Gujarat High Court
Mohansing Bhagatsing Chauhan vs Anand Restaurant on 14 March, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/2935/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2935 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MOHANSING BHAGATSING CHAUHAN....Petitioner(s)
Versus
ANAND RESTAURANT....Respondent(s)
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Appearance :
APPEARANCE DELETED for the Petitioner(s) No. 1
MR HAMESH C NAIDU, ADVOCATE for the Respondent(s) No. 1
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CORAM HONOURABLE MS JUSTICE SONIA GOKANI
:
Date : 14/03/2017
ORAL JUDGMENT
1. Challenge in this petition is to the common order dated March 24, 2008, passed by the Labour Court, Ahmedabad, below Exhibit 5 in Recovery Page 1 of 13 HC-NIC Page 1 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT Application Nos.828, 829, 831, 832, 833 and 834 of 2006 as well as order of application for deciding the preliminary issue, under section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act').
2. The petitioner had sought for amount of payment under the provisions of the Minimum Wages Act and Payment of Bonus Act before the Labour Court.
3. The respondent raised the preliminary issue on February 06, 2007 and, accordingly, the Recovery Application has been rejected vide order dated March 24, 2008.
4. Aggrieved petitioner is before this Court praying for the following substantial reliefs :
"7(A) That Your Lordships be pleased to issue an order, direction or writ in the nature of certiorari and/or any other writ, order or direction, quashing and setting aside the impugned order marked Ann.D, to this petition, being illegal, perverse and contrary to the settled principles of law;
(B) Direct the Labour Court, Ahmedabad, to hear the recovery application on merit and Page 2 of 13 HC-NIC Page 2 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT decide the same in accordance with law;"
5. An affidavitinreply has been filed for and on behalf of the respondent. It is urged that neither masterservant relationship exists between the parties nor would law permit such an application as there is no predetermined right. In absence of any crystalised right of the petitioner, the Labour Court would not have any jurisdiction under section 33C(2) of the Act.
6. Earlier the learned counsel Shri T.R. Mishra, was appearing for the petitioner, who was a Union Member of the Gujarat Kamdar Union. Later on, the learned counsel Shri T.R.Mishra tendered an application on April 19, 2016, addressed to the learned Registrar General and thereby, he got himself retired from the said matter on the ground that the Union has least confidence in him.
7. In absence of any independent address in the causetitle of the petition, after deleting the name of the learned counsel Shri T.R. Mishra, a notice has been issued to the petitioner at the Page 3 of 13 HC-NIC Page 3 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT address of the Union, which has been duly served on June 13, 2016, however, nobody has bothered to represent the petitioner. This Court notices that the order which is impugned in this petition is passed on the well established law of the Apex Court and thereafter, ingeminated by this Court time and again. It is not in dispute that no Reference was raised by the petitioner and straight way the Recovery Application under section 33C(2) of the Act was preferred.
8. The Supreme Court in the case of State of Uttar Pradesh v. Brijpal Singh, reported in AIR 2006 SC 3592, has held and observed that if the claim is not based on existing rights, but which is for adjudication, the application under section 33C(2) of the Act is not a recourse. Considering the scope of section 33C(2) of the Act, the Apex Court held that it is the function of the Executing Court. Once the Labour Court adjudicated the rights of the person, the Recovery Application under section 33C(2) of the Act be denied.
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At this stage, it would be apt to
reproduce the relevant paragraph of the said decision, which read as under :
"9. Section 33C of the Industrial Disputes Act reads thus :
"33C. Recovery of Money due from an Employer.
(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of chapter 5A or chapter 5B, the workman himself or any other person authorised by him in writing in this behalf, or, in the case, of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the collector who shall proceed to recover the same in the same manner as an arrear of land revenue :
Provided that every such application shall be made within one year from the date on which money became due to the workman from the employer;
Provided further that any such
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application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the application had sufficient cause for not making the application within the said period.
(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subjecct to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months.
Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
9. This Court in the case of Aniruddhsinh Temubha v. Executive Engineer and others, reported in 2015 LawSuit(Guj.) 68, also reiterated the said aspect by holding that the proceedings under Page 6 of 13 HC-NIC Page 6 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT section 33C(2) of the Act are the proceedings in the nature of executing proceedings. In absence of any existing right, such application under section 33C(2) of the Act is not maintainable.
At this stage, it would be apt to reproduce the relevant paragraphs of the said decision, which read as under :
"5. It is well settled that proceedings under section 33C(2) are proceedings in the nature of Executing Proceedings. It is only the benefit which is crystallized in terms of the order of the court, or the benefit which is capable of being computed in terms of money, could be entertained under the proceedings of section 33C(2). The right which may be sought to be enforced under section 33C(2) jurisdiction, has to be one, which is an existing right already adjudicated upon.
