Dhanalakshmi Mills Ltd. Vs. Presiding Officer, Labour Court and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/825358
SubjectLabour and Industrial
CourtChennai High Court
Decided OnApr-16-2001
Case NumberW.P. No. 5712/1996 and W.M.P. No. 8962/1996
JudgeF.M. Ibrahim Kalifulla, J.
Reported in[2002(92)FLR866]; (2002)ILLJ520Mad
ActsIndustrial Disputes Act, 1947 - Sections 25O and 33C(2)
AppellantDhanalakshmi Mills Ltd.
RespondentPresiding Officer, Labour Court and ors.
Appellant AdvocateA.L. Somayaji and ;S. Ravi, Advs.
Respondent AdvocateO. Venkatachalam, Adv.
DispositionPetition allowed
Cases ReferredVazir Glass Works Ltd. v. Maharashtra General Kamgar Union
Excerpt:
labour and industrial - payment - sections 25o and 33c (2) of industrial disputes act, 1947 - respondents claimed for interim relief - petition filed against order of first respondent computing relief payable to respondents no. 2 to 221 - order of first respondent passed in excess of jurisdiction vested with it and not justified by virtue of operation of section 25o - in review application and having regard to subsequent award of special industrial tribunal earlier order of first respondent not in existence - order of first respondent given relief to respondents no. 2 to 221 not justified - petition allowed. - f.m. ibrahim kalifulla, j.1. this writ petition has been filed against the order of the first respondent dated march 18, 1996, passed in c.p. nos. 141 to 366 of 1995, 600 to 603 of 1995 and 7 and 8 of 1996, computing the relief payable to respondents nos. 2 to 221 by way of wages for the period july 1, 1993, to april 30, 1994. respondents nos. 2 to 221 filed c.p. nos. 141 to 366 of 1994, 600 to 603 of 1995, 7 and 8 of 1996 on the file of the first respondent claiming wages for the period july 1, 1993, to april 30, 1994, bonus for the year 1992-93 and interim relief.2. the said claim was resisted by the petitioner contending that the application filed by respondents nos. 2 to 221 under section 33-c(2) of the industrial disputes act, 1947, (hereinafter referred to as 'the act'), was not maintainable, that the closure of the 'b' mills and the preparatory section of the 'a' mills was inevitable, that when the commissioner of labour by his order dated september 16, 1992, rejected the petitioner's application seeking permission for closure, a review petition was filed before the state government and by g.o.(d) no. 250, dated april 6, 1993, the state government, while passing orders in the review application, referred the issue for grant of permission of closure to the special industrial tribunal, madras, in i.d. no. 4 of 1993, that an award has been passed in i.d. no. 4 of 1993 on november 28, 1994, granting permission to close the 'b' mills weaving and the preparatory section in the 'a' mills while directing the petitioner to provide alternate employment to all the 'b' mills employees in the 'a' mills, that when alternate employment was offered even earlier, respondents nos. 2 to 221 refused the said offer though about 139 workmen and staff of the 'b' mills agreed to get re-deployed in the 'a' mills by accepting a memorandum of understanding dated december 9, 1992, and, therefore, respondents nos. 2 to 221 were not entitled for the amounts claimed in the application preferred under section 33-c(2) of the act.3. by the impugned order dated march 18, 1996, the first respondent rejected the claims of respondents nos. 2 to 221 in regard to the claim for bonus for the year 1992-93 as well as the interim relief. however, the first respondent has computed the relief payable by way of wages for the period july 1, 1993, to april 30, 1994, to respondents nos. 2 to 221 as claimed by them. the first respondent held that the award in i.d. no. 4 of 1993 granting permission for closure of the 'b' mills and the preparatory section of the 'a' mills in the award dated november 28, 1994 could not be taken to mean that such permission for closure was to take effect from the factual date of closure, namely, july 20, 1992, and, therefore, having regard to the relief granted in the earlier claim petitions covering the period july 20, 1992, to june 30, 1993, and in view of the fact that in the interim order of this court in the writ petition challenging the earlier order of the labour court stating that respondents nos. 2 to 221 cannot take any coercive steps to recover the relief granted in those earlier claim petitions, there was no impediment in computing the relief claimed in the present claim petitions. significantly, though the first respondent referred to the offer of the petitioner providing alternate employment under exhibit m-6 to all the 'b' mills workmen in the 'a' mills, there was no finding rendered on the said aspect. on the maintainability of the application under section 33-c(2) of the act, the first respondent, by referring to exhibit w-2 dated july 13, 1993, an advice letter of the secretary of labour, held that since, as per the said advice, the workmen could work out their liability under section 33-c(2) of the act or under section 15(2) of the payment of wages act, 1936, and since in the earlier claim petitions the relief has been granted for the period july 20, 1992, to june 30, 1993, by order dated march 31, 1994, this application could be maintained.4. assailing the said order of the first respondent, sri a. l. somayaji, learned senior counsel appearing for the petitioner, contended that the first respondent having noted the offer of the petitioner to provide for alternate employment to all the 'b' mills workmen in the 'a' mills under exhibit m-6 as well as the memorandum of understanding dated december 9, 1992, under exhibit m-10 went wrong in countenancing the claim of respondents nos. 2 to 221 who have admittedly declined the offer of alternate employment made by the petitioner. learned counsel further contended that as per the award of the special industrial tribunal rendered in i.d. no. 4 of 1993, dated november 28, 1994, under exhibit m-15, when once permission was granted for the closure of the 'b' mills, by virtue of section 25-o(1),(2),(5),(6) and (8) of the act, it would take effect from the original date from which permission was sought for by the petitioner to close down the 'b' mills and the conclusion to the contrary made by the first respondent was not in consonance with law. learned counsel further contended that in any event in the limited jurisdiction of the first respondent that could be exercised under section 33-c(2) of the act, the first respondent ought not to have delved into the disputed questions as to the very entitlement of respondents nos. 2 to 221 for claiming the abovesaid relief. learned counsel relied upon the judgment in vazir glass works ltd. v. maharashtra general kamgar union and contended that when once the government passed orders in the, review petition of the petitioner by referring the dispute for adjudication before the special industrial tribunal, the ultimate award passed by the special industrial tribunal superseded the order of the commissioner dated september 16, 1992, and thereby, there was no scope forrespondents nos. 2 to 221 to rely upon the earlier order of the commissioner of labour to maintain the present claim for wages for the period july 1, 1993, to april 30, 1994.5. while considering the validity of the order impugned in this writ petition, it is relevant to mention that by my order passed in w.p. no. 21568 of 1993, i have upheld the award of the special industrial tribunal, dated november 28, 1994, passed in i.d. no. 4 of 1993. it is also relevant to note that by my order made in w.p. no. 8225 of 1994, etc., (batch), i have set aside the earlier orders of the first respondent dated march 31, 1994, made in c.p. nos. 358 to 589 of 1993 and 133 to 137 of 1993, in and by which, wages payable to respondents nos. 2 to 221 for the earlier period, namely, july 20, 1992, to june 