R.A. 1 of 2004. Case: Shahabad Cement Factory Workers Union Vs Indian Bank and Ors.. Kolkatta Debt Recovery Tribunals
| Case Number | R.A. 1 of 2004 |
| Counsel | For Appellant: R.V. Naik and Anant Kumar Shaw, Advs. and For Respondents: M. Rajasekhar and N. Srinivas, Advs. for Certificate holder Bank and Anindya Kumar Mitra, Sr. Adv., S. Singhvi, Moumita Chatterjee and Avishek Roy, Advs. for Certificate debtors |
| Judges | D.C. Thakur, Presiding Officer |
| Issue | Trade Union Act, 1926; Deputy Labour Commissioner and Industrial Disputes Act; Industrial Dispute Act, 1947 - Sections 25(1), 25(6), 25N, 25O, 25R, 33 and 33(1); Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 17, 19(1), 19(19), 20, 20(2), 22, 22(2) and 34(2); Companies Act, 1956 - Section 529A, 529(1) and 529A(1)... |
| Citation | I (2006) BC 239 |
| Judgement Date | December 02, 2005 |
| Court | Kolkatta Debt Recovery Tribunals |
Judgment:
D.C. Thakur, Presiding Officer
1. The review application preferred by the Shahabad Cement Factory Workers Union against the order passed by this Tribunal on Thursday, September 9, 2004 in connection with TA/9/2004 has been responsible for the present discussion in connection with the above application in fact preferred by the trade union claiming to be registered under the Trade Union Act, 1926 and the Rules made thereunder (Registration No. TVA:5:88) and also known as the Shahabad Cement Factory Workers Union which claims that it enjoys absolutely the confidence of the super majority of 735 permanent workers and 120 casual workers engaged by the factory under the management of HMP Cements Ltd. Shahabad, District Gulbarga finding their express use in the Certificate (to be known as the Recovery Certificate dated Tuesday, March 18, 2003) issued by the Deputy Labour Commissioner and Industrial Disputes Act Authority, Gulbarga region, Gulbarga under Clause (sic Section) 33(c)(1) of the Industrial Dispute Act, 1947 (Act No. XIV of 1947) for a sum of Rs. 30,75,71,335.00 p. which the above workers claim as the arrears of their wages. At paragraph No. 2 of the said application the said workmen have claimed themselves as the reviewists; and in the said application it has been specifically alleged that the above cement factory has been declared as under the illegal "Suspension of Operation" on and from December 7,1997. The Government of Karnataka has also passed an order declaring the said order of closure by the management of the said cement factory as an illegal closure.
2. At the latter half of the said paragraph, the said reviewists workmen have claimed that a letter from the learned Transferring Tribunal, DRT-1 at Kolkata dated Friday, August 27,2004 has been received by the said workmen. In that letter, the said workmen were informed of that all the records maintained in OA No. 142 of 1998 had already been transferred to this Tribunal as per the order passed by the Hon'ble High Court of Judicature at Kolkata. The said paragraph ends with the following claim of the workmen:
...and in turn the Workers Union sent a message through FAX on 9.9,2004 requesting for adjournment and copy of the Fax message annexed herewith.
Through the same paragraph, the said reviewist workmen further bring to light that the Certificates of Recovery issued by the Deputy Labour Commissioner, Gulbarga and the subsequent but latest Certificate of Recovery have never been challenged by the respondent defendant company. As a result, the said Certificates have been as per their claim confirmed; and the existing Certificates have been for their enforcement-cum-execution.
3. The paragraph No. 3 of the said review application has concerned itself with the following claim made by the said petitioner:
The applicant submits that the applicant has already filed the document namely declaration of closure of company by defendant with effect from 7.12.1997 held illegal.
The contents of paragraph No. 4 are, as the constituent facts hereof, no less significant, because in that paragraph the said petitioner has raised the points for the re-examination of the judgment and order pronounced and passed by this Tribunal on September 9, 2004 in connection with TA/9/2004 in the manner that as the said Union has already been impleaded by the learned Transferring Tribunal as one of the proforma defendants and it has submitted the several objections in connection with the Banker's claim against the twenty-one defendants being on record, and the workmen have not been heard, natural justice has been gravely and grossly violated on the above day and date.
