Gujarat High Court
Pravinsinh vs Vadodara on 12 May, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/6291/2011 28/ 28 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6291 of 2011
With
SPECIAL
CIVIL APPLICATION No. 6293 of 2011
To
SPECIAL
CIVIL APPLICATION No. 6308 of 2011
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PRAVINSINH
DHIRUBHAI JADEJA - Petitioner(s)
Versus
VADODARA
MUNICIPAL CORPORATION THRO'MUNICIPAL COMMISSIONER & 2 -
Respondent(s)
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Appearance
:
MR
PF ADHVARYU for
Petitioner(s) : 1,MR VICKY B MEHTA for Petitioner(s) : 1,
None for
Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/05/2011
ORAL
ORDER
Heard learned advocate Mr. VB Mehta on behalf of petitioner in group of petitions.
The question raised in these petitions being a common question in group of petitions. Therefore, one common order is passed by this Court in aforesaid group of petitions.
The petitioner employee has challenged in each petition, order passed by Labour Court, Baroda in Recovery application under section 33(C)(2) of I. D. Act, 1947 dated 24/11/2010. The Labour Court, Baroda has rejected said Recovery Application preferred by petitioner in each petition.
The brief facts of present group of petitions is that petitioner and other employees are appointed as permanent employees on the post of Driver and Firemen in the year 2000 in Fire Brigade department run and managed by Baroda Municipal Corporation. After appointment on permanent post, petitioner and similar employee has given undertaking that they will do work on ambulance, Dead body van, Water tanker and fire fighter as enumerated in undertaking. The settlement was arrived between Fire Brigade Employees and respondent Corporation in reference filed by employees. One of the condition of said settlement is that Management of respondent corporation will allot residential quarters to senior employees first and said condition is to be obeyed and followed strictly. Thus, as per said condition of some settlement which was arrived in the year 1992 quarters were required to be alloted first to senior employees.
According to petitioner on 1/10/2007 without issuing any notice, respondent Corporation issued orders allotting staff quarters to petitioner and other similar employees. The respondent Corporation had issued said order not keeping in mind settlement arrived at by and between employees and respondent Corporation wherein quarters were required to be issued or alloted first to senior employees. On 3/11/2007, management of respondent Corporation had issued notice to petitioner. According to petitioner, after lapse of two years again petitioner and other employees were being served order dated 21/11/2007 to take possession of quarters which has been alloted by Corporation to petitioner. The detail reply has been made by petitioner and other similar situated employees on 29/4/2008 and 2/2/2009 and submitted that this being a discriminatory treatment given by Corporation and order dated 21/11/2007 has been objected. According to petitioner, as per information gathered under Right to Information Act, it is not mandatory to stay in residential quarter provided by Corporation. Therefore, respondent Corporation can not compel petitioner and other employees to stay in Staff Quarter and they can not stop benefit of HRA, which was already given to such employees. In present case, petitioners were not claiming any benefit but their contention was that they must be paid benefits which was already granted to them and paid to them and which is already paid to other senior employees. To receive HRA is a part of condition of service being a pre existing right of petitioner unilateral withdrawal which is not permissible and it violates section 9 A of I. D. Act, 1947. The petitioner and other similar employees filed Recovery application being no. 354/2009 and Recovery application no. 77 to 97/2009 under section 33(C)(2) of I. D. Act, 1947 interalia praying to recover amount of HRA from period of 1/7/2009 to 31/9/2009. The petitioner has also preferred Recovery application no. 79/2009.
In group of aforesaid petition, each petitioner individually filed Recovery Application being Recovery Application no. 81/2009 in SCA no. 6293/11, Recovery application no. 82/2009 in SCA no. 6294/11, Recovery Application no. 83/2009 in SCA no. 6295/11, SCA no. 84/2009 in SCA no. 6296/11, Recovery application no. 85/2009 in SCA no. 6297/11, Recovery application no. 86/2009 in SCA no. 6298/11, Recovery Application no. 87/2009 in SCA no. 6299/11, Recovery application no. 88/2009 in SCA no. 6300/11, Recovery application no. 89/2009 in SCA no. 6301/11, Recovery application no. 90/2009 in SCA no. 6302/11, Recovery application no. 92/2009 in SCA no. 6303/11, Recovery application no. 94/2009 in SCA no. 6304/11, Recovery Application no. 95/2009 in SCA no. 6305/11, Recovery application no. 96/2009 in SCA no. 6306/11, Recovery application no. 97/2009 in SCA no. 6307/11, Recovery application no. 354/2009 in SCA no. 6308/2011 before labour Court, Baroda under section 33(C)(2) of I. D. Act, 1947.
