b] the alleged advance.
The workman-respondent further urged that even alleged difference is not deposited by the employer in the Industrial Court, and opposed adjustment as impermissible.
14. The learned Member of Industrial Court heard the application [Exh.19] filed by the petitioner claiming deduction and rejected it by order dated 1st November, 2007.
15. In present petition, petitioner has challenged order dated 1st November, 2007. According to petitioner, now he has tendered the Pay Slip towards the amount which was required to be deposited, and has urged before this Court by filing this petition that Exh.19 filed before Industrial Court was liable to be allowed and may be allowed.
16. From the petition as well as oral submissions, it is seen that the petitioner has raised following submissions:
[a] The prayer now made through Exh.19 and in this petition is permissible under Section 32 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act.
[b] That any advance was made and is pending, is a matter requiring fact finding which was liable to be done. Industrial Court was not competent to reject petitioner's claim for deduction without formal enquiry, i.e., ought not to have decided on what prima facie appeared. This has resulted in failure in observing principles of natural justice.
[c] This Court will have to uphold petitioner's prayers and contentions as Industrial Court has failed to exercise jurisdiction vested in it.
17. In support of his submissions, learned Advocate Mr. Wachasundar has placed reliance on various judgments, namely:
[1] Management of the Bangalore Woolen Cotton & Silk Mills Co. Ltd. v. B. Dasappa, M.T. , [2] Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors. , [3] Spun Silk Mills v. Sri Parthasarathy and Ors. 1997 LAB. I.C. 1431, [4] United Catalysts India Ltd. v. Prabhat Mottabhai Gohil 2000 II CLR 494, [5] Smt. Suniti Bala Bakshi and Ors. v. Union of India and Anr. 2004 LAB. I.C. 763, and [6] Kishore Kumar Khaitan and Anr. v. Praveen Kumar Singh .
These judgments are relied upon to urge that deduction of such advance is permissible and an enquiry as to whether such advance was made was necessary, in absence of which, a decision on application claiming deduction would amount to nullity, and if this Court does not entertain the petition, it would amount to refusal to exercise jurisdiction by this Court too.
18. The factual aspect of the matter about the conduct of the petitioner, as emerges from the contents of the reply to the application for interim relief, needs to be adverted to.
[a] It is seen that the Complaint of Unfair Labour Practice under Section 28 was filed by the workman on 20th April, 2007.
[b] Reply to application under Section 30(2) is filed on 29th June, 2007.
[c] Industrial Court passed order below Exh.2 on 18th July, 2007.
[d] Writ Petition No. 3961 of 2007 was filed in this Court on 30th August, 2007.
[e] The said Writ Petition was decided by this Court vide Order dated 4th September, 2007.
[f] During all these days, the petitioner had kept conspicuous silence on the alleged advance given to the workman on 19th April, 2006.
[g] In fact, the petitioner cannot be termed as a very big businessman where the reconciliation of account would not be done timely.
[h] The petitioner is claiming to have given a hefty amount of advance of Rs. 25,000-00. This amount would turn to be hefty and not meagre considering the nature of work, nature of activity etc., where the petitioner claims to be a small businessman and that the respondent-workman is not entitled even for the minimum wages.
[i] In two similar cases, the very petitioner herein claims that advance of Rs. 25,000-00 in one case and about Rs. 37,000-00 in other case was paid to the workman concerned.
[j] The said advances are also sought to be shown to have been entered in the computerized account book maintained by the employer; yet, for over one year's period, it was not sought to be recovered/adjusted even by deduction on a monthly basis or whatever, nor any explanation is coming forward as to why it has so remained pending.
19. The normal human conduct would be to quickly oppose and retaliate an unjust demand. The averment contained in paragraph 4 of the application for interim relief, which is quoted in para 4 above, was, thus, liable to be replied by respondent-employer saying that though on one hand the employer denied liability to pay the wages or Subsistence Allowance in the event the Court finds that such liability existed, no payment would be required in view of the advance. This or a similar plea was not taken in the reply to application [Exh.2].
20. Similarly, any such plea was not agitated when the Writ Petition was filed and the direction to deposit the amount, though is in the language of Court contained in this Court's order dated 4th September, 2007, which is certainly at the instance of the petitioner. The Petitioner could have, at that time only, gone on record as to alleged advance and could have persuaded this Court that such an advance was pending and a direction to deduct the amount corresponding to the said sum be given.
21. Instead of following the course indicated above or any such course, petitioner has ingeniously filed the application 18th September, 2007 and claimed deduction. The prayer contained in the application [Exh.19] exhibits ingenuity, however, it is contemptuous. The petitioner has shown courage of praying to the Industrial Court that Industrial Court's order, which has merged into the order of High Court, should not be acted upon till decision of Exh.19. It is obvious that the learned Member of the Industrial Court did not fall prey to the trick played by the petitioner; else such an effort of deception could prove to be a trap to land the Presiding Officer in difficulty.
