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Government of West BengalLabour D'epartment
I.R. BranchN.S.Bldgs., 12th floor
1, K.S.Roy Road, Kol-1.No. Labr/B79/(LC-IR)
IR/11 L-35f13Dated,29.08.17.
ORDERWHEREAS under the Government of West Bengal, Labour Department, Order
NO.1230-IR/11 L-35/13 dated 10.9.14 the Industrial Dispute between Messers IndoMining Equipments Ltd., P.O.Khushberia, P.S.Uluberia, Howrah and their workmenrepresented by Indo Mining Equipments Ltd., P.O.-Khushberia, P.S.-Uluberia,Howrah regarding the issue mentioned in the said order, being a matter specified inthe 3rd Schedule to the Industrial Disputes Act, 1947 (14 of 1947), was referred foradjudication to the Judge, Second Industrial Tribunal, West Bengal.
AND WHEREAS the Judge of the said 2nd Industrial Tribunal, West Bengalhas submitted to the State Government its award on the said Industrial Dispute;
NOW, THEREFORE, in pursuance of the provisions of Section 17 of theIndustrial Disputes Act, 1947 (14 of 1947), the Governor is pleased hereby topublish the said award as shown in the Annexure hereto.
ANNEXURE(Attached herewith)
By Order of the Governorsu:Assistant Secretary to the
Government of West Bengal.
No.Labr/B79f1 (5)(LC-IR) Dated, 29.0B.17.Copy with a copy of the award, forwarded for information and necessary
action to -1. Mis. Indo Mining Equipments Ltd., P.O.Khusberia, P.S.Uluberia,Dist.Howrah ..2. The Secretary, Indo Mining Equipments Ltd. Mazdoor Union, P.O.Khusberia,P S.Uluberia, Dist. Howrah3. The Assistant Labour Commissioner, West Bengal, In-Charge, LabourGazette.4. The Labour Commissioner, West Bengal, New Secretariat Buildings, 1, K.S.R~oad, 11thfloor, Kolkata-700 001,0" The O.S.D., IT Cell, Labour Deptt., with the request to cast the Award in theDepartment's website ..
Assistant Secretary
.•J'
Dated,29.8.17.
Copy forwarde for information to :-1. The Judge, Se ond Industrial Tribunal, West Bengal with reference to hisMemo NO.977-L.. dated 17.7.17.2. The Joint Labou Commissioner (Statistics), West Bengal, 6, Church Lane,
Kolkata-700 001.
JntllR/order
Assistant Secretary
In the matter of an industrial dispute under Government of West Bengal Order of
Reference No. 1213-IR dated 10.09.2014 and corrigendum being No. 179-IR
dated 11.03.2016 between Mis. Indo Mining Equipments Ltd. , P.O. -Khushberia, P.S. U1uberia, Howrah and their workmen represented by Indo
Mining Equipments Ltd. ,P.O. - Khushberia, P.S. Uluberia, Howrah.
CASE NO. VII-Ol/2007
BEFORE THE SECOND INDUSTRIAL TRIBUNAL, KOLKATA,
WESTBEGNAL
PRESENT: SHRI SRIBASH CHANDRA DAS, JUDGE
SECOND INDUSTRIAL TRIBUNAL.
Date of passing Award: 13.07.2017
AWARD
The case arose by way of Order of Reference uls 10, read with sub-section
2, of the Industrial Disputes Act, 1947 (14 of 1947). The Deputy Secretary to the
Government of West Bengal, Labour Department, IR Branch, East India House,
2nd floor, 20 B Abdul Hamid Street, Kolkata - 69 (as then was) in his order No.
179-I.R. I 11L-35113dated 11.11.2016 making the reference mentioned that an
industrial disputes exists between Mis. Indo Mining Equipment Ltd, P.O.
Khusberia, P.S. Uluberia within District - Howrah and Indo Mining Equipment
Ltd Mazdoor Union, P.O. Khusberia, P.S. Uluberia, District - Howrah relating to
the issues falling in the 3rd Schedule in the industrial disputes Act, 1947
(subsequently referred as Act) and it became expedient on its part that the dispute
is required to be referred to in this Industrial Tribunal constituted under 7A of the
Act and referred the dispute to this Tribunal stated to be constituted under
notification No. 803-IRlIRl3A - 2 I 57 dated 11.03.1957 for adjudication and
urged the Tribunal to submit its Award to the State Government within period of
three months from the date of its receipt as per provision of sub section (2A) of
section 10 of the Act, and he separately mentioned the issues. The case record
shows that after corrigendum No. 112-IR dated 28.01.2015 the issues are (i)
whether the closure declared by the management with effect from 05.03.2012 is
justified or not and (ii) To what other relief, if any, are the workmen entitled?
