B.P. Dharmadhikari, J.@mdashBy these Writ Petitions, the petitioners are challenging various orders passed in B.I.R. Case No. 45 of 1986 and B.I.R. Case No. 38 of 1986. B.I.R. Case No. 45 of 1986 and B.I.R. Case No. 38 of 1986 were instituted by the respondent No. 3 against the respondent No. 4 and its Directors, u/s 78, read with sections 79, 82, 83, 98A, 102, 104, 106 and 107 of the Bombay Industrial Relations Act, (hereinafter referred to as "the BIR Act" for short), claiming declaration of illegal change, illegal closure and illegal lockout. The said declarations has been granted by Judge, Second Labour Court, Nagpur on 28th February, 1995.
2. The petitioner in both these petitions had filed applications for intervention. Their applications at Exh.18 in B.I.R. Case No. 46/1986 came to be rejected on 22-12-1993. In B.I.R. Case No. 38/1986, by order passed on the same date, but below Exh.37, their application was rejected. These orders rejecting the prayers to intervene were challenged by the petitioners by filing B.I.R. Revision Nos. 3 of 1994 and 2 of 1994 respectively, before the Industrial Court, Nagpur. The Industrial Court has on 16-11-1994, by common order dismissed both these revisions. These orders dismissing the revisions are therefore mainly challenged in the present Writ Petitions. As already mentioned above, the Labour Court has finally adjudicated the controversies in both the B.I.R. Cases on 28-2-1995 and that order is also challenged, because according to the petitioners, they were not permitted to participate in the adjudication process thereof.
3. The dispute is in relation to erstwhile establishment of respondent No. 4 in City of Nagpur commonly known as "Empress Mills" and it was being managed at the relevant time by the respondent No. 4 - Central India Spinning, Weaving and Manufacturing Company Limited. It appears that on 18-4-1986, the respondent No. 4 issued notice of suspension of its operations in the factory with immediate effect and thereafter on 3-5-1986 declared lock-out. On 29-4-1986, the present respondent No. 3 Union in both the writ petitions filed B.I.R. Case 45 of 1986 challenging this action. B.I.R. Case No. 38 of 1986 was filed on 28-2-1986 and in it the Union had sought similar declaration, contending that there was already illegal lockout or illegal change and closure.
4. When these disputes were pending before the Labour Court, on 3-10-1986 the State of Maharashtra, promulgated an Ordinance which lateron became an Act by name "Central India Spinning, Weaving and Manufacturing Company Limited, the Empress Mills, Nagpur (Acquisition and Transfer of Undertaking) Act, 1986" (hereinafter referred to as "the Nationalization Act" for short). As per the provisions of this Act, the entire establishment of respondent No. 4 with its property vested in State Government, initially and thereafter in present petitioners, However, the Act made certain provision in relation to distribution of liabilities and liabilities of respondent No. 4, prior to 3-10-1986, were to be discharged basically by the respondent No. 4. Detail reference to these provisions is required to be made little later in this judgment. Date 3-10-1986 was taken up as cut-off date for the purpose of ascertaining the said liability.
5. The claims made by the respondent No. 3 in both the abovementioned B.I.R. Cases, were in relation to period prior to 3-10-1986 and as such the respondent No. 4 was party before the Labour Court in both these matters. About four years after these cases were filed, petitioners moved interventions therein pointing out as to how after Nationalization the entire undertaking of Empress Mills has come to vest in them and as to how they had been running and managing the undertaking of Empress Mills, Nagpur. They contended that the proceedings filed in B.I.R. Cases are seeking certain reliefs in relation to erstwhile management i.e. respondent No. 4, and further pointed that there were about 7000 employees who filed claims before the Commissioner of Payment, appointed the Nationalization Act. They pointed out that all these employees have claimed wages for the period prior to 3-10-1986, and that in view of section 25 of the Nationalization Act, the said claims fall under Category-I and undischarged liabilities towards said claims are to be shouldered by the petitioners. They pointed out that the amount which was available with the Commissioner of Payment was limited and hence the liability might remain undischarged, and the petitioners therefore apprehended that they would be required to shoulder that liability. They contended that therefore, they have considerable stake in proceedings before Labour Court and sought permission to intervene. This application was opposed by the respondent No. 3, who stated only that the petitioners have no locus or any legal right to seek such an intervention.
