Bombay High Court
Zilla Parishad Amravati By Its Ceo,Zp, ... vs Ravishankar Ramrasad Shukla on 30 November, 2017
Author: B.P. Dharmadhikari
Bench: B. P. Dharmadhikari, Swapna Joshi
Judgment lpa20.11
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 20 OF 2011
IN WRIT PETITION No. 2247 OF 2001.
Zilla Parishad, Amravati
by its Chief Executive Officer,
Amravati. ....APPELLANT.
VERSUS
Ravishankar Ramprasad Shukla,
Aged 47 years, resident of
Pathrot, Tq. Achalpur,
District Amravati. ....RESPONDENT
.
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Mr. J.B. Kasat, Advocate for the Appellant.
Mr. A.V. Bhide, Advocate for Respondent.
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CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : NOVEMBER 30, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard Shri J.B. Kasat, learned Counsel for the appellant and Shri ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 01:11:17 ::: Judgment lpa20.11 2 A.V. Bhide, learned Counsel for the respondent.
2. The appellant - Zilla Parishad, is a Local Authority constituted under the provisions of the Maharashtra Zilla Parishad and Panchayat Samiti Act. It assails adjudication dated 10.09.1999, by the Labour Court, Amravati in Application IDA No. 71/1990, under Section 33-C[2] of the Industrial Disputes Act, 1947. The Labour Court allowed wages for the period from 20.02.1975 till 30.09.1990, and also awarded costs to respondent workman. Zilla Parishad approached this Court in Writ Petition No.2247/2001, and on 01.10.2009, that Writ Petition came to be dismissed with costs of Rs. 5000/-, payable by Zilla Parishad to the workman. Zilla Parishad, thereafter moved Civil Application (W) No. 2291/2009 for Speaking to Minutes, and pointed out omission to consider a binding precedent reported at (2001) 1 SCC 73 ( State Bank nof India .vrs. Ramchandra Dubey and others). The learned Single Judge has dismissed that application also on 13.11.2009 with costs of Rs. 500/-.
3. It is not in dispute that during the pendency of the Writ Petition before the learned Single Judge, the employer deposited the amount as awarded by the Labour Court, and the workman has also withdrawn that ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 01:11:17 ::: Judgment lpa20.11 3 amount. It is also not in dispute that the workman, aged about 47 years in the year 2001, has reached age of superannuation on 28.02.2012.
4. Shri Kasat, learned counsel appearing for the appellant submits that to enable the Labour Court to exercise jurisdiction under Section 33- C[2] of the Industrial Disputes Act, the workman has to demonstrate an existing right. There was/is no such existing right in present matter. He invites our attention to a decree dated 22.01.1982, passed in Regular Civil Suit No.175/1976, by the Civil Judge, Senior Division, Achalpur to show that though finding that order of termination dated 18.02.1975 was void, has been reached, the Civil Court has expressly refrained from granting any consequential relief and left it to adjudication in a fresh suit to be instituted by the workman. That fresh suit has never been instituted. He contends that in this situation, the approach to Labour Court under Section 33-C[2] for wages from the date of termination onwards is unsustainable, and application ought to have been rejected.
5. He has taken us through the Judgment of Hon'ble Supreme Court in case of State Bank of India .vrs. Ram Chandra Dubey and others (supra), to substantiate his arguments. He also submits that in this situation, when ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 01:11:17 ::: Judgment lpa20.11 4 litigation was being fought honestly, imposition of costs by the learned Single Judge is unwarranted.
6. Shri Bhide, learned counsel appearing for the respondent/ workman states that the workman was not required to file fresh suit and his employer accepted declaration that termination was void and has reinstated him. With the result, the recourse to Section 33-C[2] was just and proper. As termination was void, all consequential benefits were bound to follow and accordingly, Labour Court as also learned Single Judge has correctly exercised the jurisdiction.