The Order of Reference as mentioned above was received by this Tribunal
on 28.10.14 and initiated proceeding by issuing summon on both parties. After
receiving summon both parties entered into appearance by filing letter of
authority authorising Ld. Advocates who also filed Vakalatnama on behalf of
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The workmen represented by Indo Mining Equipments Ltd Mazdoor
Union in their statement of case mentioned that the disputes relates to, and arose
from, illegal, unjust, malafide closure declared by management of the company in
its factory at Khusberia under PS Uluberia in Howrah with effect from05.03.2012, adding that registered office of the company is located at 22, RajaWoodburn Street, 1st Floor, Kolkata - 700001.
It is also stated that the workmen joined the factory in 1997 and they are
also the members of Indo Mining Equipments Ltd. Mazdoor Union at Khusberia
in Howrah. In its statement of the case by the Union it is also mentioned that the
company is a prosperous concern and its main business is manufacturing of cranes
chasis, flange, cable sphere, hydraulic sphere of Ashoka Leyland, transformer,
cabinet etc. It is also stated that one Mr Om Prakash Ginodia is one of the
Directors of the company and he is looking after the entire business and he is also
responsible for all consequences of his activity. It is also mentioned that the
management of the company indulges in unfair labour practice of hiring and firing
workers without caring the requirement of law and principles of natural justice
and he is also in habit of declaring closure of works whimsically and he did so
several times on flimsy and false pretext only to put pressure on the workers to
compel them leave the work from the factory of the company. It is also stated by
the Union that the workers are very poor persons and they were given below
minimum wages and daily rate of workers as used to be given to them was
Rs. 100 to Rs. 150 per day and no increment would also be given. It is also
mentioned that despite oral and written request for enhancing the wages nothing
was done and last agreement with regard to giving of increment was held on
03.08.2006 and that agreement remained valid for three years. It is also stated
that after expiry of the agreement dated 03.08.2006 both union and workers
placed demand for increment and nothing was done and workers made further
demand for enhancement of salary and then management of the company
threatened workers by stating that the company would close down its factory.
It is also stated that the management never paid wages in time and
intentionally withheld wages for no reason and then the Union and workers
approached Assistant Labour Commissioner, Uluberia on 14.10.2011 for solving
the dispute. It is next stated in the statement of case that the company illegally
and unjustly and also with ulterior motive declared closure of its factory on and
from 05.03.2012 by issuing a notice on 04.03.2012 in violation of requirement of
section 25FFF of the Act, and it further asserted in the statement that the reasons
mentioned in the notice are not true and correct and the company also failed to
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despite protest by the workers against the closure and also demand for lifting ofthe closure nothing was done by the company.
It is also stated by the Union that such illegality and arbitrary action on the
part of the management of the company rendered the workmen to prolongunemployment and also starvation of the workmen with family members and the
workers are unemployed till date. The union also mentioned that by its letter
dated 07.03.2012 it raised an industrial disputes before Deputy Labour
Commissioner, Government of West Bengal at Howrah requiring him to intervene
into the matter along with filing of a written complaint before sub divisional
officer at Uluberia on 30.03.2012, and accordingly Deputy Labour Commissioner,
Uluberia convened joint meeting several times, but there could not be any
settlement and then Conciliation Officer considering the demand of the Union
submitted a report to the appropriate Government and then the Order of Reference
in question was made. Adding that the closure of the factory is ifso facto bad in
law, unfair and malafide, the Union has prayed for getting relief arid urged the
Tribunal to answer the issue in favour of the Union.holding that the closure of the
factory with effect from 05.03.2012 by the management of Mis. Indo Mining
Equipment Limited is illegal, unjust, malafide and not justified, improper and
inoperative and also to grant the relief of reinstatement of the workmen with back
wages and incidental benefits including bonus and also to grant any other relief as
may be deemed fit and proper on merit including interest holding as if the closure
is not real in the eye of law. The written statement was signed by
Shri Jugal Kulia mentioning that he is the Vice President of the Union and he alsosigned the verification thereto.
