SCA/5398/1998 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5398 of 1998 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 ? ========================================================= LALBHAI DALPATBHAI INSTITUE OF INDOLOGY - Petitioner(s) Versus JAGAJI PRABHAJI & 1 - Respondent(s) ========================================================= Appearance : MR DIPAK R DAVE for Petitioner(s) : 1, MR GM JOSHI for Respondent(s) : 1, MS MUTAPALLA BORA FOR MR MUKUL SINHA for Respondent(s) : 1, MR MAHENDRA K PATEL for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/05/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed for appropriate writ, order or direction, quashing and setting aside the impugned judgement and order passed by the SCA/5398/1998 2/8 JUDGMENT Labour Court, Ahmedabad in Recovery Application No.1011 of 1990 dtd.27/5/1998, by which in an application submitted by the respondent No.1 under sec.33-C(2) of the Industrial Disputes Act, the Labour Court has directed the petitioner – original opponent No.1 to pay Rs.76,600=00 towards difference of salary for the period between 2/8/1982 and 31/12/1989 and bonus for the period between 2/8/1982 to 31/12/1989 to the respondent No.1. 2. The respondent No.1 herein approached the Labour Court by submitting Recovery Application No.1011 of 1990 under sec.33-C(2) of the I.D. Act claiming Rs.76,000 being difference in salary for the period between 2/8/1982 and 31/12/1989 and bonus for the period between 2/8/1982 to 31/12/1989 inter-alia contending that he was serving as Gardener with the respondent No.1 and thereafter his services were transferred to the respondent No.2 and he was paid fixed salary initially of Rs.200=00 per month and thereafter Rs.250=00 per month and other Gardeners working with him were paid salary in the pay scale of Rs.750-950 and thus, he was denied the salary in the aforesaid pay-scale and therefore, he claimed the aforesaid relief on the ground of SCA/5398/1998 3/8 JUDGMENT equal pay for equal work. The recovery application was opposed by both the opponents. The entitlement of the salary in the aforesaid pay-scale was disputed and denied. It was the contention on behalf of the petitioner that the respondent No.1 was never appointed as a Gardener on regular basis after following due procedure and he was appointed only as a part-timer gardener and therefore, he was not entitled to the amount as claimed on the basis of equal pay for equal work. 3. After having heard the learned advocate appearing on behalf of the respective parties, the Labour Court by the impugned judgement and order dtd.27/5/1998 allowed the recovery application and directed the petitioner – original opponent No.1 to pay Rs.76,600 along with interest at the rate of 6% per annum to the respondent No.1. Being aggrieved by and dissatisfied with the impugned judgement and order passed by the Labour Court, Ahmedabad in Recovery Application No.1011 of 1990 dtd.27/5/1998, the petitioner – original opponent No.1 has preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Mr.Dipak Dave, learned advocate appearing on behalf of the petitioner – original opponent No.1 has submitted that SCA/5398/1998 4/8 JUDGMENT the learned Labour Court has materially erred in allowing the recovery application submitted under sec.33-C(2) of the I.D. Act, as first he has adjudicated the entitlement and thereafter has passed the order, which is not permissible in recovery proceedings under sec.33-C(2) of the I.D. Act. There was controversy and dispute whether the respondent No.1 was workman or the original opponent Nos.1 or 2. It is submitted that when on merits the claim and the entitlement was disputed and denied, the appropriate remedy for the respondent No.1 would have been to raise an industrial dispute before appropriate forum and not the recovery proceedings under sec.33C-2 of the I.D. Act more particularly in absence of any pre-existing and pre-determined rights in favour of the respondent No.1. He has relied upon the following decisions of th Hon'ble Supreme Court as well as this Court; 1) P.K.Singh and Ors. v/s. the Presiding Officer & Ors. reported in 1988 II LLJ 363; 2) U.P.State Road Transport Corporation v/s. Birendra Bhandari reported in (2006) 10 SCC 211; 3) Union of India and Anr. V/s. Kankuben (Dead) by LRS. and Ors. reported in (2006) 9 SCC SCA/5398/1998 5/8 JUDGMENT 292; and 4) Naranji Peraji Transport Co. v/s. Ramnikbhai B.Waghela reported in 1998 (1) GLH 88. By making the above submissions, Mr.Dave, learned advocate appearing on behalf of the petitioner has requested to allow the present Special Civil Application by quashing and setting aside the impugned judgement and order passed by the Labour Court. 5. Ms.Utpalla Bora, learned advocate appearing on behalf of Mr.Mukul Sinha, learned advocate for the respondent No.1 workman has submitted that it is the right of every workman to get equal pay for equal work and in the facts and circumstances of the case and on appreciation of evidence when the Labour Court has found that the workman was denied equal pay in the pay scale of Rs.750-950 which was being paid to the other Gardeners working with the opponent No.1, no illegality has been committed by the Labour Court in entertaining and allowing the recovery application. She has relied upon the decision of the Hon'ble Supreme Court in the case of National Buildings Construction Vs. Pritam Singh SCA/5398/1998 6/8 JUDGMENT Grill and others, reported in (1972) 2 SCC 1, more particularly para 12 of the said judgement in support of her above submission and the submission that it is not open for the Labour Court in recovery proceedings under sec.33C-2 of the I.D. Act to adjudicate and consider the other ancillary questions also. Therefore, it is requested to dismiss the present Special Civil Application. 6. Heard the learned advocate appearing on behalf of the respective parties. 7. At the outset, it is required to be noted that before the Labour Court there was not only dispute with regard to entitlement of the salary as claimed by the respondent No.1 but there was also dispute that whether the respondent No.1 is the workman of opponent Nos.1 or 2. There was no pre-existing and pre-determined rights in favour of the respondent No.1 workman. When the entitlement of the salary in the pay scale of Rs.750-950 was disputed and denied and in absence of any pre- existing and pre-determined right in favour of the respondent workman and more particularly when there was dispute with regard to the employer i.e. whether the workman was employee of the opponent Nos.1 or 2, the only proper remedy for the workman was to raise an SCA/5398/1998 7/8 JUDGMENT industrial dispute before the appropriate forum but certainly the recovery proceedings under sec.33-C(2) of the Act were not maintainable. As held by the Hon'ble Supreme Court in the case of Birendra Bhandari (supra), benefit claimed in recovery proceedings under sec.33- C(2) has to be a pre-existing benefit or one flowing from pre-existing right. In the said decision, the Hon'ble Supreme Court has further held that that application under sec.33-C(2) was not maintainable, as there was no pre-existing benefit or right available to the workman. In the said case, the claim petition was filed under sec.33- C(2) of the I.D. Act claiming payment of arrears of difference of salary, Leave Encashment, Dearness Allowance etc. Even this Court in the case of Naranji Peraji Transport Co. (supra), considering the decision of the Hon'ble Supreme Court, has held that in recovery proceedings under sec.33-C(2) of the I.D. Act, Labour Court has no jurisdiction to first decide the workman's entitlement and then proceed to exercise powers under the said section. It is also further held that in absence of pre-adjudication of a claim and extent of wages disputed, and, therefore, exercise of powers under sec.33-C(2) was not warranted. In the present case also, the Labour Court SCA/5398/1998 8/8 JUDGMENT has first decided the workman's entitlement and has then proceeded to exercise the powers which was not warranted. 8. For the reasons stated above, the petition succeeds. The impugned judgement and order passed by the Labour Court, Ahmedabad in Recovery Application No.1011 of 1990 dtd.27/5/1998 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No costs. [M.R. SHAH, J.] rafik