Gujarat High Court
Dhirendra Pritamlal Parekh vs The President, Bhavnagar District ... on 3 March, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/3885/2020 ORDER DATED: 03/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3885 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 13504 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3887 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3888 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3890 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3893 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3894 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3895 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3896 of 2020
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DHIRENDRA PRITAMLAL PAREKH
Versus
THE PRESIDENT, BHAVNAGAR DISTRICT CO-OPERATIVE SANGH
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Appearance:
MR.ADITYA J PANDYA(6991) for the Petitioner(s) No. 1
MR BAIJU JOSHI(1207) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 03/03/2022
COMMON ORAL ORDER
1. RULE. Learned advocate Mr.Baiju Joshi waives service of notice of rule for and on behalf of the respondent No.1.
2. Since common issue is involved in the present group of petitions, the same are decided analogously by this common order.
3. Learned advocate Mr.Aditya Pandya appearing for the petitioners has submitted that in fact the impugned orders rejecting the applications filed by Page 1 of 8 Downloaded on : Tue Mar 08 20:38:49 IST 2022 C/SCA/3885/2020 ORDER DATED: 03/03/2022 the petitioners are required to set aside since the Labour Court has committed error in making contrary observations. He has submitted that the petitioners are claiming wages under the Minimum Wages Act, 1948 (for short "the Act"), which is pre-existing right and in wake of the facts that the same was not disputed by the respondent No.1, without leading any evidence, issue No.3 could not have been decided against the petitioners. He has submitted that issue No.3 pertains to maintainability of the recovery application under the provision of Section 33C(2) of the Industrial Disputes Act, 1947 (the I.D.Act) claiming the difference of the minimum wages. It is submitted by him that in fact the respondents did not even care to lead any evidence - either written or oral and hence, the Labour Court should not have rejected their applications.
3.1 In support of his submissions, learned advocate Mr.Pandya has placed reliance on the judgement dated 28.07.2014 passed in Special Civil Application No.4796 of 2004 and Division Bench judgement in the case of Gujarat Water Supply and Sewerage Board and Ors. Vs. Ketanbhai Dinkarray Pandya, 2003 (3) G.L.H. 261. Thus, he has submitted that the impugned orders may be quashed and set aside.
4. Per contra, learned advocate Mr.Baiju Joshi appearing for the respondent No.1 has submitted that the impugned orders passed by the Labour Court Page 2 of 8 Downloaded on : Tue Mar 08 20:38:49 IST 2022 C/SCA/3885/2020 ORDER DATED: 03/03/2022 do not require any interference since the same are precisely passed as the applicants are claiming the difference of minimum wages, which is not maintainable as there is no prior adjudication. He has submitted that there may be other various disputes, more particularly with regard to number of working days and differential amount of minimum wages claim which require prior adjudication and hence, the applications of the petitioners are precisely rejected by the Labour Court.
4.1 In support of his submissions, learned advocate Mr.Joshi has placed reliance on the judgement of the Apex Court in the case of Municipal Corporation of Delhi Vs. Ganesh Razek & Anr, (1995) 1 S.C.C. 235. The reliance is also placed on the recent judgement of the Apex Court dated 04.02.2022 passed in Civil Appeal No.813 of 2022 in the case of M/s.Bombay Chemical Industries Vs. Deputy Labour Commissioner and Anr. It is submitted by him that it is well settled proposition of law that the application under Section 33C(2) of the I.D. Act cannot be entertained by the Labour Court, without there being any adjudication of dispute.
5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.
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6. A bare perusal of the impugned orders would reveal that the same are incoherent since the finding on issue No.1 is though recorded in favour of the petitioners, the same is answered in "negative". Issue No.3, which pertains to non- maintainability of the recovery application under the provisions of Section 33C(2) of the I.D. Act, is answered in "affirmative" in favour of the respondent No.1. The petitioners unquestionably had filed the aforesaid applications under the provisions of Section 33C(2) of the I.D. Act for claiming the differential amount of Rs.42.50/- under the Payment of Wages Act, 1936. It is also noticed by this Court that the respondent No.1 did not lead any evidence before the Labour Court. No cross-examination has been done by the respondent No.1. It is also noticed that there was no written or oral argument or submission made by the respondent No.1. It appears that the contention by respondent no.1 is restricted only to the maintainability of the application under the provisions of Section 33C(2) of the I.D. Act.
7. The Labour Court had framed following issues:
"(i) Whether the applicant establishes his right to recover the amount stated in the application from the opponent?
