Gujarat High Court Case Information System Print CA/7409/2011 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR STAY No. 7409 of 2011 [ENTITY] - Petitioner(s) Versus [ENTITY] C/O [ENTITY] - Respondent(s) Appearance : MR [ENTITY], Senior counsel with Mr. [ENTITY] for the applicant. CORAM : HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 08/07/2011 ORAL ORDER
(Per : HONOURABLE MR.JUSTICE [ENTITY])
1. We have heard Senior counsel Mr. [ENTITY] assisted by Mr. [ENTITY], appearing for the appellant. Learned counsel for the appellant has urged that without there being any adjudication under [SECTION] of the [ACT], (for short "Act") straightaway, the respondent could not claim the arrears of salary, bonus, overtime allowance and salary etc. in proceedings under [SECTION] of the Act. In support of his argument, learned counsel for the appellant has placed reliance on the decision of the Apex Court in [PRECEDENT] wherein the Apex Court in para-12 has held as under:
"12. We have considered the arguments advanced by the learned counsel for the parties. The fact that proceedings under [SECTION] are in the nature of execution proceedings is in no doubt, and such proceedings presuppose some adjudication leading to the determination of a right, which has to be enforced. Concededly there has been no such adjudication in the present case. It will be seen that the reliance of the appellant workmen is exclusively on documentary evidence placed on record which consisted primarily of the punch time cards and the representations that had been filed from time to time before the respondents. It is also true that the claim raised by the appellants had been hotly disputed by the respondents. The question that arises in this situation is whether reliance only on the documentary evidence was sufficient to prove the case."
2. Learned counsel for the appellant has also placed reliance on another decision of the Apex Court in [PRECEDENT], wherein the Apex Court in para-10 has held as under:
"10. It is well settled that the workman can proceed under [SECTION] only after the Tribunal has adjudicated on a complaint under [SECTION] or on a reference under [SECTION] that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of [PRECEDENT] held that a proceeding under [SECTION] is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say,already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer "
In view of the aforesaid two decisions, we find force in the submission of the learned counsel for the appellant. The appellant is entitled for interim relief.
3. Rule returnable on 29.8.2011. Until further order of this Court, the effect and operation of the judgment dated 7.4.2011 passed by the learned Single Judge in [CASE NUMBER] and the order dated 24.9.2010 passed by the Presiding Officer, Labour Court, Surat in recovery proceedings shall remain stayed.
([ENTITY],J) ([ENTITY],J) vcdarji