Workmen in Wadva Bros. Engineers Vs. Wadva Bros. Engineers and ors. - Court Judgment

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labour and industrial - industrial dispute - section 2 of industrial disputes act, 1947 - workmen worked in respondent management company - workmen not kept on rolls - workmen raised charter of demands - during pendency of negotiation management issued closure notice - labour court reinstated six workmen without proper appreciation of evidence on record - labour court never adverted to attendance rolls which go to root of matter as to whether dispute has been properly espoused and duly referred has been overlooked by labour court - appeal dismissed. - securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has jurisdiction to pass interim orders under section 17 of the securitisation act in appropriate cases. the tribunal is empowered to grant interim stay subject to such conditions as may be deemed proper including condition of deposit. even under section 69 of the transfer of property act, the only remedy of the borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the tribunal can restore possession of such secured assets to the borrower. by virtue of sub-section (7) of section 17 of the securitisation act read with section 19 (12) of the recovery of debts due to banks and financial institutions act the tribunal undoubtedly possess ancillary power to pass interim orders subject to the conditions as it may deems fit and proper to impose, but it does not in any way override the special provisions contained in section 17(3) of the securitisation act. the statutory scheme of the securitisation act is such that the borrower could take recourse to application under section 17 only if one or other measure is taken by the secured creditor, and the tribunal can restore the status quo ante only if it comes to the conclusion that any of the measure taken by the secured creditor is not in accordance with the provisions of the act. the scheme cannot be bypassed by issuing a mandatory order for redelivery of the possession before conclusion of the proceedings under section 17--sections 17, 13 (4); [a.p.shah, c.j., f.m. ibrahim kalifulia &v. ramasubramanian, jj] scope of enquiry under section 17 held, the main purpose of the securitisation act, and in particular section 13 thereof, is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the court. therefore, in an application under section 17, the tribunal is concerned only with the validity of the acts of the secured creditor in taking possession of the securities and dealing with the same under section 13. all such grounds, which would render the action of the bank/financial institution illegal, can be raised before the tribunal in the proceedings under section 17. it is for the tribunal to decide in each case whether the action of the bank was in accordance with the provisions of the act and legally sustainable. however, while considering the question of validity of the action of the bank, it is not necessary for the tribunal to adjudicate the exact amount due to the secured creditors. in other words, the purpose of an application under section 17 is not the determination of the quantum of claim per se as the tribunal is concerned with the issue of the validity of the measures taken by the banks/financial institutions under section 13(4)--sections 17(4), 13(4) ; [a.p. shan c.j.,f.m.ibrahim kalifulla & v. ramasubramanian, jj] appeal right of bank held, the right of the bank is not automatically suspended upon filing of an appeal by borrower under section 17 of the securitisation act and the bank as secured creditor can proceed to auction secured asset where no stay is granted by the tribunal. there is nothing in section 17 of the securitisation act which would indicate that the legislature intended that there would be automatic stay of recovery proceedings by bank under section 13(4) on filing an appeal by borrower under section 17. use of the expressions if and then under section 17 would not mean that the bank can take one or more measures laid down under section 13(4) only if the tribunal declares that the action taken already is in accordance with the provisions of the securitisation act and the rules made thereunder. use of the word if does not connote a condition precedent. it is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they harmonized with the object of the statute and which effectuate the object of the legislature. the provisions of section 17 must, therefore, receive such construction at the hands of the court as would advance the object and at any event not thwart it. in other words, the principle of purposive interpretation should be applied while construing the said provisions. the securitisation act is enacted to provide a speedy and summary remedy for recovery of thousands of crores which were due to the banks and financial institutions. raju, j.1. the above appeal has been filed by the workmen, who succeeded before the labour court but lost before the learned single judge, challenging the order of the learned single judge dated november 26, 1990, in w.p. no. 3266 of 1987. the writ petitioner before this court is the management and the writ petition came to be filed for a writ of certiorari to call for and quash the award of the second additional labour court, madras, dated december 2, 1986, in i.d. no. 16 of 1985.2. the dispute came to be entertained as noticed above on a reference made by the government in g.o. ms. no. 1, labour, dated january 3, 1985, as to the question whether