6. The same Court i.e. 2nd Labour Court, has by different order, but on the same date has rejected the applications for intervention. It found that the application for intervention was made near about 4 years after Nationalization of Undertaking and said delay by itself was sufficient to reject it. It also found that the claim of employees for the period in dispute before it were then to be adjudicated and hence amount required to discharge it was not quantified. It therefore, found that it was not possible to presume that liability would remain undischarged by the Commissioner. It further found that in the scheme of Nationalization Act all liabilities of respondent No. 4 prior to the appointed date i.e. 3-10-1986 were to be discharged by the respondent No. 4, and were not enforceable against State Government. It has therefore, rejected the prayer for intervention. The learned Member of Industrial Court by common order dated 16-11-1994 has given same reasons to reject the applications. It however, held that such applications could not have been rejected only on the ground of delay.
7. I have heard Advocate Shri R. B. Puranik, for petitioners in both the matters, learned Assistant Government Pleader Shri Vinod Thakre, for respondent Nos. 1 and 2, and Advocate Shri S. D. Thakur, for respondent No. 3 -Union.
8. Advocate Puranik, has invited attention to various sections of the Nationalization Act to state that the Act contemplates that in certain contingencies the undischarged liabilities for period prior to appointed day will be required to be met by the petitioners. He states that the amount made available to the Commissioner for disbursement to workers and for discharge of other liabilities is specified in section 7 of the Act itself, and at the time when intervention application was moved, about 80% of the said amount was already disbursed. He contended that therefore, it was more than clear that certain liabilities would remain undischarged and would be required to be paid by the petitioners. He argues that in such circumstances, the Courts below have not properly appreciated the controversy and the Courts ought to have permitted the petitioners to intervene in the matter to point out the incorrectness or otherwise of the claims raised before it. He argues that the respondent No. 4, the erstwhile employer has not at all participated in the proceedings before the Labour Court, and hence the case of respondent No. 3 Union in both the B.I.R. Applications has practically been decided ex parte. According to him, as the records of respondent No. 4 were with the petitioners, grant of opportunity to petitioners would have been useful for demonstrating to Court the frivolous character of certain claims made or frivolous cases filed, and therefore would have ultimately resulted in saving public money. It is his argument that the orders passed therefore, show total non-application of mind and hence are unsustainable. He has invited attention to the provisions of Motor Vehicles Act, 1988 particularly sections 149 and 170 to state that even Insurance Companies are permitted to participate in matters when there is collusion between the vehicle owner and claimant before the Motor Accident Claims Tribunal. He has also relied upon the judgment of Hon''ble Apex Court reported at
9. As against this, Advocate S. D. Thakur, for respondent No. 3 Union, has contended that the effort of petitioners to point out provisions of Motor Vehicles Act or Land Acquisition Act, are totally unwarranted, because here the controversy is only governed by the Nationalization Act. He contends that it is only section 5 which needs to be looked into, and when section 5 specifically says that liabilities of respondent No. 4 are required to be discharged by respondent No. 4 only for period prior to appointed date, and when respondent No. 3 has made claim only for period prior to appointed date the present petitioners are not necessary parties or even proper parties. He argues that therefore objection to locus standi of petitioners was raised in reply before Labour Court and Labour Court has rightly accepted the same. According to him, reference to other enactments for interpreting section 5 is unwarranted. He contends that the scheme of Nationalization Act is peculiar and only after the liabilities are adjudicated upon, the workers are required to approach the Commissioner of Payments under the Nationalization Act, and if their liability is not discharged thereafter through the funds which are available with Commissioner and remain undischarged then only those undischarged liabilities certified by Commissioner as such can be recovered from State Government, or from the petitioner. He contends that the Nationalization Act is a Welfare Legislation and when entire immovable property worth several Crores of rupees of respondent No. 4, has been taken over by the petitioners or by State Government for a paltry amount, there is nothing wrong with such scheme of Nationalization Act. According to him merely because there is a possibility that such undischarged liabilities may be required to be shouldered by the petitioners, that by itself cannot be a reason to give go-bye to this scheme and to the claim which is otherwise settled u/s 5 of the Act itself. He had invited attention to the judgments of Hon''ble Apex Court reported at
