1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. WRIT PETITION No. 4752 OF 2008 ( M.S.R.T.C .vrs. Ramesh Dinaji Bansod ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : Smt. Vasanti A. Naik, J. DATE : 15 th APRIL, 2009 By this petition, the petitioner impugns an order passed by the Presiding Officer, 2nd Labour Court, Nagpur on 31.08.2007 on an application filed by the respondent under Section 33 [C][2] of the Industrial Disputes Act, 1947. The respondent to this Writ Petition had filed an application before the Labour Court, Nagpur seeking determination of the amount of benefits of monetary claim of the respondent and also seeking a further direction to the petitioner to pay the amounts stipulated in the application, to the applicant/respondent along with 12% interest on the same. According to the respondent, he was entitled to be brought on time scale after completion of 180 days 2 of continuous service. However, the petitioner belatedly brought him on time scale. The respondent challenged the action of the petitioner by filing a complaint before the Industrial Court. The complaint filed by the respondent was allowed and the petitioner was directed to bring the respondent on time scale after completion of 180 days of continuous service, as per Clause 49 of the Settlement dated 25.04.1956. The order passed by the Industrial Court was challenged by the petitioner by filing a Writ Petition. The Writ Petition was however dismissed by the High Court and the order passed by the Industrial Court directing the petitioner to bring the respondent on time scale after completion of 180 days of continuous service and to pay him monetary benefits was confirmed. The petitioner filed a Letters Patent Appeal against the order passed in Writ Petition. However, the same was dismissed. During the pendency of the proceedings before the High Court, the respondent had moved an application under section 33[C][2] of the 1947 Act. The petitioner filed its reply to the application and had opposed the claim of the respondent. It was stated by the 3 petitioner in the reply that Clause 49 of the Settlement dated 25.04.1956 did not apply to the case of the respondents. The application was decided by the 2nd Labour Court, Nagpur by an order dated 31.08.2007 which is impugned in the Writ Petition. Shri V.G. Wankhede, learned Counsel for petitioner submitted that the Labour Court, Nagpur was not justified in partly allowing the claim made by the respondent. According to the learned counsel for the petitioner, the petitioner had raised a plea before the Labour Court that clause 49 of the Settlement of 1956 was not applicable to the case of the respondent and in those circumstances, the petitioner had not proceeded to calculate the sum due and payable to the respondent in terms of clause 49 of the Settlement of the year 1956. The learned Counsel for the petitioner, sought for a remand of the matter to the Presiding Officer, 2nd Labour Court, Nagpur for a fresh decision on the application under section 33 [C][2] on merits. The learned counsel for the petitioner states that after the S.L.P., was dismissed and after the impugned order was passed the petitioner has calculated the amount due and payable to the respondent 4 and has paid the same to the respondent. Shri S.N. Dandekar, learned Counsel for respondent however, supported the order passed by the Labour Court on 31.08.2007 and submitted that the petitioner had failed to produce any evidence before the Labour Court, though the Labour Court had granted sufficient opportunity to the petitioner to lead the same. The learned counsel for the respondent submitted that the order passed by the Industrial Court in the earlier round of litigation has attained finality as the S.L.P. filed by the petitioner was dismissed. In this background, according to the learned counsel for the respondent, the Labour Court was justified in considering the matter on merits, after hearing the submissions made on behalf of the parties. The learned Counsel for the respondent submitted that the Labour Court rightly considered the fact that the respondent was entitled to the difference of pay, D.A., H.R.A. etc, for the period mentioned in the application. The learned Counsel for the respondent sought for the dismissal of the Writ Petition. I have considered the submissions made on behalf of the parties. It is 5 necessary to note that the complaint filed by the respondent was allowed by the Industrial Court in the earlier round of litigation, and it was held by the Industrial Court that the respondent ought to have been brought on time scale after the completion of 180 days of continuous service in view of Clause 49 of the Settlement of 1956. The judgment passed by the Industrial Court in all the cases attained finality on the dismissal of the S.L.P., filed by the petitioner. The difference in pay, D.A., H.R.A. etc., was due and payable to the respondent in view of the dismissal of the S.L.P., by the Hon’ble Supreme Court. Since the amount due and payable to the respondent in terms of the judgment passed by the Industrial Court was not paid to the respondent, the respondent filed an application claiming the difference in pay, H.R.A., D.A. etc., before the Labour Court. Ample opportunity was granted to the petitioner before the Labour Court to tender evidence, but, the petitioner failed to avail the same. The petitioner had also not produced any chart showing the calculations made by the petitioner so as to point out as to what amount was due and payable to the respondent. For the first time, the petitioner 6 has produced a document at Annexure-E to show that a much lesser amount was due and payable to the respondent in each case. The document explains nothing. Even otherwise, it was necessary for the petitioner to avail an opportunity of tendering the evidence before the Labour Court, Nagpur in the proceeding under Section 33 [C] [2] of the Act of 1947, and there is no propriety on the part of the petitioner to seek a remand of the matter at this stage, when the petitioner has not tendered any evidence before the Labour Court inspite of grant of opportunity to the petitioner. On perusal of the impugned order it is clear that the Labour Court has not completely granted the claim made by the respondent. Considering the settled position of law the Labour Court has refused to grant interest to the respondent on the amount due and payable to the respondent towards difference of wages, D.A., H.R.A. etc. The Labour Court also refused to grant the claim of the respondent towards weekly off and earned leave, as according to the Labour Court, that claim could be considered at the time of retirement of the respondent. No 7 fault can be found with the approach of the Labour Court, Nagpur in deciding the application filed by the respondent under Section 33 [C] [2] of the Act of 1947. No case has been made out by the petitioner for seeking interference with the order passed by the 2nd Labour Court, Nagpur in exercise of the extra ordinary writ jurisdiction. The Writ Petition is therefore, dismissed with no order as to costs. JUDGE Rgd