Bombay Gas Public Ltd. Co. vs Narayan Sabaji Sarmalkar and Others

R.M. Lodha, J.—The arguments in the writ petition were concluded on 17-7-1997. However, the order was not dictated since Mr. Singh, the learned counsel for the respondents desired to file affidavit of one the respondents to state on oath that no application for bonus for the years 1980 and 1981 is pending before the Labour Court by any of the workmen covered by the order dated 10.7.1984. Accordingly, in view of the desire expressed by Mr. Singh, the matter was fixed today for dictation of order. Mr. Singh, the learned counsel for the respondents candidly submits that the affidavit which has been prepared by his clients is not in accordance with the order passed by that Court on 17.7.1997. In this view of the matter, the affidavit cannot be taken on record after the arguments have already been concluded on 17.7.1997.

Though the subject matter of the writ petition relates to the payment of bonus to the workmen for the years 1980 and 1981 and the impugned order was passed on 10.7.1984, yet, looking to the glaring errors in the order passed by the 2nd labour Court, Bombay on 10.7.1984, the same cannot be sustained and has to be set aside and then remand of the matter to the 2nd Labour Court has become inevitable for the reasons which I state hereinafter.

An application u/s 33-C(2) of the Industrial Disputes Act, 1947 was filed by Shri Narayan Sabaji Sarmalkar and 732 others through Shri S. V. Gole, General Secretary, Bombay Gas Co. Employees Union (''employees union'') against the Bombay Gas Public Ltd. Co. (''employer company''). In the application the bonus was claimed by 733 applicants for the years 1980 and 1981 at the rate of Rs. 750/- and Rs. 450/- respectively to each of them. The employees union claimed that 733 application were entitled to get the amount of bonus computed, calculated and paid alongwith interest at the rate of 12% per annum from August 1981. Along with the application, the list of 733 applicants was submitted. The application was contested by the employer company by raising the plea of maintainability of the application under S. 33-C(2). The employer company also submitted that about 100 names of the applicants have been duplicated. Various other objections were raised Alongwith the written statement Annexure "A" was submitted by the employer company to show the names of 52 applicants whose names appeared in the said list at two and more places. It appears that after the objection was raised by the employer company, that names of about 100 applicants have been duplicated in the list, the employees union submitted a list admitting that names of 36 applicants were duplicate. The employees union examined Shri Narayan Sabaji Sarmalkar examined himself while on behalf of the petitioner company one Shri Soundrara Rajan was examined. It further transpires that in addition to the duplication of names of many applicants, the claim was made individually also by many applicants by making separate applications and for that application was made by Mr. S. V. Gole, General Secretary, of the employees Union that if there was any duplication of the claims in Application No. 1404 of 1983, 88 of 1984 and 273 of 1984, the said claimants would withdraw their claims in those applications.