As in the case record, on behalf of management of company Mis. Indo
Mining Equipment Ltd., subsequently mentioned as company, after getting
summon entered into appearance and it appointed Ld. Advocates Mr Balai Pal,
Mr Ananda Gopal Maity and Ms Roma Sarkar, all of whom filed vokalatnama
and letter of authority purported to be executed by the company as mentioned
earlier. As required by law the company was given opportunity to file written
statement but the company started becoming absent without any step recurringly
and the case records shows that as per order No. 21 dated 09.06.2016 the
company was directed to show-cause mentioning as to why the case would not be
heard and determined exparte in accordance with law requiring the company to
file show-cause after about 7 weeks. The show-cause notice, as the case records
shows, was sent to the company by registered post with acknowledgement and as
per service return of the show-cause notice the company received the same duly
and it was also mentioned in order No. 22 dated 27.07.2016 that SIRwas received
due service. Notwithstanding getting all the show-cause notice, the
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company did not appear even after a lapse of 8 months of time from due service
of the show-cause notice and last of all on 26.04.2017 the case was fixed for
hearing exparte under Rule 21 of the West Bengal Industrial Disputes Rules,1958.
During final hearing as per procedure under Rule 20 H of the West Bengal
Industrial Disputes Rules, 1958, the Union examined as many as two witnesses
viz. Shri Jugal Kuila and another Shri Ashit Kumar Mondal as PW1 and PW2
respectively and also adduced documentary evidences which are a letter to the
Assistant Labour Commissioner dated 04.10.2011, Kumar Kumari Bhavan,
Uluberia, Howrah by the Secretary (Exhibit 1), notice of closure issued by one
Mr Rajat Ginodia of Mis. Indo Mining EquipmentsLtd. dated 04.03.2012 (exhibit
2), a letter to the Deputy Labour Commissioner, Netaji Subhas Road, Sushama
Building, Howrah dated 07.03.2012 by General Secretary, Indo Mining
Equipment Mazdoor Union (exhibit 3), one letter to the sub divisional officer
(SDO), Uluberia, Howrah dated 30.03.2012 by General Secretary, Indo Mining
Equipments Ltd Mazdoor Union stated to be affiliated to West Bengal Mazdoor
Federation, TUCC with registration No. 22941 (exhibit 4), one letter addressed to
Indo Mining Equipments Ltd, Uluberia, Howrah dated 01.10.2011, and a letter bycompany (exhibit 5).
Ld. Lawyer for the Union made oral argument and also filed notes of
argument supported by case law in the workmen of Johnson & Nicholson (I) Ltd
versus State of West Bengal and others in W.P. No. 947 of2009 of Hon'ble High
Court, Calcutta having judgement dated November 25,2010.
Decision with ReasonsIssue No.1: -
Whether the closure declared by the management of the company with
effect from 05.03.2012 is justified or not?
Thus the specific case regarding issue has already been seen during
mentioning of the written statement filed on behalf of Union. For
recapitulation the matter in brief is that the company having its business of
manufacturing of cranes chassis, flange, copper sphere, hydraulic sphere of
Ashoka Leyland, transformer cabinet etc. is mainly looked after by one of its
Directors viz. Mr Om Prakash Ginodia who is stated to be a man mostly
resorting to unfair labour practice of hiring and firing of workers illegally with
an intention to subjecting workers under pressure to compel them to leave the
factory. The workers being daily rated used to be paid wages without any
proper increment and despite several requests by workers the company did not
enhance the wages. Last of all regarding payment of increment an agreement
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on 03.08.2006 was executed between them with validity of three years and
after the expiry of that agreement the workers demanded increment but to no
effect and the company, as alleged, instead of giving increment subjected the
workers to threat to close down the factory. The Union informed all these to
Assistant Labour Commissioner, Uluberia, Howrah in writing on 14.10.2011,
but on 04.03.2012 the company issued notice declaring closure of its factory
by issuing a notice effecting it the following day i.e. 05.032012 in violation
of requirement of law U/S 25FFF of Industrial Disputes Act, 1947 mentioning
false ground without giving any compensation to the workmen rendering the
workmen to starvation. Though the workers, as stated, raised dispute with the
company for lifting closure yet company did nothing. The Union raised this
matter before concerned Deputy Labour Commissioner, Government of West
Bengal at Howrah in writing on 07.03.2012 for its intervention. Though that
Deputy Labour Commissioner intervened in that matter by calling joint
meeting a few times but to no effect, after which conciliation officer was,
however, being convinced about the reasonableness of the demand of Union
reported it to the State Government which then referred it to the Tribunal for
adjudication. Thus the case as has been raised by the Union is an illegal
closure. Section 25FFF of the Industrial Disputes Act, 1947 provides for
compensation to workmen in case of closure down of undertakings. As per
substitution of the law under sub section I of section 25FFF of the Act it is
stated that before the existing proviso of the Act, the Government of West
Bengal inserted the proviso mentioning in the way that provided that prior
payment of compensation to the workmen shall be condition precedent to the
closure of any undertaking and it has been alleged that this mandatory
provision of law was also not complied with.
