Gujarat High Court
Divisional Controller vs Prabhatsinh Ramsinh Parmar on 24 June, 2024
NEUTRAL CITATION
C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10365 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DIVISIONAL CONTROLLER
Versus
PRABHATSINH RAMSINH PARMAR & ORS.
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Appearance:
MR HARDIK C RAWAL(719) for the Petitioner(s) No. 1
for the Respondent(s) No. 1.2,1.3,1.4
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR PARESH J BRAHMBHATT(9788) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
RULE NOT RECD BACK for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 24/06/2024
ORAL JUDGMENT
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1. Present petition is filed under Articles 14, 226 and 227 of the Constitution of India and under the provisions of the Industrial Disputes Act, 1947 seeking below mentioned relief/s:-
"8(A) be pleased to allow this petition.
(B) be pleased to issue a writ of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned judgment / order / award dated 5-3-2012 passed by the Labour Court, Vadodara in Recovery Application No. 30 of 2008.
(BB) Be pleased to issue a writ of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned order dated 3-8-2013 passed by the Labour Court, Vadodara in Recovery Application No. 44 of 2012.
(C) Pending admission, hearing and final disposal of this petition, be pleased to stay the operation, implementation, execution and enforcement of the impugned judgment/order/award dated 5-3-2012 passed by the Labour Court, Vadodara in Recovery Application No. 30 of 2008.
(CC) Pending admission, hearing and final disposal of this petition, be pleased to stay the operation, implementation, execution and enforcement of the impugned judgment/order/award dated 3-4-2013 passed by the Labour Court, Vadodara in Recovery Application No. 44 of 2012.
(D) be pleased to pass such other and further orders may be deemed just and proper looking to the facts and circumstances of the case and in the interest of the justice."
2. The facts giving rise to present petition are that the Page 2 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined respondent workman was serving as a conductor and on 30-9-1993 the respondent was dismissed from service on the ground of unauthorized absence from 16-11-1992 to 31-12-1992. The respondent raised industrial dispute which was referred and numbered as Reference (L.C.V) No. 280 of 1998 before the Labour Court, Vadodara after a period of approximately 5 years from the order of dismissal. The said reference of the respondent came to be allowed by the Labour Court, Vadodara by order dated 15-4-2002 and the order of dismissal was quashed and set aside with direction to reinstate the workman on the original post with continuity of service and 75% backwages and other incidental benefits and for the proved misconduct, order of stoppage of three increments without future effect was passed.
2.1 The petitioner challenged the said reference before this Court by filing Special Civil Application No. 11881 of 2003 and this Court by oral order dated 5-2-2004 granted interim relief. By judgment dated 22-11-2005. this Court allowed the petition of the petitioner by modifying the Page 3 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined order of the Labour Court, Vadodara and quashing aside the order of 75% backwages and further by substituting the stoppage of three increments without future with three increments with future effect and to implement the order within six weeks and the respondent was reinstated on 22-12-2005.
2.2 The respondent, thereafter sought voluntary retirement and was given so on 30-6-2006. After receiving the benefits the respondent filed Recovery Application No. 30 of 2008 and the Learned Judge without proper application of mind by impugned award / order dated 5-3-2012 came to a conclusion that the respondent ought to have been reinstated on 15-5-2002 after the order of the Labour Court order dated 15-4-2002 but was reinstated on 21-12-2005 pursuant to the order passed by this Court and so the respondent is entitled for salary and all consequential benefits from 15-5-2002 to 21-12-2005 without considering the fact that this Court was pleased to quash and set aside the order of backwages and the fact that the respondent had taken Page 4 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined voluntary retirement on 30-6-2006 by ignoring the interim order passed by this Court.
2.3 In pursuance of the impugned order dated 5.3.2012 in Recovery application No.30 of 2008, the legal heirs preferred an application dated 26.9.2012 bearing Recovery Application No.44 of 2012 for issuance of recovery certificate of Rs.3,57,062.72 and the Learned Judge was pleased to order issuance of recovery certificate by order dated 3.4.2013. The petitioner seeks to challenge this order also. The petitioner submits that in fact even if the claim of the deceased workman is accepted even then he was entitled to Rs.2,65,242/- only and the same is deposited (with objection) on 5.6.2013. The petitioner submits that when the file was processed the Executive Director (V) has also passed an order on 17.4.2013 to call for justification for delay of the concerned Division. The petition filed by the petitioner was allowed and it was directed that the award be implemented within six weeks but no direction was given for payment of wages from the date of award till the Page 5 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined actual reinstatement.
