Gujarat High Court
Union Of India & 2 vs Mathurbhai D Bariya on 4 April, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/3430/2007 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3430 of 2007
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UNION OF INDIA & 2....Petitioner(s)
Versus
MATHURBHAI D BARIYA....Respondent(s)
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Appearance:
MS MEGHA JANI, ADVOCATE for the Petitioner(s) No. 1 - 3
MS REETA CHANDARANA, ADVOCATE for the Petitioner(s) No. 1 - 2
MR YV SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 04/04/2017
ORAL ORDER
1. The petitioners have have sought to assail the order passed by the labour court, Godhra in Central Recovery Application No.14 of 2000 dated 10.11.2006 on the following factual background.
2. The respondent was working as a Khalasi with railway administration and was dismissed from service under Discipline and Appeal Rules w.e.f. 05.07.1982 for the charge of remaining absent from duty. This was challenged by the respondent by preferring reference (LTC) No.15 of 1996. The statement of claim had sought quashment of dismissal order Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Aug 15 17:14:51 IST 2017 C/SCA/3430/2007 ORDER dated 05.07.1982, the reference was decided by the Industrial Tribunal, Vadodara vide its judgment and order dated 17.01.2003, after availing the best of opportunities to both the sides. It partly allowed the reference and quashed and set aside the order of dismissal dated 05.07.1982. It also directed reinstatement with continuity of service. It is also culling from the record that while reinstating the respondent, he should be put in the pay scale that he would have been entitled to with all increments and other benefits.
3. The railway administration challenged the same by way of Special Civil Application No.9327 of 2003, which was rejected by this Court vide order dated 07.07.2003. In the meantime, the respondent reached age of superannuation on 31.05.2003, therefore, there was no question of reinstatement. However, considering the period of qualifying service from 05.05.1967 to 31.05.2003, the respondent was paid sum of Rs.98,720/- (Ninetyeight Thousand Seven Hundred Twenty Only) towards DCRG (Death cum Recruitment Gratuity) Computation of Pension Rs.89,420/- (Eightynine Thousand Four Hundred Twenty Only) and every month pension of Rs.1,899/- (One Thousand Eight Hundred Ninety Nine Only).
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4. The respondent preferred the Central Recovery Application No.14 of 2003, praying for Provident Fund, Gratuity, Pension, Leave Encashment etc. The petitioners challenged this by contending that the administration has settled the case with the applicant and that no relief can be granted under Industrial Dispute Act,1947 ('I.D.Act' for short). Moreover, there are no pre-existing right and therefore, Recovery Application is not maintainable.
5. The Labour Court vide its order dated 10.11.2006, which is impugned in this petition allowed the following payments:
(I) Rs.53,256/- as Leave Encashment, (II) Rs.40,008/- as Bonus, (III) Rs.10,063/- as City Allowance and (IV) Rs.73,116/- as House Rent Allowance @ 12% interest. The respondent, has thereafter, also filed another Recovery Application No.8 of 2006 praying for recovery of Rs.2 Lakh, which was shortfall of this settlement, that to was granted by the labour court.
6. According to the railway administration, once the Industrial Tribunal in the reference under Section 10 of the I.D.Act has denied the back wages, under the Recovery Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Aug 15 17:14:51 IST 2017 C/SCA/3430/2007 ORDER Application, the respondent could not have been permitted the payment of Leave Encashment, Bonus, City Allowance, and House Rent Allowance. It is further urged that the court ought not to have entertained such an application under Section 33-C(1) of the I.D.Act as the decree was not in existence.
7. Ms.Reeta Chandarana, learned advocate appearing for the petitioners has fervently made her submissions along the line of the memo of the petition. She has urged that the definition of the wages does not include as per the I.D.Act either bonus or any contribution paid or payable by the employer to the pension fund or provident fund or the gratuity payable on termination of service. She, therefore, has urged that the court has committed serious error and therefore, there is a need for this court to intervene.
8. Mr.Y.V.Shah, learned advocate appearing for the respondent-workman has submitted that the petitioner railway has failed miserably in the Special Civil Application No.9327 of 2003, wherein it had challenged the award of the labour court. He has urged that the recovery certificate also had been issued by the labour court, no interference is desirable.