(ii) Whether the applicant is entitled to recover the amount as prayed for?;Page 4 of 8 Downloaded on : Tue Mar 08 20:38:49 IST 2022
C/SCA/3885/2020 ORDER DATED: 03/03/2022
(iii) Whether the opponent proves that the present recovery application is not maintainable under Section 33C(2) of the I.D. Act, 1947?."
8. Issue Nos.1 and 2 are answered in "negative", whereas issue No.3 pertains to the maintainability of the recovery application is answered in "affirmative". The reasons recorded by the Labour Court from paragraph No.8.1 onwards to paragraph No.8.3 onwards, including the observations made in paragraph No.8.4, would reveal that the findings of issue Nos.1 and 2 are in fact given in favour of the petitioners and it is observed that the petitioners succeed to establish that the opponent institution was paying wages lesser than the standard minimum wages. It is further observed that the petitioners succeed to establish the employer- servant relationship and non-payment of wages as per the standard minimum wages. Despite the aforesaid observations in the final order, the Labour Court has answered issue Nos.1 and 2 in "negative", which shows, that the orders are premised on a contrary findings. In issue No.3, which pertains to maintainability of the provisions of Section 33C(2) of the I.D. Act, the Labour Court has finally rejected the applications filed by the petitioners for the reasons that since there is no pre-adjudication of rights with regard to claim of minimum wages and hence, such applications cannot be entertained.
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9. The fact, which is not disputed by the respondent No.1 before this Court is that they have not disputed the claim before the Labour Court and have only restricted their submissions with regard to maintainability of the applications under provision of Section 33C(2) of the I.D. Act.
10. At this stage, it would be apposite to refer to the judgement dated 28.07.2014 passed in Special Civil Application No.4796 of 2004 has held thus:
"8. Under the circumstances, I am of the opinion that the Labour Court committed an error in ordering recovery of the alleged short payment of minimum wages without there being full adjudication by the competent authority or the Court. This is not to suggest that if in a given case, the employer simply does not put in defence to the claim of a workman of unpaid monetary benefits, even then prior adjudication under the industrial dispute or under some other Labour Legislation would be a pre-condition to entertain the recovery application under section 33C(2) of the Industrial Disputes Act. Such case however, may be different in nature and may require different scrutiny and approach. The present case certainly falls within the parameters of the decision of Division Bench in case of Gujarat Water Supply and Sewerage Board and anr. v. Ketanbhai Dinkarray Pandya(supra)."
11. The Coordinate Bench, while examining a similar issue with regard to payment of wages under the Act apropos exercise of powers under Section 33C(2) of the Act, has observed that if the employer does not put any defence to the claim of workman of unpaid voluntary benefits, even then prior adjudication under the industrial dispute or under some other legislation would be a pre- condition to entertain the recovery application Page 6 of 8 Downloaded on : Tue Mar 08 20:38:49 IST 2022 C/SCA/3885/2020 ORDER DATED: 03/03/2022 under Section 33C(2) of the I.D. Act is required.
12. The judgement, on which the reliance is placed by the respondent in the case of Ganesh Razek (supra) in paragraph No.12, after survey of various judgements and issue with regard to maintainability of the application under the provision of Section 33C(2) of the I.D. Act, has held thus:
"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 the proceeding under Section 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workman's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(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 of enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."
13. The Apex Court thus held that 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, and there being no earlier adjudication or recognition thereof by the employer, the dispute relating to the entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of the proceeding under Section 33C(2) of the I.D. Act. In the present case, the Labour Court has Page 7 of 8 Downloaded on : Tue Mar 08 20:38:49 IST 2022 C/SCA/3885/2020 ORDER DATED: 03/03/2022 held that the petitioners are entitled to differential amount of minimum wages, but has answered the issues in negative, and has finally rejected their applications as non-maintainable. Thus, the Labour Court has misdirected itself in deciding the applications. If the Labour Court was of the opinion that the applications are not maintainable, it should have refrained itself in observing anything with regard to the entitlement of the minimum wages.
14. As noted hereinabove, since the issues, which are finally answered, do not reconcile with the findings, it would be appropriate to remand the matters to the Labour Court. The impugned orders dated 09.12.2019 passed by the Labour Court, Bhavnagar in respective recovery applications are quashed and set aside. The applications are ordered to be restored to their original files. It will be open for the respective parties to take all available contentions in the recovery applications. The Labour Court shall decide the respective recovery applications, after affording opportunity of hearing to both the parties.
15. The writ petitions are allowed. Rule made absolute.
16. Registry to place a copy of this order in each of the connected matters.
Sd/-
(A. S. SUPEHIA, J) NVMEWADA Page 8 of 8 Downloaded on : Tue Mar 08 20:38:49 IST 2022