3. In view of the above facts, the petitioner has preferred present petition seeking above mentioned relief/s.
4. Heard Mr.Hardik C. Rawal, learned Counsel for the petitioner and Mr. Paresh J. Brahmbhatt, learned Counsel for the respondents.
5. Mr. Rawal, learned Counsel for the petitioner has submitted that the coordinate bench of this Court allowed Special Civil Application No.11881 of 2003 with Civil Application No. 8289 of 2005, filed by present petitioner vide judgment dated 22.11.2005.
5.1 Mr. Rawal, learned Counsel for the petitioner has submitted that by the said order, the punishment imposed upon the respondent by the disciplinary authority of stoppage of three increments without future effect was modified and converted into stoppage of three increments with future effect. He has further submitted that the Civil Page 6 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined Application preferred by present respondents being Civil Application No. 8289 of 2005 was disposed of in view of the order passed in main Special Civil Application No.11881 of 2003, without there being any order and the said Civil Application preferred by present respondent was not considered by the coordinate bench of this Court while finally adjudicating the main petition. 5.2 Mr. Rawal, learned Counsel for the petitioner has pointed out the prayer made by present respondents in the said Civil Application being Civil Application No.8289 of 2005, which reads as under:-
"7(A) Your Lordships may be pleased to direct the opponent to pay full back wages from the date of award till final hearing and disposal of the petition to the applicant as per Section 17(B) of the I.D. Act, 1947 in the interest of justice (B) grant such other and further relief/s that may be deemed fit and proper in the facts and circumstances of the case".
5.3 Mr. Rawal, learned Counsel for the petitioner has submitted that in compliance to the order passed by this Court, the petitioner has reinstated the respondent workman on 22.12.2005 i.e. within four weeks from the Page 7 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined date of order passed by this Court and after period of one year, the respondent workman had requested for V.R.S. and the said request was sanctioned on 3.6.2006. He has further submitted that after period of six months from reinstatement, the respondent workman had retired voluntarily by taking benefit of V.R.S. 5.4 Mr. Rawal, learned Counsel for the petitioner has submitted that this Court has allowed the petition in part and reinstate the petitioner however, quashed the order of paying 75% backwages. He has submitted that then after almost two years, the present respondent had moved to the concerned Labour Court by way of preferring Recovery Application under Section 33(C)(2) of the I.D. Act stating that since the Court has disposed of the petition, he is entitled to get the salary from 15.5.2002 to 21.12.2005 till the date of actual reinstatement. The said application came to be allowed by Presiding Officer, Labour Court vide order dated 5.3.2012.
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NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined 5.5 Mr. Rawal, learned Counsel for the petitioner has also submitted that the respondent workman has suppressed the relevant material facts. He has submitted that even in recovery application, he has not pointed before the authority that the Court has specifically disposed of the Civil Application No. 8298 of 2005, without there being any order and meaning thereby, the prayer made in the said Civil Application was not considered by this Court. He has further submitted that that fact was specifically not mentioned in the application and even it is not discussed by the Presiding Officer, Labour Court, Vadodara while deciding the application, therefore this is nothing but a fraud played with the Court. He has submitted that instead of filing any review application or any further proceedings to the order passed by this Court, the Presiding Officer, Labour Court Vadodara has exceeded his jurisdiction, as if the Presiding Officer, Labour Court Vadodara is sitting over the decision of this Court rendered in 2005 and therefore, the impugned order passed by the Presiding Officer, Page 9 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined Labour Court, Vadodara is without jurisdiction. 5.6 Mr. Rawal, learned Counsel for the petitioner has urged before this Court that the recovery application is filed after about two years from the VRS and therefore, this is a gross abuse of process of law and therefore, the impugned order passed by the Presiding Officer, Labour Court in Recovery Application No. 30 of 2008 deserves to be quashed and set aside.
