D.Y. Chandrachud, J.
1. On 25th December, 1999, an agreement was entered into between the petitioner and the respondent under Section 44(1) of the Bombay Industrial Relations Act, 1946 ('the BIR Act'). The Respondent is a representative Union of employees engaged in the Cotton Textile Industry for the local area of Greater Bombay under the provisions of the Act. The agreement between the parties commenced with a recital to the effect that the petitioner had been facing serious financial difficulties since 1998 due to a recession in demand coupled with the unavailability of finance. On 20th December, 1999, the petitioner had issued a notice of change under Section 42(1) of the BIR Act by which it had intended to discontinue the working of several departments situated in the Textile Mill of the petitioner situated at Lower Parel, Mumbai. Clause 1 of the agreement provides that the petitioner shall rationalise the employment strength at the unit at Lower Parel by offering a scheme of Voluntary Retirement to the employees referred to therein. Clause 2 provides for the compensation that would be paid to employees accepting voluntary retirement and in Clause 3 it has been provided that, an additional 'lump sum ex-gratia payment' of Rs. 50,000/-would be paid to each employee to tide over the initial period of unemployment. Under Clause 2 employees availing of the Voluntary Retirement Scheme ('VRS') were to be entitled to receive ex-gratia payment equivalent to 38 days wages/salaries for every completed year of service in excess of six months apart from the payment of gratuity. The wages and salaries for the month of September 1999 were agreed to be paid by the sale of goods lying in the premises of the Mills, while the workmen would be paid half the normal wages for the months of October and November 1999 in full and final satisfaction of their claim (Clauses 4 and 5). Under Clause 8, the Voluntary Retirement Scheme was to be announced on a date to be determined by the company and was to be kept open for a period of 7 days. The petitioner reserved the right to accept or reject a request for voluntary retirement and was to determine within a period of 7 days from the closing date for the receipt of applications whether the response was adequate enough to implement the scheme. The petitioner was facing a financial crunch and accordingly a provision was made in Clause 9 to the effect that the payment of benefits to the workmen who had accepted voluntary retirement was to be made within a period of 15 months subject to the sale of the assets of the Textile Mill at Lower Parel. Provision was made for the payment of interest at the rate of 12% p.a. in the event that payment is not made of benefits payable under the scheme to the employees within the aforesaid period of 15 months. Clause 9 of the agreement provided as follows :
'9. The payment of VRS benefits, gratuity, balance ex-gratia payment etc. shall be made within a period of 15 months from the date of acceptance of resignation by post dated cheques drawn in favour of each workmen, subject to sale of Assets of the Lower Parel Mills. The post dated cheques as stated herein above shall be deposited in Escrow account and dealt with by the Escrow Agent in accordance with an Escrow agreement which is being executed simultaneously with this agreement by the same parties, and the terms of which shall be deemed to be a part of this agreement. If the payment of VRS as agreed above is not completed till the expiry of 15 months from the date of acceptance of resignation, the management shall pay interest @ 12% p.a. on the balance amount payable till final payment is made under the scheme.'
By and as a result of Clause 10 of the agreement, it was provided that upon the implementation of the scheme for Voluntary Retirement, the Petitioner will operate only certain specified sections of the Textile Mill. Clause 14 provided for the abolition of posts on the employees opting for VRS.
2. The dispute in the present case arises out of a complaint of unfair labour practices instituted by the respondent before the Industrial Court at Mumbai in which the respondent alleged that the petitioner had committed a breach of the agreement dated 25th December, 1999. In the complaint it was set out that pursuant to the agreement a majority of the employees accepted VRS and tendered their resignation. The petitioner paid an amount ofRs. 30,000/- to those who opted for VRS besides the payment of unpaid bonus, unpaid leave and earned wages of September 1999. A reference was then made to a communication addressed by the petitioner stating that it was making all due efforts to sell the assets of the Textile Mills at Lower Parel and recording that in the meantime that the petitioner had been declared as a sick unit by the BIFR. In a notice put up by the petitioner on 30th March, 2001, a reference was also made to the fact that the BIFR had appointed ICICI as an operating agency and had directed it to appoint a Sale Committee. The Sale Committee had called for tenders for the sale of the land and the process for completing the sale was expected to take 2 or 3 months. The grievance of the respondent in the complaint was that about 1600 workmen had opted for voluntary retirement on the basis of the agreement dated 25th December, 1999 but, apart from the payment of an amount of Rs. 30,000/-which was made almost 90% of the amount due under the agreement had not still been paid. Declaratory and consequential reliefs have been sought in the complaint which is pending before the Industrial Court.