22. The conduct of the petitioner is obviously writ large. The prayer before Industrial Court to stay its order, which has merged in the order of this Court, is prima facie contemptuous for which the petitioner deserves to be called to show cause as to why the act of the petitioner in filing application [Exh.19] should not be treated as a contempt of the order passed by this Court as well as pursuing the said application should not be treated as continuation and aggravation of the said contempt and further efforts to initiate action by way of steps to interfere in the process of administration of justice as well. This Court, however, cannot loose sight of the fact that courage behind every wrong motion or wrong action at law is on the strength of legal advice. Petitioner could have claimed adjustment of amount of advance, but by applying before this Court in earlier Writ Petition at least, though not done in Trial Court at first ever occasion. Court would not ordinarily punish a litigant who is prima facie acting on legal advice. This issue can, therefore, be left here without any further enquiry.
23. The circumstances indicated and discussed above demonstrate that the petitioner has failed to make out grounds to claim deduction from amount deposited. Adverse findings are invited by the petitioner. Sum effect of petitioner's conduct exhibits that the story of advance is afterthought, as was not raised at earliest possible opportunity. Moreover, prima facie deduction of such advances is not shown to be permissible deductions under the provisions of Payment of Wages Act, and according to the petitioner, if recovery is permissible, the petitioner should proceed according to law and as may be advised.
24. This Court cannot part with the judgment without observing that petitioner alone knows, as nothing has been brought on record to show as to what forced the petitioner to press for day-today hearing of this Petition, or even move this Court for urgent prayer for interim relief, when this Court had directed in the Writ Petition No. 3961 of 2007 that the amount [when deposited] be dealt with in such a manner as would be decided by the Industrial Court.
25. Learned Advocate for the petitioner pursued this matter exhibiting utmost urgency. In fact, the amount of deposit was kept ready by a Pay Slip dated 6th December, 2007 at Akola. This petition was also filed on 6th December, 2007. Memo of Writ Petition is actually sworn at Akola on 3rd December, 2007, when the Pay Slip could not even be ready obviously because it was issued only on 6th December, 2007. Surprisingly enough, Annexure-E-1 is the Pay-Slip along with its number referred to in the body of Writ Petition and affirmed on 3rd December, 2007. While the petition was filed on 6th December, 2007, it was not moved for immediate circulation till 11th December, 2007 and was thereafter pressed for hearing on day today basis, expressing the apprehension that the amount would be disbursed and petitioner's remedy would be impaired perpetually, if the petition is not heard immediately without disclosing that proceeds of cheque were not till then credited into account of the Court. In fact, the petitioner was and is supposed to know that even the proceeds of the cheque may not have reached the Office of Industrial Court by the date when the petition was pursued, still he has preferred the course of pursuing the petition for urgent hearing.
26. After case was reserved for judgment, this Court has directed the Registry to enquire about the stages and steps taken by the parties in Complaint [ULP] No. 39 of 2007 and called to furnish typed copy of Roznama and furnish information about receipt of proceeds of pay-slip. The information, which is received, is as follows:
[i] Present petitioner has not filed Written Statement, in spite that petitioner sought and got order of expeditious disposal of the Complaint and Complaint is not ripe for final hearing.
[ii] The Pay-slip/cheque [Annex.E-1] was tendered in Industrial Court on 6th December, 2007.
[iii] The Pay-slip/cheque was deposited by Registry of Industrial Court in Bank for collection on 7th December, 2007.
[iv] Any intimation of clearing of proceeds was not received by Registrar, Industrial Court, till 15th December, 2007.
[v] An application for withdrawal/disbursement is not filed by the complainant.
27. In the aforesaid background, there was no threat of the money being withdrawn by the workman and there was no ground as to why the hearing of the Writ Petition should have been pursued on day-today basis. The hearing of complaint has not progressed and the time of Industrial Court was wasted in hearing the frivolous and vexatious application [Exh.19]. Even the employer-petitioner's Written Statement is not filed so far. Complaint is not ripe for hearing. There was no chance of money being taken away by the workman. Writ Petition No. 5759 of 2007 & Writ Petition No. 5760 of 2007:
28. There is no much difference worth mention in the facts of Writ Petition No. 5763 of 2007 and other two Writ Petitions. Therefore, factual discussion about these two petitions is considered to be not necessary. In the result, conclusions/reasons, as recorded in foregoing para, do govern these two petitions.
29. In this background, this Court is satisfied that it is a fit case where the petitioner deserves to be saddled with a cost of Rs. 5,000-00 [rupees five thousand only] separate in each Writ Petition being token cost to deter the abuse of process of Court exercising the writ jurisdiction. The petitioner should deposit the cost so ordered in the Office of High Court Legal Services Sub- Committee, Nagpur, within one month from today. If the cost awarded is not deposited, such failure to deposit would be treated as willful disobedience of order of this Court. Registrar [Judicial] should take a note of this order and list the report, if compliance is not done, for taking suo motu action for contempt before appropriate Court.
30. In the result, all three Writ Petitions are dismissed with orders as above.