5.7 Mr. Rawal, learned Counsel for the petitioner in support to his submissions referred to and relied upon the following decisions of the Hon'ble Apex Court:-
6. In the decision in case of Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others reported in (2003) 2 SCC 111, the Hon'ble Apex Court has observed as under:-
61. .................In State of Maharashtra v. Ramdas Shrinivas Nayak & Anr. [AIR 1982 SC 1249], this Court observed :-
"4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court Page 10 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation".(Per Lord Atkinson in Somasundaran v. Subramanian Chetty). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges, who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may Page 11 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined not call in question the very fact of making the concession as recorded in the judgment."
6.1 In the decision in case of A.P. State Road Transport Corporation and others vs. Abdul Kareem, reported in (2005) 6 SCC 36, the Hon'ble Apex Court has observed as under:-
"8. It is contended by the counsel for the appellant that it is a well established principle in Labour Industrial Law that upon setting aside an order of termination, the workman is reinstated as if the contract of employment originally entered into had been continued. The counsel further contended that in such cases the terms and conditions of the contract which was obtained when the workman was in the employment of the employer prior to his wrongful dismissal which has been set aside continue to govern the relationships between the parties and the workman continues to be in the employment of the employer in the terms and conditions of the contract. According to counsel denial of consequential relief is in exception, unless such denial was being specifically spelt-out, otherwise, the natural and consequential relief must follow. Counsel would further contend that in the given facts, this would be competent enough to mould the relief as the workman was reinstated after more than a decade.
9. In our considered opinion, the argument advanced by the counsel is not tenable in law in the view taken by this Court in the recent decision. In the case of A.P. SRTC and Anr. Appellants Vs. S. Narsagoud Respondent (2003)2 SCC 212, this Court had occasion to deal with the identical controversy and succinctly crystallized the point of law. In that case the respondent was a Conductor in the employment of appellant - A.P.S.R.T.C. He remained absent from duty between 05.06.1982 and 08.08.1982 and again between 13.10.1992 and 01.11.1992. A departmental inquiry was initiated against him on the charges of unauthorized Page 12 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined absence which ended in the punishment of removal from service and a dispute was raised before the Labour Court. The Labour Court upheld the departmental enquiry and the findings arrived thereat, but the respondent was directed to be reinstated with continuity of service but without back-wages. The Learned Single Judge, on being approached by the respondent, directed the appellant to fix the wages payable to him on his reinstatement by taking into account the increments that he would have earned had he been in service during the period of absence from duty. This finding of the Learned Single Judge was affirmed in an appeal by the Division Bench. This Court allowed the appeal preferred by the A.P.S.R.T.C.
10. The principle of law on point are no more res integra. This Court in S. Narsagoud (supra) succinctly crystallized principle of law in Paragraph 9 of the judgment on Page SCC 215:
"We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorized absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorized absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service."
11. Reverting to the facts of the case at hand, as already noticed, the Labour Court specifically directed that the reinstatement would be without back wages. There is no specific direction that the employee would be entitled to Page 13 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined all the consequential benefits. Therefore, in the absence of specific direction in that regard, merely because an employee has been directed to be reinstated without back wages, he could claim a benefit of increments notionally earned during the period when he was not on duty or during the period when he was out of service. It would be incongruous to suggest that an employee, having been held guilty and remained absent from duty for a long time, continues to earn increments though there is no payment of wages for the period of absence." 6.2 For suppression of material facts, learned Counsel for the petitioner has relied upon the decision of the Hon'ble Apex Court in the case of K.D. Sharma vs. Steel Authority of India Limited and others reported in (2008) 12 SCC 481, wherein Hon'ble Apex Court has observed as under:-
"27. Reference was also made to a recent decision of this Court in A.V. Papayya Sastry & Ors. V. Govt. of A.P. Considering English and Indian cases, one of us (C.K. Thakker, J.) stated: (SCC p.231,para22) "22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of the law. Such a judgment, decree or order --by the first Court or by the final Court-- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings".
The Court defined "fraud" as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn Page 14 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam.
51. Yet in another case in Vijay Syal & Anr. v. State of Punjab this Court stated: (SCC p.420 para 24) "In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice". 6.3 In view of the above decisions and submissions, Mr. Rawal, learned Counsel for the petitioner urges before the Court that the impugned order passed by the Presiding Officer, Labour Court, Vadodara may be quashed and set aside and present petition may be allowed.