30, 1993, were determined to be payable by the petitioner.6. in the order impugned in this writ petition, though three different claims were made since the first respondent has rejected the claim relating to bonus for 1992-93 as well as the interim payment, the writ petition is related to the direction for payment of wages for the period july 1, 1993, to april 30, 1994. the claim was made by respondents nos. 2 to 221 on the footing that the application of the petitioner seeking for permission to close down the 'b' mills and the preparatory section of the 'a' mills was rejected by the commissioner of labour by his order dated september 16, 1992. in other words, the claim was on the ground that when once permission for closure was rejected, the workmen should be deemed to have been in employment and thereby entitled for all the benefits payable to them during the period during which they were denied employment, as well as wages. the stand of the petitioner was that when once the order of the commissioner of labour dated september 16, 1992, was reviewed in the order dated april 16, 1993, by the state of tamil nadu by referring the very issue for adjudication to the special industrial tribunal there was no scope for the workmen to rely upon the order of the commissioner of labour dated september 16, 1992, that by virtue of the award passed by the special industrial tribunal under exhibit m-15, the order of the commissioner of labour got superseded and that after the award of the special industrial tribunal, in and by which permission was granted, such permission would take effect from the actual date of the closure, namely, july 20, 1992. it was, therefore, contended that there was no scope for computing the claims of respondents nos. 2 to 221 for the period july 1, 1993, to april 30, 1994.7. in the case on hand, though initially permission was refused by the commissioner of labour in his order dated september 16, 1992, the special industrial tribunal hasgranted permission on november 28, 1994, ini.d. no. 4 of 1993. the tribunal, in its award, has ultimately given the relief to the following effect:'59. thus, while the issue was approached in the larger perspective as laid down by the supreme court, and on an analysis of the entire evidence on record in this case and also bearing in mind the law laid down in the above decisions, there is no alternative except to hold that the management has come with clean hands, that there exists adequate reasons, genuineness and interest of the general public, warranting a closure of the mills. for all these reasons, it is found that the demand of the management of dhanalakshmi mills limited, tiruppur, is justified and permission is granted to close down the 'b' mills and its preparatory section in the 'a' mills. hence, the issue is found accordingly. issue no. 2. 60. in the result, an award is passed to close down their 'b' mills, including all machinery, accessories and other installations in the weaving preparatory section in the premises of 'a' mills at tiruppur. the management/applicant is directed to re-deploy in the 'a' mills, all the workmen in the 'b' mills and the preparatory section in the premises of the 'a' mills, within four weeks without prejudice to their service conditions.' the demand that was referred for adjudication to the special industrial tribunal is couched in the following terms:'whether the demand of the management of dhanalakshmi mills, tiruppur, to close down their 'b' mills including all machinery, accessories and other installations in the weaving preparatory section in the premises of the 'a' mills at tiruppur, is justified and what relief the management and the workmen, if they are entitled to ?'in its award, the special industrial tribunal has referred to the claim of the petitioner to grant permission to close down the 'b' mills weaving and also the weaving preparatory section in the 'a' mills to take effect from the original date of application for permission to close and also for direction for re-deployment of the remaining 260 workmen in the 'a' mills. therefore, when ultimately the special industrial tribunal granted permission for closure as claimed by the petitioner, having regard to the specific claim made by the petitioner before the special industrial tribunal as well as by virtue of section 25-o(8) of the act, the workmen would at best be entitled for compensation as provided in the said section. however, since the special industrial tribunal, while granting permission, directed the petitioner to re-deploy all the 'b' mills workmen in the 'a' mills within four weeks without prejudice to their service conditions, the workmen, at best, can claim for any monetary relief for wages in the event of the petitioner not having complied with the direction of re-deployment within the specific period of four weeks and not beyond. in other words, when once permission was granted by the special industrial tribunal in i.d. no. 4 of 1993 by its award dated november 28, 1994, under exhibit m-15, the said permission having taken effect by virtue of operation of section 25-o(8) of the act from the original date of application, namely, july 20, 1992, there was no scope for the first respondent to countenance the claim of respondents nos. 2 to 221 for the period july 1, 1993, to april 30, 1994.8. that apart, in the case on hand, admittedly when alternate employment was offered to respondents nos. 2 to 221 along with the other workmen, for reasons best known to them, respondents nos. 2 to 221 declined the offer while 139 other workmen accepted such alternate employment and joined service in the 'a' mills. exhibit m-10, the memorandum of understanding dated december 9, 1992, shows that the petitioner was prepared to provide employment to such of those workmen, who expressed their willingness to accept re-deployment in the 'a' mills on and from december 15, 1992. the petitioner also agreed to protect whatever wages such workmen were getting in the 'b' mills, while providing alternate employment in the 'a' mills. it was agreed between the parties that gradually within three months time, such re-deployed workmen should maintain the level of production in the 'a' mills. it was also agreed that such of those 'b' mills employees accepting re-deployment in the 'a' mills should give individual letters expressing their willingness to accept re-deployment. thus, a reading of the memorandum of understanding dated december 9, 1992, under exhibit m-10, does not disclose any unreasonable restriction or stringent condition while offering redeployment. therefore, i am unable to comprehend the submission made on behalf of respondents nos. 2 to 221, that the re-deployment offered by the petitioner was not accepted by respondents nos. 2 to 221, as the same contained unreasonable restrictions. there was also no evidence placed before the first respondent to show that those workmen, who accepted such re- deployment and joined the service in the 'a' mills were put to any hardship or inconvenience in the course of their employment in the 'a' mills. in such circumstances, when the offer of alternate employment was factually made at the instance of the petitioner and such offer was admittedly declined by respondents nos. 2 to 221, in the absence of any other acceptable material evidence, such disinclination to accept the offer of alternate employment can only be construed as a deliberate one made at the instance of respondents nos. 2 to 221, which only deprive them of claiming any relief for the period subsequent to such offer made at the instance of the petitioner, namely, december 15, 1992. therefore, assuming the claim of respondents nos. 2 to 221 under section 33-c(2) was maintainable before the first respondent, having regard to the fact that the factum of non-employment of the concerned workmen for the period subsequent to december 15, 1992, was their own