The Labour Court, Baroda has rejected/dismissed each Recovery Application by order dated 24/11/2010 on the ground that dispute, which has been raised by employer is required adjudication by appropriate forum and same could not be decided in recovery application.
Learned advocate Mr. Mehta appearing on behalf of each petitioner in group of petition raised contention before this Court that after appointment of petitioner and other employees, payment in respect to HRA has been regularly paid by employer, even senior employees who are required to be alloted quarters first as per settlement, are staying out side. The senior employees are not offered any quarters and they have not taken any possession of quarters. The petitioner and other employees who are admittedly juniors have not taken possession of quarters. So as to obey terms of settlement, more than eighty senior employees staying out side quarters and they are getting benefit of HRA.
He submitted that Labour Court, Baroda has committed gross error in dismissing Recovery Application, which is contrary to settle provisions of law and also apparent error of law committed by Labour Court, Baroda. He submitted that benefit of HRA was made available to each petitioner and it was continued from date of joining. Therefore, petitioner is not claiming any new benefit or revision of any benefit but they are claiming benefit which was already granted in favour of petitioner being pre existing right. Therefore, adjudication is not required. The settlement arrived between parties petitioner and Corporation has been violated and not strictly followed by Corporation and nearly 80 senior employees are residing out side Staff Quarters and they are getting HRA regularly. Therefore, this HRA being a part of service condition, for that, pre existing right has been established by petitioner, even though, Recovery application has been dismissed by Labour Court, Baroda. The respondent Corporation has stopped payment of HRA to petitioner and other employees, which was amounts to breach of section 9A of I. D. Act, 1947.
He submitted that as per section 9A of I. D. Act, 1947 in case if any alteration or adverse effect to existing service condition then, notice of change must have given which was not given by respondent Corporation. Therefore, petitioner has established pre existing right which has not been paid HRA by Corporation. Therefore, in such case, no adjudication was required by any Court. As per information received under provisions of Right to Information Act, it is not compulsory or mandatory to stay in quarter because petitioner is not taking possession of quarter. This treatment amounts to discrimination by Corporation can not compel to petitioner and other employees to take possession of quarter. Therefore, on the basis of aforesaid submission made by learned advocate Mr. Mehta that case/claim of petitioner and other employees are squarely covered by provisions of section 33(C)(2) of I. D. Act, 1947, even though, this relevant aspect has not been properly appreciated by Labour Court, Baroda and dismissed Recovery Application, which is clear error committed by Labour Court, Baroda, which would require interference by this Court under Art. 227 of Constitution of India.
I have considered submission made by learned advocate Mr. Mehta appearing on behalf of petitioner. The Recovery Application under section 33(C)(2) filed by petitioner and other employees claiming benefit of HRA, which was illegally deducted by Corporation for a period from 1/7/2007 to 28/2/2009. The benefits of HRA were received by petitioner and other employees as per Rules, Regulations and Service condition of employee from October, 1997, but that has been stopped illegally w.e.f. 1/12/2007. This HRA benefit has been stopped and deducted illegally by Corporation from December, 2007, w.e.f. 1/10/2007 by letter dated 3/11/2007. The said has been objected by petitioner and other employees and request was made by letter dated 21/2/2009 by Union on behalf of petitioner and other employees which are in all 21 employees and for that purpose Recovery Applications were filed before Labour Court, Baroda claiming amount of HRA from respondent Corporation.
The respondent Corporation has filed reply vide exh 7 and denying averment made in Recovery application and raised one important contention before Labour Court that petitioner has not established to receive benefit of HRA being Pre existing right because so long decision which has been taken by Corporation not to pay HRA benefit to petitioner and other employees is not held to be illegal by adjudication process upto that petitioner and other employees are not entitled to claim HRA under provisions of 33(C)(2) Recovery application. The Labour Court has no jurisdiction to interpret existing service conditions governed relationship between Employer and Employee. According to respondent Corporation, employees those who are working in Fire Brigade Department, they must have to stay in Official Quarter alloted by Corporation because this being an emergency service require any time need of employees and such undertaking was given at the time when petitioner and other employees were recruited by Corporation in Fire Brigade Department. The Driver and (Sainik) working with Fire Brigade Department has an essential service and on that basis quarters have been alloted to petitioner and other employees, even though, this quarters have not been accepted by petitioner and other employees. The allotment of quarter has been refused illegally by petitioner and other employees inspite of repeating request was made by Corporation to concern employees. Therefore, according to service rule of respondent Corporation, an employee which has been alloted quarter and not accepted it then naturally as per Rules such employees is not entitled HRA benefit from Corporation.
