Gujarat High Court
Mehsana District Cooperative Milk ... vs Ganeshbhai P.D. Chaudhary on 27 June, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/687/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 687 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
MEHSANA DISTRICT COOPERATIVE MILK PRODUCERS UNION LTD
Versus
GANESHBHAI P.D. CHAUDHARY
Appearance:
MR AJAY R MEHTA(453) for the PETITIONER(s) No. 1
MR PH PATHAK(665) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 27/06/2018
ORAL JUDGMENT
1. Heard Mr.Mehta, learned advocate for the petitioner and Ms.Kamani, learned advocate for Mr.Pathak, learned advocate for the respondent.
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2. In present petition, the petitioner has challenged order dated 30.9.2014 passed by the learned Labour Court in Recovery Application No.526 of 2008 whereby the learned Labour Court directed present petitioner to pay Rs.4,44,568/ to the claimant, i.e. present respondent.
3. So far as factual backdrop is concerned, it has emerged from the submissions that the respondent, a workman was placed under suspension in 19891990. The suspension was followed by a show cause notice and a departmental enquiry. Thus, the suspension was, actually, 'suspension pending enquiry'.
4. Upon conclusion of the domestic enquiry and in light of the report - finding submitted by the Enquiry Officer holding, inter alia, that the allegations against the workman are proved, the Disciplinary Authority terminated service of present respondent on 29.10.1990.
5. Feeling aggrieved by the decision, the Page 2 C/SCA/687/2015 JUDGMENT respondent herein raised industrial dispute which was referred for adjudication to the learned Labour Court at Kalol which was registered as Reference (LCK) No.39 of 1991. The learned Labour Court allowed the reference vide award dated 20.10.2000 and directed present petitioner to reinstate the workman, i.e. present respondent with full backwages.
6. The said award was challenged by present petitioner in Special Civil Application No.1718 of 2001.
7. The operation of the award was stayed by interim order passed by this Court.
8. During the period when said interim relief remained in operation, the petitioner had paid last drawn wages to the respondent. The payment was made in discharge of the obligation and in accordance with Section 17B of the Industrial Disputes Act, 1947.
9. Subsequently, vide decision dated 13.2.2006, Page 3 C/SCA/687/2015 JUDGMENT this Court partly allowed said Special Civil Application No. 1718 of 2001 whereby the learned Labour Court's direction whereby the Court awarded backwages, came to be set aside.
10. Subsequently, the workman filed an application before the learned Labour Court under Section 33C(2) of the Industrial Disputes Act and prayed for recovery of Rs.4,66,432/. The learned Labour Court partly allowed the said recovery application with direction to pay Rs.4,44,568/ to the respondent.
11. The said order is placed under challenge in present petition.
12. During pendency of the petition, the Assistant Manager (HR & Admn) of the petitioner has filed an additional affidavit dated 2.4.2018, wherein it is averred and stated that:
"1. The present petition has been filed by the petitioner challenging the order passed by the Labour Court in Recovery Application No.526 of 2008 (Old Recovery Application No.60 of 2008) whereby the Labour Court has directed petitioner to pay the respondent herein, the original applicant an amount of Rs.4,44,568/ along with interest @ 9% p.a. Page 4 C/SCA/687/2015 JUDGMENT
2. The petition was listed for hearing on 2nd February, 2018 when this Hon'ble Court (Coram: A.J. Desai, J.) passed an order with regard to production of details of salary paid to person similarly situated as the respondent. On verification of the record, there is no person who was earning identical wages as the present respondent and hence, petitioner is not in a position to give exact details as requested by the Hon'ble Court.
3. It is submitted that the respondent's entitlement for the period 20th October, 2000 to 28th February, 2006, as per the dairy's calculation works out to Rs.4,16,001/. The respondent, the original applicant's claim of Rs.4,44,568/ a awarded by the labour Court is incorrect and hence, disputed. It is denied that respondent, the original applicant's salary was Rs.7288/ per month as alleged or at all. As a matter of fact, the petitioner's salary in October, 2000 for 12 days was Rs.1528/ and his salary in February, 2006 was Rs.5450/......It is thus humbly submitted that the petitioner is not entitled to an amount of Rs.4,44,568/ and, if at all his entitlement is Rs.4,16,001/. The respondent however was paid Rs.1,02,416/ total under Section 17B which is required to be deducted and after deduction the respondent's entitlement, if at all, would be Rs.3,13,585/.