making, namely, respondents nos. 2 to 221, there was absolutely no justification in the claim for wages made by them for the period july 1, 1993, to april 30, 1994. therefore, on this ground as well, the order of the first respondent cannot be sustained.9. further, in respect of the jurisdiction exercisable in an application under section 33-c(2) of the act, the supreme court in the judgment of municipal corporation of delhi v. ganesh razak was pleased to rely upon an earlier judgment of the supreme court in central inland water transport corporation ltd, v. their workmen, : the relevant passage of the said judgment has also been extracted in the subsequent judgment of the supreme court, which is to the following effect:'in central inland water transport corporation ltd. v. their workmen (supra), it was held with reference to the earlier decisions that a proceeding under section 33-c(2) being in the nature of an execution proceeding, it would appear that an investigation of the alleged right of re-employment is outside its scope and the labour court exercising power under section 33-c(2) of the act cannot arrogate to itself the functions of adjudication of the dispute relating to the claim of re-employment. distinction between proceedings in a suit and execution proceedings thereafter was pointed out. it was indicated that the plaintiffs right to relief against the defendant involves an investigation, which can be done only in a suit and once the defendant's liability had been adjudicated in the suit, the working out of such liability with a view to give relief is the function of an execution proceeding. this distinction is clearly brought out in that decision as under: 'in a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiffs right to relief (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. the working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. determination no. (iii), referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. but that is not the case with the determinations under heads (i) and (ii). they are normally regarded as the functions of a suit and not an execution proceedings. since a proceeding under section 33-c(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. it is true that in a proceeding under section 33-c(2), as in an execution proceeding, it may be' necessary to determine the identity of the person by whom or against whom the claim is made, if there is a challenge on that score but that is merely 'incidental'. to call determinations (i) and (ii) 'incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief, therefore, when a claim is made before the labour court under section 33-c(2), that court must clearly understand the limitations under which it is to function. it cannot arrogate to itself the functions - say of an industrial tribunal, which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'incidental' to its main business of computation. in such cases, determinations (i) and (ii) are not 'incidental' to the computation. the computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process, which commenced with a reference to the industrial tribunal. it was, therefore, held in state bank of bikaner and jaipur v. r.l. khandelwal that a workman cannot put forward a claim in an application under section 33-c(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference under section 10 of act.' 10. the dictum of the supreme court makes it clear that where a workman's right to relief along with the corresponding liability of the management is called for determination in an application under section 33-c(2), the same would be beyond the scope of the jurisdiction exercisable under the said section by the first respondent. in the case on hand, if the liability of the petitioner for payment of wages for the period july 1, 1993, to april 30, 1994, is to be determined, the same involves the right of the workmen to claim wages and the corresponding liability of the petitioner to meet that liability. the determination of the said question would involve the justification or otherwise of the closure of the 'b' mills with effect from july 20, 1992, in the light of the award of the special industrial tribunal, dated november 28, 1994, under exhibit m-15 and also as to whether at all such claim could be sustained when there was a specific offer of alternate employment at the instance of the petitioner and such offer of alternate employment was declined at the instance of respondents nos. 2 to 221. certainly, the resolution of such disputed questions would not have been determined at all by the first respondent in its limited jurisdiction exercisable under section 33-c(2) of the act. therefore, even on this ground as well, the order impugned in the writ petition is liable to be set aside.11. learned counsel appearing for respondents nos. 2 to 221 by referring to paragraphs 33 and 34 of the judgment in vazir glass works ltd. v. maharashtra general kamgar union, : contended that the said judgment cannot be applied to the facts of this case as the supreme court was pleased to validate the award under certain special circumstances. i am unable to appreciate the said contention of learned counsel. in fact, in the said judgment, the supreme court has made it very clear, as a proposition of law, that once the state government passes any order in a review application, such order would supersede the initial order made on the application for permission to close. the said proposition of law laid down by the supreme court tacitly makes it clear that the rejection of the closure application by the commissioner of labour made in the case on hand on september 16, 1992, was superseded, by virtue of the order of the government dated april 6, 1993, in the review application, and further, having regard to the subsequent award of the special industrial tribunal dated november 28, 1994, passed in i.d. no. 4 of 1993, the earlier order of the commissioner can no longer be even referred to in any proceedings. therefore, there is no scope for maintaining the claim of respondents nos. 2 to 221 by placing reliance upon the earlier order of the commissioner of labour, dated september 16, 1992, rejecting the petitioner's application for permission for the closure of 'b' mills. learned counsel for respondents nos. 2 to 221 then contended that when the claim related to the period july 1, 1993, to april 30, 1994, and during the relevant period as the award of the special industrial tribunal had not come into being and since the earlier order of the commissioner of labour, dated september 16, 1992, alone was prevailing, it should be construed that the period of closure during the relevant period was illegal, and, therefore, the order of the labour court was justified. the said contention of learned counsel is also not acceptable, inasmuch as, at the time, when the labour court took the claim for consideration, exhibit m-15 award had come into existence. in such a situation, the labour court cannot ignore the said award, which has set at naught the earlier order of the commissioner.12. looked at from any angle, i am not able to see any justification in the order passed by the first respondent in having computed the relief payable to respondents nos. 2 to 221. the said order of the first respondent having been passed in excess of jurisdiction vested with it and also not being justified in the facts and circumstances of the case as well as by virtue of the operation of section 25-o of the act read along with the order of the government of tamil nadu, dated april 6, 1993, in the review application as well as the award of the special industrial tribunal dated november 28, 1994, passed in i.d. no. 4 of 1993 under exhibit m-15, the same is liable to be set aside. the writ petition is allowed and the order impugned in the writ petition is quashed. no costs. consequently, w.m.p. no. 8962 of 1996 is closed.
Judgment:

F.M. Ibrahim Kalifulla, J.

1. This writ petition has been filed against the order of the first respondent dated March 18, 1996, passed in C.P. Nos. 141 to 366 of 1995, 600 to 603 of 1995 and 7 and 8 of 1996, computing the relief payable to respondents Nos. 2 to 221 by way of wages for the period July 1, 1993, to April 30, 1994. Respondents Nos. 2 to 221 filed C.P. Nos. 141 to 366 of 1994, 600 to 603 of 1995, 7 and 8 of 1996 on the file of the first respondent claiming wages for the period July 1, 1993, to April 30, 1994, bonus for the year 1992-93 and interim relief.

2. The said claim was resisted by the petitioner contending that the application filed by respondents Nos. 2 to 221 under Section 33-C(2) of the Industrial Disputes Act, 1947, (hereinafter referred to as 'the Act'), was not maintainable, that the closure of the 'B' mills and the preparatory section of the 'A' mills was inevitable, that when the Commissioner of Labour by his order dated September 16, 1992, rejected the petitioner's application seeking permission for closure, a review petition was filed before the State Government and by G.O.(D) No. 250, dated April 6, 1993, the State Government, while passing orders in the review application, referred the issue for grant of permission of closure to the Special Industrial Tribunal, Madras, in I.D. No. 4 of 1993, that an award has been passed in I.D. No. 4 of 1993 on November 28, 1994, granting permission to close the 'B' mills weaving and the preparatory Section in the 'A' mills while directing the petitioner to provide alternate employment to all the 'B' mills employees in the 'A' mills, that when alternate employment was offered even earlier, respondents Nos. 2 to 221 refused the said offer though about 139 workmen and staff of the 'B' mills agreed to get re-deployed in the 'A' mills by accepting a memorandum of understanding dated December 9, 1992, and, therefore, respondents Nos. 2 to 221 were not entitled for the amounts claimed in the application preferred under Section 33-C(2) of the Act.