According to Corporation, this being a part of condition of service which was imposed at the time when appointment orders were issued in favour of petitioner and other employees. Therefore, Labour Court has no jurisdiction to decide/adjudicate disputed question of facts and legality and validity of order passed by respondent Corporation for deducting or not to pay HRA benefit to present petitioner and other employees. Before Labour, after giving purshis exh 38 by both parties, all Recovery applications are consolidated in Recovery application no. 78/2009 and exh 9 and exh 10 documents have been produced by petitioner and other employees. Vide exh 9, affidavit has been produced on record which has been cross examined by advocate of Corporation. It was decided by both parties that whatever evidence led in Recovery Application no. 78/2009, may be treated as evidence in respect to other Recovery application, therefore, no order is required to be passed by Labour Court Baroda in other recovery applications. The subject matter of Recovery application no. 391/2009 is different, therefore, it was taken up subsequently.
The issues have been framed by Labour Court, Baroda in para 4 and answer is given in para 4. The Labour Court has considered important aspect and contention which has been raised by Corporation that so long legality and validity of decision taken by Corporation is not decided by competent forum and that has not been adjudicated by Labour Court/Industrial Tribunal under section 10 reference of I. D. Act, 1947 petitioner and other employees are not entitled any relief in Recovery application. The employees, those who are working with Fire Brigade Department must have to stay in quarter as per legal obligation upon them. The notice has been issued by Corporation to petitioner and other employees to that effect inspite of quarter has been alloted to them why they are not accepting quarter and residing in quarters?. Therefore, their HRA benefit is required to be stopped and why it should not be stopped, for that, an explanation has been called for by Corporation. This being an additional reason or contention raised by Corporation that inspite of an opportunity given to each petitioner, even though, no explanation is given that why allotment of quarters not accepted by petitioner and other employees. Therefore, according to Corporation, decision which has been taken to stop HRA benefit that is legal and valid could not be examined by Labour Court under provisions of section 33(C)(2) of I. D. Act, 1947. In Recovery application no. 78/2009 vide exh 10 list Sr. no. 1 to 14 documents have been produced by petitioner and other employees and that has been accepted because other side advocate has not raised any objection. Therefore, this documents have been given Pakka exhibit as 11 to 24. On behalf of respondent Corporation, in support of their defence/reply in Recovery application no. 78/2009 vide exh 9 list at Sr. no. 1 to 13 documents have been produced and that has not been also objected, therefore, those documents are also given a Pakka exhibit being no. 27 to 37. One employee viz. Pravinsinh Dhirubha Jadeja vide exh 9 was cross examined by advocate of respondent Corporation. In cross examination of Mr. Pravinsinh D Jadeja exh 9, wherein he has made statement on oath that while considering exh 25 there was no such settlement arrived between parties. Therefore, he also admitted before Labour Court that benefit of such settlement is made available to all employees those who are working in Fire Brigade Department. After considering exh 26 he denied facts that such undertaking has been given by each employee those who are working in Fire Brigade Department. However, exh 9 being an undertaking given by Pravinsinh D Jadeja where his signature has been accepted by him. He has also made clear in evidence that at the time when undertaking was sent by him, he has not raised any objection and no letter has been sent to Corporation raising objections against such undertaking exh 19. Exh 20 letter received from Corporation and exh 27 witness Mr. Pravinsinh D Jadeja has admitted that respondent Corporation has written a letter to each employee as mentioned in that letter for allotment of Staff Quarters. The letter exh 27 allotment of Staff Quarters issued in favour of petitioner and other employees has been challenged by petitioner and other employees before Assistant Labour Commissioner, which correspondence are produced before Labour Court. The letter dated 3/11/2007 has been received by petitioner and other employees which was issued by Corporation. Exh 29 letter is also received by petitioner written by Corporation. Even exh 30 is also letter issued by respondent Corporation received by petitioner and other employees. One important admission has been made by this witness that respondent Corporation has stopped HRA benefit while paying salary to petitioner and other employees that order of denying HRA benefit to petitioner and other employees has not been challenged in any Court of law and it has not been challenged exh 37 in any forum or before any authority in any place. Means decision which has been taken by