Gujarat High Court
Gujarat Pollution Control Board vs Rasiklal Polabhai Dhandhukia on 8 June, 2023
C/SCA/9229/2023 ORDER DATED: 08/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9229 of 2023
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GUJARAT POLLUTION CONTROL BOARD
Versus
RASIKLAL POLABHAI DHANDHUKIA
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Appearance:
MR DG CHAUHAN(218) for the Petitioner(s) No. 1,2
RONAK D CHAUHAN(7709) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 08/06/2023
ORAL ORDER
1. This petition under Article 226 of the Constitution of India is filed challenging proceedings of Recovery Application No.21 of 2023, in Reference (LCAD) No.20 of 1995, filed by the respondent before the Presiding Officer, Labour Court, Rajkot under Section 33 C (2) of the Industrial Disputes Act,1947 (For short "the Act").
2. Facts, in brief, are as under:
The respondent herein filed an application under Section 33 C (2) of the Act claiming Rs.19,77,875/- with interest at the rate of 10% for his unpaid salary for the period from 13.06.2005 till the date of his superannuation i.e. 30.09.2018.
The application under section 33 C (2) is filed by the respondent making averments to the effect that pursuant to the Page 1 of 4 Downloaded on : Mon Jun 12 20:36:10 IST 2023 C/SCA/9229/2023 ORDER DATED: 08/06/2023 award dated 13.06.2005, an amount of Rs.19,77,875/- is to be paid by the petitioners herein and therefore, the petitioners may be directed to pay the said amount. Recovery application is pending adjudication. Aggrieved by filing of the Recovery Application under section 33-C(2) of the Act by the respondent, the present petition is filed by the petitioners.
3. Heard learned advocate Mr.D.G.Chauhan for the petitioners. He submitted that the application filed under section 33-C(2) is not maintainable because there is no pre- existing right of the respondent. He submitted that the application under section 33-C(2) of the Act is only maintainable if there is a pre-existing right and therefore, filing of application under section 33-C(2) is beyond the provisions of law. The respondent retired on 30.09.2018 and all his terminal dues/benefits have been paid by the petitioners. For an application under section 33C(2), it requires prior adjudication or recognition of claim and in absence of same, it amounts to abuse of process of law. After a period of 5 years, an application under section 33-C(2) of the Act has been filed by the respondent without there being any right.
In support of his submission, he relied upon decision of Hon'ble Supreme Court in the case of Municipal Corporation of Delhi Vs. Ganesh Razak and another reported in (1995) 1 SCC 235 and recent decision of Hon'ble Supreme Court in the case Page 2 of 4 Downloaded on : Mon Jun 12 20:36:10 IST 2023 C/SCA/9229/2023 ORDER DATED: 08/06/2023 of Bombay Chemical Industries Vs. Deputy Labour Commissioner and another reported in (2022)5 SCC 629. Inviting attention of this Court, he submitted that as held by Hon'ble Supreme Court, application under section 33-C(2) can only be maintainable only if the claimant has a pre-existing right and there must be prior adjudication or recognition of the disputed claim. As the same is missing in the present case, the Recovery proceedings initiated by the respondent by filing application u/s 33C(2), is void ab-initio and nullity in the eye of law.
4. Heard the Learned Advocate appearing for the Petitioners. In this case the respondent has filed an application under section 33-C(2) of the Act claiming Rs.19,77,875/- and the same is pending adjudication. It is noteworthy to mention that the petitioners have filed a Written Statement as well. Further, all the contentions raised in the present petition, are raised in the Written Statement filed by the petitioner, in the Section 33C(2) proceedings and the same is pending adjudication. Hence, once having submitted to the jurisdiction of Section 33C(2) proceedings, it would not be appropriate on part of the Petitioners to challenge the same. Moreover, as noted above, the proceedings are currently pending adjudication and therefore also, the present petition does not deserve to be entertained on the ground of being pre-mature. However, this Page 3 of 4 Downloaded on : Mon Jun 12 20:36:10 IST 2023 C/SCA/9229/2023 ORDER DATED: 08/06/2023 Court deems it fit to dispose of the present petition with the following directions:
"Labour Court, Rajkot is directed to decide the application filed by the respondent under section 33-C (2) of the Act, in relation to maintainability or otherwise by considering the written statement filed by the petitioners and in accordance with law, as expeditiously as possible. The decision of Hon'ble Supreme Court in the case of Municipal Corporation of Delhi Vs. Ganesh Razak and another (Supra) and in the case of Bombay Chemical Industries Vs. Deputy Labour Commissioner and another (Supra), shall be considered to decide such application. It is made clear that this Court has not gone into the merits of the case."
5. With the above observations, the present petition is disposed of. No order as to cost.
(MAUNA M. BHATT,J) DIPTI PATEL Page 4 of 4 Downloaded on : Mon Jun 12 20:36:10 IST 2023