SCA/4573/1999 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4573 of 1999 With SPECIAL CIVIL APPLICATION No. 6756 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= SIDDHPURA ENGINEERING WORKS Versus MUNIJAR TURAB PATHAN ========================================= Appearance : MR CHUDGAR, for NANAVATY ADVOCATES for Petitioner MR MUKESH H RATHOD for Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/05/2008 ORAL COMMON JUDGMENT : 1 As common question of law and facts arise in both these petitions and they are arising out of a common judgment and award passed by the learned Labour Court, Rajkot, they are being disposed of by this common SCA/4573/1999 2/7 JUDGMENT judgment and order. 2. By these petitions under Articles 226 and 227 of the Constitution of India, petitioner – original opponent - employer, has prayed for an appropriate writ, order or direction, quashing and setting aside the common judgment and award passed by the learned Labour Court, Rajkot, dated 10th of May, 1999, passed in Recovery Application No. 421 of 1989 and Recovery Application No. 1215 of 1989, directing the petitioner to pay an amount of Rs. 7,260.35ps, being the difference in the salary/pay of the respondent - workman. 3. The respondent herein – workman had filed Recovery Application Nos. 421 of 1989 and 1215 of 1989 before the Labour Court, Rajkot, under Section 33-C (2) of the Industrial Disputes Act, 1947, claiming difference in salary for the period between 01st of April, 1989 to 31st of October, 1989, by filing Recovery Application No. 1215 of 1989. The petitioner also claimed difference in salary for the period between 01st of October, 1984 to 31st of March, 1989, by filing Recovery Application No. 421 of 1989. It was the contention on behalf of the respondent workman that he was serving as Welder-cum-Grinder and he has not been paid the minimum wages considering his appointment as Welder and, therefore, he prayed for the difference in salary as per the Minimum Wages Act. Both the Recovery Applications were opposed by the petitioner - employer. It was specifically disputed that the respondent – workman was appointed as Welder-cum- SCA/4573/1999 3/7 JUDGMENT Grinder. It was also submitted that in absence of any pre-existing right in favour of the workman, the Recovery Applications filed under Section 33-C(2) of the Act, is not maintainable. In spite of above, the Labour Court, Rajkot, passed the impugned judgment and award dated 10th of May, 1999, allowed both the Applications by directing the petitioner to pay an amount of Rs. 7,260.35ps, being the difference in salary. Being aggrieved and dissatisfied with the common judgment and award dated 10th of May, 1999, passed by the learned Labour Court, Rajkot, in Recovery Applications No. 421 of 1989 and 1215 of 1989, the petitioner herein has preferred the aforesaid Special Civil Applications under Articles 226 and 227 of the Constitution of India. 4. Shri Chudgar, learned Advocate, appearing for Nanavati Advocates, for the petitioner, has vehemently submitted that the Labour Court has materially erred in entertaining and allowing the Recovery Applications under Section 33-C(2) of the Act, in absence of any pre-existing right in favour of the workman. It is submitted that when there was a dispute with regard to the position held by the workman, i.e. Welder-cum-Grinder or Grinder-cum-Helper, the only remedy available to the workman was to raise an appropriate industrial dispute, however, straightway, Recovery Applications under Section 33-C(2) of the Act would not be maintainable. Shri Chudgar, learned Advocate, appearing for the petitioner, has relied upon the following decisions of the Hon'ble Supreme Court as well as of this Court : SCA/4573/1999 4/7 JUDGMENT (i) in the matter of UNION OF INDIA vs. KANKUBEN (Dead) by LRS and Ors., as reported in (2006) 9 SCC, 292; (ii) in the matter of U.P. STATE ROAD TRANSPORT CORPORATION vs. BIRENDRA BHANDARI, as reported in (2006) 10 SCC 211; and (iii) in the matter of NARANJI PERAJI TRANSPORT CO. vs. RAMNIKBHAI B. WAGHELA, as reported in 1998 (1) G.L.H., 88. 5. Shri Mukesh H. Rathod, learned Advocate, appearing on behalf of respondent – workman, has tried to support the impugned judgment and award passed by the Labour Court, passed in Recovery Applications, by submitting that as it was specifically found by the Labour Court that the workman was not paid the salary even as per the Minimum Wages Act, and by further observing that there is already a pre-existing right in favour of the workman when the Labour Court has passed the impugned judgment and award. The same is not required to be interfered with in exercise of powers under Articles 226 and 227 of the Constitution of India. It is submitted that in the facts and circumstances of the case, the Labour Court was justified in allowing the Recovery Applications filed under Section 33-C(2) of the Act, and therefore, both the petitions filed by the petitioner - employer is required to be dismissed. 6. Heard learned Advocates appearing on behalf of the SCA/4573/1999 5/7 JUDGMENT respective parties. It is not in dispute that the Recovery Applications filed before the Labour Court were under Section 33-C(2) of the Act. It is also not in dispute that there was a controversy and/or dispute with regard to the position held by the workman i.e. whether he was appointed as Welder-cum-Grinder or Helper. It was the case on behalf of the workman that he was appointed and working as Welder-cum- Grinder, and on the other hand, it was the case on behalf of the petitioner that he was appointed and working as Helper. Even, the claim of the workman was specifically denied and contested. As held by the Hon'ble Supreme Court in the case of Kankuben (supra), wherein a Recovery Application under Section 33-C(2) of the Industrial Disputes Act claiming overtime allowance, the maintainability of the same and even the claim was disputed by the employer, the Hon'ble Supreme Court held that the Recovery Application under Section 33-C(2) of the Act, is not maintainable. In another decision of the Hon'ble Supreme Court in the case of Birendra Bhandari (supra), the Hon'ble Supreme Court has held that the benefit enforceable under Section 33-C(2) of the Act has to be a pre-existing benefit or one flowing from a pre-existing right. The learned Single Judge of this Court, after considering catena of decisions of the Hon'ble Supreme Court, in the case of Naranji Peraji Transport Co. (supra), has held that the Labour Court, in Recovery Application under Section 33-C(2) of the Act, has no jurisdiction to SCA/4573/1999 6/7 JUDGMENT first decide the workmen's entitlement and then proceed to exercise power under Section 33-C(2) of the Act. It is also further held that in absence of prior adjudication of a claim, the extent of wages was disputed and, therefore, exercise of power under Section 33-C(2) of the Act is not warranted. Considering the above decisions of the Hon'ble Supreme Court as well as of this Court and the factual scenario stated here-in-above, the Labour Court has committed an error in entertaining and allowing Recovery Applications under Section 33-C(2) of the Act. Considering the controversy and the dispute, the Recovery Applications under Section 33-C(2) of the Act were not required to be entertained and/or allowed. Under the circumstances, the impugned judgment and award passed by the Labour Court, Rajkot in allowing the Recovery Applications, deserves to be quashed and set aside. 7. For the reasons stated above, the impugned judgment and award dated 10th of May, 1999 passed in Recovery Application Nos. 1215 of 1989 and 421 of 1989 are hereby quashed and set aside. However, it is observed that this Court has not expressed any opinion on merits of the claim of the workman and this Court has not expressed any opinion on merits in favour of either parties. It will be open for the workman to initiate appropriate proceedings before appropriate forum for adjudication of his claim and the same shall be considered in accordance SCA/4573/1999 7/7 JUDGMENT with law and on merits. Rule is made absolute to the aforesaid extent in each petition. In the facts and circumstances, there shall be no order as to costs. (M. R. SHAH, J.) pnnair