7. Shri Bhide, learned counsel also states that amount for period in dispute is about Rs. 1,37,000/- and allowing/permitting its recovery at this stage, when workman has already superannuated, would be too harsh. He states that learned Single Judge has rightly noted too technical approach of the employer and imposed costs. He therefore, prays for dismissal of the Letters Patent Appeal.
8. The Civil Suit No.175/1976 assailing termination dated 18.02.1975 came to be decided by the Civil Judge, Senior Division, ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 01:11:17 ::: Judgment lpa20.11 5 Achalpur on 22.01.1982. It is important to note the issues framed therein and also operative order passed by the Civil Court. The same are as under :
"Issues
1. Whether plaintiff can be deemed to be a permanent employee of the defendant ?
...........Finding :- No.
2. Whether plaintiff's services were legally terminated ? ............Finding :- No.
3. Can plaintiff claim reinstatement in service ?
.......... Finding :- Yes, by filing separate suit.
4.(a) Whether notice is necessary under Section 280 of the Maharashtra Zilla Parishad Act ?
............. Finding :- Yes.
4.(b) If yes, effect on the suit ?
.............. Finding :- suit is not maintainable.
5. Is the suit claim barred by limitation ?
.........Finding :- No.
6.(a) Is the plaintiff entitled to claim back wages ?
............ Finding :- Yes, by filing a separate suit.
(b) If so, should the plaintiff be permitted to file ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 01:11:17 ::: Judgment lpa20.11 6 a separate suit for back wages ?
............ Finding :- Yes.
(c) If so, on what terms ?
..............Finding :- Does not arise.
7. What order and decree ?
........... Finding :- As per order.
The learned Civil Judge, (Sr. Dn), passed the judgment accordingly in the aforesaid suit on 22.01.1982 and decreed as follows :
ORDER It is hereby ordered that the Order No. Estt/Health/890 dated 18.2.1975 passed by Chief Executive Officer, Zilla Parishad, Amravati terminating the service of the plaintiff is void, illegal and improper.
2. The parties are at liberty to seek their remedies in a proper forum in the light of quashing the order of termination dated 18.2.1975.
3. The defendant shall pay the costs of the suit to the plaintiff and bear its own. "
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Judgment lpa20.11 7
9. Here it needs to be mentioned that status of department or status of employer of workman in 1975, as an Industry, was doubtful because of conflicting judgments holding the field. The situation was resolved in the year 1978 when the Hon'ble Supreme Court through its Larger Bench answered Bangalore Water Supply and Severage Board .vrs. R. Rajappa and others ( AIR 1978 SC 548 ).
10. It is in this background that above issues and order in appreciation, the Civil Court found termination to be void, but, then could not and did not grant any relief as statutory notice under Section 280 of the Maharashtra Zilla Parishad Act, was not served by the workman upon the employer. Correctness of this finding again is not in dispute as this stage.
Parties have proceeded further on that basis.
11. At this stage, it will be appropriate to refer to the application under Section 33-C[2] of the Industrial Disputes Act, moved by the workman, which came to be registered as IDA No.71/1990 on the file of Labour Court, Amravati. There on 01.10.1990, the workman has made following prayers :
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Judgment lpa20.11
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"Prayer : It is therefore prayed that Hon'ble Court
may pleased to order the opponent to
pay Rs. 2,00,000/- as shown in Schedule
'A'.
(ii) further opponent be ordered to
pay the monthly wages on due dates in
future period till retirement age with
other benefits such as pension etc.
(iii) any other just and equitable
orders."
12. In this application, the workman no where points out that he has been reinstated and therefore, he was claiming consequential benefits. The reinstatement has come after 01.10.1990. Whether it is reinstatement or then he was simply taken back in the employment without any order without any back wages, are all disputed questions which are not answered in the present matter.
13. The judgment of Hon'ble Supreme Court in case of State Bank of India .vrs. Ramchandra Dubey and others (supra), particularly paragraph nos. 7 and 8 point out limited scope of jurisdiction available to the Labour ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 01:11:17 ::: Judgment lpa20.11 9 Court. It is like a court executing decree under Order XXI of Civil Procedure Code. If there is a decree, there can be execution. In execution rights cannot be worked out for the first time. Similarly in proceedings under Section 33-C[2], rights cannot be determined for the first time. There has to be already some recognition statutorily or then a declaration by a competent Court of such right and thereafter computation of amount due and payable because of such declaration is only envisaged under Section 33-C[2].