3. These proceedings arise out of the prayer for interim relief which has been allowed by order dated 6th June, 2001 passed by the Industrial Court. In the prayer for interim relief which was made on behalf of the respondent, a direction was sought to the petitioner to pay the workmen interest computed at the rate of 12% per annum on the amounts due and payable under the scheme for voluntary retirement since the payments due-and outstanding were not made within a period of 15 months as provided in Clause 9 of the agreement. By the impugned order dated 6th June, 2001, the Industrial Court has directed the petitioner to pay an amount of Rs. 10,000/- out of the unpaid amount to each of the employees.
4. The learned Counsel appearing on behalf of the petitioner sought to canvass two submissions for the consideration of the Court: (i) the complaint which has been filed before the Industrial Court was not maintainable since it was filed at the behest of persons who are no longer in the employment of the petitioner and were not, therefore, 'employees' within the meaning of section 2(5) of the MRTU & PULP Act, 1971 and Section 3(13) of the BIR Act, 1946. (ii) The complaint which had been filed under the MRTU & PULP Act, 1971 cannot lie or be proceeded with further save and except with the permission of the BIFR by virtue of the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985.
5. Insofar as the first submission was concerned, the learned Counsel appearing on behalf of the respondent has placed before the Court several judgments in which for the purposes of Section 2(s) of the Industrial Disputes Act, 1947; in the context of the provisions of Section 3(13) of the BIR Act, 1946 and the corresponding provisions of MRTU & PULP Act, 1971, it has been held that the expression 'any person employed' would include an employee who was previously in service and whose services have been terminated or have otherwise come to an end. This view was taken initially in the judgment of Chief Justice M.C. Chagla in P.L. Mayekar v. Agichend Narayan 57 BLR 1000. This judgment was followed by Mr. Justice B.N. Srikrishna in ICI India Ltd. v. Presiding Officer and Ors., reported in 1993 1 CLR 753. The judgment of Srikrishna, J. was affirmed in appeal by a Division Bench reported in 1994 2 CLR 494. A Full Bench of this Court in P.L. Mayekar v. Agichend Narayan 57 BLR 1000ICI India Ltd. v. Presiding Officer and Ors., reported in 1993 1 CLR 753 had similarly held that the words 'any person employed' in Section 3(13) of the BIR Act means any person employed to do the work at any time and that the definition contained in that section has no reference to the point of time at which a person whose case was under consideration was doing his work. A similar view has also been taken by a Division Bench of this Court in Nagpur District Central Co-operative Bank v. State of Maharashtra reported in 1987 Mh.LJ 593 : 1987 1 CLR 283. My attention was also invited to a similar view taken by V. K. Barde, J. in his judgment dated 11th July, 2001 in Ceat Limited v. Anand Aba Saheb Hawaldar and Ors., Writ Petition No. 1111 of 1997. Having regard to these judgments, the learned Counsel appearing on behalf of the petitioner has stated that he would not wish to press his first point at the present stage particularly having regard to the fact that the issue of the maintainability of the complaint on this ground has not been squarely raised in the written statement of the petitioner in the Industrial Court.
6. Insofar as the second point which has been urged on behalf of the petitioner is concerned, it would be necessary to advert to the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. Section 22 provides as follows :
'22. Suspension of legal proceedings, contracts, etc. --(1) Where in respect of an industrial company, an inquiry under Section 16 is pending or any scheme referred to under Section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under Section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or any other law or the memorandum and articles of association of the industrial company or any other instruments having effect under the said Act or other law, no proceedings for the winding-up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans, or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority.
