Gujarat High Court
Arvindkumar P. Parikh vs Yogendra B. Bhonsle on 22 April, 2025
NEUTRAL CITATION
C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2303 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2308 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2315 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2341 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2422 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2424 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2479 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2502 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2503 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
✔
==========================================================
ARVINDKUMAR P. PARIKH
Versus
YOGENDRA B. BHONSLE & ANR.
==========================================================
Appearance:
MR YOGI K GADHIA(5913) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 2
MR SUBRAMANIAM IYER(2104) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 22/04/2025
Page 1 of 11
Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025
NEUTRAL CITATION
C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025
undefined
COMMON ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocates waive service of notice on behalf of the respective parties.
2. These petitions are filed under Articles 226 and 227 of the Constitution of India challenging the order passed by the learned Labour Court by exercising the power under Section 33(C)(2) of the Industrial Disputes Act,1947 directing the present petitioner to pay the amount of Rs.1,13,000/- and also directing the present petitioner to pay the amount towards the difference of minimum wages, bonus and leave holidays.
3. It is the case of the present petitioner that the petitioner has been awarded the contract to run the CNG Pump Station by the respondent No.2. On executing the agreement, the said contract was terminated in the year 2016. Thereafter, the complaint came to be filed before the Government Labour Officer seeking the wages, wherein the settlement was arrived at between the parties agreeing Rs.10,000/- to pay each applicant. The said amount was offered, however, the applicant did not accept and out of 15 employees, 11 employees has filed the application under Section 33(C)(2) of the Industrial Disputes Act Page 2 of 11 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025 NEUTRAL CITATION C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025 undefined claiming that they had worked between 01.03.2011 to 22.01.2016 and has not been paid minimum wages, weekly off, privilege leave, bonus etc. for the said tenure and the said amount was claimed with interest. The present petitioner has contested the recovery application by filing the written statement and contended that there is no pre-existing right accrued in favour of the employees. Out of 11 applications, two recovery applications came to be dismissed for non-prosecution and remaining 9 applications were adjudicated, wherein the learned Labour Court has passed an order in favour of the respondent, which is subject matter of challenge before this Court.
4. Heard learned advocate Mr. Gadhia for the petitioner, learned advocate Mr. Dave for the respondent No.2 and learned advocate Mr. Iyer for respondent No.1.
5. Learned advocate Mr. Gadhia submits that so far as the minimum wages amount which is claimed, the petitioner is ready to pay the said amount as the settlement is arrived at between the parties and the amount was offered to the employees. Learned advocate Mr. Gadhia submits that except the 9 Page 3 of 11 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025 NEUTRAL CITATION C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025 undefined employees, other employees had accepted the amount, however, the present respondent has denied to accept the same. Learned advocate Mr. Gadhia submits that with regard to the direction issued by the learned Labour Court granting the difference of minimum wages, the petitioner is agreeing for the same and therefore, no challenge is made qua the payment of minimum wages. Learned advocate Mr. Gadhia submits that so far as the other benefits, which are claimed regarding bonus is concerned, as per the provision of the Bonus Act Section 21, the appropriate Government would have a power to adjudicate the claim and to pass an order in the event of finding the substance in the claim. Learned advocate Mr. Gadhia submits that as far as leave holidays, which is claimed and granted by the learned Labour Court is concerned, same was only on misinterpreting the admission made by the present petitioner during the cross- examination that the amount towards the leave encashment as well as bonus have been paid to all employees. Learned advocate Mr. Gadhia submits that the said admission was with regard to the compliance of the provisions, however that does not reflect the entitlement of the respondent, which is held by the learned Reference Court. Learned advocate Mr. Gadhia has relied on the Page 4 of 11 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025 NEUTRAL CITATION C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025 undefined Section 7 of the Industrial Disputes Act and has submitted that as per the 3rd Schedule, the claim with regard to the wages, including for the period and mode of the payment, hours of work and rest intervals, leave with wages, holidays and bonus are concerned, Learned Tribunal is having the power under Section 10 of the Industrial Disputes Act to adjudicate the claim, however, without exercising the said power, the order was passed under Section 33(C)(2) of the Industrial Disputes Act holding the pre-existing right of the respondent in claiming the said amount. Learned advocate Mr. Gadhia summits that in absence of any cogent reasons, the order passed by learned Labour Court, requires to be interfered with and the petition is required to be allowed.