respondent Corporation denying HRA to petitioner and other employees exh 37 has not been challenged by petitioner in any Court of law and legality and validity of exh 37 remained unchallenged on that basis, HRA benefit has been denied to concern petitioner and other employees. The re-examination exh 23 has been shown to witness Pravinsinh D. Jadeja. According to him, proceeding has been initiated against Corporation in respect to denying HRA benefit to petitioner and other employees. But it is made clear that there is no decision given by either Government Labour Officer or Assistant Commissioner of Labour, Baroda. The industrial disputes as per exh 25 is going on and pending before Industrial Tribunal, Baroda in respect to driver and other employees working in Fire Fighter department of respondent Corporation which includes revision of wages and other service condition being reference IT no. 204/1991. This reference is pending before Industrial Tribunal, Baroda, for which, matter has been settled between both parties and item no. 10 to 12 of such settlement has been incorporated by Labour Court, Baroda in its judgment where item no. 10 suggests that driver, Firemen and Sainiks those who are working in Fire Brigade department shall be alloted quarters by Corporation. For that, employees can not refuse allotment of such quarters and quarter has been alloted as per requirement and necessity. For that, order passed by Chief Officer, Fire is considered to be final and employees those who are residing in quarters they should not left quarters without prior permission and they have to work or to remain in service while residing in quarters even during duty period. This settlement is binding to present petitioner and other employees because driver and Sainiks working in Fire Brigade department has to perform an essential service, for that, their presence in quarter is necessary. Exh 26, being an undertaking which has been given by each employee working in Fire Brigade Department was referred at page 24. Similar undertaking has been given by each petitioner and in same performa where it was an undertaking given by employees that as and when quarter has been alloted to him, he has to accept it and he will not refuse it and in case of refusal to accept quarters, respondent Corporation is entitled to initiate departmental inquiry against such employees. Therefore, essential service is required to be performed by petitioner and other employees as per exh 26 undertaking and exh 27 order passed by Corporation on 1/10/2007 allotting quarter to present petitioner and other employees and exh 28 documents suggests that on or before 3/11/2007 if possession of quarter is not obtained or taken then necessary consequences is to be followed and departmental inquiry is to be initiated. If official quarter is not accepted then Corporation must have to stop HRA benefit given to concern petitioner and other employees. Exh 30 letter dated 17/4/2009 written by Corporation to petitioner and other employees who has been received it. As per letter page 27 which has been incorporated by Labour Court, Baroda issued by Chief Officer Fire to concern petitioner and other employees. The Labour Court has appreciated aforesaid documents as referred above by this Court. Considering important aspect that being an essential service performed by petitioner and other employees in Fire Brigade Department of Corporation they should have to remain in quarters and allotment of quarters must have to accept by them but not accepted by them and refused it i.e. now decision has been taken by Corporation denying HRA benefits to petitioner and other employees.
The Labour Court Baroda has also considered decision which has been referred by present petitioner and other employees in case of Bhartiya Coal Khan Majdoor Union Welfare Vs. J. & K. Minerals Ltd and Ors reported in 2003 (III) LLJ 725 (Jammu & Kashmir High Court). The Labour Court has also considered decision of Apex Court in case of Calcutta Electric Supply Corporation Ltd Vs. Calcutta Electric Supply Workers Union and Ors reported in 1995 (I) LLJ 874, but these are not relevant decisions to issue which has been raised by respondent Corporation before Labour Court, Baroda. Therefore, Labour Court, Baroda has not discussed in detailed such decision relied by petitioner and other employees. The Labour Court has considered another decision reported in 1997 (I) LLJ 632, 2005 Lab I C 2917 of this Court and 2006 (3) LLJ 24.
After appreciating aforesaid decision of Apex Court as well as this Court, Labour Court in terms come to conclusion that this being a disputed question of facts and legality and validity of order which has been passed by Corporation is not decided and challenged by petitioner and other employees in any forum and no industrial dispute has been raised for challenging legality and validity of order which has been passed by Corporation denying HRA to concern petitioner and other employees. The Labour Court under section 33(C)(2) being an executing Court can not examine legality and validity of order passed by respondent Corporation in denying HRA benefit to concern petitioner and other employees.
