Kanti Cotton Mills and Another vs Bacchuba Dilubha Jhala and Others

S.R. Brahmbhatt, J.—Heard learned Counsel for the parties.

The order impugned is common dated 17.9.1994 in this group of petitions and therefore, this group of the petitions are heard together and disposed of by this common judgment and order.

The impugned order dated 17.9.1994 is passed by the Presiding Officer, Labour Court in Recovery Applications No. 295 of 1992, 557 of 1992, 558 of 1992 and 559 of 1992, whereunder the amount is ordered to be recovered from the opponents therein being the difference of the amount actually paid and remained to be paid as to the Labour Court award.

The facts in brief as set out as under:

The opponents herein filed aforesaid Recovery Application as they were not satisfied with the compliance with the order of the Labour Court and payment made to them by the Payment of Commissioner, as the original mill Company was taken over by the Gujarat State Textile Corporation and as per the provisions of the Gujarat Sick Textile Undertaking (Nationalisation) Act, 1986. The Payment of Commissioner, was to make payment to the creditors and other, who are legitimately entitled to recover dues from the undertaking. Thus, for the payment, the opponent filed few litigations as there was an order and award in their favour, whereunder the payment in terms of percentage of back-wages was awarded to them. Ultimately, the Commissioner of Payment under the said Act made detailed order after hearing the rival contentions of the parties on 17.2.1992, which is produced before this Court and which goes to show that the dues payable to the workmen - respondents have been paid. Moreover, it deserves to be noted that as per the provisions of Section 22(7) of the Act, if the party is aggrieved by the order of Payment of Commissioner, then the remedy is available before the Civil Court of the area. The respondents workmen instead of moving the Civil Court, filed the aforesaid Recovery application, wherein the Court in its operative portion has observed that the order of Payment of Commissioner is there, however, the difference of payment after deducting the payment actually made was ordered to be recovered. The same is impugned in this petition.

Ms. Davawala, learned Counsel appears for the liquidator, contended that the order of Payment of Commissioner is absolutely clear with regard to the payment of dues to the respondents workmen and looking the operative portion of the award impugned, it becomes clear that the Court has committed serious error in computing the amount payable, the page No. 62 clearly depict the payment actually made and how it became payable is narrated in the order produced in the compilation, which would go to show that the exact amount as ordered by the original award was paid to the workmen and therefore, in the first instance, the Labour Court ought not to have allowed the Recovery Applications without prejudice to the submission of further statement, even assuming then there was non-compliance and/or part compliance then also remedy was not available for filing recovery Application as can be seen to the provisions of Section 22(7) of the said Act. Without awailing, some respondents should not have moved Recovery Application.

Shri Mishra, learned Counsel appearing for the workmen could not indicate clearly as to how and in what way the Payment of Commissioner has committed any error. The Court called upon Shri Mishra, learned Counsel to show, before this Court in this petition, the calculation of claim of the outstanding or as ordered to be recovered by the impugned award. Shri Mishra, learned Counsel could not point out any, and therefore, this Court is of the view that the order impugned cannot be said to be order in accordance with law. On the contrary, the payment made by the Commissioner of Payment vide its order dated 17.2.1992 is absolutely just and proper and moreover, as the remedy u/s 27(2) of the Act has not been availed. The Recovery Application was otherwise not maintainable.

Considering the facts and circumstances of the case, the petitions deserves to be allowed and they are allowed. The impugned orders are required to be quashed and set aside. Rule is made absolute.