7. As against that Mr. Brahmbhatt, learned Counsel for the respondent workman has submitted that while Page 15 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined allowing the petition, this Court has quashed the order of Labour Court awarding 75% backwages and while imposing the punishment this Court has not observed anything with regard to salary for the period from the date of dismissal till the date of reinstatement. He has further submitted that since the respondent workman was reinstated by the order of this Court, he is entitled to get salary for the interregnum period i.e. from the date of application till the actual date of reinstatement i.e. from 15.5.2002 to 21.12.2005 with all the consequential benefits. He has further submitted that in view of the said fact the respondent workman has preferred recovery application under the provisions of Section 33(C)(2) of the I.D. Act. However, Mr. Brahmbhatt, learned Counsel for the respondent is unable to give any explanation with regard to nondisclosure of the fact with regard to Civil Application disposed of by this Court without there being any order passed by the Court.
7.1 Mr. Brahmbhatt, learned Counsel for the respondent workman has emphasized upon the fact that it is Page 16 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined immaterial that whether the fact was stated in the application or not. He has submitted that it is the legal right of the workman and therefore, even delay is also not required to be considered. He has further submitted that the respondent was retired in 2006 and has preferred recovery application before the Labour Court in 2008 and therefore, the aspect of delay is also not required to be considered.
7.2 Mr. Brahmbhatt, learned Counsel for the respondent workman has refereed the provision of Section 17 and 17- A of the I.D. Act and submitted that from the publication of the report and the award, the respondent is entitled to the salary of interregnum period.
8. In support of his submission learned Counsel for the respondent has referred to and relied upon the decision of this Court in Special Civil Application No. 16 of 2020 dated 2.5.2020, wherein this Court has held as under:-
"6. Ms. Vyoma Jhaveri, learned counsel for the respondent, inviting the Court's attention to the Page 17 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined observation made in the order dated 29.11.2012 would submit that though the award of the Labour Court was modified, the Co-ordinate Bench of this Court clearly opined that the petitioner would not be entitled to backwages, and therefore, on the principle of 'No Work, No Pay', from the date of the award, i.e. 22.11.2011 till the date of actual reinstatement i.e. 09.02.2013, the petitioner was not entitled to the benefits of salary. The recovery application of the petitioner has, therefore, rightly been rejected vide order dated 25.03.2015.
7 Considering the decision rendered by this Court in Rajnagar Textile Mills (supra), particularly para 21 thereof, what appears from the facts on record is that once the order of dismissal was set aside and though the petitions were partly allowed, the petitioner was directed to be reinstated with continuity of service. Merely because of denial of backwages, actual benefits of salary from the date of award till the date of reinstatement ought to be paid to the petitioner."
8.1 Mr. Brahmbhatt, learned Counsel for the respondent workman has also relied upon the decision of the Hon'ble Apex Court in the case of D.N. Krishnappa vs. Deputy General Manager reported in 2022 (12) SC 188 wherein Hon'ble Apex Court has held as under:-
"7.1 So far as the submissions on behalf of the bank that the interim order merged with final order dated 12.07.2013 and therefore, the appellant is not entitled to claim the back wages for the period between 18.07.2007 and 12.07.2013 is concerned, at the outset, it is required to be noted that the interim order is always subject to the final order that may be passed finally while terminating the proceedings. Interim orders are always subject to the final decision. Therefore, merely because there was an interim order/stay of the order of Page 18 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined reinstatement during the pendency of the proceedings, the employee - appellant cannot be denied the back wages/wages when ultimately the order of reinstatement came be confirmed by the Court.
7.2 Similarly, the submission on behalf of the bank applying the principle of merger has also no substance. In the present case as such the order of award of reinstatement 12 has been confirmed by the Division Bench of the High Court. Therefore, the order of reinstatement will rely back to the original order passed by the Labour Court. Merely because the reinstatement order was under challenge and there was a stay of the order of reinstatement during the pendency of the proceedings before the High Court, it cannot be a ground to deny the wages to the employee when ultimately the order of reinstatement came to be confirmed and attained the finality.