The Labour Court has come to conclusion that demand/recovery application filed by petitioner claiming benefit of HRA which has been disputed by Corporation, as matter of right to receive HRA or not?. That question can not be examined or adjudicated by Labour Court while exercising power under section 33(C)(2) of I. D. Act, 1947. The petitioner and other employees can challenge such decision of Corporation and after adjudication of such dispute if employee is succeeded then it is open for employees to claim such benefit of HRA filing Recovery application under section 33(C)(2) of I. D. Act, 1947. Accordingly, Recovery Applications have been rejected.
The law on this question has been settled by Apex Court and nature and scope of section 33(C)(2) of I. D. Act, 1947 has been examined by Apex Court where it is held that Labour Court while exercising power under section 33(C)(2) can not examine and decide legality and validity of order passed by employer but recovery application can be maintainable only after Tribunal has adjudicated the dispute under section 10 of I. D. Act, 1947. The proceeding under section 33(C)(2) is proceeding in nature of Execution proceeding in which Labour Court calculated amount of money due to workman from an employer or if workman is entitled to any benefits which is capable of being computed in terms of money proceeding to compute benefit in terms of money. The right of money which is sought to be calculated or upon benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided that must arise in course of and in relation to relationship between industrial workman and his employer. It is not competent to Labour Court exercising jurisdiction under section 33(C)(2) to arrogate to itself functions of an Industrial Tribunal and entertain a claim which is not based on existing right but it may properly to be made subject matter of industrial dispute in reference under section 10 of I. D. Act, 1947. This aspect has been considered in detailed by larger Bench of three Honourable Judges of Apex Court in case of State of U. P. and Anr vs. Brijpal Singh reported in 2005 (8) SCC 58 where relevant para 10 to 13 are quoted as under:
"10. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. Vs. Suresh Chand , (1978) 2 SCC 144 held that a proceeding under Section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. This Court further held as follows:
"It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act."
12. In the case of Municipal Corporation of Delhi vs. Ganesh Razek & Anr. , (1995) 1 SCC 235. this Court held as under:
"12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compare the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity required interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.
13. In these matters, the claim of the respondent-workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work" being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ petition filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents."
12. In the case of State Bank of India vs. Ram Chandra Dubey & Ors. , (2001) 1 SCC 73, this Court held as under:
"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.
8. The principles enunciated in the decisions referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages"
13. Thus it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent-workman cannot ask the Labour Court in an application under Section 33C(2) of the I.D. Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs. Shymala Pappu that the respondent-workman can file application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987. The argument by the learned counsel for the workman has no force and is unacceptable. The Labour Court, in our opinion, has erred in allowing the application filed under Section 33C(2) of the I.D. Act and ordering payment of not only the salary but also bonus to the workman although he has not attended the office of the appellants after the stay order obtained by him. The Labour Court has committed a manifest error of law in passing the order in question which was rightly impugned before the High Court and erroneously dismissed by the High Court. The High Court has also equally committed a manifest error in not considering the scope of Section 33C(2) of the I.D. Act. We, therefore, have no hesitation in setting aside the order passed by the Labour Court in Misc. Case No. 11 of 1993 dated 23.8.1995 and the order dated 9.1.2002 passed by the High Court in C.M.W.P. No. 36406 of 1995 as illegal and uncalled for. We do so accordingly."
Similarly, in case of Regional Manager, Bank of Baroda Vs. Gitaben Haribhai Darji (D) by Lrs and ors reported in 2005 Lab I. C. 2917, Division Bench of this Court has taken same view in respect to S. 33(C)(2) of I. D. Act, 1947. Therefore, relevant observation made in para 3, 5 to 7 are quoted as under:
"3. Learned Counsel for the appellant submitted that in deciding the application filed under Section 33(C)(2), the Court would have jurisdiction to direct recovery of the amount if there is a predetermined right or under the Law, when a particular person is entitled to a particular relief or amount and not in a case where the status or particulars are disputed. Placing reliance upon certain judgments of the Supreme Court, it was submitted that, the Labour Court would have no jurisdiction under Section 33(C)(2) of the I.D. Act to decide the question of entitlement and as such, the Tribunal was not entitled to pass order, which could be passed only under Section-10 of the I.D.Act. A reference was also made to the judgments of the Supreme Court in the matters of Central Inland Water Transport Corporation Ltd., vs. The Workman & Anr., [A.I.R. 1974 SC 1604], Shri Yovan, India Cement Employees Union and Anr Vs. Management of India Cements Ltd. & Ors., A.I.R.1994, S.C.558 and Municipal Corporation of Delhi Vs. Ganesh Razak and Anr.,1995 Volume - I SCC 235. It was also submitted that the application filed under Section 33(C)(2) was not maintainable, specially when the recovery application itself said that the workman had already raised the demands.