Against these specific case as has been raised by the workman, the
company did nothing as it did not file written statement to contest the case
though the company entered into appearance after getting notice.
During argument Ld. Lawyer for the workman mainly emphasized that·
closure declared by the company is illegal, unjust and malafide. Ld. Lawyer
continued to say that the management of the company habitually indulges in
unfair labour practice of hiring and firing without following the mandatory
requirements of law and also principles of natural justice. Ld. Lawyer
explained that such practises are being resorted to by the management of the
company only to keep them under pressure so that it becomes easy on the part
of the management to compel them leave the company. It has been added that
workers were paid below minimum wages which were @ Rs 100 to Rs 150
per day without increment despite taking up such payment below minimum
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wages was raised by the union as a protest both verbally and in writing. Ld.
Lawyer raised that last of all on 03.08.2006 there was an agreement between
the management and the union regarding payment of increment and it
remained valid for 3 years and after its expiry after 3 years management
refused to do anything despite demand by the Union.
Ld. Lawyer categorically raised that the management of the company
illegally declared closure of its factory with effect from 05.03.2012 by issuing
a notice dated 04.03.2012 violating the compulsory requirement of section
25FFF of the I.D. Act, 1947 and did not pay compensation to the workmen
prior to such closure but the requirement of law U/S 25FFF provides a
condition precedent for payment of compensation. The Union raised protest
against such illegal closure and requested the management to lift the closure
but to no effect.On the point of law Ld. Lawyer emphasized that section 25FFF of the Act
provides for compensation to workmen in case of closing down an
undertaking in the way that where an undertaking is closed down for any
reason whatsoever every workman who has been in continuous service for not
less than 1 year immediately before closure shall subject to the provisions of
sub section 2 of that section be entitled to notice and compensation in
accordance with the provision of section 25 F of the Act as if the workman
has not been retrenched. Referring notice of closure dated 04.03.2012 (exhibit
2) Ld. Lawyer raised that it is a general notice and it was not served and no
closure compensation was paid and it was not issued by competent authority
and it also did not contain anything regarding payment of compensation to
workmen. Ld. Lawyer, referring section 25FFA of the Act which is West
Bengal Amendment raised that a 60 days' notice must be required to be given
of the intention of closure and it must be issued in prescribed manner
mentioning reasons for the same but all these are absent in the notice. Ld.
Lawyer emphasized that closure of an undertaking entails termination of
employment and actually the workmen by that illegal closure have been
rendered totally unemployed and incomeless.Citing a case law in W.P. No. 947 of 2009 between workmen of Jenson &
Nicholson (I) Ltd. versus the State of West Bengal and others of Hon'ble High
Court, Calcutta Ld. Lawyer submitted that the fact of the case is exactly
similar to the present one and in that case Hon'ble Court was very much
pleased to decide in favour of the workmen. Ld. Lawyer emphasized that the
workmen have brought sufficient evidence both oral and documentary, to
meet the standard of proof as required by law as also emphasized by Hon'ble
Judge in that case.