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9. Considering the submissions of the parties,it is to be noted that the Section 2(rr) of the I.D.Act defines under the definition clause wages which is as under:
"Section 2(rr) "wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment,expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes-
(i)Such allowances (including dearness allowances) as the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles;
(iii) any traveling concession;
(iv) any commission payable on the promotion of sales or business or both;
but does not include-
(a) any bonus;
(b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
(c) any gratuity payable on the termination of his service;"
It is quite clear that the definition of wages does not include the bonus, gratuity or any contribution paid by the employer to the pension fund or provident fund. It is also quite apparent from the record that the challenge was made by the workman Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Aug 15 17:14:51 IST 2017 C/SCA/3430/2007 ORDER in the earlier round of litigation when order of dismissal was challenged by him in reference (ITC) No.15 of 1996. Dismissal of 5th July,1982 was set aside and he was reinstated in the service with back wages. This reference came to be decided by the Industrial Tribunal, Vadodara on 17.01.2003 when the tribunal partly allowed the reference and quashed and set aside the order of dismissal and directed reinstatement with the continuity of service, however, without any past financial benefits. It was also directed that he should be put in the pay scale that he would have been entitled to with all increments and other benefits.
10. This too was challenged by railway administration by way of preferring Special Civil Application No.9327 of 2003 and this Court passed following order:
"Considering the reasoning of the Labour Court, in my view, the Labour Court is perfectly justified in exercising powers under Section 11A of the Industrial Dispute Act. The Labour Court has given appropriate reasons in paragraph 6 and, in my view, the order of the Labour Court is not required to be interfered with by this Court in its extraordinary jurisdiction under Article 227 of the Constitution of India. Hence, rejected."
11. In wake of such order, the recovery application had been moved by the respondent, order of which is impugned in this petition.
Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Aug 15 17:14:51 IST 2017 C/SCA/3430/2007 ORDER 11.1 The short question, therefore, would be that pursuant to the order of the Industrial Tribunal for recovery of all increments and other benefits when the recovery application has been moved, whether the tribunal committed any patent error which deserves any interference and whether it has exceeded its jurisdiction and passed the order in the recovery application which by writ of certiorari, this court deserves to quash.
12. It is an undisputed fact that the labour court in reference (ITC) No.15 of 1996 while setting aside the order of dismissal granted reinstatement with back wages, whereas certain modification in the award was made by the Industrial Tribunal which partly allowed the reference of the petitioner-Railway and upheld the order of labour court to the extent of its setting aside the order of dismissal dated 05.07.1982. However, while granting reinstatement and continuity of service, no past back wages had been granted to the employee. He was of course put in the pay scale as he would be entitled to and was allowed all increments and other benefits.
12.1 It is contended by the petitioner that the amount of Provident Fund, House Rent Allowance and City Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue Aug 15 17:14:51 IST 2017 C/SCA/3430/2007 ORDER Allowance etc. had been denied by the Industrial Tribunal and hence, the same could not be granted.
13. This Court notices that the Tribunal has granted reinstatement with continuity of service and all other benefits have been permitted. The amount of course had not been specified therein. What all the Tribunal has done is to put a seal when such benefits were quantified by way of an application. In the opinion of this Court, this quantification of an amount is merely a calculation where there was no requirement of any adjudication. Even otherwise, as pointed out by learned advocate Ms.Reeta Chandarana what has been denied is the back wages and the wages do not include either bonus, provident fund or gratuity amount. Therefore also, it cannot be said that all these benefits which otherwise though are not expressly specified cannot be included in the term of all increments and other benefits.
14. The respondent has retired on his attaining the age of superannuation on 31.05.2003. Much time thus has lapsed since his date of retirement. The labour court, Godhra did not find any evidence produced by the petitioners-Railway,worth to dis-entitle the respondent of all those benefits which have been given to him. Even before this Court, the specific query Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Aug 15 17:14:51 IST 2017 C/SCA/3430/2007 ORDER was raised to the learned advocate Ms.Chandarana to point out as to in what manner the amount which has been calculated and specified by way of certificate has been erroneously calculated. Nothing adverse is indicated. Even otherwise for such a purpose of alleged miscalculation, relegating the parties to the tribunal after about 14 (Fourteen) years surely would not serve any purpose. However, with nothing to indicate even much less any patent error, petition deserves no sustenance.
15. Resultantly, in the amount which is remained unpaid on account of interim relief granted by this court in staying execution and operation of the order of labour court dated 10.11.2006 passed in Central Recovery Application No.14 of 2003 shall be implemented and the amount shall be paid by way an account payees cheque drawn in the name of the respondent within a period of 8 (Eight) weeks from the date of receipt of a copy of this order.
16. Considering the fact that the person is retired long back, the authority shall ensure the due compliance of this within a stipulated time period. Rule is discharged. Interim relief, if any, stands vacated.
Petition is dismissed accordingly.
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