Dismissed

Maharashtra General Kamgar Union v. the State of Mharashtra and 5 Ors.

Bombay HC4 Jan 2012WP/861/2011

Case brief

AI extract

What is this about?

The Court dismissed the writ petition challenging a No Dues Certificate issued by the Commissioner of Labour. The Court held that since the establishment was not permanently closed but employees were transferred, terminal dues under the relevant Government Resolution were not due, making the certificate valid.

What did the court decide?

Writ Petition dismissed; No Dues Certificate dated 30 May 2009 upheld; No order as to costs.

Maharashtra General Kamgar Union Vs the State… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGNAL CIVIL JURISDICTION

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WRIT PETITION NO. 861 OF 2011

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Maharashtra General Kamgar Union. .. Petitioner.

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versus

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The State of Maharashtra & Ors. ... Respondents.

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.....

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Mr. N.M. Ganguli for Petitioner.

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Mr. Milind More, AGP., for Respondent Nos. 1 & 2.

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Mr. J.J. Xavier for Respondent Nos. 3 & 4.

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Mr. J.P. Cama, Sr. Adv. with Mr. Mahesh Londhe i/by Sanjay

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Udeshi & Co. for Respondent No. 5.

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Mr. Naushad Engineer with Mr. A.T. Suryavanshi i/by

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Markand Gandhi & Co. for Respondent No. 6.

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Mr. Vinod Jadhav with Mr. Prashant Darandale i/by Mr. Vijay

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D. Patil for Respondent No. 7.

......

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CORAM : DR.D.Y.CHANDRACHUD &

A. A. SAYED, JJ.

04 JANUARY 2012.

P.C. :

In these proceedings under Article 226 of the

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Constitution, the Petitioner has challenged a No Dues Certificate issued on 30 May 2009 by the Commissioner of Labour. The

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Court has been informed that the immovable property in question was sold by the Fifth Respondent to the Sixth Respondent in 2007. Consequent upon the No Dues Certificate, one of the requirements for the development of the property, namely, issuance of a No Dues Certificate would stand fulfilled.

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The Government of Maharashtra has from time to

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time issued circulars requiring issuance of a No Dues Certificate

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by the Commissioner of Labour. The Petitioner has annexed

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some of those circulars. On 23 October 2007, a circular was

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issued by the State Government recording that a number of closed establishments had started development work on their lands without making payment of legal dues to their workers. Having received complaints in that regard, Government had decided not to issue no objection certificates for development of land unless and until full and final payment of dues is made to the workers. On 30 October 2007 a GR was issued making it mandatory while changing the use of land owned by closed establishments from industrial to other purposes to obtain a No Objection Certificate from the Commissioner of Labour. A further resolution was thereafter issued on 12 January 2009. The resolution refers to the lands of companies, factories, mills and establishments which have already been closed or which have been permitted to be closed by the Labour Commissioner under Section 25-O of the Industrial Disputes Act, 1947. The resolution states that until the entire legal dues of the workers

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are paid, the Government will not issue a No Objection Certificate for development. Similarly, the Government has

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decided that it would not allow transfer of land without full

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and final payment of the dues of the workers.

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In the present case, it has been submitted on behalf

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of the Fifth and Sixth Respondents that the entire basis of the

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grievance of the Petitioners is unjustified since as a matter of fact there was no closure of the establishment. The 53 existing

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workers were shifted from Mulund to Kalwe where the manufacturing activities were shifted by the management. The workers have filed a complaint of unfair labour practices [Complaint (ULP) No. 548 of 2006] which is pending.

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The grievance of the learned Counsel for the Petitioner is that the Industrial Tribunal has passed an award on 2 May 2009 in a reference under Section 10 of the Industrial Disputes Act, 1947 which has still not been implemented. The Award has been challenged both by the

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management and by the workmen. Hence, it is urged that the Commissioner of Labour ought not to have issued a No Dues Certificate.

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The tenor of the Government Resolution and the

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circulars makes it clear that they are to govern a situation where an establishment has been closed and permission has been sought for the development of the lands. Before this Court it has not been disputed that there has been no closure of the establishment since as a matter of fact, as the impugned order dated 30 May 2009 records, 53 workmen have been transferred from Mulund to Kalwe. The attention of the Court

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has been drawn to the complaint filed by the workmen, of unfair labour practices, before the Industrial Court in Mumbai.

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The complaint proceeds on the basis that the management has shifted the production activities from Mulund to Kalwe and that all the concerned workmen were transferred. The workmen have sought a declaration that the management has engaged in an unfair labour practice and that the shifting of the manufacturing activities was contrary to law. That complaint is still pending adjudication and no final orders have been passed. The position as it obtains therefore is that the workmen who

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have been shifted or transferred from Mulund to Kalwe continue to remain in employment. This is therefore not a situation where within the terms of the relevant GRs. the workers were liable to be paid their dues in full and final settlement of the cessation of the contract of employment. A Division Bench of this Court has held in Biddle Sawyer Ltd., v. Chemical Employees Union¹ that the mere closing of a place of business would not amount to closure since closure constitutes the closing down permanently of the source of employment of the workmen i.e. the place where the employment is actually generated. Since in the present case, what has taken place even according to the complaint of unfair labour practice, is the transfer of the services of the workmen from Mulund to Kalwe, no fault can be found in the impugned order of the Commissioner of Labour dated 30 May 2009. The management has also furnished an undertaking agreeing to bear the financial responsibility in respect of any obligation that may arise thereafter. As regards the Award of the Industrial

1 2007 II CLR 193

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Tribunal, that relates to the service conditions of the existing workmen. It does not relate to any payment which is liable to be made towards terminal dues of the workmen upon the closure of the establishment. For these reasons, we are not inclined to interfere in the exercise of our writ jurisdiction under Article 226 of the Constitution. The Petition is accordingly dismissed. There shall be no order as to costs.

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We however clarify that the observations made in this judgment are confined to the limited controversy involved in the present proceedings which relate to the issuance of a No Dues Certificate by the Commissioner of Labour. The observations made in this judgment shall not come in the way of disposal of the complaint of unfair labour practices by the

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Industrial Court.

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(Dr. D.Y. Chandrachud, J.)

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Maharashtra General Kamgar Union v. the State of Mharashtra and 5 Ors.

Case brief

What is this about?

What did the court decide?

Maharashtra General Kamgar Union v. the State of Mharashtra and 5 Ors.

Case brief

What is this about?

What did the court decide?

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