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As for requirement of law, the Hon'ble High Court, Calcutta in the above
cited case was very much pleased to observe that the manner in which the
provisions of law uls 25FFF and uls 25FFA have been framed, with a
stipulation on prior payment and further emphasized that this should be a
condition precedent and it is the further observation of Hon'ble Court in that
case that requirement of such provisions of law cannot be held to be possible
of being waived. The Hon'ble Court also observed by referring a judgement
of Hon'ble Supreme Court of India in case of U.P. State Brassware
Corporation ltd versus Uday Narayan Pandey (2006/ISCC 479) that closure
without complying with the requirement of law uls 25FFF I 25FFFA of the
Act is an illegal abinitio.Now, it is to be seen whether the workman has become able to prove the
case sufficiently or not. PWI Shri Jugal Kuila has deposed that he joined the
company in 1997 as operator turner and he along with other workers of the
company are the members of Indo Mining Equipments Ltd Mazdoor Union
and he is also the Vice President of the Union. He also deposed that the
company is a manufacturer of crane chassis, flange, copper sphere hydraulic
sphere of Ashoka Leyland transformer cabinet etc. PW1 also deposed that
one Mr Om Prakash Ginnodia who is one of the Directors of the company has
been looking after the entire business of the company and he is in the habit of
declaring suspension of works in the factory whimsically time to time without
any proper reason. PWI also deposed that wages ofthe workers are below the
minimum wages and it was @ Rs. 100 to 150 per day without any increment.
PWI further deposed that other workers along with PWI along with the Union
made several requests both orally and in writing for increasing the salary but
the management did nothing. PWI deposed that regarding payment of
increment there was an agreement between Union and management on
03.08.2006 and it only remained valid for 3 years and after that despite
demands, the company did not do anything and the company further
threatened that it would close down the factory. PWI also deposed that
company thus remained vindictive and then the Union raised this matter
before Assistant Labour Commissioner, Uluberia by letter dated 14.10.2011.
PWI also stated that in violation of law uls 25FFF of I.D. Act, 1947 company
issued a notice on 04.03.2012 declaring closure of its factory on and from
05.03.2012 without paying any compensation and the reasons in the notice are
not proper and correct and also did not pay any compensation as a condition
precedent as required by law. PWI also deposed that as a result PWI and
other workers became unemployed and started suffering from starvation along
PWI also deposed that all persuasions, approaches and
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demands before the company yielded no result and Union by letter dated07.03.2012 raised an industrial disputes before Deputy Labour Commissioner,
Government of West Bengal at Howrah requiring it to intervene in the matter
and also informed the matter in writing to sub divisional officer, Uluberia. As
a result the Deputy Labour Commissioner convened joint meetings on several
dates but due to adamant attitude of the management the matter could not be
settled. These are the entire version of PW1. The other witnesses Shri Ashit
Kr. Mondal (PW2) deposed that he joined the company in 1997 as lathe
operator / turner. He also deposed that the company is a manufacturer of crane
chassis, flange, copper sphere hydraulic sphere of Ashoka Leyland,
transformer cabinet etc. He also deposed that one Mr Om Prakash Ginnodia
being of Directors is looking after the entire business but he is in the habit of
declaring suspension of works in its factory most often whimsically without
any proper reason. PW2 also deposed that the company gave wages at below
minimum limit and it was @ Rs. 100 to Rs 150 per day without increment.
PW2 also deposed that regarding payment of increment there was an
agreement between company and Union on 03.08.2006 and it continued for
three years and after that payment of increment was stopped and .then despite
demands by Union the company did nothing and at the same time the
company threatened to close down the factory, as a result the Union and the
workers were compelled to ventilate their grievances to the Assistant Labour
Commissioner at Uluberia in writing on 14.10.11. PW2 also deposed that
after that the company declared closure of its factory from 05.03.2012 by
issuing notice dated 04.03.2012 illegally and also in violation of law uls
25FFF of I.D. Act and did not pay any compensation at the time of closure.
PW1 also mentioned that the reason that was mentioned in the notice is not
correct and true and did not pay the compensation as a condition precedent as
given in law. PW2 also deposed that the closure of factory by th~ company is
an illegal, uncalled for, unjustified and arbitrarily and as a result PW2 has
become totally unemployed and suffered from starvation with family
members. PW2 also deposed that various persuasions, approaches, demands
before the company were of no result and then Union by writing a letter on
07.03.2012 raised an industrial disputes before Deputy Labour Commissioner,
Government of West Bengal at Howrah requesting him to intervene and also
filed a complaint before SDO, Uluberia over the matter. PW2 also deposed
that Deputy Labour Commissioner, conveyed joint meetings on several dates
but due to adamant attitude of the management of the company the matter
could not be settled.