6. As against the same, learned advocate Mr. Iyer appearing for the respondent No.1 has submitted that in view of the admission made by the petitioner with regard to the minimum wages as well as payment of bonus and the leave holidays, the learned Labour Court has rightly exercised the power under Section 33(C)(2) of the Industrial Disputes Acts. Learned advocate Mr. Iyer submits that when the admission is made, it Page 5 of 11 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025 NEUTRAL CITATION C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025 undefined amounts to admitting the claim and therefore, the learned Labour Court is justifying in holding that there is pre-existing right in favour of the respondent and on that ground it is prayed to dismiss the petition being devoid of any merits.
7. Having considered the arguments made by the learned advocates for the parties and the reasons assigned by the learned Reference Court, the claim of each respondent to file the recovery applications is required to be reproduced, which is as under;
Sr. Recovery Name of Total Dues Claimed
no Application Workman
No. Year SCA No. Min. We Privile Bonus Interes Grand
Wages ekly ge t Total
Off Leave
1. 55 2016 2315/22 Harshadku 2,33,2 51, 23,674 28,747 18% 3,37,1
mar 62.60 468 .30 .29 24.67
Parmar .50
2 56 2016 2503/22 Khokhar 2,70,5 60, 21,825 33,989 18% 3,87,0
Salimbhai 91.76 675 .96 .77 82.99
.50
3 57 2016 2422/22 Jignesh 2,70,5 60, 21,825 33,989 18% 3,87,0
Rana 91.76 675 .96 .77 82.99
.50
4 59 2016 2308/22 Sanjay 2,64,6 58, 22,449 30,962 18% 3,77,0
Parmar 45.75 981 .70 .21 38.76
.10
5 60 2016 2303/22 Yogendra 2,70,5 60, 21,825 33,989 18% 3,87,0
Bhonsle 91.76 675 .96 .77 82.99
.50
6 61 2016 2479/22 Aasik 2,70,5 60, 21,825 33,898 18% 3,87,0
Parmar 91.96 675 .96 .77 82.99
.50
7 62 2016 2502/22 Atul Parab 2,15,6 46, 18,645 26,404 18% 3,07,5
00.20 885 .70 .57 35.97
.50
Page 6 of 11
Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025
NEUTRAL CITATION
C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025
undefined
8 64 2016 2424/22 Jogendra 2,56,8 57, 22,133 30,573 18% 3,66,8
Dave 82.20 243 .10 .25 31.65
.10
9 65 2016 2341/22 Lakhabhai 2,33,2 51, 23,674 28,747 18% 3,37,1
Bharwad 62.50 468 .30 .29 24.67
.50
Total Dues Awarded Interest Date of
Awarded Judgment
Min. Weekly Privilege Bonus Interest Grand From
Wages Off Leave Total
10,000 51,467.5 23,647.3 28,747.2 8% 1,13,862. 01.03.20 15.12.202
0 0 9 09 11 1
10,000 60,675.5 21,825.9 33,898.7 8% 1,26,491. 26.11.20 15.12.202
0 6 7 23 09 1
10,000 60,675.5 21,875.9 33,898.7 8% 1,26,491. 26.11.20 15.12.202
0 6 7 23 09 1
10,000 58,981.1 22,449.7 30,962.2 8% 1,22,393. 11.02.20 15.12.202
0 0 1 01 10 1
10,000 60,675.5 21,875.9 33,898.7 8% 1,26,491. 26.11.20 15.12.202
0 6 7 23 09 1
10,000 60,675.5 21,875.9 33,898.7 8% 1,26,491. 26.12.20 15.12.202
0 6 7 23 09 1
10,000 46,885.5 18,645.7 26,404.5 8% 1,01,935. 04.09.20 15.12.202
0 0 7 77 11 1
10,000 57,243.1 22,133.1 30,573.2 8% 1,19,949. 22.05.20 15.12.202
0 0 5 45 10 1
10,000 51,467.5 23,647.3 28,747.2 8% 1,13,862. 01.03.20 15.12.202
0 0 9 09 11 1
10,77,96
7.39
8. While adjudicating the claim, learned Tribunal has observed that the witness of the petitioner was examined below Exh.30/A, has deposed that the employees were granted the leave holidays and bonus etc. On the basis of this admission, learned Tribunal has proceeded further and held that there is pre-existing right accrued from the said admission. Except the said observation, no Page 7 of 11 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025 NEUTRAL CITATION C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025 undefined reasons assigned by the learned Reference Court accepting the claim with regard to the bonus, leave holidays etc. Reliance on Section 21 of the payment of Bonus Act, which was made by the learned advocate Mr. Gadhia, if one would refer, then it emerges that the employees, on filling the application by the employees claiming the bonus before the appropriate Government, the appropriate Government would adjudicate the claim and if satisfied that money is dues then would issue the certificate for the amount to the Collector who shall proceed to recover the same in the manner as an arrears of the land revenue. Admittedly, there is no award or