3. By the impugned order dated March 18, 1996, the first respondent rejected the claims of respondents Nos. 2 to 221 in regard to the claim for bonus for the year 1992-93 as well as the interim relief. However, the first respondent has computed the relief payable by way of wages for the period July 1, 1993, to April 30, 1994, to respondents Nos. 2 to 221 as claimed by them. The first respondent held that the award in I.D. No. 4 of 1993 granting permission for closure of the 'B' mills and the preparatory Section of the 'A' mills in the award dated November 28, 1994 could not be taken to mean that such permission for closure was to take effect from the factual date of closure, namely, July 20, 1992, and, therefore, having regard to the relief granted in the earlier claim petitions covering the period July 20, 1992, to June 30, 1993, and in view of the fact that in the interim order of this Court in the writ petition challenging the earlier order of the Labour Court stating that respondents Nos. 2 to 221 cannot take any coercive steps to recover the relief granted in those earlier claim petitions, there was no impediment in computing the relief claimed in the present claim petitions. Significantly, though the first respondent referred to the offer of the petitioner providing alternate employment under exhibit M-6 to all the 'B' mills workmen in the 'A' mills, there was no finding rendered on the said aspect. On the maintainability of the application under Section 33-C(2) of the Act, the first respondent, by referring to exhibit W-2 dated July 13, 1993, an advice letter of the Secretary of Labour, held that since, as per the said advice, the workmen could work out their liability under Section 33-C(2) of the Act or under Section 15(2) of the Payment of Wages Act, 1936, and since in the earlier claim petitions the relief has been granted for the period July 20, 1992, to June 30, 1993, by order dated March 31, 1994, this application could be maintained.