7.3 Now so far as the submissions on behalf of the bank that as during the pendency of the proceedings before the High Court and for the period during the stay of order of reinstatement, the appellant was paid the last drawn wages under Section 17B of the ID Act and therefore he is not entitled to any wages for the period during the stay is concerned, there is no substance. At the most, whatever is held to be entitled to pay the appellant - employee as wages from the order of award of reinstatement till actual reinstatement, whatever is paid under Section 17B of the ID Act, the same is to be deducted and/or adjusted. 13 7.4 Now reliance placed upon the decision of this Court in the case of Bombay Chemical Industries (supra) considered by the High Court is concerned, as such the High Court has mis-applied the said decision to the facts of the case on hand. In the present case, the claim of the appellant was adjudicated upon. The appellant approached the Industrial Tribunal by way of an application under Section 33-C(2) of the ID Act for implementation of award dated 18.07.2007. Therefore, so far as the order of reinstatement and the wages claimed on the order of reinstatement is concerned, the Page 19 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined same were already adjudicated upon. In the case of Bombay Chemical Industries (supra), it is observed and held that un-adjudicated claim cannot be the subject matter of proceedings under Section 33-C(2) and in the proceedings under Section 33-C(2), the Tribunal can only interpret the award or settlement on which the claim is based. Under the circumstances, the said decision shall not be applicable to the facts of the case on hand.
8. In view of the above and for the reasons stated above, the impugned judgment and order passed by the Division 14 Bench of the High Court allowing the writ petition preferred by the respondent - bank and quashing and setting aside the order passed by the CGIT under Section 33-C(2) of the ID Act directing the bank to pay the wages from 18.07.2007 to 23.09.2013 is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. It is held that the appellant shall be entitled to the full wages with all emoluments from the date of order of reinstatement i.e., 18.07.2007 to the date of actual reinstatement i.e., 23.09.2013, however, after adjusting/ deducting the amount already paid under Section 17B of the ID Act. Present appeal is allowed accordingly to the aforesaid extent. No costs."
8.2 In view of the above observations, Mr. Brahmbhatt, learned Counsel for the respondent workman urges before the Court that present petition may not be entertained and the same may be dismissed. However, so far as the aspect of nondisclosure of the fact or delay in preferring the application, he is unable to point out anything before the Court.
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9. I have perused the relevant material placed on record and the relevant documents. I have also gone through the impugned order passed by the Presiding Officer, Labour Court.
10. It appears that the respondent workman was terminated from the service on the ground of unauthorized absent from duty. The said order of termination came to be challenged by the respondent workman before the concerned Labour Court and the Labour Court partly allowed the reference with an observation to reinstate the respondent workman with 75% backwages and stoppage of three increments without future effect. Thereafter, workman preferred Special Civil Application No.11881 of 2003 before this Court and on 7.10.2003 while admitting the petition, this Court passed order that notice as to interim relief returnable on 18.11.2023. Thereafter, the coordinate bench of this Court passed order dated 5.2.2004 which read as under:-
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NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined "Though served, nobody appears on behalf of the respondent. Heard Ms. Bhatt for interim relief. Interim relief in terms of paragraph 9 (C), with a further direction that it will be open to the petitioner to engage and take services of the respondent and to pay salary as per last wages drawn."
11. Lastly the petition came up for hearing before the co-ordinate bench of this Court on 22.11.2005, wherein co-ordinate bench of this Court has observed as under:-
"6. In the premises aforesaid, this petition is allowed. The award granting 75% backwages is quashed and set aside. A penalty of stoppage of three increments with future effect in place of stoppage of three increments without future effect is imposed upon the respondent. The award of the Labour Court is modified to the aforesaid extent. It is directed that the award will be implemented within six weeks from today. Rule made absolute accordingly with no order as to costs.
6. Since the main petition has been disposed of, the Civil Appln. No.8289/2005 would not survive and is accordingly disposed of."
12. In the last paragraph of the order, the co-ordinate bench of this Court has specifically observed that since main petition has been disposed of the Civil Application No.8289 of would not survive and accordingly disposed of, meaning thereby the co-ordinate bench of this Court was not inclined to grant the prayer made in the said Civil Application No. 8289 of 2005. Without disclosing this fact, the impugned recovery application came to be Page 22 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined preferred by the respondent in the present proceedings. Even that application is also filed at belated stage i.e. after period of two years, for which there was no any explanation. Even during the course of argument, Mr. Brahmbhatt, learned Counsel for the respondent workman is unable to give any explanation with regard to nondisclosure of the fact or delay in preferring the application.
