Full Judgment Text
gopi lpa-159-12 & c.a.122-12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
APPELLATE SIDE CIVIL JURISDICTION
LETTERS PATENT APPEAL NO.159 OF 2012
WITH
CIVIL APPLICATION NO.221 OF 2012
IN
WRIT PETITION NO.6004 OF 2011
WITH'
CIVIL APPLICATION NO.2323 OF 2011
l
Mr.Dattatraya Ganpat Gaikwad & Ors. ..Appellants
Versus
Sunita Devi Singhaniya Hospital and
Medical Research Centre, Thane. ..Respondent
Mr. Nitin Kulkarni with Mr.Avinash Ram Belge, for the Appellants.
Mrs. Meena Doshi, for the respondent.
CORAM: MOHIT S. SHAH, C.J. &
N.M. JAMDAR, J.
DATE : 25 September 2012.
ORAL ORDER (PER CHIEF JUSTICE):
This appeal under Clause 15 of the Letters Patent is
directed against the judgment dated 9 November 2011 of the learned
Single Judge of this Court dismissing the appellants' Writ Petition
challenging the award passed by the Industrial Tribunal at Thane
rejecting the Reference (IT) No.37 of 2003 made at the instance of the
Shramik Sena Workers Union of which the appellants claim to be the
members.
2. The Shramik Sena Workers Union had contended that the
appellants were workmen employed by the respondent employer and
that the appellants were engaged in the activities of laundry, canteen
and other departments of the hospital which were being run by the
aid of the power, where more than 10 workmen were employed in each
Department. The Industrial Tribunal by the impugned judgment held
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gopi lpa-159-12 & c.a.122-12
that the workmen were already paid closure compensation in
accordance with law. As regards the alleged liability of the
respondent to obtain prior approval of the Government for closure of
the hospital, the Tribunal held that Chapter VB of the Industrial
Disputes Act, 1947 was not applicable to the respondent hospital as it
was not an industrial establishment as defined by Section 25L(a)(i) of
the Industrial Disputes Act read with Section 2(m) of the Factories
Act, 1948. The Tribunal held that the hospital was required to be
closed down on account of the violent attack and destruction of the
hospital in the year 2001. The Tribunal held that the closure was
beyond the control of the hospital management and, therefore, the
demand made by the workmen and the reference were not
sustainable. As regards the contention that the closure was in
violation of Section 25O and N of Chapter VB of the Industrial
Disputes Act, the Tribunal gave a finding that the Union had failed to
prove that any manufacturing process was going on in the hospital.
The Tribunal further gave a finding that there was no question of
reopening the hospital and that it was not possible to grant the relief
for revoking the closure notice dated 30 October 2001 and allowing
the workers to report for duty.
3. The learned Single Judge of this Court has dismissed the
petition after holding that it cannot be said that the respondent
hospital satisfied the requirement of Section 25L(a) of the Industrial
Disputes Act, 1947 read with the definition of factory under the
Factories Act.
4. The learned counsel for the appellantworkmen has
submitted that when the Tribunal has already given a finding that
power was being used in departments like laundry, xray and
centralised air conditioning plants for maintaining electric generator,
where more than 10 workmen were employed, the Tribunal ought to
have granted the relief prayed for.
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gopi lpa-159-12 & c.a.122-12
5. On the other hand, the learned counsel for the
respondent hospital submitted that the very closure of the respondent
hospital was challenged in another Reference made at the instance of
Kamgar Utkarsha Sabha, a recognised Union. She submitted that in
view of the said decision in the complaint filed by Kamgar Utkarsha
Sabha being Complaint (ULP) No.517 of 2001, it is not open to the
appellants to raise the contention which is already negatived by the
Industrial Tribunal by judgment dated 14 June 2005.