(2) Where the management of the sick industrial company is taken over or changed in pursuance of any scheme sanctioned under Section 18, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or any other law or in the memorandum and articles of association of such company or any instrument having effect under the said Act or other law -
(a) it shall not be lawful for the shareholders of such company or any other person to nominate or appoint any person to be a director of the company;
(b) no resolution passed at any meeting of the shareholders of such company shall be given effect to unless approved by the Board.
(3) Where an inquiry under Section 16 is pending or any scheme referred to in Section 17 is under preparation or during the period of consideration of any scheme under Section 18 or where any such scheme is sanctioned thereunder, for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company concerned that the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force, to which such sick industrial company is a party or which may be applicable to such sick industrial company immediately before the date of such order, shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified by the Board :
Provided that such declaration shall not be made for a period exceeding two years which may be extended by one year at a time so, however, that the total period shall not exceed seven years in the aggregate. (4) Any declaration made under Sub-section (3) with respect to a sick industrial company shall have effect notwithstanding anything contained in the Companies Act, 1956 (1 of 1956} or any other law, the memorandum and articles of association of the company or any instrument having effect under the said Act or other law or any agreement or any decree or order of a court, tribunal, officer or other authority or of any submission, settlement or standing order and accordingly:--
(a) any remedy for the enforcement of any right, privilege, obligation and liability suspended or modified by such declaration, and all proceedings relating thereto pending before any court, tribunal, officer or other authority shall remain stayed or be continued subject to such declaration; and
(b) on the declaration ceasing to have effect -
(i) any right, privilege, obligation or liability so remaining suspended or modified, shall become revived and enforceable as if the declaration had never been made; and
(ii) any proceedings so remaining stayed shall be proceeded with, subject to the provisions of any law which may then be in force, from the stage which had been reached when the proceedings became stayed.
(5) In computing the period of limitation for the enforcement of any right, privilege, obligation or liability, the period during which it or the remedy for the enforcement thereof remains suspended under this section shall be excluded.'
7. The provisions of Sub-section (1) of Section 22 were amended by an Amending Act of 1993 so as to incorporate within the purview of the subsection a suit for recovery of money or for the enforcement of any security against a sick industrial company or of any guarantee in respect of any loans, or advance granted to the industrial company.
8. The only question which has been urged in the present case is that the complaint which has been filed by the respondent under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 is a suit for the recovery of money within the meaning of Sub-section (1) of Section 22 and that, therefore, the complaint cannot proceed except with the permission of the BIFR. There is absolutely no substance in this submission. Sub-section (1) of Section 22 refers to various categories of proceedings in relation to which the provisions of the section are attracted. These proceedings are : (i) proceedings for winding up of an industrial company; (ii) proceedings for execution, distress or the like against any of the properties of the industrial company; (iii) proceedings for the appointment of a receiver in respect the properties of the industrial company; (iv) a suit for the recovery of money; (v) a suit for the enforcement of any security against the industrial company; and (vi) a suit for the enforcement of any guarantee in respect of any loan or advance granted to the industrial company. Parliament has, therefore, made a distinction within Sub-section (1) between various classes of proceedings including proceedings for winding up; proceedings for execution, distress or the like; and suits for the recovery of moneys or for enforcement of security. While interpreting the words 'proceedings for execution, distress or the like against any of the properties of the industrial company', the Supreme Court in Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra Ltd. and Anr., : [1993]1SCR340 , held that the words 'or the like' which followed the words 'execution' and 'distress' were intended to convey that the properties of the sick industrial company should not be made the subject matter of coercive action unless BIFR finally disposes of the reference made under Section 15. The Supreme Court consequently held that the word 'proceedings' inSection 22(1) cannot be given a narrow or restricted meaning confined to legal proceedings but the expression would include proceedings under Sections 29 and 31 of the State Financial Corporation Act, 1951 as well.