14. The judgment and decree of Civil Court reproduced supra declares termination to be nonest in a suit found not maintainable. Because of this position only, that court did not issue any mandatory injunction or direction to th employer and left it to the workman to file separate suit. As facts show that workman was not required to file that suit and he was taken back by the employer some time after 1990, and he was therefore without work and out of employment after date of decree i.e. 22.01.1982 till he was taken back. Thus, even after declaration of law by the Hon'ble Supreme Court in case of Bangalore Water Supply and Severage Board .vrs. R. Rajappa and others (supra), from 1982 onwards for period of 8 to 10 years, he did not file any proceedings for getting his rights adjudicated. ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 01:11:17 :::
Judgment lpa20.11 10
15. In this situation, when the observations of Hon'ble Supreme Court in paragraph no.8 of the judgment in case of State Bank of India .vrs. Ramchandra Dubey and others (supra), are read, it is apparent that the Labour Court in exercise of jurisdiction under Section 33-C[2] of the Act for the first time could not have overlooked the specific refusal by the Civil Court to answer the issue. Perusal of the judgment and order of Civil Court reproduced supra, reveals that the said Court has left those questions open in a subsequent suit. Those disputed questions needed answer in appropriate proceedings. And without answer to those proceedings recourse to Section 33-C[2] in present matter was not possible. The learned Single Judge has also overlooked this aspect.
16. Hence, we are satisfied that here the order of Labour Court under Section 33-C[2] passed on 10.09.1999 in Application IDA No.71/1990 is unsustainable and should be quashed and set aside. We are also satisfied that Writ Petition no. 2247/2001 filed by the employer Zilla Parishad should have been entertained and allowed by this Court.
17. However, considering the fact that for said period during which the workman was without employment, he has received amount of Rs. ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 01:11:17 :::
Judgment lpa20.11 11 1,37,000/- and he has withdrawn that amount some time before the year 2009, and has been superannuated on 28.02.2012 and is living retired life thereafter, it would be harsh to permit the employer to recover that amount at this stage from him.
18. During hearing Shri Bhide, learned counsel has produced before us an order dated 18.09.2013. Said order is issued by the Chief Executive Officer of the appellant Zilla Parishad. It mentions that order of Labour Court in IDA case No.3/2001 dated 19.09.2002 and then certain directions issued. It appears that in those proceedings workman is found entitled to arrears of salary and allowance for period from 01.10.1990 to 12.10.1999. The workman has waived 75% of that amount and he has been paid only 25% thereof. We take on record copy of the said order and mark it as Exh.X, for identification. It therefore, appears that later on the controversy was amicable settled between the parties.
19. In this situation, though we find substance in all the contentions raised by the learned counsel for the appellant, we are not inclined to permit the Zilla Parishad to recover back any amount from respondent Workman at this stage. However, the amount of costs saddled upon the appellant Zilla ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 01:11:17 ::: Judgment lpa20.11 12 Parishad by the learned Single Judge on 01.10.2009 while dismissing Writ Petition no.2247/2001 and thereafter while rejecting Civil Application No. 2291/2009 on 13.11.2009, is unwarranted. Accordingly the said cost and its grant is deleted.
20. We therefore, partly allow this Letters Patent Appeal by quashing and setting aside the part of judgment of learned Single Judge dated 01.10.1999 saddling costs of Rs. 5000/- on appellant and also order dated 13.11.2009 saddling costs of Rs. 500/- upon it. In the present facts, the other part of impugned judgment of learned Single Judge and the order of Labour Court is however, maintained.
21. Letters Patent Appeal is thus partly allowed and disposed of. No costs.
JUDGE JUDGE
Rgd.
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