IN THE HONBLE 10th LABOUR COURT, MUMBAI

BEFORE SHRI A.A VYAS, HONBLE JUDGE

COMPLAINT (ULP) NO. 106 OF 2017

Shri Ramachandra Kishan Tobale and 2 Ors

Complainant

V/s

M/s. Shero Enterprises . & Ors.

Respondents

IN THE MATTER OF

AFFIDAVIT IN REPLY OF

MR. _ON

BEHALF OF THE

RESPONDENT NO.1 to 4

(HEREINAFTER REFERRED

TO AS THE

RESPONDENTS) TO THE

APPLICATION FOR

INTERIM RELIEF

DT.21/06/2017 FILED BY

THE COMPLAINANT
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I, ________ s/o ___________adult Indian

Inhabitant aged about _____ years residing at Mumbai

do hereby on solemn affirmation beg to state and

submit as under:

1. I say that I am the ___________________

of the Respondent No.1 herein. I say that I have gone

through the Complaint and the Application for Interim

Relief both dated 21.06.2017. I say that I am aware of

the facts involved in the present matter and I am

therefore in a position to depose thereto. I say that I

am deposing this Affidavit to oppose the Application for

Interim Relief filed by the Complainants and to oppose

any relief being granted in favour of the Complainants

against the Respondents. I crave leave of this Honble

Court to file a detailed Written Statement if and when

required.

2. At the very outset, I say that the Complaint

itself is very cryptic, lacks material details. I say that

the Complainants have suppressed material and vital

aspects. I say that the Complainants has not come with

clean hands before this Honble Court and as such the

Complaint deserves to be dismissed outright. I say that

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in the Interim Relief Application, the Complainant have

adopted the contents of the Main Complaint. I say that

I will, therefore, deal in brief with the Complaint in so

far as the false and baseless allegations leveled therein

are concerned to oppose any relief being granted in

favour of the Complainant. I crave leave to file a

detailed Reply/Written Statement as and when

required.

3. I say that the Complaint dated 21.06.2017

filed under Items 1 (a), (b), and (d) of Schedule IV of

the M.R.T.U. and P.U.L.P. Act, 1971 (hereinafter

referred to in short as the Act) is untenable in law as

well as on facts and deserves to be dismissed for the

following amongst other reasons each of which is set

out herein below in detail without prejudice to one

another.

a) I say that the Complainants have leveled false and

baseless allegations and have made several

demonstrably ex facie false and misleading statements

solely to misguide this Honble Court to snatch

favourable orders and have in fact played a deliberate

and deplorable fraud on this Honble Court. I say that

the Complainant has not approached this Honble Court

with clean hands and have with malafide intentions and

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motives deliberately suppressed several material facts

from this Honble Court and therefore the present

Complaint suffers from the vice of SUPPRESSIO VERI

and SUGGESTIO FALSI and hence on this count

deserves to be dismissed.

b) I say that the Respondents have not committed or

engaged in any unfair labour practice whether as

alleged in the Complaint or otherwise. I further say that

even otherwise the Complainant has miserably failed to

substantiate the allegations leveled so as to attract the

items invoked in the present Complaint.

c) I further say that the Complainant no 1 was

employed with the Respondents since

_______________ , complainant no 2 is employed

since _________ and that complainant no 3 is

employed since ________.

(e) I say that the Complaint is full of vague

statements and unsubstantiated, vague allegations

which do not at all reveal any material particulars and

on this ground as well, the Complaint as well as the

Application for Interim Relief filed by the Complainant

deserve to be dismissed with compensatory costs.

(f) I say that the Complainant has willfully and

with malafide intentions twisted and distorted the

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process of law with the sole motive of creating a false

and fabricated case when in truth no such case at all

exists, and hence on this ground as well, the Complaint

and the Application for Interim Relief deserve to be

dismissed.

(g) I say that the entire Complaint is full of vague and

misleading pleadings. I say that the Complainant has

not at all pleaded as to who had committed the alleged

unfair labour practice as narrated in the present

Complaint. I say that no specific details are pleaded

and only vague allegations are made with a view to the

bring the present Complaint within the ambit of the

items invoked in the present Complaint. I say that on

this count also the present Complaint deserves to be

dismissed outright.

4. Without prejudice to the aforesaid

contentions, I will now deal with the various allegations

levelled in the Application for Interim Relief dated

21/06/2017. I say that in the said Application for

Interim Relief, the Complainant has adopted the

averments and allegations made in the main Complaint

and therefore, I shall now deal with the main Complaint

ad seriatim as under:
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5. I say that ours is very small establishment

having only 5-6 employees and that we are business

of the sales country liquor and that we are having

all requisite licenses as required under statute to run

and conduct the said business.

6. I say that respondent no 1 firm is a partnership

firm comprising of following partners which are

__________________, _______________ and

____________. I say that it is pertinent to mention

that managing partner of the Firm Mr Behram Irani

and other partner Mr. Aspi Khorsedie are over 75

years of age and old age sickness are finding it

extremely difficult to run the business as also the

business of the country bar have now drastically

fallen and that infact they are making no profit.

7. I say that it was hence decided amongst the

partner that since it is difficult to conduct the business

it shall be advisable to closed down the business and

that accordingly respondent 2 and 3 issued notice

dated 08/06/2017, thereby expressing their intention

of closing down the firm with effect from 30/06/2017

and that they have accordingly communicated to all

concerned statutory authorities as well that they will

be closing down their establishment on and from

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30/06/2017 and that further it is pertinent to

mention that they have accordingly also intimated

their workers also that they will closed the firm on

30/06/2017. The complainants have also relied on the

said closure of notice.