the stoppage of work in wadva bros. engineers from january 7, 1984, is a case of lock-out or closure and as to what relief the workmen would be entitled to? the averments before the labour court were that the workmen were all working in the respondent management company, that the workmen in the company had never been kept on the rolls of the company for more than few years, they were all members of the intuc union, that they raised a charter of demands on november 15, 1983, and during the pendency of negotiations, the management issued a closure notice and the closure was not genuine but merely an attempt to break the union. it was also their case since the intuc union was not espousing the cause of the workers, the workers joined the socialist workers union to prosecute their case and this union espoused the cause contending that the alleged closure of the respondent's machine shop was only a lock-out. the management was said to have agreed that it was running the concern by leasing out to one sekar and munuswamy and the claim of the management that the workers had settled their dues was incorrect and that the workmen, who have not settled their dues according to the workmen before the labour court are entitled to the relief of reinstatement with attendant benefits.3. the respondent-management contended that the claim of the workmen that the management never kept the workmen on rolls for more than few years and that they were meagrely paid is false. 11 out of 13 have settled their accounts and [the respondent showed the settlement receipts given by the workmen to the commissioner of labour and, therefore, the union has no locus standi to raise the dispute under section 2(k) of the industrial disputes act. it was also claimed for the management that the machine shop of the company was not working properly for some time due to various reasons resulting in dwindling of production and, therefore, it was found to be uneconomical to carry out the work particularly in the light of the non-co-operative methods alleged to have been adopted and the alleged subversive activities resulting in repairs to machines, necessitating the closure of the machine shop, the management has issued a notice to all the 13 workmen offering one month's pay in lieu of notice and compensation and that 11 workmen, as noticed earlier, have settled their accounts by receiving their legal dues and passing on due receipts in final settlement of their claim. the workmen by name samuel and sethumadhavan refused to settle their accounts. sekar and munuswamy were said to be lessees, who entered into the lease agreement. finally, the contention of the management was that what has happened was not a lock-out as contended by the union and it was really a closure.4. before the labour court, both parties adduced oral and documentary evidence. the management has filed an application seeking for adjudication on a preliminary issue as to whether there had been community of interest and proper representation and adjudication of the dispute warranting interference.5. the labour court ultimately found under the award that the union in question which espoused a cause of the workmen in the machine shop of the respondent-management was well within its rights to do so and the contention of the management that the union has no locus standi was not a tenable one. as for the other question, whether it was a closure or lock-out, the labour court was of the view that what has really been effected was only a lock out and not a closure as claimed by the management. the claim of the management that 11 out of 13 workmen settled their claims even before the conciliation officer was repelled and, therefore, the industrial dispute was he|d to exist and that there has been proper representation by the union on behalf of the workers of the respondent-management. consequently, the labour court passed an award stating that the stoppage of work in wadva bros. engineers from january 7, 1984, was a case of lock out and, therefore, the six workmen whose names have been mentioned are entitled to reinstatement in service with back-wages and all attendant benefits from january 7, 1984.6. aggrieved, the management filed, as stated earlier, w. p. no. 3266 of 1987, challenging the award of the labour court. the learned single judge has accepted the challenge to the award projected by the management by holding that there was no proper representative capacity for the industrial dispute being sponsored and projected for adjudication, in that, according to the learned judge, except two of the workmen, there was no other who could be said to have joined together and resolved to expose the cause of the workmen in question arid that being the position, in respect of 13 workers, the industrial dispute cannot be entertained under the act. the learned single judge also differed from the finding of the labour court on merits and held that what has happened was only a closure and this was obvious according to the learned single judge from the fact that the establishment was under the management of two persons, who became lessees and who were said to have been running the same after january 1, 1984. as for the claim of the management that 11 out of 13 workers have settled their claims during the conciliation proceedings which aim has been held to have not been proved by the labour court, the learned single judge came to the conclusion that the claim of the management stood established also on the basis of the records made available by the learned government pleader on the