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Judgment
H.K. Rathod, J.—Heard learned Senior Advocate Mr.Kamal B. Trivedi with learned advocate Mr. Naik for M/s.Trivedi & Gupta on behalf of applicants - original petitioners and learned advocate Mr. Dipak R. Dave for the opponent.
Present Civil Application is filed by applicants for modification of the order passed by this Court on 20.2.2006 in SCA No. 134 of 2006, which is quoted as under:
Notice, returnable on 06th March, 2006.
In the meantime, the impugned order passed by the Industrial Tribunal, Surat be stayed to the extent of the direction given by the Tribunal to reinstate the employees whose names are mentioned in the operative part of the order dated 06.12.2005.
So far as disposal of the assets of the petitioner company is concerned, if BIFR issues any direction it is open for the the petitioner to approach this Court for suitable modification in the order.
Thereafter, on 20.4.2006, this Court has confirmed the earlier order passed by this Court, which is quoted as under:
Heard the learned Advocate, Mr. K.M. Thakar, appearing on behalf of petitioner, learned Advocate Mr. Dipak Dave and learned Advocate, Mr. P.S. Chari, appearing on behalf of respondent.
In the present petition, the petitioner - Company has challenged the interim order passed by Industrial Tribunal, Surat upon Exh.9 in Reference (IT) No. 15 of 2005 dated 6th December,2005. The Industrial Tribunal, Surat has passed an interim order to the effect that during the pendency of reference till it decided finally, it is directed to the petitioner not to sell the land and properties to any person or to transfer or to dispose of such property and land to any other person. The Industrial Tribunal, Surat also granted reinstatement of Shri M.A. Kagji, Shri N.J.Zhariwala, Shri Jayendrabhai M. Shah, Shri N.D. Panjangira, Shri Jitendra A. Patel, Shri Pravinbhai Gangadwala and Shri Rajnikant Karsanbhai. The said reinstatement has been granted on the ground that when the service of such workmen was terminated, at that occasion, the conciliation proceeding was pending before the Conciliation Officer. Therefore, the questions arise that in pending reference where the termination was under challenge which require adjudication by the Industrial Tribunal during the pendency of such reference and demand, whether Industrial Tribunal has jurisdiction or power to pass such kind of interim order granting reinstatement of such workmen in service or not?; whether Section 10(4) permits the Industrial Tribunal to pass such order or not? and whether it can be considered to be full relief during the pendency of dispute itself or not? These are the legal questions arise in the present petition which require detail examination. Hence, Rule. Learned Advocate, Mr. D.R. Dave, and learned Advocate, Mr. Chari, waives service of notice of rule on behalf of respondent.
This Court has initially issued a notice made it returnable on 6th March,2006 by an order dated 20th February,2006, which is quoted as under:
Notice, returnable on 6th March,2006.
In the meanwhile, the impugned order passed by the Industrial Tribunal, Surat be stayed to the extent of the direction given by the Tribunal to reinstate the employees whose names are mentioned in the operative part of the order dated 6.12.2005.
So far as disposal of the assets of the petitioner company is concerned, if BIFR issues any direction it is open for the petitioner to approach this Court for suitable modification in the order.
In view of the above interim order passed by this Court, maintaining the same interim order, it is directed to the petitioner to pay last drawn wages inclusive of maintenance allowance to the workmen - Shri M.A. Kagji, Shri N.J. Zhariwala, Shri Jayendrabhai M. Shah, Shri N.D.Panjangira, Shri Jitendra A. Patel, Shri Pravinbhai Gangadwala and Shri Rajnikant Karsanbhai from the date of award dated 6th December,2005 till 30th April,2006 within a period of one month from the date of receiving the copy of this order. It is further directed to the petitioner to pay regularly continuous last drawn wages as required u/s 17B of the I.D. Act, 1947 to the concerned workmen, as referred above, till the main SCA is finally decided by this Court.
It is to be noted that by an interim order, the Industrial Tribunal has granted reinstatement. Therefore, this Court has directed to the petitioner to pay wages u/s 17B of the I.D. Act, 1947. Still, main reference is to be decided by the Industrial Tribunal, Surat which is pending before the Industrial Tribunal. Learned Advocate, Mr.Dave, submitted that in affidavit-in-reply filed by respondent in Para.3.21, a specific averment has been made to the effect that all the workmen are unemployed, not employed in any establishment and not gainfully employed during the interim period from the date of order. Learned Advocate, Mr. Dave, also submitted that he will file individual affidavit of each workman, as referred above, as required u/s 17B of the I.D. Act, 1947 within a period of 10 days and same will be placed on record of this Court and copy of which will be supplied to the petitioner. After receiving affidavit from the respondent Union in respect to these workmen, in case if petitioner is having any material to show that all the workmen or any of them are employed in any establishment or they are gainfully employed, then, it is open for the petitioner to approach, on that occasion, to this Court by filing necessary Civil Applications. Till this order remains, they should have to implement the directions issued by this Court.