10. It is therefore, necessary to first consider the provisions of the Nationalization Act. The Nationalization Act defines the respondent No. 4 as Proprietor in section 2(4), and the petitioners have been defined as Corporation vide section 2(d). The appointed date has been defined as Date of Commencement of the Act i.e. 3-10-1986; section 3 of the Act provides for acquisition and transfer of undertaking and vesting absolutely in State Government and by sub-section (2) thereof, the undertaking so vested has been made over to the petitioner Corporation. Section 4 prescribes the general effect of vesting and section 5 declares that Proprietor i.e. present respondent No. 4 alone are liable for prior liabilities. Section 7 provides for payment of amount of Rs. 6.10 Crores to the Proprietors and accordingly the said amount has been paid by the State Government. Chapter V deals with employees of the Proprietor and section 12(1), states that only those workmen whose services are found necessary by petitioners having regard to the requirement of Unit as a result of reorganization of the undertaking, shall become from the date of their appointments by the petitioner Corporation. Sub-section (2), thereof contains similar provision in relation to employees who are not covered by the definition of term workman within the meaning of Industrial Disputes Act. Sub-section (3) states that the services of all persons so employed by the petitioners and who were with the Proprietors before 3-10-1986 stands terminated on the date of his appointment by the petitioner-corporation, if he is so appointed before the designated date and on designated date, if is not employed at all by the petitioner Corporation. Explanation at the end of section states that the designated date is a date which State Government may by notification in official gazette designate. Chapter VI, particularly section 14 deals with appointment of Commissioner of Payments. Section 15 require the State Government to deposit with Commissioner of Payment an amount equal to amounts specified in section 7 after deducting therefrom any amount paid u/s 12, and amount equal to an amount payable to Proprietors u/s 8.
In the present matter it is not in dispute that the State Government has accordingly deposited amount of Rs. 6.10 Crores with Commissioner, after deducting the amounts paid by the petitioner under clause (b) of Sub-section (4) of section 12. Section 17, contemplates that every person having a claim other than the claim relating to gratuity or compensation for retrenchment or closure against the proprietors has to prefer such claim before the Commissioner within 30 days from the specified date and then section 18 provides for priority of claims. Section 18 clause (a) states that claims under Category-I, shall have precedence over all recoveries. The said categories are given in schedule appended at the end of the Nationalization Act, and Category-I, deals with all dues including gratuity of employees in the undertaking; arrears relating to contributions towards Provident Fund and contribution under Employees State Insurance Act, 1948 payable by the Proprietors. Section 22 of the Nationalization Act then prescribes that if out of the monies paid, any balance is left with the Commissioner, the Commissioner has to disburse such balance to the Proprietors i.e. the respondent No. 4. Section 25 which finds place in Chapter VII, states that, if any liability of Proprietors arising out of item specified under Category-I, is not discharged fully by the Commissioner, the same is required to be discharged by petitioners.
11. From the arguments advanced by the respective counsel above, it is apparent that the contention of respondent No. 3 is that the entire scheme for the purpose of determining the liabilities of Proprietors, for disbursement of those liabilities etc., is provided for in section 5 itself. Section 5 reads as under:
5. (1) Every liability of the proprietors is relation to the undertaking in respect of any period prior to the appointed day, shall be the liability of the proprietors and shall be enforceable against them and not against the State Government or against the Corporation or, where the undertaking is directed u/s 6 to vest in a new Government Company, against the new Government Company. (2) For the removal of doubts, it is hereby declared that :
(a) save as otherwise expressly provided in this section or in any other provision of this Act, no liability, shall be enforceable against the State Government or the Corporation, or, where the undertaking is directed u/s 6 to vest in any other new Government company, against such new Government company;
(b) no award, decree or order of any Court, tribunal or other authority in relation to the undertaking passed on or after the appointed day, in respect of any matter, claim or dispute, which arose before that day, shall be enforceable against the State Government or the Corporation or, where the undertaking is directed u/s 6 to vest in any other new Government company, against such new Government company;
(c) no liability incurred by the proprietors before the appointed day, for the contravention of any provision of any law for the time being in force, shall be enforceable against the State Government or the Corporation, or, where the undertaking is directed u/s 6 to vest in any other new Government company, against such new Government company;.