5. From the above referred judgments of the Supreme Court and number of other judgments of this Court, it is well established that provisions under Section 33(C)(2) of the I.D.Act would apply to a case where the entitlement is not disputed and the status is also admitted. The Supreme Court has observed that the moment a dispute in relation to facts or entitlement is raised, then the Industrial Tribunal or Labour Court would have no jurisdiction to make an award or pass an order exercising its jurisdiction under Section 33(C)(2) of the Act.
6.In the present matter, the entitlement of the petitioner had been seriously disputed. Labour Court had rest its finding on the evidence and the alleged admission made by the witness of the establishment. After marshalling the evidence, it has recorded a finding of fact that the workman was entitled to 50% of the salary in accordance with the settlement. In our considered opinion, any admission made by the witness of the establishment, would not confer jurisdiction upon the Tribunal if it had none to enter into arena of disputed facts and record a finding. The question of decision on the status or the entitlement would be decided in the proceedings under Section 10 of the I.D. Act. Admission or any other evidence would not confer any jurisdiction upon the Tribunal if it did not have the basic jurisdiction and there was inherent lack of jurisdiction.
7. In the present matter, the question of entitlement was beyond the purview of jurisdiction of the Industrial Tribunal. True it is that the Labour Court observed in favour of the workman and the finding has been approved by the learned Single Judge that the workman was entitled to a particular salary in accordance with the settlement, but, that decision was in relation to the entitlement of the workman which in our opinion could not be given in view of the settled legal position"
In view of above observation made by Apex Court and Division Bench of this Court and considering ambit of section 33(C)(2) of I. D. Act, 1947, Labour Court can not examine legality and validity of order passed by employer wherein denying benefit of HRA to petitioner and other employees. That can not consider to be pre existing right of petitioner and other employees when specific decision has been taken by Corporation not to grant benefit of HRA to concern employees, who were refused to accept allotment of official quarters to them. Before that opportunity was given to petitioner and other employees and also it was communicated in advanced by Corporation that in case if petitioner and other employees not accepted allotment of official quarter then respondent Corporation must have to take decision for denying benefit of HRA in salary. Even though, that decision is not challenged by petitioner and other employees to any Court of law or any other forum that facts has been admitted by witness Pravinsinh Jadeja vide exh 9 in cross examination made by advocate of respondent Corporation as discussed by Labour Court at page 22, where specific statement on oath has been made by Pravinsinh Jadeja exh 9 that order which has been passed by Corporation exh 37 is not challenged by petitioner and other employees in any Court of Law or before any authority under provisions of I. D. Act, 1947. Therefore, so long legality and validity of exh 37 is not challenged by petitioner and other employees in any forum or court of law then they are not entitled to claim benefit of HRA because that can not consider to be pre existing right of petitioner and other employees to claim benefit of HRA from Corporation. In short, entitlement of any right claimed by workman can not be examined by Labour Court under section 33(C)(2) of I. D. Act, 1947.
Therefore, contention raised by learned advocate Mr. Mehta can not be accepted. The Labour Court has not committed any error in deciding Recovery application and Labour Court has also given detailed reasons in support of its decision and finding of fact which has been discussed by Labour Court and finding and reasoning given on the basis of record can not consider to be baseless and perverse. This Court is having very limited jurisdiction under Article 227 of Constitution of India and this Court can not disturb finding of fact recorded by Labour Court while appreciating evidence on record .
According to my opinion, there is no substance in present petition. Accordingly, all petitions are dismissed.
This Court has made clear that decision which has been taken by respondent Corporation exh 37 has not been examined by this Court. It is open for petitioner and other employees to raise industrial disputes and to challenge legality and validity of decision exh 37 under provisions of I. D. Act, 1947. This Court is not expressed any opinion in respect to decision taken by Corporation denying HRA to concern employees. Therefore, order is passed by this Court without expressing any opinion on merits.
(H.K.RATHOD, J) asma Top