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Thus, the evidences given by PWI and PW2 are uniform, and it is
factually clearly established that PW1 and PW2 joined the company as a
worker in 1997 and they also became members of the Union under name and
style of Indo Mining Equipments Ltd. Mazdoor Union which is found to have
registration No. 22941. It is clearly established by the evidences that the
company is a prosperous concern being manufacturer of crane chassis,
flanges, copper sphere, hydraulic sphere of Ashoka Leyland, transformer etc
and one Mr Om Prakash Ginnodia being a Director of the company has been
leading the entire business of the company and he is in the habit of
whimsically declaring suspension of works in its factory most often on false
grounds. The wages being @ Rs 100 to Rs. ISO per day is below minimum
limit and the workers would not be given proper increment. .Regarding
payment of increment an agreement was executed on 03.08.2006 which
remained valid only for 3 years but after that company stopped paying
increment to the workers and when the workers / Union demanded increase of
salary and increment the management of the company threatened to close
down its factory as a result of which the Union raised the grievances in
writing before Assistant Labour Commissioner at Uluberia on 14.10.2011 and
subsequently the management of the company having taken vindictive attitude
declared closure of its factory with effect from OS.03.12 by issuing notice
dated 04.03.2012 without any closure compensation as mandatory and
condition precedent u/s 2SFFF of the LD. Act, 1947 and despite demands and
protest by the Union the company did not lift the closure. As a result the
workers become unemployed and started facing starvation with their family
members. Then Union by writing a letter dated 07.03.2012 raised an
industrial dispute before Deputy Labour Commissioner, Government of West
Bengal at Howrah. Deputy Labour Commissioner conveyed several joint
meetings but no result.The documentary evidences which are proved on the basis of oral
evidences of PW1 show that on 14.10.2011 the Union viz. Indo Mining
Equipment Mazdoor Union having registered No. 22941 wrote a letter
(exhibit 1) to Assistant Labour Commissioner, Uluberia mentioning that the
company did not pay increment to the workers for the year 2010-11, PWI also
deposed similarly. The contention of this letter is that the Union wrote the
letter mentioning that the company did not pay any increment for the year
2010-11 with the contention that the company did not issue EPF slip and this
document (exhibit 1) is found to be corroborating Uniform version of both
PW1 and PW2 that there was an agreement between company and Union
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I~ years and after that the company refused to make payment of any increment.
Notice dated 04.03.2012 issued by order ofMr Rajat Ginodia of the company
(exhibit 2) is stated to be the closure notice. It is the uniform version of both
PW1 and PW2 that this is closure notice and it was issued illegally without
making any payment of compensation as mandatory requirement u1s25FFF of
the Act. Scrutinizing this notice (exhibit 2) it is found that it is simply
mentioned in the notice that the factory of the company would remain close
till further notice mentioning an advisory in the notice (exhibit 2) that the
workers should go to the company after about 5 days i.e. on 09.03.2012 for
settlement of account. Thus the notice is conspicuously silent in regard to
payment of any compensation u1s25FFF of the Act and the assertation of this
illegality in closure notice (exhibit 2) is found to be substantiated by the
uniform version of both PW1 and PW2 that Mr Ginodia of the company being
one of the Directors has been looking after the company and he is whimsical
in declaring suspension of factory on any flimsy and false pretext and also
substantiate the version of both PW1 and PW2 that when demands for
increment of salary were being made Mr Ginnodia threatened the workers to
the close down the factory and he really did so by the notice in question
(exhibit 2) which is found to be not in compliance with the mandatory
requirement of law as per sections 25FFF of the Act. Both PWS uniformly
stated that they informed the matter of such illegalities on the part of the
company to Deputy Labour Commissioner at Howrah and also to SDO at
Uluberia in writing (exhibit 3, exhibit 4) respectively. The contention of the
letter to the Deputy Labour Commissioner (exhibit 3) shows that it was given
to Deputy Labour Commissioner by the Union mentioning that Mr Ginodia
illegally closed the factory with effect from 05.03.2012 by issuing a notice
dated 04.03.2012 and over such closure no contract was executed between the
company and the Union and the reasons mentioned in the notice is baseless
and false. It is also mentioned in the letter (exhibit 3) that the Union also
informed all these in writing to the Assistant Labour Commissioner at
Uluberia, yet the problem was not solved and by this letter the Union urged
the Deputy Labour Commissioner to call for joint meeting to solve the
problem between the company and the Union and almost same contention is
also made in the letter addressed to SDO, Uluberia (exhibit 4). Thus the
factual position as has been made in the written statement filed on behalf of
workmen have been found to be proved by clear evidences of both PW1 and
PW2 which are further corroborated by documentary evidences (exhibit 1,
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Ld. Lawyer for the workman explained the latest position of law citing the
judgement as already referred earlier and Ld. Lawyer also mentioned the
observations of Hon'ble Court in that judgement and emphasized that since no
prior payment of compensation was made by the company, the notice of
closure (exhibit 2) of the company declaring closure of its factory is illegal
because prior payment of compensation arising out of declaring of closure is a
condition precedent for effecting such closure. Ld. Lawyer also raised that it
is emphasized in the cited ruling that such payment shall be condition
precedent to the closure of the undertaking and in the absence of prior
payment being made the closure shall be a nullity and non compliance of the
mandatory provision of law has rendered direction of the company making the
closure totally invalid and as a result the action of the company in declaring
such closure is void abinitio and natural consequence is that the workman
shall have to be reinstated with consequential benefits.