4. Assailing the said order of the first respondent, Sri A. L. Somayaji, learned senior counsel appearing for the petitioner, contended that the first respondent having noted the offer of the petitioner to provide for alternate employment to all the 'B' mills workmen in the 'A' mills under exhibit M-6 as well as the memorandum of understanding dated December 9, 1992, under exhibit M-10 went wrong in countenancing the claim of respondents Nos. 2 to 221 who have admittedly declined the offer of alternate employment made by the petitioner. Learned counsel further contended that as per the award of the Special Industrial Tribunal rendered in I.D. No. 4 of 1993, dated November 28, 1994, under exhibit M-15, when once permission was granted for the closure of the 'B' mills, by virtue of Section 25-O(1),(2),(5),(6) and (8) of the Act, it would take effect from the original date from which permission was sought for by the petitioner to close down the 'B' mills and the conclusion to the contrary made by the first respondent was not in consonance with law. Learned counsel further contended that in any event in the limited jurisdiction of the first respondent that could be exercised under Section 33-C(2) of the Act, the first respondent ought not to have delved into the disputed questions as to the very entitlement of respondents Nos. 2 to 221 for claiming the abovesaid relief. Learned counsel relied upon the judgment in Vazir Glass Works Ltd. v. Maharashtra General Kamgar Union and contended that when once the Government passed orders in the, review petition of the petitioner by referring the dispute for adjudication before the Special Industrial Tribunal, the ultimate award passed by the Special Industrial Tribunal superseded the order of the Commissioner dated September 16, 1992, and thereby, there was no scope forrespondents Nos. 2 to 221 to rely upon the earlier order of the Commissioner of Labour to maintain the present claim for wages for the period July 1, 1993, to April 30, 1994.

5. While considering the validity of the order impugned in this writ petition, it is relevant to mention that by my order passed in W.P. No. 21568 of 1993, I have upheld the award of the Special Industrial Tribunal, dated November 28, 1994, passed in I.D. No. 4 of 1993. It is also relevant to note that by my order made in W.P. No. 8225 of 1994, etc., (batch), I have set aside the earlier orders of the first respondent dated March 31, 1994, made in C.P. Nos. 358 to 589 of 1993 and 133 to 137 of 1993, in and by which, wages payable to respondents Nos. 2 to 221 for the earlier period, namely, July 20, 1992, to June 30, 1993, were determined to be payable by the petitioner.

6. In the order impugned in this writ petition, though three different claims were made since the first respondent has rejected the claim relating to bonus for 1992-93 as well as the interim payment, the writ petition is related to the direction for payment of wages for the period July 1, 1993, to April 30, 1994. The claim was made by respondents Nos. 2 to 221 on the footing that the application of the petitioner seeking for permission to close down the 'B' mills and the preparatory section of the 'A' mills was rejected by the Commissioner of Labour by his order dated September 16, 1992. In other words, the claim was on the ground that when once permission for closure was rejected, the workmen should be deemed to have been in employment and thereby entitled for all the benefits payable to them during the period during which they were denied employment, as well as wages. The stand of the petitioner was that when once the order of the Commissioner of Labour dated September 16, 1992, was reviewed in the order dated April 16, 1993, by the State of Tamil Nadu by referring the very issue for adjudication to the Special Industrial Tribunal there was no scope for the workmen to rely upon the order of the Commissioner of Labour dated September 16, 1992, that by virtue of the award passed by the Special Industrial Tribunal under exhibit M-15, the order of the Commissioner of Labour got superseded and that after the award of the Special Industrial Tribunal, in and by which permission was granted, such permission would take effect from the actual date of the closure, namely, July 20, 1992. It was, therefore, contended that there was no scope for computing the claims of respondents Nos. 2 to 221 for the period July 1, 1993, to April 30, 1994.

7. In the case on hand, though initially permission was refused by the Commissioner of Labour in his order dated September 16, 1992, the Special Industrial Tribunal hasgranted permission on November 28, 1994, inI.D. No. 4 of 1993. The Tribunal, in its award, has ultimately given the relief to the following effect:

'59. Thus, while the issue was approached in the larger perspective as laid down by the Supreme Court, and on an analysis of the entire evidence on record in this case and also bearing in mind the law laid down in the above decisions, there is no alternative except to hold that the management has come with clean hands, that there exists adequate reasons, genuineness and interest of the general public, warranting a closure of the mills. For all these reasons, it is found that the demand of the management of Dhanalakshmi Mills Limited, Tiruppur, is justified and permission is granted to close down the 'B' Mills and its preparatory Section in the 'A' mills. Hence, the issue is found accordingly.

Issue No. 2.

60. In the result, an award is passed to close down their 'B' mills, including all machinery, accessories and other installations in the weaving preparatory Section in the premises of 'A' mills at Tiruppur. The management/applicant is directed to re-deploy in the 'A' mills, all the workmen in the 'B' mills and the preparatory Section in the premises of the 'A' mills, within four weeks without prejudice to their service conditions.'