6. In the alternative, the learned counsel for the respondent
management also submitted that no evidence was led on behalf of the
Union or the appellants workmen that the requirement of Section 25
L(a) of the Industrial Disputes Act read with Section 2(m) of the
Factories Act, 1948 were satisfied. The learned counsel has invited
our attention to the oral evidence led on behalf of the Union, for which
two witnesses were examined and they were both security guards
positioned near the entrance gate of the hospital. It is submitted that
the said witnesses could not have the personal knowledge about the
number of workmen employed in the different departments like
laundry, xray, generator plant or centralised air conditioning plant. It
is submitted that in the cross examination it was specifically brought
out that they were not working inside in any of the department
concerned and that they were merely positioned near the entrance
gate of the hospital.
7. Having heard the learned counsel for the parties, we find
considerable substance in the submission made by the learned
counsel for the respondent hospital that the legality of the very
closure of the same respondent hospital was challenged in Complaint
(ULP) No.517 of 2001 filed by Kamgar Utkarsha Sabha. By judgment
dated 14 June 2005 the Industrial Tribunal at Thane dismissed the
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gopi lpa-159-12 & c.a.122-12
said complaint after giving a finding that the complainant therein was
the registered trade union representing the employees employed by
the respondent hospital, that the closure of the hospital was on
account of the reasons over which the respondent hospital had no
control and that the workmen of the respondent hospital were given
notice pay as well as closure compensation. In the said judgment the
Industrial Tribunal also held that the closure declared by the
respondent hospital was legal and was not contrary to provisions of
any law.
8. In view of the abovesaid findings in the complaint filed by
the representative union, the Industrial Tribunal could not have taken
a different view in the complaint filed by another Union, assuming
that the complaint at the instance of Shramik Sena was maintainable.
9. We may also note the stand of the respondent
management, which is not disputed by the appellants herein, that the
hospital has remained closed ever since 2001.
9. In view of the above, we are not inclined to entertain this
Appeal. The appeal is, therefore, dismissed.
10. In view of dismissal of the appeal, the Civil Application
does not survive and the same is disposed of accordingly.
CHIEF JUSTICE
(N.M. JAMDAR, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
APPELLATE SIDE CIVIL JURISDICTION
LETTERS PATENT APPEAL NO.159 OF 2012
WITH
CIVIL APPLICATION NO.221 OF 2012
IN
WRIT PETITION NO.6004 OF 2011
WITH'
CIVIL APPLICATION NO.2323 OF 2011
l
Mr.Dattatraya Ganpat Gaikwad & Ors. ..Appellants
Versus
Sunita Devi Singhaniya Hospital and
Medical Research Centre, Thane. ..Respondent
Mr. Nitin Kulkarni with Mr.Avinash Ram Belge, for the Appellants.
Mrs. Meena Doshi, for the respondent.
CORAM: MOHIT S. SHAH, C.J. &
N.M. JAMDAR, J.
DATE : 25 September 2012.
ORAL ORDER (PER CHIEF JUSTICE):
This appeal under Clause 15 of the Letters Patent is
directed against the judgment dated 9 November 2011 of the learned
Single Judge of this Court dismissing the appellants' Writ Petition
challenging the award passed by the Industrial Tribunal at Thane
rejecting the Reference (IT) No.37 of 2003 made at the instance of the
Shramik Sena Workers Union of which the appellants claim to be the
members.
2. The Shramik Sena Workers Union had contended that the
appellants were workmen employed by the respondent employer and
that the appellants were engaged in the activities of laundry, canteen
and other departments of the hospital which were being run by the
aid of the power, where more than 10 workmen were employed in each
Department. The Industrial Tribunal by the impugned judgment held
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gopi lpa-159-12 & c.a.122-12
that the workmen were already paid closure compensation in
accordance with law. As regards the alleged liability of the
respondent to obtain prior approval of the Government for closure of
the hospital, the Tribunal held that Chapter VB of the Industrial
Disputes Act, 1947 was not applicable to the respondent hospital as it
was not an industrial establishment as defined by Section 25L(a)(i) of
the Industrial Disputes Act read with Section 2(m) of the Factories
Act, 1948. The Tribunal held that the hospital was required to be
closed down on account of the violent attack and destruction of the
hospital in the year 2001. The Tribunal held that the closure was
beyond the control of the hospital management and, therefore, the
demand made by the workmen and the reference were not
sustainable. As regards the contention that the closure was in
violation of Section 25O and N of Chapter VB of the Industrial
Disputes Act, the Tribunal gave a finding that the Union had failed to
prove that any manufacturing process was going on in the hospital.
