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2000 Supreme(Bom) 176
IN THE HIGH COURT OF BOMBAY
F. I. Rebello, J.
Carona Ltd...... Petitioners.
Versus
Sitaram Atmaram Ghag others..... Respondents.
Writ Petition No. 306 of 2000, decided on 6/7-3-2000.
Advocates appeared :
C.U. Singh i/b. Messrs Hariani Co., for the petitioners.
C. Gonsalves, for the respondents.
Headnote:Article 226-Extraordinary jurisdiction and scope of exercise - Article 226 is a constitutional power conferred on a constitutional Court to exercise its extra-ordinary jurisdiction to set right the violation or deprivation of fundamental rights and/or breach of any other statutory rights. It is not a power to be exercised at the instance of employer-petitioner who had failed to fulfill the solemn promise that had been given to the workers to induce them to resign from their jobs. The petitioner had solemnly informed those who had opted for Voluntary Retirement Scheme by clarification of August 16, 1996 that in the event the Voluntary Retirement Scheme amount is not paid by January 31, 1997 the letter of resignation submitted to the company by the workmen under this scheme shall stand revoked till an understanding is reached between the workers and the Management in this respect. It is too late for the very same petitioner to come before this Court and contend that since the workers had availed of VRS scheme they are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act. Such argument could have been considered if the VRS Scheme had been implemented and the workers had been paid their benefits. Even there prima facie it is devoid of merit. Article 226 of the Constitution is not to be exercised like in the case of the present petitioners to perpetuate injustice. Article 226 is a constitutional power, conferred on a Constitutional Court to exercise its extraordinary jurisdiction to set right the violation or deprivation of fundamental rights and/ or breach of any other statutory rights. It is not a power to be exercised at the instance of employer who has failed to fulfill the solemn promise that had been given to the workers, to induce them to resign form their jobs.
Article 226-Habeas corpus Principle of pleading .not applicable. AIR 1981 SC 1126.
2.It is contended on behalf of the petitioners that the said order is liable to be set aside amongst others on the following grounds:-
(a) That a complaint had been filed by the recognized Union being Complaint No. 285/98 which has been disposed of by another Member of the Industrial Court by judgment and order dated November 17, 1999. Once the recognized union has filed a complaint another complaint at the instance of individual employees would not be maintainable, more so considering that it was the recognized Union which had first filed a complaint; (b) It is next contended that the Industrial Court acted without jurisdiction in directing the petitioners to pay both VRS compensation as also Wages as set out in the order. Once VRS wages was directed to be paid, it is contended that the question of payment of back wages for any particular period would not arise. In the instant case most of the respondents have by depositing the cheques invoked the VRS scheme and consequently the question of wages for any period would not arise; (c) At any rate it is contended that the Industrial Court could not have directed payment of gratuity. It is contended that gratuity is a payment under the Payment of Gratuity Act. That Act, it is contended, has created the right and provided the remedy for its enforcement. Once it is so on failure to pay gratuity due under the Act it is recovery of gratuity would only be under the Act. In this context the Industrial Court by exercising jurisdiction under the MRTU PULP Act acted without jurisdiction. It is also pointed out that in another complaint filed by the recognized union the other member of the Industrial Court, has correctly not directed payment of gratuity, but has directed the union therein to move the Authorities for payment under the Payment of Gratuity Act; (d) In so far as interest is concerned, it is contended that the industrial Court merely proceeded to grant the interest without considering whether interest was due and payable and/or at which rate. In the other case it is contended that interest has been directed to be paid at 12% per annum. Therefore, it is contended that direction for payment of interest would disclose non-application of mind and consequently the order to that extent is liable to be set aside and (e) it is contended that the Industrial Court would have had no jurisdiction to hear and decide the complaint as proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985, S.I.C. (S.P.) Act for short, has been filed and the petitioners have already been declared to be a sick Industry by an order dated 18th May, 1998 by B.I.F.R. In these circumstances it is contended that the order of the Industrial Court is without jurisdiction and (f) It is also contended that the respondents being ex-workmen, no complaint is maintainable as the dispute does not pertain to their dismissal, termination or like i.e. the dispute is not an individual dispute.
3.Before I proceed to deal with the contentions and whether the petitioner has made out a prima facie case for admission, let me briefly advert to the facts, which may be relevant for the purpose of considering the issues that arise in the petition. The petitioners by letter dated August 7, 1996 forwarded to the Carona Employees Union a Scheme for Voluntary Retirement along with an appeal dated 7th August, 1996. The scheme provided amongst others as under:-
1. "All his/her legal dues such as :
I. Wages for the days worked in the month in which he/she submits his/her application for the SCHEME.
II. Gratuity as per the Gratuity Act, the service period above six months will be treated as one completed year and below six months will be ignored for the computation of Gratuit