directions of this court from the file of the conciliation officer. on the above conclusions arrived at the writ petition came to be allowed resulting in the filing of the above appeal.7. mr. k.m. ramesh, learned counsel appearing for the appellant workmen, strenuously argued that the learned single judge was in error in recording the findings differing from the one recorded by the labour court on every one of the three issues noticed supra and that in exercise of the jurisdiction under article 226 of the constitution of india, it was not given to the learned single judge to reappreciate the evidence as if on an appeal and consequently, the findings recorded by the learned single judge are liable to be set aside. it was also contended that the learned single judge ought not to have relied on the receipts produced by the government pleader from the tiles of the conciliation officer and that such production and acceptance at this stage of the proceedings under article 226 of the constitution of india resulted in denial of an effective opportunity to the workmen to substantiate their claim that those materials are not legally acceptable. learned counsel also took great pains to substantiate the grievance of the workmen that the learned single judge was not right in coming to the conclusion that there was no proper espousal of the dispute on behalf of the workmen by the required number of workmen and that we should agree with the finding recorded by the labour court than that of the learned single judge for the reason that five workmen whom the learned single judge has held to be not workmen of the management are really workmen of the respondent-management and, therefore, the labour court was right in including them also as the workmen of the concern.8. learned counsel invited our attention to two decisions of the apex court to substantiate his claim that the espousal of the cause was in accordance with law and the dispute referred and entertained by the labour court was valid. the first is the decision in workmen of rohtak general transport co. v. r.g.t. co., (1962) i llj 634 (sc). that was a case wherein in an establishment employing 22 workmen, the dispute in regard to two workmen came to be espoused by five workmen excluding the two concerned workmen. the apex court, before whom a challenge on the entertainment of the dispute came to be made, held that since no such point was taken before the labour court on behalf of the management that the five workmen did not espouse the cause before it was referred for adjudication, the labour court was not right in rejecting the reference on the preliminary ground. in our view, the issue that was urged and actually decided was not in the manner which is now sought to be projected before us. while posing the question for adjudication in that case as to whether the dispute has been sponsored by the workmen before it was referred for adjudication, it was held by their lordships of the supreme court that in view of the fact that no point was taken on behalf of the management that the five workmen supported the cause of the two workmen after reference and riot prior to the reference, the two documents filed before the labour court should be taken as prima facie evidence to show the support of the five workmen to the cause of the two workmen before the same was referred for adjudication and if really such a point had been taken before the labour court, the five workmen would have been examined to show that they supported the cause before the date of reference. we find nothing in the said decision in support of the claim made now before us in this proceedings.9. the next decision referred in workmen of dharampal premchand v. dharampal premchand, : (1965)illj668sc dealt with a case wherein 18 out of 45 workmen in an establishment who were members of union whose membership was not confined to the establishment in question were under dispute only, but at the same time, all those workmen who were members of the union and who were dismissed from service, having joined together to make their claim for reinstatement espoused by such union of which none of the other workmen in service was a member was held to be valid reference. a perusal of the said decision would go to show that the principles laid down in the context of the fact situation in that case will have no relevance or application to the case on hand. there was no dispute about the very workers who were said to have joined to project the dispute being either workmen or not of the very establishment in which the dispute arose. on the other hand, that appears to be a case on facts wherein though 45 workmen were there in that particular establishment, it is only 18 were members of the particular union and all the 18 workers who were dismissed joined together to fight their cause and it is that cause which has been espoused by the particular union, the membership of which was not only confined to the establishment in respect of which the dispute arose but the workers of other establishments as well. it is in that context the 18 persons joining together to vindicate their rights through the union of which they were members were found to be in order and not on account of the fact that 18 could be said to be the sufficient number out of 45 to constitute the required representative status to vindicate an industrial dispute within the meaning of section 2(k) of the industrial disputes act, 1947. the terms of industrial dispute have been always construed to convey the meaning that the machinery provided under the act