1995 Supreme(Bom) 206

IN THE HIGH COURT OF BOMBAY
B.N. Srikrishna, J.
Baburao P. Tawade and others.... Petitioners.
Versus
Hes Limited and another.... Respondents.
Writ Petition No. 2085 of 1989, decided on 3/4-4-1995.
Advocates appeared :
A.V. Bukhari, for petitioners.
N.M. Ganguli, for respondent No.1.

Headnote:Articles 226 and 227.

       See Evidence Act. 1872-Sections 3, 59 and 114.

       Articles 226 and 227

       See Industrial Disputes Act, 1947-Sections 2 (rr) and 33-C.

       Sections 3, 59 and 114-Collsitution of India, Articles 226 & 227-Finding of fact-Binding on parties-Even if arrived at by adverse inference.

       It is no doubt true that much of the finding recorded by the Industrial Court on the issue was because of the adverse inference drawn by the learned Judge against the first respondent for failure to place on record the material documents, which would have clines tile issue. Nonetheless, a finding made even on adverse inference is also a finding of fact binding on the parties. The only reason given by the learned Labour Court Judge for not following this decision of the Industrial Court is that those proceedings were under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of unfair Labour Practices Act and the present proceedings were made under Section 33 (2) of the Act, In my view, the reason for the distinction drawn was wholly immaterial and would not make any difference. It cannot be gainsaid that, while deciding the claim of bonus for the accounting year 1981 (the immediately succeeding accounting year) when a defence had been taken up the petitioners had not fulfilled the production norms stipulated by the 1979 settlement, the Industrial Court, upon careful appraisal of the evidence before it, recorded a clear finding that throughout the petitioners had complied with the production norms stipulated in the year 1979. Held this conclusion was equally binding on the parties, not with standing the fact that the proceedings before the Labour Court were under Section 33C (2) of the Act. The impugned order of the Labour Court is, therefore, erroneous and liable to be interfered with in exercise of writ jurisdiction.

       Sections 2 (rr) & 33-C-Sick Industrial Companies (Special Provisions) Act, 1985-Section 22-Constitution of India, Articles 226 and 227Scope of.

       Having considered the position in law as canvased at the bar, on the strength of the judgmenes referred to by me. Held that, even if the application had been made by the workmen under Section 33-C (2) of the Industrial Disputes Act for recovery of the monies due to them, after the reference under SICA made to the BIFR, such application could not have attracted the bar under Section 22 (1) of SICA much less can the writ petition under Articles 226 and 227 of the Constitution of India pending before this Court to challenge the adverse order in the application under Section 33-C (2) of the Industrial Disputes Act, be held to attract the bar under Section 22 (1) of SICA. In my view, the bar under Section 22 (1) of SICA would not apply to the present writ petition, which cannot be dismissed on the ground that no consent had been contained from the BIFR for the continuation of the present proceedings.

       Sections 2 (rr) & 33-C (2)-Sick Industrial Companies (Special Provisions) Act, 1985-Section 22-Constitution of India, Article 23-Workmen-Wages of-Recovory of covered under Section 22 of S.I.C. Act, 1985.

       No construction can be put upon the provision of Section 22 which could result in a situation of exploitation of human beings, contrary to the provisions of our constitutional directives. The High Court is therefore, unable to accept the contention that the payment of earned wages to the workmen (it cannot be disputed that payment under settlement would be wages within the meaning of Section 2 (rr) of the Industrial Disputes Act) was intended to be defeated by invoking the bar under Section 22 (1) or to drive the workmen to run to New Delhi for seeking the consent of the BIFR, every time their monthly wages were required to be paid. That, surely, was not the Parliaments intention, in my view. The reconciliation suggested by the learned Judge in Modi Industries case (supra) appeals to me and, therefore the bar in Section 22 (I) of SICA must be held to apply only to such proceedings which are not required for the day to day running of the sick industrial company, even under a sanctioned scheme or otherwise. Any other interpretation would lead to a ludicrous and unintended result.

       SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT, 1985

       Section 22.

       See Industrial Disputes Act, 1947-Sections 2 (rr) and 53-C (2)].