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2004 Supreme(Bom) 1065
IN THE HIGH COURT OF BOMBAY
Rebello F.I., J.
Swan Mills Limited another .... Petitioners.
Versus
Sakharam Dhondu Panchal others.... Respondents.
Writ Petition Nos. 255 256 of 2001 with W.P. No. 2053 of 2002, decided on 30-7-2004.
Advocates appeared :
V.P. Vaidya, in W.P. Nos. 255, 256/2001, for petitioner in W.P. Nos. 2053/2002, for respondent.
Arshad Shaikh with M. Londhe, i/b. Sanjay Udeshi Co., in W.P. Nos. 255, 256/2001, for respondents in W.P. Nos. 2053/2002, for petitioner.
The main legal point established in the judgment is that the workman was entitled to back wages and gratuity as per the M.O.U., and the Labour Court had jurisdiction under section 33(C)(2) to award the amounts as per the Appellate Court's order and the M.O.U. The court also clarified the principles for awarding interest on the unpaid amount.
Headnote:
Back Wages - Industrial Disputes - Bombay Industrial Relations Act - Section 33(C)(2) - 42(4) - 79 - Payment of Gratuity Act - Clauses 5 and 7 - Summary: The court disposed of petitions involving financial benefits to be paid to the respondents under the Bombay Industrial Relations Act. The petitions challenged orders related to back wages, gratuity, and interest. The court interpreted the orders of the Appellate Authority and the M.O.U., concluding that the workman was entitled to back wages and gratuity as per the M.O.U. The court also addressed the jurisdiction of the Labour Court under section 33(C)(2) and the awarding of interest. The court rejected the petitions and dismissed the application for stay.
Fact of the Case:
The petitions involved financial benefits to be paid to the respondents under the Bombay Industrial Relations Act. The petitions challenged orders related to back wages, gratuity, and interest.
Finding of the Court:
The court interpreted the orders of the Appellate Authority and the M.O.U., concluding that the workman was entitled to back wages and gratuity as per the M.O.U. The court also addressed the jurisdiction of the Labour Court under section 33(C)(2) and the awarding of interest. The court rejected the petitions and dismissed the application for stay.
Issues: The issues included the entitlement to back wages and gratuity, the jurisdiction of the Labour Court under section 33(C)(2), and the awarding of interest.
Ratio Decidendi: The court held that the workman was entitled to back wages and gratuity as per the M.O.U. and that the Labour Court had jurisdiction under section 33(C)(2) to award the amounts as per the Appellate Court's order and the M.O.U. The court also clarified that interest was awarded on the unpaid amount only after the failure to pay the determined amount.
Final Decision: The court rejected the petitions and dismissed the application for stay.
2. Writ Petition No. 255 of 2001 is by the Employer challenging the order of the Appellate Authority passed in Application IDA No. 646 of 1996 dated 30-10-2000. That order came to be passed in proceedings under section 33(C)(2) taken out by the respondents in terms of the order of the Appellate Authority allowing his application for setting aside the order of dismissal and consequential benefits. By the impugned order, the learned Labour Court has been pleased to direct the petitioners to deposit sum of Rs. 2,47,224/- which was payment of full back wages within a month from the date of the order failing which the said amount would carry interest at the rate of 9% p.a. whichever is earlier.
3. Writ Petition No. 256 of 2001 is by the employer challenging the order made by the Appellate Authority dated 10-10-2000 whereby appeals preferred by the petitioner as also by respondent No. 1 against the order dated 10-4-2000 of the controlling authority under the Payment of Gratuity Act were dismissed. The controlling authority by his order dated 10-4-2000 allowed the application by the respondent No. 1 herein for gratuity and directed that the sum of Rs. 43,230/- be paid along with interest at the rate of 15% from 28-6-1996 till the date of actual payment of gratuity to the applicant.
Writ Petition No. 2053 of 2002 is by the workman impugning the order of the Appellate Authority dismissing his appeal against the order of the controlling authority dated 10-4-2000. The petitioner workman had sought interest at the rate of 15% p.a. on the agreed amount from January, 1990 till June, 1996. The controlling authority had only ordered interest at the rate of 15% from 28-6-1996. The appeal preferred by the petitioner workman was dismissed. Hence, the present petition.
From the above narration of facts, therefore, what will be material in these two writ petitions is the order of the Appellate Authority under the Payment of Gratuity Act dated 12-10-1985.
4. A few facts now may be set out. It was the case of the workman that he joined respondent employer in the year 1960-61 and was employed as carpenter in weaving department. The workman was charge-sheeted for misconduct on 23-5-1976 in terms of the standing orders applicable to him. The workman filed application to the Labour Court challenging the said termination. The Labour Court by order dated 7-11-1983 was pleased to hold that the enquiry held was fair and proper, and by order of 30-11-1984 was pleased to dismiss the application by the workman. Aggrieved, the workman preferred an appeal before the Industrial Court which by the order of 12-10-1995 allowed the appeal. During the pendency of the appeal, the erstwhile management of the petitioners declared suspension of operations. On 5-2-1991 Memorandum of Understanding (M.O.U.) was singed between the present promoter, the petitioner employer and the union, representing the workman.
As the petitioner employer did not pay the amount in terms of the order of the Appellate Authority, the workman preferred an application under section 33(C)(2) of the Industrial Disputes Act, 1947 on 28-6-1986. That came to be allowed by order of 31-10-2000 which is the subject-matter of the challenge in Writ Petition No. 255 of 2001.
5. We shall first deal with Writ Petition No. 255 of 2001. At the hearing of the petition, on behalf of the petitioner, their learned Counsel formulated grounds for challenge as under :
(i) It is submitted that the order of the Appellate Authority did not order reinstatement to the workmen and consequently even if the workman was claiming under the M.O.U. there can be no award of back wages. It is submitted that the contract of employment was sev