any order passed by the authority adjudicating the claim, which was made by the respondent, the learned Labour Court, while exercising the power under Section 33(C)(2), has allowed the claim made by the respondent without being adjudicated by the authority or without any settlement agreed between the parties. The reference of Section 7, which is made by the learned advocate Mr. Gadhia, wherein it is provided that the appropriate Government, by notification in the Official Gazette, Constitute one or more Labour Courts for adjudication of the dispute relating to the matters specified in 2nd Schedule and for Page 8 of 11 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025 NEUTRAL CITATION C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025 undefined performing such other functions as may be assigned to them under the Act. On referring the 2 nd Schedule and 3rd Schedule, it is provided that the claim with regard to the leave with wages, holidays bonus, profit sharing, provident fund and gratuity is to be adjudicated by the learned Tribunal, which is admittedly not done by any Tribunal under the Act, as learned advocate has not disputed the claim with regard to the payment of difference of minimum wages.
9. This Court has referred the decision rendered by the Hon'ble Apex Court in the case of M/s Bombay Chemical Industires v/s. Deputy Labour Commissioner & Anr. reported in 2022 LiveLaw (SC) 130, wherein it is held as under para 6 and 7.
"6. At the outset it is required to be noted that respondent No.2 herein filed an application before the Labour Court under Section 33(C)(2) of the Industrial Disputes Act, demanding difference of wages from 01.04.2006 to 31.03.2012. It was thus the case on behalf of respondent No.2 that he was working with the appellant as a salesman. However, the appellant had taken a categorical stand that respondent No.2 was never engaged by the appellant. It was specifically the case on behalf of the appellant that respondent No.2 had never worked in the establishment in the post of salesman. Therefore, once there was a serious dispute that respondent No.2 had worked as an employee of the appellant and there was a very serious dispute raised by the appellant that respondent No.2 was not in employment as a salesman as claimed by respondent No.2, thereafter, it was not open for the Labour Court to entertain disputed questions and adjudicate upon the employer-employee relationship between the appellant and respondent No.2. As per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, Page 9 of 11 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025 NEUTRAL CITATION C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025 undefined the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. (supra), the labour court's jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See Municipal Corporation of Delhi Vs. Ganesh Razak and Anr. (1995) 1 SCC 235).
In the case of Kankuben (supra), it is observed and held that 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 33C (2) of the ID Act. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting 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 33C (2) of the ID Act while the latter does not.
7. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalized and/or adjudicate upon. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section Page 10 of 11 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025 NEUTRAL CITATION C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025 undefined 33(C)(2) of the Industrial Disputes Act."
10. This Court is of the view that the order qua granting the benefit of difference of minimum wages of Rs.10,000/- is required to be upheld, however, with regard to the leave, holidays as well as leave encashment and bonus amounts required to be interfered.
11. Resultantly, these petitions are partly allowed with above directions. This Court has upheld the order passed by the learned Labour Court with regard to the granting the benefit of difference of minimum wages of Rs.10,000/-, remaining part of the order has been set aside.
Rule is made absolute.
(M. K. THAKKER,J) Vikramsinh Amarsinh Page 11 of 11 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Apr 30 2025 Downloaded on : Sat May 03 11:13:58 IST 2025