(d) notwithstanding anything contained in subsections (1) and (2) of section 12 or any other provisions of this Act, or any other law-for the time being in force, or any contract, agreement, settlement, award or decree or order of any Court, tribunal or other authority, no liability towards claims of whatever nature of any employee against the proprietors in respect of his employment in the undertaking for the period prior to the appointed day shall be enforceable against the State Government or the Corporation, or where the undertaking is directed u/s 6 to vest in any other new Government company, against such new Government company.
12. Perusal of section 5(2)(a), shows that if it is expressly provided by section 5 or by any other provision of the Nationalization Act, the liability covered thereunder can be enforced against the petitioners. Clause (d) thereof, further shows that the liability towards claims of any nature of any employee against promoters for period prior to appointed date is not enforceable against the State Government or Corporation. In this background when section 25 is looked into, the said section reads as under :
25. (1) Where any liability of the proprietors arising out of any item specified in category I of the Schedule is not discharged fully by the Commissioner out of the amount paid under this Act, the Commissioner shall intimate in writing to the State Government the extent of liability which remains undischarged and that liability shall be assumed by the State Government.
(2) The State Government may, by order direct the Corporation to take over any liability assumed by the Government under sub-section (1), and on receipt of such direction, it shall be the duty of the Corporation to discharge such liability.
Thus it is apparent that section 25 provides that any liability of proprietor arising out of any item specified in category-I of Schedule which is not discharged in full by the Commissioner out of the amounts available with him is to be discharged by the petitioner-Corporation and, the Commissioner has to intimate in writing to State Government, the extent of undischarged liability. After the Commissioner intimates such extent of undischarged liability to State Government, the liability has to be taken over by the State Government. Thus conjoint reading of provisions of section 5 and section 25 clearly shows that the liabilities of employees for period prior to appointed date are primarily to be discharged by the proprietors only, and these liabilities cannot be enforced directly by employee, either against State Government or against the petitioners. The procedure thereof is prescribed in Chapter VI which begins with section 14 and section 19 thereof also prescribes procedure for examination of claims. By section 19(5) the Commissioner has been given power to regulate his own procedure and certain provisions of Code of Civil Procedure, like summoning and enforcing attendance of any witness, discovery and production of any document; receiving evidence on affidavits and issuing of any commission for the examination of witnesses, are also made applicable to the proceedings before the Commissioner. Sub-section (6), clearly states that such proceeding before Commissioner are deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code, and the Commissioner shall be deemed to be a Civil Court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. It is not disputed that an officer of the rank of Additional District Judge, has been appointed as Commissioner for Payment u/s 14 of the Nationalization Act. Sub-section (7) of section 20 also enables the claimants who is dissatisfied with the decision of the Commissioner may prefer an appeal against the decision of Commissioner to Principal Civil Court of Original Jurisdiction, namely the District Judge.
13. The Nationalization Act is not dealing only with determination or pronouncement of liabilities of workers. The language of sections mentioned above clearly shows that all liabilities of any person against Proprietors (respondent No. 4), are required to be routed through only Commissioner of Payment. In this respect when the Schedule appended at the end of the Nationalization Act, is looked into arrears of Excise duty, Sales Tax, Duty relating to electricity and dues of Local Authority are specified in Category -II. Claims of Secured creditors including Banks and Institution are specified in Category-Ill and other claims of Sundry creditors and other liabilities are put in Category-FV by the said Schedule. It is therefore apparent that the liabilities of respondent No. 4 to the World at large including workers are to be first established elsewhere before competent Forum and then only such claims can be lodged before the Commissioner of Payment and after due verification the same can be paid by him.
