Allowed

Britannia Industries Ltd. v. Maharashtra General Kamgar Union and Anr.

Bombay HC16 Sept 2008NMW/79/2008

Case brief

AI extract

What is this about?

A notice of motion was allowed directing the employer to pay workmen full last drawn wages under Section 17-B of the Industrial Disputes Act. The court held that unfilled affidavits relied upon in earlier consent terms did not preclude statutory entitlement when conditions under Section 17-B and the deemed illegal closure under Section 25-O(6) were met.

What did the court decide?

The respondent employer was directed to pay the workmen listed in Exhibit 'A' full wages in accordance with Section 17-B of the Industrial Disputes Act.

Britannia Industries Ltd. Vs Maharashtra… — Pension and Retirement Benefits | Bombay HC (2008)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 NOTICE OF MOTION NO. 79 OF 2008
 IN

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WRIT PETITION NO. 2659 OF 2005

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 Britannia Industries Ltd. ..Petitioners

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 versus

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 Maharashtra General Kamgar
 Union & Anr. ..Respondents

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 Shri C. U. Singh, Senior Advocate with Mr. P. M.
 Palshikar for the Petitioners.

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 Shri Anand Grover with Ms. Susan Abraham i/b.
 Prakash Mahadik for the Respondent No.1.

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CORAM : S. A. BOBDE, J.

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DATE : 16TH SEPTEMBER, 2008.

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ORAL ORDER :

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 . Heard learned counsel for the parties.

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 2. This Notice of Motion is taken out by the

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 respondent No.1 - Union asking for payment of full
 last drawn wages under Section 17-B of the
 Industrial Disputes Act. The Union is a respondent
 to a petition filed by the employer against the
 Order of Industrial Court refusing permission for

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 closing down a Unit of the employer - Britannia
 Industries Ltd.

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 3. Rule was issued on the petition in February
 2006. It was made returnable in 2nd week of June,
 2006. Pending the petition, parties agreed to
 Minutes of Order dated 13.2.2006. An aspect of the
 Minutes of order which is significant to this Notice
 of Motion is that the workmen were to be paid 50% of
 the last drawn wages from the period beginning the
 month following the month for which he was paid.

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 4. The writ petition was taken up for final
 hearing but a question arising therefrom has been
 referred for decision to a Larger Bench. In view of
 the further anticipated delay in the hearing of the
 writ petition and having regard to an order of this
 court dated 16.1.2008 permitting that the notice of
 motion may be moved if the matter does not reach for
 hearing within a reasonable time, the workmen shall
 move the present application.

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 5. In short, the contention on behalf of the
 workmen is that they are entitled to full last drawn
 wages under Section 17-B of the Industrial Disputes
 Act, which reads as follows :

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 "17B. Payment of full wages to workman
pending proceedings in higher courts.- Where
 in any case, a Labour Court, Tribunal or
 National Tribunal by its award directs
 reinstatement of any workman and the
 employer prefers any proceedings against
 such award in a High Court or the Supreme
 Court, the employer shall be liable to pay
 such workman, during the period of pendency
 of such proceedings in the High Court or the
 Supreme Court, full wages last drawn by him,
 inclusive of any maintenance allowance
 admissible to him under any rule if the
 workman had not been employed in any
 establishment during such period and an
 affidavit by such workman had been filed to
 that effect in such Court:

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 Provided that where it is proved to the
 satisfaction of the High Court or the
 Supreme Court that such workman had been
 employed and had been receiving adequate
 remuneration during any such period or part
 thereof, the Court shall order that no wages
 shall be payable under this section for such
 period or part, as the case may be].

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 6. Mr. Singh, learned counsel for the

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 petitioner strongly contended that the Minutes of

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 Order were arrived at after negotiations and signed

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 by consent of parties and there is no reason to

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 alter the circumstances ordered by the Minutes in

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 the absence of any change. This contention is not
 acceptable in view of the order of this court dated
 16.1.2008 in which this court specifically granted
 permission to renew the prayer in this Notice of
 Motion being after some time in the event the writ

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 petition does not reach for hearing within a
 reasonable time. It must also be noticed that what

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 was submitted by the parties to this Court for the
 purpose situation were not Consent Terms but Minutes
 of Order. The learned counsel for the petitioner -
 employer is not entirely accurate in the submissions
 that the interim arrangement was by consent, vide a
 Judgment of the Supreme Court reported in [ (1996) 6

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SCC 705 Speed Ways Picture Pvt. Ltd. & Anr. v.

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Union of India & Anr. Thus, in the circumstances,

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 the Notice of Motion is eligible for being

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 considered on merits since the matter has not been
 heard as contemplated by the parties and having
 regard to mandate of Section 17B of the Industrial
 Disputes Act.

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 7. Mr. Singh, learned counsel for the
 petitioner - employer submitted that when the

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 Minutes were signed there were 280 workmen in
 question. Out of these about 130-140 has since
 taken VRS. However, at the time of entering the
 Minutes all the workmen took advantage of the
 negotiations and therefore the petitioner agreed

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 that they need not file affidavits that they were
 not gainfully employed, which is otherwise required
 of Section 17B of the Act. According to the learned

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 counsel the workmen were thus relieved of filing
 affidavit that they were not employee and yet became
 entitled to get 50% of the wages. Now, according to
 the petitioner they would not be entitled to make a
 prayer in the alternative.

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 8. There is no merit in this contention. It

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 must be noted that though some workmen later on have
 accepted VRS, which was offered by the petitioner -
 employer, the remaining workmen have actually filed
 affidavits that they have not obtained any gainful
 employment elsewhere. These affidavits have not
 been rebutted. Thus, the prerequisites of Section
 17B have been complied with. It is also clear that
 there is no stay to the effect and operation of the
 order of the Industrial Court and it must be taken
 that Section 25-O(6) applies with full effect.
 Section 25-O(6) reads as follows:-

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"25-O. Procedure for closing downan
undertaking.- (1) ....

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 (2) ....
 (3) ....
 (4) ....
 (5) ....

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 (6) Where no application for permission

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 under sub-section (1) is made within the
 period specified therein, or where the
 permission for closure has been refused, the
 closure of the undertaking shall be deemed
 to be illegal from the date of closure and
 the workmen shall be entitled to all the
 benefits under any law for the time being in
 force as if the undertaking had not been
 closed down."

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 9. In the circumstances, there is no reason why
 the Notice of Motion should not be allowed. The
 Notice of Motion is in the circumstances allowed in
 terms of prayer clause (a), which reads as follows:-

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 "(a) Pending hearing and final disposal of
 the present Petition, the order dated
 13.2.2006 passed in the present petition be
 modified and for further order directing the
 Petitioner to pay the workmen, whose names
 are listed at Exhibit ’A’to the affidavit
 in support of this Notice of Motion, wages
 in accordance with the provisions of Section
 17B of the Industrial Disputes Act as per
 the impugned Award dated 12.8.2005 of the
 Industrial Tribunal;"

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(S. A. BOBDE, J.)

Britannia Industries Ltd. v. Maharashtra General Kamgar Union and Anr.

Case brief

What is this about?

What did the court decide?

Britannia Industries Ltd. v. Maharashtra General Kamgar Union and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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