1. Heard
Mr. Dave, learned counsel for the petitioner and Mr. Nirav Joshi,
learned counsel for the Nanavati Associates.
2. The
employees Union has approached this Court for seeking relief
essentially against the respondent No.1 and also against the
respondents No.3 and 4 in respect of the statutory dues pending since
long, which resulted into untold hardships on the part of the
workmen.
3. Shri
Dave, learned counsel has submitted that in the petition filed by the
Company challenging the award being Special Civil Application No.134
of 2006 and the order was passed on 16.5.2008, whereunder the
specific direction is made, which can be set out as under :
"8.
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. "
4. Mr.
Dave, learned counsel has pointed out that in fact surreptitiously
the attempt is made to bye-pass the directions contained in the
aforesaid order, so as to defeat the legitimate claim of the
petitioner. This is pointed out with a view to substantiate the
maintainability of the independent petition and as
reason for not been in making appropriate application in
pending proceedings. Today, the fact remains to be noted that the
Company has issued Circular on August 27, 2008, whereunder though it
is promised that the employees are not required to report for their
work in regular shift, however, they would be also at present on all
working days during which the operation activities will remain
suspended. Mr. Dave, learned counsel submitted that obstinately this
Circular cannot be said to be creating any prejudice, but it is to be
viewed along with the conduct of the Company which lead no other
view but interference to retiring the individual workman, so as to a
serious action on the ground of dereliction of duties and take out
wages from him for the period he has worked for the company. The
facts remains from August 2008, no employees is paid single penny nor
are the retired employees paid their terminated benefits including
gratuity etc. For maintainability of this petition, Mr. Dave, learned
counsel relied upon upon the decision in the case of Miscellaneous
Mazdoor Sabha V. State of Gujarat & Ors. reported in GLR 1992 (2)
and Apex Court's decision in the case of People's Union for
Democratic Rights and Others Vs. Union of India and others reported
in AIR 1982 1473.
5. Shri
Nirav Joshi, learned counsel for Nanavati Associates, who appears on
caveat for the respondent Company, has pleaded under the
instructions, however he has contended that as an alternative remedy
is available, the petition is not maintainable.
6. This
court is under the considered view that when the Company is already
before this Court and it is at the Company's instance, some orders
have been passed by this Court including depositing the sale
proceedings, as can be seen from the order cited hereinabove, the
remedy which has been substantiated as an alternative remedy would
certainly not remain so efficacious as to bring about the desirous
occur to eh present employees numbers in around 2000 and few retired
and remained in force numbers is 2050 present working about 1000
retired employees, who have not seen the fruits either of the
litigation or of their working. In view of this when the concerned
Authority has also been approached with serious complaint with regard
to the contention of the Company respondent No.1 and no action is
initiated as submitted by the learned counsel at the bar. This Court
is considered view that the objection of availability of alternative
remedy is not available to the respondent No.1 and therefore, in
these peculiar facts and circumstances of the case, this court is of
the view that at this stage, keeping the contention open, the Court
has to take some action so as to bring some relief to 3000 and odd
workers, who have been left out without salary in these days of
galloping inflation, the issuance of the notice would not among to
closing and/or setting any contention of the party to maintain this
petition, NOTICE returnable on 16.1.2009. Mr. Nirav Joshi, learned
counsel waives service of the notice on behalf of the respondent
No.1. In the meantime and by returnable date, the respondent No.1 is
directed to place on record its reply by way of affidavit and no
further time shall be granted in this, failing which it will be
presumed that the contentions of the petitioner with regard to
surreptitiously alienating the property, so as to defeat right of the
petitioner would be believed. The respondent No.2 and 3 shall also
take appropriate steps in accordance with law on the complaint
received without being influenced in any way by pendency of this
petition or petition filed by the Company. If it goes to show any
inaction on the part of the respondents No.2 and 3 in respect to the
complaint, also would be viewed very seriously by this Court. Direct
service is permitted to other respondents.
(S.R.BRAHMBHATT,
J.)
ynvyas