14. When the above position is considered in the light of the material which can be gathered from the reading of fact and reading of Schedule, it is apparent that the ascertainment of liabilities of secured creditors or sundry creditors or other liabilities need not to be essentially before the Commissioner of Payments. However, the ascertainment of their liability is also contemplated elsewhere. In the facts of the present case, the liability of Proprietor towards alleged claim of workers has been ascertained in B.I.R. Case No. 38/1986 and 45/1986. The procedure to be followed, while ascertaining these liabilities in BIR proceeding is not prescribed anywhere in the Nationalization Act. It is further apparent that, the procedure to be followed while ascertaining the claim of secured creditor, of sundry creditor or other liabilities or for working out arrears of Excise Duty, Sales tax etc., is not again prescribed for in Nationalization Act. A secured creditor or sundry creditor may be required to establish or may have already established his claim before Civil Court and he has to lodge that claim before the Commissioner of Payment, for its further process for receiving the payment as contemplated by sections 18 and 19 thereof. Respondent No. 3 here has stated that claims in terms of adjudication of above BIR matters are to be lodged by it before said Commissioner only. It is therefore, incorrect to contend that, it is section 5 which prescribes for procedure to be followed by any Court of law for determining the liabilities or for working out liabilities. In the present matter the procedure to be followed by Labour Court while considering the grievance of respondent No. 3 is prescribed in the provisions of B.I.R. Act with Rules made thereunder. The argument that therefore, through process of interpretation language of section 5 or spirit of Nationalization Act is being violated, cannot be accepted. This is also apparent from the fact that Nationalization Act nowhere prohibits a claimant from establishing his claim before the competent forum like Civil Court or Labour Court etc. There is no provision which requires discontinuation of his pending proceeding or for transferring such proceeding to Commissioner of Payment or for seeking any leave from Commissioner of Payment for their continuation. In these circumstances, it is apparent that the Nationalization Act itself permits a claimant to prosecute his remedy before appropriate forum. The said Forum therefore has to follow the procedure which is evolved for it and it cannot be argued that the Nationalization Act therefore controls such procedure. In fact, in entire Nationalization Act, there is no such provision which contemplates the procedure to be followed by such other Forums, including the Labour Court or Industrial Court.
15. The facts of the case clearly show that the workers represented by the respondent No. 3 Union were trying to establish their rights by filing two BIR cases before the 2nd Labour Court, Nagpur. They have joined the present petitioner as party respondent. The respondent No. 4 Proprietor was only joined as respondent because the said Proprietor happens to be employer. The employer i.e. proprietor (respondent No. 4), appeared in the matter till the Nationalization Act (Ordinance) was promulgated and thereafter had discontinued taking any interest. The provisions of the Act also shows that the Proprietor do not have any records whatsoever. In view of the provisions made in Sub-section (1) section 4 of the Act, all these records are transferred to the present petitioners. In these circumstances, even if the proprietors would have appeared before the Labour Court and contested, they could not have done so without seeking records from the petitioners. It is therefore, clear that the respondent No. 3 could not have proved contested entitlement without the intervention of the present petitioners. The provisions of Nationalization Act operate on accepted or presumed basis, that Proprietors would dispute or deny the liability wherever necessary and such liability worked out by any forum or law Court will be after a fair and impartial adjudication. There is no scope for holding that a situation where the proprietor would suddenly withdraw from the proceeding and permit the claims filed against it/them to be decided ex parte without even a murmur, is envisaged under Nationalization Act. The penalty for defaults or lapses of Proprietors are not to be faced by them but, ultimately the impact is on public revenue. The theory of waiver cannot be used here to hold that undischarged liabilities arising out of such uncontested claims are also to be shouldered by petitioners when Nationalization Act has placed all necessary records at their disposal. The application for intervention made by the petitioners therefore, ought to have been considered by the Labour Court in this background.