13. This fact was very much known to the learned Counsel appearing for the respondent and even in the impugned order it is specifically mentioned, however the learned Presiding Officer, Labour Court has committed a gross error while allowing the recovery application without considering and without discussing that aspect, in its order order dated 5.3.2012. The relevant observations are as under:-
"Looking to the case, the order of the Labour Court was published on 15/04/2002 and the same was to be complied within 30 days. The order of the Labour Court in this matter was to reinstate with 75% back wages. This order was challenged by the respondent Institution (First party of the original reference.) in 2003. The Hon'ble Gujarat High Court passed an order regarding the same on 22/11/2005. The order regarding 75% Page 23 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined amount of back wages admissible to the applicant was set aside and punishment of stopping annual increments for three years with future effect was imposed and rest of the order was kept unaltered. The order of the Hon'ble High Court is produced in this matter and as per the same, the order was revised by revoking 75% back wages and the applicant was to be reinstated within a period of four weeks. As per the citations produced in the said matter, the order is to be executed within 30 days of the Labour Court's order. Here, the Hon'ble High Court has not made any changes in the order of reinstatement.
The deposition of the applicant has been recorded vide Exhibit-12 and according to which, it has been instructed to reinstate in the service with effect from 15/05/2002. The applicant was reinstated on 22/12/2005. Therefore, he is entitled to get salary from 15/05/2002 to 21/12/2005 and it would be just and proper, if an order is passed in favor of the workman granting the application for pay recovery from 15/05/2002 to 21/12/2005.
Thus, considering all the above facts/ details, I pass the final order in this matter as below.
ORDER The respondent is hereby ordered to pay the salary from 15/05/2002 to 21/12/2005 to the applicant with the benefits, within 30 days from the receipt of this order.
No order as to the cost."
14. The above order was passed by Presiding Officer, Labour Court in recovery application preferred by the respondent and learned Presiding Officer, Labour Court has committed an error in light of the judgment of the Page 24 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined Hon'ble Apex Court with regard to suppression of material fact. It is settled legal principle that if the person claiming relief before the Court is not come with clean hand, then he is not entitled to get any relief as prayed for in the petition. In present case, it is evident from the record that this fact is not mentioned by the learned Counsel in the recovery application and it was even not discussed by the Presiding Officer while allowing the said recovery application. Therefore, it is required to be presumed that it was not even brought to the notice of the Presiding Officer, Labour Court and therefore, Presiding officer has not discussed said aspect in its order.
15. Even on the ground of delay, Presiding Officer, Labour Court has not discussed the aspect that the present respondent has approached Presiding officer, for the relief prayed for in the recovery application, at the belated stage. Therefore, on that ground also the impugned order under challenge requires to be quashed and set aside.
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16. So far as the principle enunciated by the Hon'ble Apex Court with regard to powers, which is referred to and relied upon by learned Counsel for the respondent in the decision in case of D.N. Krishnappa (supra), I am in complete agreement with the finding recorded by the Hon'ble Apex Court but the same is not applicable in the facts of present case because in present case, the respondent has separately filed Civil Application for interim relief wherein specific prayer was made in the Civil Application and that Civil Application was disposed of by this Court, without there being any order in the said Civil Application. Therefore, the decision of the Hon'ble Apex Court in case of D.N. Krishnappa (supra),referred to and relied upon by learned Counsel for the respondent is not applicable in present case.
17. So far as other decision referred to and relied upon by the learned Counsel for the respondent in Special Civil Application No. 16 of 2020 dated 2.5.2020 is concerned, the facts of that case are also completely Page 26 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024 NEUTRAL CITATION C/SCA/10365/2013 JUDGMENT DATED: 24/06/2024 undefined different from the facts of present case and therefore, the said decision is also not applicable in present case.
18. In view of the above observations, present petition is hereby allowed. The order passed by Presiding Officer, Labour Court, Vadodara in Recovery Application No.30 of 2008 and the consequential proceedings arising out of the said application are hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 27 of 27 Downloaded on : Mon Jul 01 20:31:50 IST 2024