Bombay High Court
Vikas Textiles vs Sarva Shramik Sangh on 5 December, 1989
Equivalent citations: [1990(60)FLR630], (1991)IILLJ451BOM
Author: S.P. Bharucha
Bench: S.P. Bharucha
JUDGMENT
Barucha J.
1. This petition impugnes the order dated 6th April 1988 passed by the Industrial Court in a review application under Section 44 of the M.R.T.U. & P.U.L.P. Act. 1971.
2. The petitioner is a sole proprietary concern. It ran a power loom factory at Madhavnagar, Sangli District. It had 5 workmen.
3. By a notification dated August 1, 1974 the minimum wages payable to workmen in powerloom factory was raised. The notification was challenged in a writ petition filed in this Court. By an interim order powerloom factories were required to pay to their workmen 75% of the wages fixed by the said notification.
4. It is the petitioner's case that it was not able to comply even with the order to pay even 75% of the wages prescribed by the said notification. Accordingly, a notice was put up on its notice board on September 17, 1985 to the following effect :
"All the workmen are hereby informed that the factory shall be closed with effect from tomorrow i.e. September 18, 1985. The workmen may note that the eligible workmen shall be paid retrenchment compensation."
The closure of the factory became effective on September 18, 1985. The closure of the factory was communicated to the Factory Inspection Officer, Sangli, and its licence was surrendered. Three out of the factory's 5 workmen did not accept their terminal dues.
5. On October, 4, 1985 the first respondent trade union moved on behalf of these 3 workmen a reference under Section 25 of the M.R.T.U. & P.U.L.P. Act, 1971, before the Labour Court asking for a declaration that an illegal lockout had been declared in the factory from September 18, 1985. The petitioner filed a written-statement in which it was contended that it had permanently closed the factory due to financial inability to make payment of the minimum wages.
6. The only oral evidence that was led before the Labour Court was that of one of the workmen. The relevant portion thereof reads thus :
"Opponent (petitioner) closed factory on September 18, 1985 and made lock out. We enquired. Opponent told of closure, Opponent told that if workers were willing to work on less wages then he may start again. The proprietor produces superfine dhoti. Opponent had his beam unit. He them gave beams for weaving to other powerlooms at Kurundwad etc. He still prepares dhoti. He gets weaving done on piece rate. The Proprietor closed Unit to pressurise workers to work on lesser wages."
The entire cross-examination on behalf of the petitioner reads thus :-
"It is not true that our compensations were paid. It is not correct that proprietor is sick and wants to close units."
7. It appears that documents were submitted on behalf of the petitioner to the Labour Court and, placing reliance thereon, the Labour Court came to the conclusion that there had been a closure of the factory so that there could be no declaration as prayed. The order of the Labour Court was challenged in the revision application filed before the Industrial Court. By the impugned order the Industrial Court upset the Labour Court's order and held that an illegal lockout had been declared by the petitioner on September 18, 1985.
8. Mr. Srikrishna, Learned Counsel for the petitioner, submitted that the Industrial Court had exceeded its jurisdiction because it had reviewed the evidence placed before the Labour Court in passing the impugned order. He laid great emphasis on the notice of closure which we have quoted above and on a receipt issued by the Factory Inspector, Sangli, which stated that information regarding closure of the factory had been received. Mr. Srikrishna also drew our attention to a medical certificate which had been put in at some stage of the proceedings before the Labour Court which showed that Nandlal, who, Mr. Srikrishna said, was the man who was in management of the petitioner, was suffering from certain aortic problems and was under treatment. Mr. Srikrishna relied upon the fact that a writ petition had been filed in this Court impugning the notification which raised minimum wages payable to the workmen of power-loom factories and the interim order that had been passed therein directing proprietors thereof to pay 75% of the minimum wages so fixed. It was Mr. Srikrishna's submission that, having regard to the evidence that was placed before the Labour Court, the Court had come to the reasonable conclusion that there was no illegal lock-out but a genuine closure and that the Industrial Court in revision had no jurisdiction to appraise the evidence to come to the contrary conclusion.
9. The position in law is clear. The power conferred by Section 44 upon the Industrial Court empowers it, insofar as evidence is concerned, to set aside the order under revision when the evidence on record, reasonably read, is incapable of supporting the order. In other words, the Industrial Court may, in exercise of powers under Section 44, overrule the order under revision when its conclusion on evidence is perverse.
10. Now, as Miss Sarnaik, Learned Counsel for the first respondent, pointed out, it was the case of the first respondent before the Labour Court that the petitioner had without notice, illegally, and by an oral order, declared a lock-out from September 18, 1985. In the written-statement a reference was made to the alleged closure notice, but it was not annexed to the written statement. The factum of the closure notice was, therefore, directly in issue. The writ petition refers to two purshis filed by the petitioner before the Labour Court; one, dated September 9, 1986, produced the electricity bill of the factory for the months of November 1985 and May 1986 to show that there had then been no consumption of electricity; the other dated September 23, 1986 placed on record the factory licence. There is no purshis in relation to the closure notice. The only oral evidence that was led before the Labour Court, as aforesaid, was that of the workman. He referred to the oral statement made on behalf of the petitioner and not to any closure notice. There was no cross-examination in this regard. The Labour Court in its order speaks of documents submitted and produced by the petitioner, but it does not appear that they were proved before the Labour Court in the ordinary way. Certainly, the closure notice could not have been placed on the record by consent. The closure notice ought to have been proved by the petitioner. The closure notice, if proved, would have been a strong factor in favour of the petitioner's case but, since it was not proved, no reliance could have been placed upon it by the Labour Court.
11. It was submitted by Mr. Srikrishna that the petitioner had surrendered its factory licence to the Factory Inspector and in that behalf reference was made to a receipt issued by his office. In the first place, that receipt only states that information regarding the closure of the factory had been received. In the second place, the petitioner placed its factory licence on record before the Labour Court by the purshis dated September 23, 1986. In the third place, this receipt also does not appear to have properly come on record. That the petitioner's factory licence was surrendered was not proved.
12. Mr. Srikrishna drew our attention to the medical certificate issued to Nandlal K. Malu and submitted that the factory had to be closed because he was not fit to run it. It was not the contention of the petitioner in its written statement that the factory was being closed, inter alia, for such medical reasons. This medical certificate was produced, apparently for an adjournment, in the course of the hearing before the Labour Court. Reliance, therefore, could not have been placed upon this certificate and it could not have been held that Nandlal ran the factory, that he was medically unfit to go on running it and that that was one of the reasons for its closure.
13. In these circumstances, it does appeal to us the order of the Labour Court that there was a closure of the factory was, upon the record, unjustified and not reasonable.
14. This being so, it lay within the ambit of the Industrial Court's jurisdiction to review the evidence and to reverse the order. Upon such evidence as was on record, the Industrial Court's finding were justified.
15. The petition is dismissed. There shall be no order as to costs.