4. It is humbly further submitted that the respondent, the original applicant has not produced any evidence in substantiation of the salary and has only made an assertion qua his salary. It is humbly further submitted that these submissions are without prejudice to the petitioner's contention that the opponent is not entitled to any such amount and further that, the labour court could not have undertaken such an exercise and in any event, could not have awarded any interest in view of the judgment of the Division Bench of this Hon'ble Court."
13. It emerges from the said affidavit that the petitioner claims that the amount paid to the respondent during the pendency of Special Civil Application No.1718 of 2001 as and by way of last drawn wages in accordance with Section 17B of the Industrial Disputes Act, should be allowed to be adjusted against the payment required to be made to the respondent.
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14. With the said contention, the petitioner has mentioned the details of the amount paid to the claimant by way of payment under Section 17B and also the details about the amount payable to the respondent towards salary and other benefits as awarded by the learned Labour Court.
15. According to the details and calculation mentioned by the petitioner in paragraph No.3 of the said affidavit, the petitioner seeks to adjust a sum of Rs.1,02,416/ and it is mentioned that the amount which is required to be paid, would be Rs.4,16,001/.
16. The said calculation and the petitioner's claim and submission that the amount paid under Section 17B during pendency of Special Civil Application No.1718 of 2001 should be allowed to be adjusted, is not disputed by learned advocate for the petitioner.
17. In this view of the matter, the amount which becomes or remains payable by the petitioner to Page 6 C/SCA/687/2015 JUDGMENT the respondent, would be Rs.4,16,001.
18. In view of the fact that the said calculation is not disputed by the respondent, on payment of the said amount, i.e. Rs.4,16,001 the order dated 30.9.2014 passed by the learned Labour Court in Recovery Application No.526 of 2008 shall stand satisfied on payment of Rs.4,16,001 and any other or further order with regard to the dispute raised by the petitioner against the said order will not survive or any need for other direction also will not survive.
19. In view of the fact that the petitioner itself has calculated the amount mentioned in paragraph No.3 of its affidavit, there should not be any objection on the part of the petitioner to pay the said amount.
20. Under the circumstances, following order is passed.
21. The petitioner shall pay Rs.4,16,001 after adjusting Rs.1,02,416 (paid by way of last drawn Page 7 C/SCA/687/2015 JUDGMENT wages in accordance with Section 17B of the Industrial Disputes Act during pendency of Special Civil Application No.1718 of 2001) within four weeks from today and on payment of such amount, the order dated 30.9.2014 in Recovery Application No. 526 of 2008 shall stand complied.
22. At this stage, it is necessary to note that the learned Labour Court has also directed present petitioner to pay interest @ 9% to the claimant, i.e. present respondent.
23. In this context, it is relevant and necessary to note that Recovery Application No.526 of 2008 was filed on the strength of award dated 30.9.2014.
24. The learned Labour Court derived jurisdiction to adjudicate the said recovery application in light of the award dated 20.10.2000 in Reference No.39 of 1991.
25. It is not the case even of the respondent that in the said award, while passing final Page 8 C/SCA/687/2015 JUDGMENT direction viz. granting reinstatement and full backwages, the learned Labour Court had awarded interest.
26. Under the circumstances, while adjudicating the recovery application based on the strength of award dated 30.9.2014, in absence of any direction in main award and in absence of any adjudicated / crystalised right to claim and receive interest, much less @ 9%, such direction
- order could not have been passed and the claim for interest could not have been considered and could not have been granted by the learned Labour Court.
27. For the said reason, the said direction deserves to be set aside and is accordingly set aside.
With the aforesaid clarifications, directions and observations, the petition is disposed of. Orders accordingly.
Sd/-
(K.M.THAKER, J) SURESH SOLANKI Page 9