8. I say that admittedly as mentioned in complaint at

para no 3.3 and document at page no 6-7 employees

in employment of the respondent no1 firm and hence

chapter VB of Industrial Dispute Act is not applicable to

the establishment and moreso it is also not the case

of the complainants that they have engaged more

than 100 employees. I say that in view no permission

or approval is required to close the undertaking of

the respondents and that further respondent no 1 are

anyways duty bound to pay the legal dues amounting

of the said closure.

9. I say that , respondent no1 firm has been

irrevocably closed as of today i.e 30/06/2017 and

that they have accordingly communicated to all the

concerned authorities about the closure of the

establishment and that provisions of the Industrail

Dispute Act , is very clear in regards closure of the

establishment not falling under category of VB and

further even present case in hand , respondent no 1 is

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duty bound to protect the legal dues of the

employees amounting out of closure and that

respondent no 1 shall pay the legal dues of the

workers , amounting out of closure in due course.

10. I say that wages, length of services and

designation in regards to complainants is not admitted

and categorically disputed.

11. I say that , we also deny that we are not

complying in accordance to payment of Bonus, leave,

minimum wages and other statutory obligation which

we are required to comply with and hence all

averments made as against the respondents is

denied in toto.

12. I say that , ex-parte order dated 25/02/2014 in

Compl(ULP) no 94/2012 passed by the Industrial Court

is matter of record and that same shall be dealt by

the respondents in accordance to provisions of the

law.

13. I say that averments, contentions and

allegations therein made in complaint which has not

been specifically dealt at this stage may not be

presumed to be admitted and hence same is also

denied.
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14. I further say that since the Complainant has

adopted the contents of the Complaint in its Application

for Interim Relief, which I believe, my this reply may

also be treated as reply to the Application for Interim

Relief, however reserves to detail reply to main

complaint . I say that in view of my reply, it is explicit

that the Complainant has not made out any case much

less prima facie case and hence the Interim Relief

Application also deserves to be dismissed. I say that no

case whatsoever much less prima facie is being made

out by the Complainant. I say that the Complainant is

trying to make out a story on the base of allegations in

air. I say that if at all the said reliefs are even

considered by this Honble Court, irreparable loss would

cause to the Respondents. I say that the acts being

undertaken by the Complainant are of serious nature,

which compelled the Management to take the decision

of dispensing with the services of the Complainant for

loss of confidence. I say that we have reserved our

rights to prove the said serious charge before this

Honble Court if at all necessary. I say that considering

all these facts and circumstances, it is most

appropriate and in the interest of justice to dismiss the

Application for Interim Relief and in the consequence

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even the Main Complaint as no case of unfair labour

practice is being made out by the Complainant.

15. I say that the Application for Interim Relief

filed by the Complainant is totally false, misconceived

and untenable at law for the following amongst other

reasons each of which is set out herein below without

prejudice to one another.

(i) I say that the Interim Reliefs sought by

the Complainant are in the nature of

final reliefs and the said reliefs can be

granted by this Honble Court only after

recording evidence of the Parties and

after deciding the complaint on merit

finally.

(ii) I say and submit that if the Interim

Reliefs as prayed for are granted (and it

is respectfully submitted that there is no

ground for doing so), it will not only

amount to granting final reliefs, but will

also have the effect of pre-judging the

alleged Unfair Labour Practices before

the same can be established or

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determined by recording evidence at the

final hearing of the complaint.

(iii) I say and submit that the Complainant

has failed to make out any case at all,

much less a PRIMA FACIE case, nor any

case exists to grant the Complainant

any reliefs.

(iv) I submit that the balance of

convenience is in favour of the

Respondents and not in favour of the

Complainant.

(v) I further submit that on the other hand

if the Application for Interim Relief is

rejected and the complaint is finally

allowed (and it is respectfully submitted

that there are no grounds to be doing

so), then this Honble Court will have

full powers and jurisdiction to grant

ultimate relief to the Complainant. I

humbly submit that under section 30 of

the Act, this Honble Court has no

jurisdiction to compensate the

Respondents who will be prejudicially

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affected by the grant of ad-/interim

reliefs, pending hearing and final

disposal of the complaint.

(vi) I submit that the Interim Reliefs can

only be granted after taking into

account all the circumstances, including

the manner in which the interest of the

Respondents can be safeguarded in case

this Honble Court ultimately finds that

the complaint is misconceived and

untenable at law.

16. In view of what has been stated in the

foregoing paragraphs and in view of the factual

position explained therein, I pray that this Honble

Court may be pleased not to grant any reliefs to the

Complainant as prayed for in the Application for

Interim Reliefs or at all and this Honble Court may

be further pleased to reject the Application for

Interim Reliefs filed by the Complainant in toto.

17. I say that those of the allegations levelled in

the Complaint by the Complainant which have not

been specifically refuted and/or denied may not be

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deemed to be admitted by me. I say that any

allegation levelled by the Complainant that is

contrary to and/or inconsistent with what has been

deposed by me in the foregoing paras of this

Affidavit may be deemed to have been denied.

22. I crave leave to file and refer to and rely on

documents referred to in this Affidavit and further

crave leave to file such other and further documents

as and when required.

23. I solemnly declare and verify that the

statements and averments and declarations made by

me herein above are true to the best of my

knowledge, information and belief and the legal

submissions are based on the legal advice received

by me and I believe the same to be true.

SOLEMNLY AFFIRMED AT Mumbai

ON THIS _____ DAY OF June , 2017

DEPONENT

IDENTIFIED BY ME

ADVOCATE BEFORE ME
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