6. In Punjab Beverages (P) Ltd. v. Suresh Chand [1978(2) SCC 144], the Apex Court observed as under:
"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 Page 7 of 13 HC-NIC Page 7 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT 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."
6.1 In Municipal Corpn. of Delhi v. Ganesh Razak [1995(1) SCC 235], the Supreme Court stated 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 a proceeding under Section 33 C(2) of the Act.
7. The contention of learned advocate for the petitioner that the similarly situated workman was given fixation of pay in terms of Resolution dated 17.10.1988, and therefore the Recovery Application ought to have been allowed, is entirely misconceived. In this regard, it is pertinent to observe the relevant part of the decision rendered by the Supreme Court in Ganesh Razak (supra), where it was observed.
"..... The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need Page 8 of 13 HC-NIC Page 8 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well.
.......It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33C(2) of the Act."
8. The legal position on the scope of Section 33C(2) and the cases in which this remedy could be resorted to are further delineated in State Bank of India v. Ram Chandra Dubey [(2001) 1 SCC 73], State of U.P. Vs Brijpal Sing [(2005) 8 SCC 58], In A.P. State Road Transport Corporation Vs B.S. David Paul [(2006) 2 SCC 282] and other several decisions.
9. The nature and scope of Section 33C(2) of the Industrial Disputes Act, 1947, is thus clear from the above decisions. Benefits which can be enforced under Section 33C(2) has to be necessarily based on a preexisting right. It has to be one flowing Page 9 of 13 HC-NIC Page 9 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT from a right which has already been crystalised. If there is an element of adjudication in the claim of the workman, his case would go outside the purview of Section 33C(2). A right which is claimed for the first time, one which is not accepted or one which is disputed, cannot be enforced by resorting to the proceedings under Section 33C(2). The expression in the said Section if any question arises as to the amount of money due is to be construed in that context only, namely, it refers to a right which is preexisting right which can be enforced without process of adjudication.
10. In light of the above well settled legal propositions, reverting back to the facts of the present case, firstly it may be noticed that in the award dated 2.12.2006, while granting reinstatement without backwages, there was no specific mention by the lower court that the workman was entitled to continuity of service. The benefit which is claimed under Resolution dated 17.10.1988 was not adjudicated by any court and is not a crystlised right or an existing right, could not be subjected to a claim by filing Recovery Application under section 33C(2). This shows that the claim put forth by the workman is not admitted, much less it arises by way of a preexisting Page 10 of 13 HC-NIC Page 10 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT or an adjudicated right.
11 The Labour Court did not commit any error whatsoever in dismissing the Reference Application. There is no merit to the challenge in the present petition. Hence, the same is dismissed."
10. Before the Labour Court, the Recovery Application was made without raising any Reference at an earlier point of time. The right of the petitioner since had not been crystalised, by way of a preliminary issue raised by the respondent, the Court has not entertained the application, against which the challenge has been made by way of present petition. The decision being absolutely in accordance with law and based on settled legal position, no interference is desirable.
11. Independently, it is mentioned that if at all, any such recovery application has been made, the same has to be made within a period of three months, whereas in the present case, after legal closure of resortment, it was made within a period of six months. The Court, of course, had Page 11 of 13 HC-NIC Page 11 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT right to condone the delay, if it deemed fit. However, without entering into this aspect, suffice it to note at this stage that rejection of the Recovery Application of the petitioner on preliminary issue does not warrant any interference. The petitioner has also not bothered to approach this Court despite the notice served upon the petitioner in the month of June, 2016. This Court could have dismissed the petition for nonprosecution, however, having found that the impugned order was passed in accordance with law, which still governs the field, that the present petition has been decided on merits. This will not, in any manner, curtail the right of the petitioner if he chooses to get crystalised his right from any appropriate forum within a period of three months from the date of receipt of a copy of this order. This will not be considered as direction or permission from this Court. The concerned forum shall entertain and decide such application/Reference if at all moved by the petitioner taking into consideration the contentions that may be raised Page 12 of 13 HC-NIC Page 12 of 13 Created On Mon Aug 14 01:30:20 IST 2017 C/SCA/2935/2010 JUDGMENT by the petitioner as well as the settled legal position.
The period of one year caused in deciding the Recovery Application can be excluded by the Labour Court/ concerned forum if sufficient grounds are put forth by the petitioner. The concerned forum/Labour Court is also statutorily expected to decide such application/Reference within a period of three months as provided under section 33C(2) of the Act, however, for present, this Court is not concerned with the noncrystalisation of the right, for which the application had been moved for recovery.
The petition stands dismissed with aforesaid observations and directions.
(MS SONIA GOKANI, J.) Aakar Page 13 of 13 HC-NIC Page 13 of 13 Created On Mon Aug 14 01:30:20 IST 2017