9. The learned Counsel appearing on behalf of the petitioner sought to submit that the expression 'suit for the recovery of money' for the purpose of Sub-section (1) of Section 22 will include a complaint under Section 28 of the MRTU & PULP Act, 1971. Reliance was sought to be placed upon the bar on civil suits under the provisions of Section 59 of the Act, There is no merit in this submission. The plain language of Sub-section (1) of Section 22 would indicate that where the legislature intended to utilise a wider meaning, it has done so by the use of appropriate language, as for instance by the use of the expression 'proceedings for execution, distress or the like' against any of the properties of the industrial company. In contradistinction, when Sub-section (1) of Section 22 came to be amended in 1993, Parliament expressly provided for a suit for the recovery of money or for the enforcement of any security or of any guarantee in respect of a loan or advance granted to the industrial company. A complaint under the MRTU & PULP Act, 1971 cannot be regarded as a suit for the recovery of money. The complaint which is contemplated by Section 28 of the Act, is a complaint by a Union, an employee or an employer in a case where any person has engaged in or is engaging in any unfair labour practice. Unfair labour practices are those enlisted in Schedules II, III or IV. The enquiry is into these unfair labour practices. These practices are, as it were, a beacon for investigation by the Labour or Industrial Court. The powers of the Industrial and Labour Courts are specified by Section 30 and include the power to grant declaratory relief to direct all such persons who are engaged in such unfair labour practices to cease and desist therefrom and to take such affirmative action including payment of reasonable compensation to the employees affected by the unfair labour practice. In the present case, the allegation is that the employer has committed an unfair labour practice under Item 5 of Schedule II and Item 9 of Schedule IV. Item 5 of Schedule II is 'to refuse to bargain collectively in good faith with the recognised Union' whereas Item 9 of Schedule IV is 'failure to implement award, settlement or agreement'. The scope of the investigation by the Labour Court or by the Industrial Court in a complaint under the MRTU & PULP Act, 1971 involves an enquiry into the question as to whether an unfair labour practice has been committed. The scope of the enquiry and the nature of the proceeding cannot be regarded as a suit for the recovery of money.
10. There can be no doubt about the proposition of law that the expression 'suit' has both a narrow connotation confined to the meaning of that expression for the purposes of the Code of Civil Procedure, 1908 as well as a wider meaning which brings within its sweep all proceedings initiated by a party for the assertion of a right under the law. In Patel Roadways Ltd. v. Birla Yamaha Ltd. , the Supreme Court was considering theprovisions of Section 9 of the Carriers Act, 1865 under which, in any suit brought against a common carrier for loss, damage or non-delivery of the goods entrusted for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents. A claim for compensation and for refund of freight was made before the National Consumer Disputes Redressal Commission. The question which arose before the Supreme Court was as to whether the provisions of Section 9 would apply to a proceeding before the National Commission and whether the expression 'suit' used in Section 9 would apply to proceedings before the Commission. The Supreme Court held that the expression suit was not defined by the Carriers Act, nor was it provided that it shall have the same meaning as in the Code of Civil Procedure. The Court held that the expression 'suit' is a generic term taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. The Court held that it would not be open to the National Commission though its proceedings were of a summary nature to ignore the statutory provisions of the Carriers Act, 1865 and, if it were to do so, that would defeat the object and purpose for which the Consumer Protection Act was enacted.
11. Having regard to the language which has been used in Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985, it would not be possible to bring within the scope of the expression 'suit for the recovery of money' a complaint of unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Apart from the language which has been used in Sub-section (1), a reference may also be made to the provisions of Sub-sections (3) and (4) of Section 22. Under Sub-section (3) of Section 22, the BIFR is empowered when an enquiry under Section 16 is pending, a scheme under Section 17 is under preparation or during the implementation of the sanctioned scheme to direct inter alia, that all contracts, assurances of property, agreements settlements, awards, standing orders or other instruments in force to which a sick industrial company is a party shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder shall remain suspended or be enforceable with such adaptations and in such manner as may be specified. Once a declaration is made under Sub-section (3), Sub-section (4) specifies that any remedy for the enforcement of any right, privilege, obligation or liability and all proceedings relating thereto pending before any court, tribunal, officer or other authority shall remain stayed or be continued subject to such declaration. The provisions of Sub-sections (3) and (4) of Section 22 are in sharp contrast to the provision contained in Sub-section (1) of Section 22. Under Sub-section (3) the BIFR is empowered to suspend the operation inter alia, of any agreement, settlement or award to which a sick industrial company is a party. This would include a labour settlement. Thereupon any remedy for the enforcement of any rightand all proceedings relating thereto pending before any Court, tribunal or other authority shall remain stayed. The provisions of Sub-sections (3) and (4) are hence much wider than Sub-section (1). Upon a declaration under subsection (3) all contracts and settlements which form the subject matter thereof remain suspended or can be enforced only with such modification as are prescribed. Thereupon, any remedy before any Court is to remain stayed. The language which has been used in Sub-sections (3) and (4) of Section 22 has not been used in Sub-section (1). Therefore, the provisions of Sub-sections (3) and (4) of Section 22 provide intrinsic evidence that the expression 'suit' for the purposes of Sub-section (1) has not been used in the wide sense in which proceedings for the enforcement of any right, privilege, obligation and liability before any Court, tribunal or authority have been used for the purposes of Sub-section (4). In the present case, it must also be noted that the agreement which was entered into on 25th December, 1999 could well have been suspended by BIFR under Sub-section (3) of Section 22 but this has evidently not been done. In the circumstances, the provisions of Sub-section (4) of Section 22 have also not been attracted to the present case.