It would not be out of place to mention here that the employer company had moved the State Government u/s 36 of the payment of Bonus Act for exemption from making payment of bonus for the years 1980 and 1981 having regard to its poor financial position and exemption was granted by the State Government upto January 1983. The 2nd Labour Court by the impugned order dated 10.7.1984, held that application was legally and properly instituted by 696 workmen and they were entitled to claim minimum bonus at the rate of 1180/- for the years 1980 and 1981 with simple interest at 10% per annum from 31.10.1983 till the date of recovery and costs of Rs. 5/- per applicant. The fact which is worthy of note here is that right from the beginning the case of the employer company was that the signatures of the applicants were not genuine and that all applicants should be produced in Court for verification and that many employees'' names appear in the list twice or even thrice. The plea, therefore, raised by the employer company was that the application, was not properly instituted in the Court and it was not the true and correct application disclosing true and correct names of the employees. The employer company in support of its defence that many of the applicants'' names appear at two and three place submitted a list showing at least 52 applicants names whose names appear at two places or more than two places. Confronted with this situation the applicants had no choice but to concede before the Labour Court that the names of 36 employees find place at two places. The said list of 36 employees is available on record at page 92 of the paper book. It is pertinent to note that the Labour Court found that two sets of blank papers were signed by the concerned workmen. However, the Labour Court observed that the blank papers were signed by the workmen for helping the union to file the case before that Court. It is not even the evidence of employees union''s witness that two sets of blank papers were signed by the concerned workmen for helping the union to file their case before the Court. This shows the mode and manner in which the application came to be filed before the Labour Court claiming bonus for 733 applicants and casts great deal of doubt and suspicion about the correctness of the names of all the applicants. Be that as it may, right from the beginning the case of the employer company before the Labour Court was that large number of applicants names appear at two places or more. But the Labour Court did not apply its mind at all to this aspect of the matter and simply accepted the revised plea set out by the employees union that only 36 applicant''s names appear at more than one place and, therefore, instead of 733 applicants claim on behalf of 697 employees was accepted. There is no explanation by employees union worth that name on record as to why at all the names of the 36 employees were duplicated in the list of 733. I shall presently show that had the Labour Court applied its mind and not gone by employees union''s revised version as gospel truth, it would have been apparent on the face of the record that the list of the applicants placed by the union comprised of more than 36 applicants appearing at two or more places. To illustrate, I may right now point out that in the list of 36 persons which was filed subsequently by the employees union admitting that names of these 36 applicants appeared at more than one place, the name of Prakash Tukaram has been shown appearing at item no. 26 as well as item no. 61 of the list annexed with application. However, the fact is that name of Shri Prakash Tukaram not only finds place at item nos. 26 and 61 as admitted by the applicants, but it finds place also at item no. 4 of the said list. It would be further seen that name of Nanoo Badal finds place at item no. 19 as well as item no. 24 of the list of 733 persons submitted by union. Similarly, name Rajaram Ganpat occurs at item no. 15 as well as item no. 139 of the list. Again name of Mohan Gangaram is repeated at two places of the list at list at item no. 32 and item no. 93. Yet another employee Ramdular Palai Yadav''s name finds place at item no. 34 and item no. 97 of the list. Name of Balkrishna Vishram is repeated at item nos. 36 and 534 of the list. Similarly, name of Ramajoor Sukharao appears at item no. 54 as well as no. 76. Again Ramnaresh Ramprasad''s name finds place in the list at item no. 69 as well as at item no. 89. All these employees names appear at more than one place in the list annexed with the application yet these employees names are not included in the list of 36 persons whose names were admittedly repeated in the list. There are many more such names in the list appearing at more than one place. I have only mentioned these few names to show that the Labour Court has not at all applied its mind despite objection taken by the petitioner company before it that the application was not properly filed and it contained names of more than 100 applicants at two or more places. It is thus apparent that number of applicants claiming bonus was artificially inflated by the employees union by repeating names of more than 36 employees in the list annexed with the application. The applicants did admit that the names of 36 applicants were duplicate but I have already demonstrated there were many more names repeated. This creates serious doubt, and suspicion about the correctness of the application and the authority allegedly given to Mr. S. V. Gole for making such application. The Labour Court itself has found that on two sets of blank papers the signature of the workmen were obtained. The reason for the remains unexplained in the evidence. The objection was raised by the company that the applicants should be produced before the Court and their names should be verified. An order was also passed to that effect by the 4th Labour Court and it was directed that all signatory workmen should be kept present for verification whether they signed and gave authority to Mr. S. V. Gole. However, subsequently the order appears to have been modified. The workman who was in employment of the employer company is definitely entitled to bonus and has to be paid bonus but the employer cannot be trusted upon to make payment of bonus for non-existent employees or by artificially swelling the number of employees by duplicating and repeating the names of the same employees. There is total lack of application of mind by the 2nd Labour Court on this aspect. I am not dealing with the matter further since, in my view, in the absence of proper inquiry and application of mind by the 2nd Labour Court about the exact number of the workmen entitled to bonus, the impugned order cannot be sustained. The matter has to be reconsidered and re-examined by the 2nd Labour Court.

Consequently the order dated 10.7.1984 is quashed and set aside and the Application (IDA) No. 1294 of 1983 is sent back to the concerned Labour Court for fresh decision of the application in accordance with law and on the basis of the available material in the light of the observations made above. If necessary, the Labour Court may verify the claim of the individual applicants. However, it is made clear that the payment which has already been made to any of the applicants pursuant to the impugned order dated 10.7.1984 shall not be disturbed but not further payment of disputed bonus shall be made till the claim is decided by the concerned Labour Court. The amount deposited by the employer company pursuant to the impugned order, if any lying in this court and with the Collector, Bombay, is allowed to be withdrawn by the employer company subject to its furnishing an undertaking before this Court and also on furnishing an undertaking before this Court and also on furnishing of a bank guarantee to the tune of Rs. 5 lacs (Rupees Five Lacs) before the concerned Labour Court. The parties are directed to appear before the 2nd Labour Court, Bombay on 18/8/1997. Since the matter is old, the Labour Court is expected to decide the application as expeditiously as possible.

Rule is made absolute in aforesaid terms. No costs.