4. Another reason for reviewing the order passed by this Tribunal on the above day and date has also been, according to the above reviewist-petitioner, the gross violation of Articles 21, 39A and 41 of the Constitution of India. In other words, the reviewist workmen strongly advocate the reviewing of the above Order on the ground of that such order has been passed by this Tribunal without affording or offering any opportunity of being heard to the said reviewists workmen though the order passed by this Tribunal on the aforementioned day and date has in fact been a reasoned, detailed recent order only to sub serve the doctrine of fair play. In this regard, the well known case of Maneka Gandhi v. Union of India and Ors. AIR 1978 SC 597, paras 56-68 has been found to be relied upon by the said reviewist-petitioner union. According to the said petitioner union, the miscarriage of justice evidently took place on September 9, 2004 and ruled over the order passed that day.
5. The said workmen have been, as the reviewist petitioners, found vocal much against their employer who is here the respondent certificate debtor No. 1. This Tribunal thinks it proper to quote the exact contention of the said workmen expressed in the petition of M/s. Shahabad Cement Factory Workers' Union:
The applicant's unions further submit that it is well settled law that once the Recovery Certificate is issued which is not challenged by the defendant's company. It becomes obligatory duty to ensure that interest of the workers protected and without payments of compensation, no claim thought to have settled in between the company and the Bank and thus the order passed without determining the Total Liability outstanding against the defendant's company and period to be stipulated and method and conditions should be laid down before conducting auction of the plant, building, land machinery of defendant's company and without doing so expert hearing and expert order passed and any settlement.arrived in between the applicant's Union and defendant's Bank would amount violative of Article 14 of the Indian Constitution.
6. At paragraph No. 6 of the said petition, the said petitioner has repeatedly described the closure by the management of the cement factory on December 7, 1997 as illegal and the closure by the management of the said factory as liable for penalty to be inflicted upon the said management under Section 25-R of the Industrial Disputes Act, 1947 (Act No. XIV of 1947).
7. The intention of the past management has also been described by the said reviewist-petitioner expressly at paragraph No. 7 of its review application.
8. Incidentally, the said reviewist-petitioner has endeavored to apply expressly the provisions of Sub-section (19) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. LI of 1993), which has been, as per the latest judgment pronounced by the Apex Court in the case of Andhra Bank v. Official Liquidator and Anr. II (2005) BC 425 (SC), qualified by the provisions of Sections 529A of the Companies Act, 1956 (Act No. 1 of 1956), in the present case. According to the petitioner, the inherent powers to lay down the workable guidelines before passing the order in regard to the settlement of claim in between the respondent defendant-company and the respondent Bank have also been vested into and given to any Tribunal like this one.
9. The paragraph No. 9 of the said application has been unavoidably associated with the description of the painstaking sufferings by the 858 workmen as a result of the above allegedly illegal closure.
10. The said reviewist-petitioner does further claim that all the facts that have observed, felt and realised the plights of the above workmen have been, prior to the order passed on September 9,2004, brought to the knowledge of the learned Transferring Tribunal. At paragraph No. 11 of the review petition, the said petitioner has submitted before this Tribunal the specific directions upon the learned Receiver appointed by the learned Transferring Tribunal:
...to personally meet well known Cement companies like ACC, L&T, Grasim Lafarge, Gujarat, Ambuja, etc., or individual communications may be sent to enable these Companies to enter in the fray by giving details of Assets and Liabilities of HMP Cement Individual Units.
with the object of enabling the above companies to express their willingness, readiness to participate in the public auction which has been about to be conducted by the said Tribunal of the assets and liabilities of HMP Cement Factory Ltd. After having expressly relied on (1961) 1 SCR 113 (Constitution Bench), the above reviewists petitioner has been apt to establish that under Section 151 of the Code of Civil Procedure, 1908 (Act No. V of 1908) this Tribunal possesses; and has the power to recall and modify the order in the interest of justice and equity.
11. Lastly, the said reviewist petitioner has made distinctly a prayer before this Tribunal that order No. 91 made on Thursday, September 9, 2004 in connection with TA No. 9 of 2004 being the renumbering of OA/142/1998 should be henceforth recalled in the interest of justice and equity.
12. Thus, this Tribunal has attempted to describe in brief the contents of the above application for review preferred on Monday, October 11,2004, by the said Workmen's Union under Clause (e) of Sub-section (2) of Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. That application for review has also been accompanied by one affidavit affirmed by Shri Malleshi Sajjan as the President of the said Union. As the said application stood on and from Monday, October 11, 2004 for review as naturally understood and perceived in the contemporary legal world, for the due compliance with the principles of natural justice this Tribunal took on December 14,2004 all the pains on itself to serve the copy of the said application upon the learned Advocate, appearing for the respondent certificate debtor with the expectation that the said certificate debtor would meet all the version of the above reviewist point by point.
13. Incidentally, be it noted that on Monday, February 21,2005 the said reviewist petitioner has also moved one application before this Tribunal for the...
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