The Tribunal further gave a finding that there was no question of
reopening the hospital and that it was not possible to grant the relief
for revoking the closure notice dated 30 October 2001 and allowing
the workers to report for duty.
3. The learned Single Judge of this Court has dismissed the
petition after holding that it cannot be said that the respondent
hospital satisfied the requirement of Section 25L(a) of the Industrial
Disputes Act, 1947 read with the definition of factory under the
Factories Act.
4. The learned counsel for the appellantworkmen has
submitted that when the Tribunal has already given a finding that
power was being used in departments like laundry, xray and
centralised air conditioning plants for maintaining electric generator,
where more than 10 workmen were employed, the Tribunal ought to
have granted the relief prayed for.
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gopi lpa-159-12 & c.a.122-12
5. On the other hand, the learned counsel for the
respondent hospital submitted that the very closure of the respondent
hospital was challenged in another Reference made at the instance of
Kamgar Utkarsha Sabha, a recognised Union. She submitted that in
view of the said decision in the complaint filed by Kamgar Utkarsha
Sabha being Complaint (ULP) No.517 of 2001, it is not open to the
appellants to raise the contention which is already negatived by the
Industrial Tribunal by judgment dated 14 June 2005.
6. In the alternative, the learned counsel for the respondent
management also submitted that no evidence was led on behalf of the
Union or the appellants workmen that the requirement of Section 25
L(a) of the Industrial Disputes Act read with Section 2(m) of the
Factories Act, 1948 were satisfied. The learned counsel has invited
our attention to the oral evidence led on behalf of the Union, for which
two witnesses were examined and they were both security guards
positioned near the entrance gate of the hospital. It is submitted that
the said witnesses could not have the personal knowledge about the
number of workmen employed in the different departments like
laundry, xray, generator plant or centralised air conditioning plant. It
is submitted that in the cross examination it was specifically brought
out that they were not working inside in any of the department
concerned and that they were merely positioned near the entrance
gate of the hospital.
7. Having heard the learned counsel for the parties, we find
considerable substance in the submission made by the learned
counsel for the respondent hospital that the legality of the very
closure of the same respondent hospital was challenged in Complaint
(ULP) No.517 of 2001 filed by Kamgar Utkarsha Sabha. By judgment
dated 14 June 2005 the Industrial Tribunal at Thane dismissed the
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gopi lpa-159-12 & c.a.122-12
said complaint after giving a finding that the complainant therein was
the registered trade union representing the employees employed by
the respondent hospital, that the closure of the hospital was on
account of the reasons over which the respondent hospital had no
control and that the workmen of the respondent hospital were given
notice pay as well as closure compensation. In the said judgment the
Industrial Tribunal also held that the closure declared by the
respondent hospital was legal and was not contrary to provisions of
any law.
8. In view of the abovesaid findings in the complaint filed by
the representative union, the Industrial Tribunal could not have taken
a different view in the complaint filed by another Union, assuming
that the complaint at the instance of Shramik Sena was maintainable.
9. We may also note the stand of the respondent
management, which is not disputed by the appellants herein, that the
hospital has remained closed ever since 2001.
9. In view of the above, we are not inclined to entertain this
Appeal. The appeal is, therefore, dismissed.
10. In view of dismissal of the appeal, the Civil Application
does not survive and the same is disposed of accordingly.
CHIEF JUSTICE
(N.M. JAMDAR, J.)
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