The demand that was referred for adjudication to the Special Industrial Tribunal is couched in the following terms:

'Whether the demand of the management of Dhanalakshmi Mills, Tiruppur, to close down their 'B' mills including all machinery, accessories and other installations in the weaving preparatory Section in the premises of the 'A' mills at Tiruppur, is justified and what relief the management and the workmen, if they are entitled to ?'

In its award, the Special Industrial Tribunal has referred to the claim of the petitioner to grant permission to close down the 'B' mills weaving and also the weaving preparatory Section in the 'A' mills to take effect from the original date of application for permission to close and also for direction for re-deployment of the remaining 260 workmen in the 'A' mills. Therefore, when ultimately the Special Industrial Tribunal granted permission for closure as claimed by the petitioner, having regard to the specific claim made by the petitioner before the Special Industrial Tribunal as well as by virtue of Section 25-O(8) of the Act, the workmen would at best be entitled for compensation as provided in the said Section. However, since the Special Industrial Tribunal, while granting permission, directed the petitioner to re-deploy all the 'B' mills workmen in the 'A' mills within four weeks without prejudice to their service conditions, the workmen, at best, can claim for any monetary relief for wages in the event of the petitioner not having complied with the direction of re-deployment within the specific period of four weeks and not beyond. In other words, when once permission was granted by the Special Industrial Tribunal in I.D. No. 4 of 1993 by its award dated November 28, 1994, under exhibit M-15, the said permission having taken effect by virtue of operation of Section 25-O(8) of the Act from the original date of application, namely, July 20, 1992, there was no scope for the first respondent to countenance the claim of respondents Nos. 2 to 221 for the period July 1, 1993, to April 30, 1994.

8. That apart, in the case on hand, admittedly when alternate employment was offered to respondents Nos. 2 to 221 along with the other workmen, for reasons best known to them, respondents Nos. 2 to 221 declined the offer while 139 other workmen accepted such alternate employment and joined service in the 'A' mills. Exhibit M-10, the memorandum of understanding dated December 9, 1992, shows that the petitioner was prepared to provide employment to such of those workmen, who expressed their willingness to accept re-deployment in the 'A' mills on and from December 15, 1992. The petitioner also agreed to protect whatever wages such workmen were getting in the 'B' mills, while providing alternate employment in the 'A' mills. It was agreed between the parties that gradually within three months time, such re-deployed workmen should maintain the level of production in the 'A' mills. It was also agreed that such of those 'B' mills employees accepting re-deployment in the 'A' mills should give individual letters expressing their willingness to accept re-deployment. Thus, a reading of the memorandum of understanding dated December 9, 1992, under exhibit M-10, does not disclose any unreasonable restriction or stringent condition while offering redeployment. Therefore, I am unable to comprehend the submission made on behalf of respondents Nos. 2 to 221, that the re-deployment offered by the petitioner was not accepted by respondents Nos. 2 to 221, as the same contained unreasonable restrictions. There was also no evidence placed before the first respondent to show that those workmen, who accepted such re- deployment and joined the service in the 'A' mills were put to any hardship or inconvenience in the course of their employment in the 'A' mills. In such circumstances, when the offer of alternate employment was factually made at the instance of the petitioner and such offer was admittedly declined by respondents Nos. 2 to 221, in the absence of any other acceptable material evidence, such disinclination to accept the offer of alternate employment can only be construed as a deliberate one made at the instance of respondents Nos. 2 to 221, which only deprive them of claiming any relief for the period subsequent to such offer made at the instance of the petitioner, namely, December 15, 1992. Therefore, assuming the claim of respondents Nos. 2 to 221 under Section 33-C(2) was maintainable before the first respondent, having regard to the fact that the factum of non-employment of the concerned workmen for the period subsequent to December 15, 1992, was their own making, namely, respondents Nos. 2 to 221, there was absolutely no justification in the claim for wages made by them for the period July 1, 1993, to April 30, 1994. Therefore, on this ground as well, the order of the first respondent cannot be sustained.

9. Further, in respect of the jurisdiction exercisable in an application under Section 33-C(2) of the Act, the Supreme Court in the judgment of Municipal Corporation of Delhi v. Ganesh Razak was pleased to rely upon an earlier judgment of the Supreme Court in Central Inland Water Transport Corporation Ltd, v. Their Workmen, : the relevant passage of the said judgment has also been extracted in the subsequent judgment of the Supreme Court, which is to the following effect:

'In Central Inland Water Transport Corporation Ltd. v. Their Workmen (supra), it was held with reference to the earlier decisions that a proceeding under Section 33-C(2) being in the nature of an execution proceeding, it would appear that an investigation of the alleged right of re-employment is outside its scope and the Labour Court exercising power under Section 33-C(2) of the Act cannot arrogate to itself the functions of adjudication of the dispute relating to the claim of re-employment. Distinction between proceedings in a suit and execution proceedings thereafter was pointed out. It was indicated that the plaintiffs right to relief against the defendant involves an investigation, which can be done only in a suit and once the defendant's liability had been adjudicated in the suit, the working out of such liability with a view to give relief is the function of an execution proceeding. This distinction is clearly brought out in that decision as under: 'In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiffs right to relief (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii), referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceedings. Since a proceeding under Section 33-C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33-C(2), as in an execution proceeding, it may be' necessary to determine the identity of the person by whom or against whom the claim is made, if there is a challenge on that score But that is merely 'incidental'. To call determinations (i) and (ii) 'incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief, Therefore, when a claim is made before the Labour Court under Section 33-C(2), that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions - say of an Industrial Tribunal, which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'incidental' to its main business of computation. In such cases, determinations (i) and (ii) are not 'incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process, which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R.L. Khandelwal that a workman cannot put forward a claim in an application under Section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference under Section 10 of Act.'

10. The dictum of the Supreme Court makes it clear that where a workman's right to relief along with the corresponding liability of the management is called for determination in an application under Section 33-C(2), the same would be beyond the scope of the jurisdiction exercisable under the said Section by the first respondent. In the case on hand, if the liability of the petitioner for payment of wages for the period July 1, 1993, to April 30, 1994, is to be determined, the same involves the right of the workmen to claim wages and the corresponding liability of the petitioner to meet that liability. The determination of the said question would involve the justification or otherwise of the closure of the 'B' mills with effect from July 20, 1992, in the light of the award of the Special Industrial Tribunal, dated November 28, 1994, under exhibit M-15 and also as to whether at all such claim could be sustained when there was a specific offer of alternate employment at the instance of the petitioner and such offer of alternate employment was declined at the instance of respondents Nos. 2 to 221. Certainly, the resolution of such disputed questions would not have been determined at all by the first respondent in its limited jurisdiction exercisable under Section 33-C(2) of the Act. Therefore, even on this ground as well, the order impugned in the writ petition is liable to be set aside.

11. Learned counsel appearing for respondents Nos. 2 to 221 by referring to paragraphs 33 and 34 of the judgment in Vazir Glass Works Ltd. v. Maharashtra General Kamgar Union, : contended that the said judgment cannot be applied to the facts of this case as the Supreme Court was pleased to validate the award under certain special circumstances. I am unable to appreciate the said contention of learned counsel. In fact, in the said judgment, the Supreme Court has made it very clear, as a proposition of law, that once the State Government passes any order in a review application, such order would supersede the initial order made on the application for permission to close. The said proposition of law laid down by the Supreme Court tacitly makes it clear that the rejection of the closure application by the Commissioner of Labour made in the case on hand on September 16, 1992, was superseded, by virtue of the order of the Government dated April 6, 1993, in the review application, and further, having regard to the subsequent award of the Special Industrial Tribunal dated November 28, 1994, passed in I.D. No. 4 of 1993, the earlier order of the Commissioner can no longer be even referred to in any proceedings. Therefore, there is no scope for maintaining the claim of respondents Nos. 2 to 221 by placing reliance upon the earlier order of the Commissioner of Labour, dated September 16, 1992, rejecting the petitioner's application for permission for the closure of 'B' mills. Learned counsel for respondents Nos. 2 to 221 then contended that when the claim related to the period July 1, 1993, to April 30, 1994, and during the relevant period as the award of the Special Industrial Tribunal had not come into being and since the earlier order of the Commissioner of Labour, dated September 16, 1992, alone was prevailing, it should be construed that the period of closure during the relevant period was illegal, and, therefore, the order of the Labour Court was justified. The said contention of learned counsel is also not acceptable, inasmuch as, at the time, when the Labour Court took the claim for consideration, exhibit M-15 award had come into existence. In such a situation, the Labour Court cannot ignore the said award, which has set at naught the earlier order of the Commissioner.

12. Looked at from any angle, I am not able to see any justification in the order passed by the first respondent in having computed the relief payable to respondents Nos. 2 to 221. The said order of the first respondent having been passed in excess of jurisdiction vested with it and also not being justified in the facts and circumstances of the case as well as by virtue of the operation of Section 25-O of the Act read along with the order of the Government of Tamil Nadu, dated April 6, 1993, in the review application as well as the award of the Special Industrial Tribunal dated November 28, 1994, passed in I.D. No. 4 of 1993 under exhibit M-15, the same is liable to be set aside. The writ petition is allowed and the order impugned in the writ petition is quashed. No costs. Consequently, W.M.P. No. 8962 of 1996 is closed.