12. Finally, it must be noticed that in the present case, the company was prior to the agreement bound and liable to pay the wages of the workmen. Payment of wages would have been a condition precedent to the future operations of the Company even upon its being declared as a sick industrial undertaking. The obligation to pay wages would have been unaffected by the provisions of Section 22. The agreement which was entered into on 25th December, 1999 provided that the petitioner shall pay the wages for September 1999 and half the wages for October and November 1999. The Company entered into a solemn agreement with the workmen and it was on the assurance of the benefits which were available under the scheme of voluntary retirement that the workmen have tendered their resignation from service. The workmen resigned from service on the strength of the assurance that they would be entitled to retirement benefits which have been assured to them by the employer, the petitioner herein. But for this assurance, and the agreement which was arrived at on the foundation of the assurance, the Company would have continued to be liable to pay wages. The obligation to pay wages, as will be shortly noticed hereafter, is not affected by section 22(1) and it has been so held judicially. The same principle must apply to retirement benefits, especially in a case such as the present where the employer has assumed a liability to pay retirement benefits so as to obviate a continuing commitment to pay wages. In several judgments of the learned Single Judges of this Court, it has now been held that the liability of the employer to pay the wages of the workmen as well as terminal benefits cannot be avoided on the basis of the provisions of Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985. A reference may be made in this connection to the judgment of Mr. Justice B.N. Srikrishna in Baburao P. Tawade and Ors. v. Hes Ltd., Bombay and Ors. 1995(2)Mh.LJ. 595 : 7995 2 CLR 81. The same view has been taken by another learned Single Judge Mr. Justice A.P. Shah, in the context of the payment towards gratuity in Modistone Ltd. v. Deputy Commissioner of Labour 1999 2 CLR 371 and by Mr. Justice Rebello, in Carona Ltd. v. Sitaram Atmaram Ghag 2000(4) Mh.LJ 37 : 2000 (3) LLN 167, in the context of retirement benefits. These precedents were followed by me in the context of provident fund payment in Ralliwolf Ltd. v. Regional Provident Fund Commissioner : (2001)ILLJ1423Bom .
13. The impugned order of the Industrial Court has directed the payment of an amount of Rs. 10,000/- per workman which is a small fraction of the amount which is due and payable under the Voluntary Retirement Scheme. The Court has been informed that this payment will cover the payment of interest only for a period of about 4 months. The petitioner has assumed the liability to pay interest if the VRS payments were not effected within a period of 15 months. The submission of the learned Counsel that the liability to pay interest would arise only at the point of time when the payment under the VRS is made cannot be accepted. The workmen who had resigned from service on the assurance given by the petitioner cannot be deprived of this meagre amount that has been allowed to them under the interim relief granted by the Industrial Court. Semantics apart, this amount is necessary for the survival of the workmen and their families. The learned Counsel appearing on behalf of the petitioner states that the petitioner has moved the Assets Sale Committee of BIFR for an early disposal of the assets of the Textile Mill and that the petitioner has no intention to avoid making payment of the dues of the workmen under the Voluntary Retirement Scheme. In these proceedings which are directed against the interim order of Industrial Court, I am of the view that no case for interference under Article 226 has been made out. The petition is accordingly dismissed.