except those covered under section 2-a of the act should be set in motion and espoused by all the workmen or even by a majority of the employees/ members of the union concerned.10. we have carefully considered the submissions of learned counsel appearing for the appellant as also that of mr. vijayakumar, learned counsel for the respondent, who while reiterating the submissions made before the learned single judge and adopting the reasons assigned by the learned single judge also contended that the labour court committed patent error in ignoring the attendance rolls produced to substantiate the claims that the five workmen who were treated by the labour court as workmen of the company in question were not really their workmen and that the learned single judge was right in interfering with the award of the labour court on account of such serious lapses on the part of the labour court. we find that the labour court, as urged by (sic.) the respondent-management, has not adverted to the attendance rolls and these aspects which go to the root of the matter as to the status of the five workmen in question, which are essentially necessary in finding out as to whether the dispute has been properly espoused and duly referred has been overlooked by the labour court. on the other hand, the learned single judge has adverted to these aspects and also the move made by the respondent-management to have the issue relating to the locus standi decided as a primary issue making the relevant and required factual allegations, which according to the learned single judge had not been properly adverted to or considered or adjudicated warranting his interference. we could see no error in the procedure adopted by the learned single judge to interfere with the said findings. we are unable to agree with the explanation now sought to be given by learned counsel for the appellant that the five workmen who were held to be not workmen of the concern by the learned single judge must have been treated as casuals whom the company was in the habit of not including in the attendance register. the learned single judge, at any rate, in our view, cannot be found fault with, for going on the basis of the statutory attendance register maintained and periodically inspected by the competent inspecting authorities as the basis for deciding the status and character of a worker. the relevant materials on record but ignored by an adjudicating authority like the labour court could very well be adverted to even in proceedings under article 226 of the constitution of india and findings of fact rendered in utter disregard of the relevant land vital materials could be interfered with in exercise of jurisdiction under article 226 of the constitution of india since such finding would suffer from the vice of perversity in arriving at them. this position has by now come to be well-settled and we do not see any error whatsoever. that apart, we cannot also find any error in the finding of the learned single judge that 11 out of 13 workers have settled their claims as earlier noticed. learned counsel for the appellant took strong exception to the learned single judge placing reliance upon the records produced by the government pleader. though no doubt the management could have taken effective steps to summon those receipts evidencing settlement of the claims of 11 workers, the said lapse alone could not be the basis for once and for all rejecting the claim of the management of such settlement which has been indisputably projected even before the labour court. the materials produced in the form of receipts passed on by the concerned workers at the stage of proceedings before this court under article 226 of the constitution of india were from the custody of the conciliation officer and from his records and not by the management from their possession. since the fact that such settlement has been effected by 11 workers has been projected even before the labour court by the management if the move of the workmen is really genuine and sincere nothing precluded the workmen making arrangements to examine those workmen on their side before the labour court to prove that they have not really settled their claims. this not having been done and in the teeth of the records having come from out of the official custody of the competent authority before whom during the course of conciliation, the said settlement was stated to have been arrived at, the learned judge could not be found fault with for relying upon those materials and the finding recorded in this regard does not call for our interference.the alleged denial of an opportunity, therefore, has no merits for acceptance. though receipts as such were made available, at the stage of the writ petition, from the custody of the conciliation officer, the plea has been specifically projected even at the earliest stage and as noticed by us, nothing precluded the workmen from being examined on behalf of the union even in (sic.) the labour court. in the light of our conclusions on the above two issues sustaining the order of the learned single judge on those two aspects, we consider it even unnecessary to enter into an adjudication of the question whether it is lock-out or closure. for all the reasons stated above, we do not find any merit in the above appeal. the appeal, therefore, falls and shall stand dismissed. no costs. the direction with reference to samuel, a worker issued by the learned single judge will stand and if not already settled, shall be complied with, notwithstanding the dismissal of this appeal.