Learned Advocate, Mr. K.M. Thakar, submitted that by inadvertence, one fact which is incorrectly mentioned in the petition that in respect to these workmen, whose names referred above, an individual reference is pending. Therefore, he submitted that petitioner be permitted to delete the said incorrect fact wherever mentioned by the petitioner in the petition. Permission accordingly granted.
However, it is made clear to the Industrial Tribunal, Surat that because of the pendency of the present petition, the proceeding of pending Reference No. 15 of 2005 shall not be held up and the Tribunal shall have to proceed with the same in accordance with the same. Learned Advocates appearing for the parties made a request for expeditious hearing of the pending reference before the Industrial Tribunal and assured this Court that they will cooperate the hearing before the Industrial Tribunal in respect to pending Reference No. 15 of 2005. The Industrial Tribunal, Surat is directed to expedite the reference.
Subject to aforesaid observations and directions, as referred above, interim order passed by this Court on 20th February,206 is made confirmed.
In present Civil Application, in Para.9(B), following prayers are made by the applicants:
(A) Your Lordships may be pleased to admit and allow the present application.
(B) Your Lordships may be pleased to modify the order dated 20.4.2006 directing deletion of the condition imposed in the order dated 6.12.2005 by the opponent No. 2 in Reference (IT) No. 15/2005 to the extent it restrains the applicant company from selling, transferring and alienating the properties of the applicant company identified under the scheme sanctioned by the Board for Industrial and Financial Reconstruction for the applicant company;
OR ALTERNATIVELY
Your Lordships may be pleased to modify the order dated 20.4.2006 staying the operation, implementation and execution of the order dated 6.12.2005 passed by the opponent No. 2 in Reference (IT) No. 15/2005 to the extent it restrains the applicant company from selling, transferring and alienating the properties of the applicant company identified under the scheme sanctioned by the Board for Industrial and Financial Reconstruction for the applicant company;
(C) Your Lordships may be pleased to permit the applicant company to sell, dispose of and transfer the properties of the applicant company in accordance with the scheme sanctioned by the Board for Industrial and Financial Reconstruction;
(D) Your Lordships may be pleased to grant interim relief permitting the applicant company to sell, dispose of and transfer the properties of the applicant company during the pendency of the present application in accordance with the scheme sanctioned by the Board for Industrial and Financial Reconstruction subject to the final adjudication of the present application;
(E) Your Lordships may be pleased to grant ad-interim relief in terms of Paragraph 9(D) above;
(F) Your Lordships may be pleased to grant any other and further relief/s as may be deemed just and proper in the interest of justice and fitness of things.
The BIFR has granted the permission to the applicants to sell the assets of the applicants - original petitioners as per Annexure-III (Page-50 and 51) and last Item at Page-51 plant, machinery and equipments of POY plant of BRC on as is where is basis.
Learned Senior Advocate Mr.K.B.Trivedi has made it clear that present applicants seek permission from this Court by way of modification of earlier order to sell the property, plant and machinery and equipments of POY plan of BRC at Surat on as is where is basis only. Except that, no modification or permission is sought by original petitioners.
The order passed by BIFR dated 1.6.2006 where the respondent - present opponent Union was a party to the proceedings and in their presence, aforesaid order was passed by BIFR on 1.6.2006. This order is not challenged by present opponent to the higher forum till date and no stay is operating against the aforesaid order passed by BIFR dated 1.6.2006.
Considering the entire order passed by BIFR dated 1.6.2006 and condition incorporated in the order for selling the property in question (Page-50 and 51), the earlier order passed by this Court is modified to the effect granting permission to the original petitioners to sell the properties - plant and machinery and equipments of POY plan of BRC at Surat on as is where is basis as per Clause VII (ix) of Annexure-III which provide "any sale of assets of the company would be effected through Asset Sale Committee(s) as per the guidelines issued by BIFR. The entire sales proceeds would be used as per the scheme sanctioned or as per the directions of BIFR.". Whatever the sale price is received by the petitioner, same shall be deposited before the Registry of this Court immediately with a copy of sale deed and that amount will not be utilized by the petitioner for any other purpose.
Considering the aforesaid observations and directions, the matter is adjourned to 23.6.2008 for further orders.