16. The entire case law on which the learned counsel for respondent No. 3 has placed reliance, considers the situation in which the Hon''ble Apex Court has held that the provisions of law are to be interpreted as they exist without presuming that, there is any omission on the part of Legislature and a true and legal meaning of enactment has to be derived by considering the meaning of the words used in the enactment in the light of the desirable purpose or object which prohibits the mischief and its remedy to which the enactment has directed. In
17. All these arguments are in relation to the provisions of section 5, and to contend that section 5 does not permit any or contest by the petitioners in the claims of workers represented by the respondent No. 3. However, for the reasons already mentioned above, section 5 does not contemplate any special procedure to be followed while adjudicating upon such claims and Nationalization Act itself does not contain any such provision therefore. The procedure is normal procedure, to be followed by the Labour Court as in all cases and hence there is no question of section 5 being violated or any section of Nationalization Act being defeated by permitting the petitioners to oppose the case filed by the respondent No. 3. The learned counsel appearing for the petitioners has invited attention to the provisions of the Motor Vehicles Act, and also to the Case law on the point. So far as the provisions of the Motor Vehicles Act are concerned, it is apparent that section 149 and section 170 itself contain express provision to take care of such situation. However, here the Labour Court was faced with a situation in which there was no such express provision. The judgment relied upon by the learned counsel, reported in the matter of Agricultural Produce Market Committee vs. N.S.K. Khaja Mothideen Saheb and others (supra), considers some what similar situation. The observations made by the Apex Court, in para Nos. 8 to 10, thereof are important. The said observations are as under :
8. This takes us to the next question, whether the referring Court was justified in considering the exemplars Ext.P-1 and Ext.P-4 for fixing the value of the acquired land. Ext. P-l is an award of compensation for Survey No. 465-B measuring 2 acres and 11 gunthas which was acquired on 29-2-1944 for the purpose of Agricultural Marketing Committee godown for the appellant and its market value fixed was at the rate of 0.75 paise per sq. feet even according to the counsel for the appellant. The referring Court by applying the principle of appreciation of the land value to be at the rate of 10 per cent per annum from 1944 to 1977 arrived at the figure of Rs. 84,258 per acre for the land in question. As the aforesaid amount fixed in Ext. P-l and the rate which comes to 0.75 paise per sq. feet are not disputed, only submissions is, the escalation of price at the aforesaid rate of 10% per annum was not justified as there is no such evidence. We may point out here that this is a case in which the appellant did not take the trouble of participating in the acquisition proceedings. It cannot be doubted that the appellant was aware, both of section 4 and section 6 of the notification that this acquisition is only for the benefit of the appellant. Consequently proceedings for fixation of compensation were to follow. If the appellant was interested for fixation of compensation were to follow. If the appellant was interested to get fixed just compensation which it had to pay, at that stage it either should have participated or should have helped the State by giving such evidence as it deemed fit to get a proper rate fixed, which is not done.
9. We are finding in a large number of cases, about which we can take judicial notice that the institution at whose instance acquisition is taken by the State, does not participate in the proceedings, leaving it on the State to contest but when adverse orders are passed, such institution comes in with objections that no opportunity was given to it, hence be impleaded. Of course this Court has said that an opportunity should be given, but a way should be found by bringing a rule through amendment that notice should go to such institutions that if they wish to participate they may do so, then this second exercise by the Courts to re-examine after the impleadment could be eliminated.
10. Normally such institutions apply for impleadment after adverse orders are passed by the referring Court or the High Court. Then the whole issue is sought to be re-examined after their impleadment This not only delays the conclusion of the proceedings, delays payment of compensation to the claimants but in fact it constitutes a second attempt to get readjudicated what was concluded after the State contested.
18. Similar view is again taken by the Hon''ble Apex Court in ruling reported at
The object of Order 1, Rule 10, CPC is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a party to a suit in the following two cases : (1) When he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) When, without his presence, the question in the suit cannot be completely decided. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right.
It has also found that a Transferee pendente lite can be added as proper party, if his interest in the subject-matter of the suit is substantial and not just peripheral. It has also observed that a transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether the transfer is of entire interest of defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party.
