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Gujarat High Court

Hasmukhbhai Gangaram Patel vs Presiding Officer & 2 on 12 January, 2015

Author: N.V.Anjaria

Bench: N.V.Anjaria

         C/SCA/18450/2014                                         ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            SPECIAL CIVIL APPLICATION NO. 18450 of 2014
                                       With
            SPECIAL CIVIL APPLICATION NO. 18451 of 2014
                                         TO
            SPECIAL CIVIL APPLICATION NO. 18466 of 2014
================================================================
            HASMUKHBHAI GANGARAM PATEL....Petitioner(s)
                             Versus
              PRESIDING OFFICER & 2....Respondent(s)
================================================================
Appearance:
MR PH PATHAK, ADVOCATE for the Petitioner(s) No. 1
================================================================

         CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

                              Date : 12/01/2015

                                 ORAL ORDER

Heard learned advocate Mr.P.H. Pathak for the petitioners in all the captioned petitions.

2. All these petitions are directed against order dated 14th March, 2013 in each ase, passed by the Labour Court, Bharuch whereby the Labour Court rejected the respective Recovery Applications of the petitioners-workmen filed under Section 33-C(2) of the Industrial Disputes Act, 1947. Since the facts are similar and issues are identical, petitions could be considered together and are being disposed of simultaneously by this common order.

3. In the Recovery Applications, it was the case of the workmen concerned that the respondent-

company in which they were employed was illegally closed from 02nd March, 2014. It was the case that they had worked for several years and were entitled to receive various dues in respect of their service. The workmen put-forth their case that they were entitled to the amounts under different heads, namely (i) unpaid salary; (ii) closure compensation; (iii) gratuity; (iv) leave pay and (v) overtime pay. As far as the first Special Civil Application No.18450 of 2014 is concerned, Rs.02,700/-, Rs.10800,/-, Rs.10,800/-, Rs.12,700/- and Rs.08,100/- were claimed respectively under the said different heads. Different amounts were claimed under similar heads by individual workman.

4. Learned advocate for the petitioners contended that the order of rejection of Recovery Application was bad in law in asmuch as there was no evidence produced by the employer to show that amount was not payable. He, however, conceded that gratuity amount was already paid and therefore, the said claim was not required to be agitated or pressed. In the impugned order concerned also, Labour Court took note of the gratuity amount having already paid.

4.1 The employer filed reply at Exhibit 8 disputing the claim of entitlement of the workmen. It was contended that the workmen were not its employees but were employed under a contract. It was further contended that the amounts mentioned were not adjudicated and the same was not based on pre-existing right. In other words, the employer disputed the claim Page 2 of 5 C/SCA/18450/2014 ORDER of the workmen.

4.2 The case of the petitioner and the contentions raised on their behalf are not only not tenable but are misconceived in view of well-settled parameters regarding the scope and ambit of jurisdiction exercisable under Section 33-C(2) of the Act. The proceedings under Section 33-C(2) are in the nature of execution proceedings. Recovery therein can be enforced in respect of the amounts which are adjudicated claims, which are in the crystalised rights and are based on existing right. If the amount is disputed or the claim is one where establishing of which leading of evidence considered necessary, powers would not flow from Section 33-C(2).

5. The Apex Court in case the case of Punjab Beverages (P) Limited Vs Suresh Chand [(1978) 2 SCC 144] observed that it is not competent to the Labour Court exercising jurisdiction under Section 33-C(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.

6. Again, in State Bank of India Vs Ram Chandra Dubey [(2001) 1 SCC 73], the scope of jurisdiction under Section 33-C(2) was once again highlighted in the following words by the Hon'ble Supreme Court.

"Whenever a workman is entitled to receive from his employer any money or any benefit Page 3 of 5 C/SCA/18450/2014 ORDER 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 appellant re- 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 allowance 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."

7. For the forgoing reasons and position of law already settled in the facts of the case, no error was committed by the Labour Court. The order of the Labour Court rejecting Recovery Applications book no error. No ground is made out to entertain the petitions against the order which is just and proper in law. Petitions are devoid of merits and they are dismissed.

(N.V.ANJARIA, J.) Anup Page 5 of 5