Thus the entire matter in the case has been seen and also scrutinizing
judgement of Hon'ble Court as referred by Ld. Lawyer for the workman I am
of view that the ratio of decision of this judgement is applicable in this case
also and it is also supported by judgement of Hon'ble Supreme Court in
Anoop Sharma versus Executive Engineer, public health division No. 1
Panipat reported in 2010 (5) SC 99.
Thus I hold that closure compensation was not paid to the workmen prior
to declaration of closure by closure notice dated 04.03.2012 (exhibit 2) as
required u/s 25FFF of the Act which requires that payment of closure
compensation prior to the declaration of closure is a condition precedent for
effecting the closure and as a result the closure notice dated 04.03.2012 issued
by Mr Rajat Ginnodia of the company (exhibit 2) is a illegal, inoperative and
the closure of the factory of the company is void abinitio and the natural
consequence in this case is to be reinstatement of the workman with
consequential benefits.
Issue No.2: What relief, if any are the workmen entitled to.
The specific case over the issue is that the workman started working in the
factory from 1997 and due to declaration of closure by the management of the
company effecting from 05.03.2012 by the notice dated 04.03.2012 by
Mr Rajat Ginnodia of the company has rendered the workman to become
totally unemployed and have been facing starvation with their family
members. Both PWI and PW2 uniformly deposed that since the time of
closure of the factory effecting from 05.03.2012 they have remained
unemployed and facing starvation. Ld. Lawyer for the workman argued that
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during the period starting from time of closure effecting from 05.03.2012 as
per notice dated 04.03.2012 (exhibit 2), the workmen were not gainfully
working at any place and they deserve to get full back wages with incidental
benefits including bonus and interest and also cost. I do not find anything to
disbelief uniform evidences of the PWs that they could not get any gainful
work from the time of closure effecting from 05.03.2012 and they are facing
starvation with their family members (exhibit 2) and consequently the
workmen are entitled to get relief of reinstatement with full back wages and
incidental benefits including bonus effecting from the date of closure effecting
from 05.03.2012.
I;.
In the summing up, it is to say that though it is exparte, yet the case is
found to be sufficiently proved by the workman.
It is therefore,Or d ere d,
that the issue No. 1 is decided by holding that the closure declared by the
management with effect from 05.03.2012 is totally illegal, inoperative and
void abinitio and issue No. 2 is decided in the way that the workmen are
entitled to get grant of reinstatement to their respective positions which they
held immediately prior to the closure in question with effect from 05.03.2012
and accordingly the company is directed to give them full back wages with
incidental benefits including bonus immediately, and the order of reference
dated 10.09.2014 with its corrigendum dated 28.01.2015 and 11.03.2016 with
issues framed therein are decided ex-parte accordingly and it is also awarded
accordingly by me. The judgement along with requisite number of copies be
prepared and requisite number of copies be also sent to the appropriate
Government i.e. Additional Chief Secretary to the Government of West
Bengal, Labour Department.
Dictated & Corrected by me
.scl/-Judge
(S. C. Das)Judge
Second Industrial TribunalKolkata13.07.2017
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