19. This Court has recently considered the issue reported at
20. When these tests which can apply to all proceedings, are applied to the facts which are presented to this Court, it is apparent that the respondent No. 4 Proprietor had practically withdrawn from the proceeding before the Labour Court and facts also demonstrate that only amount of Rs. 6.10 Crores, after deducting from it the amount mentioned above was deposited by the State Government with the Commissioner of Payments. It is also pointed out to this Court that out of that, an amount of Rs. 4,43,34,562/- has already been paid to the employees and thereafter, the Commissioner of Payments has also quantified the amount of admissible nature and said amount worked out to Rs. 2,76,04,182/-. Thus, when this was done i.e. on 17-5-1990 itself, there was shortfall of Rs. 1,66,65,438/-. In view of this material, which is available on record, it is apparent that the liability of Proprietors is required to be shouldered or met with by present petitioners in view of the provisions of section 25 of the Nationalization Act. The liability of employees represented by the respondent No. 3 in both the matters before this Court, is still to be worked out exactly, but when there is already a shortfall the fact remains that said burden is to be discharged by the present petitioners. Not only this, but in the light of the provisions of section 4(1) of the Nationalization Act, it is also clear that entire records in relation to the workers were in custody of the present petitioners only and the petitioners therefore could have assisted the Labour Court in order to find out whether the cases preferred by the respondent No. 3 in relation to the period prior to appointed date were right or wrong. The petitioners also could have assisted the Court on the basis of the documents available with it to find out whether, there was no illegal change or illegal lockout or illegal closure. In such circumstances, I find that the arguments of respondent No. 3 that the petitioner lacks locus standi in the matter cannot be accepted. The permission granted to the petitioner to participate in the proceeding before the labour Court does not in any way militate with any provision or spirit of Nationalization Act.
21. The petitioners in both the matters, has moved applications seeking permission to intervene in the matter. The applications are opposed by the respondent No. 3. From perusal of the order of the Labour Court, as also from perusal of the order of Industrial Court and from arguments advanced before this Court, it is apparent that the parties have tried those applications as if the applications were to be joined as party respondents and contest the matter and oppose the claims of the respondent No. 3. From the pleadings stated, it is apparent that the nomenclature is not decisive in this case. In view of the nature of the applications it is clear that the petitioners wanted to become party respondent before Labour Court.
Advocate Puranik, for petitioners has during the course of arguments stated that as the labour Court did not receive any proper assistance, it has recorded mutually inconsistent finding. He has tried to contend that the illegal closure cannot be an illegal change and at the same time he has also tried to show that there cannot be an illegal lockout. He contends that the Labour Court has found that there was illegal change, illegal lock out and also illegal closure all at same time. These arguments are refuted by Advocate S.D. Thakur, for respondent No. 3. However in view of the findings recorded above, I do not find it necessary to pronounce upon this aspect of the matter as the Labour Court can re-consider the same after petitioners are given appropriate opportunity to defend the action of Proprietors in the matter.
22. In the circumstances, the impugned judgment dated 28th February, 1995 passed in B.I.R. Case Nos. 45/1986 and 38/1986 and also the orders dated 22nd December, 1993 and 16th November, 1994 rejecting the applications for intervention and revision application of petitioners, are quashed and set aside. Petitioners are permitted to be added as party respondent before the Labour Court in B.I.R. Case Nos. 45 of 1986 and 38 of 1986. Necessary amendment in this respect will be carried out by the respondent No. 3 as early as possible and in any case within a period of four weeks from today. After the amendment is carried out, the petitioners shall file their written statement, if any, within further period of four weeks and Labour Court shall thereafter decide the matter afresh. As the matter is old, and is sent back, the same is expedited. The Labour Court shall decide the B.I.R. Cases finally, as early as possible and in any case within a further period of 9 months. The parties to appear before the Labour Court on 16-11-2006 and to abide by further instructions to be issued by the Labour Court in this respect. The Record and proceedings received, be sent back immediately.
23. In view of this, Writ Petitions are accordingly allowed. Rule is made absolute in both the Petitions in the aforesaid terms. No costs.
