1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2736 OF 2008 Padmakar V. Joshi and another ..Petitioners. Vs. Divisional Railway Manager Western Building, Mumbai Central and others ..Respondents. ..... Ms. Neeta Karnik for the Petitioners. Mr. Sureshkumar for the Respondents. .... CORAM: DR. D.Y. CHANDRACHUD, J. 21st April, 2008. P.C. : 1. Rule, made returnable forthwith. Counsel appearing for the Respondents waives service. By consent of the learned counsel, taken up for hearing and final disposal. 2. The Petition arises out of an order passed by the Labour Court dismissing applications filed by the two Petitioners under Section 33-C(2) of the Industrial Disputes Act, 1947. The First Petitioner retired from service as an Assistant Station Master on 2 31st December, 1997 while the Second Petitioner retired on 31st January, 1998. An application claiming overtime payments was filed on or about 14th December, 1998. The applications were initially rejected by the Labour Court on 22nd March, 2000 against which the Petitioners instituted proceedings before this Court under Article 226 of the Constitution. While allowing the Petitions, Hon'ble Mr. Justice R.M. S. Khandeparkar in a judgment dated 5th June, 2003 observed that the Labour Court had failed to apply its mind both on the question as to whether any specified period of limitation would govern an application under Section 33-C(2) and on the merits of the computation of the overtime payments due to the workmen in question. Consequently while disposing of the Petition, the Learned Single Judge held thus : “However, the Labour Court has neither analyzed the materials on record to ascertain any cause of each of the petitioners, as to how many days during the period for which the overtime is claimed they had rendered the services to justify the claim for over time nor the Labour Court has analyzed the materials on record to ascertain whether there was sufficient cause for filing the claim after their retirement. Merely because the claim has been put forth after the period of three years from the date of cause of action, the same has been rejected. The Labour Court has also not ascertained as to whether the period of limitation of three years will apply in cases 3 of the nature in hand. Once the Labour Court had found on analysis of the materials on record that the petitioners were workmen within the meaning of the said term under the said Act and that they are entitled to claim monetary benefits for the overtime services rendered by them it was necessary for the Labour Court to ascertain whether there was sufficient cause made out for approaching the Labour Court after after their retirement and further the exact number of hours for which they had rendered over time services and accordingly to pass an appropriate order. Having failed to carry out the said exercise while disposing of the matter, the Labour Court has clearly acted arbitrarily in exercise of its jurisdiction and, therefore, on that count itself the impugned order cannot be sustained and the matter is required to be remanded to the Labour Court consider both the aspects before disposing of the matter.” 3. After the order of the Learned Single Judge of this Court on 5th June, 2003, an affidavit in lieu of the examination in chief was filed by each of the two Petitioners before the Court on 11th September, 2003. In the affidavit, it was stated that after their retirements, the two Petitioners had personally approached the Personnel Officers of the Railways for their overtime claim but received evasive replies. Eventually representations were submitted respectively on 29th May, 1998 and 2nd April, 1998 to which there was no reply. The two Petitioners stated that they had 4 not preferred their claim for overtime during the period of service apprehending that they would have been subject to harassment. However, it was stated that a complete record of the overtime work done by the workmen was maintained. Both the workmen came to be cross examined. 4. The Labour Court dismissed the applications under Section 33-C (2) principally on the ground that the only evidence that was adduced on the record was the evidence adduced prior to the order of remand. This is evident from what has been observed by the Labour Court in paragraphs 13, 15, 16 and 17 of the judgment. The relevant findings are as follows : “After remand of the matter no additional evidence is adduced by the Applicants. . . . From this it is revealed that, Applicants want to rely on the evidence which was already recorded by my Ld. Predecessor. That time evidence of Joshi was recorded which is part of the proceedings of the record of this application. . . . So this is the evidence of the applicant recorded by my Ld. Predecessor, On said my Predecessor observe that claim of the Applicants is not in time. . . . In that connection, if we peruse evidence led by Applicants, I am of the considered view that, no specific case is made out by the applicants. . . . As far as their time limit is concerned, no evidence is led and no sufficient cause is pointed out by the Applicants, what make them to 5 approach the Court after retirement.” 5. On merits the Labour Court held that the workmen were unable to point out the work done in respect of overtime for a particular period, the hours rendered and the dates on which the Railway Authorities were moved. 6. The submission of the Petitioners before the Court is that the Labour Court has erred on both the aspects which weighed in the dismissal of the complaint. Firstly, it has been submitted that on the question of delay, it was the contention of the Petitioners that Section 33-C(2) does not provide any specified time limit and in any case there was a valid and sufficient cause for approaching the Labour Court after the retirement of the workmen concerned. The observations of the Labour Court to the effect that no evidence was adduced after remand, it was urged is ex facie erroneous. Secondly, on the merits it was submitted that the Labour Court was in error in coming to the conclusion that there was no evidence in respect of the particular period for which the overtime was rendered and the hours of overtime since as a matter 6 of fact the complaint refers to several annexures where a computation has been made. 7. On the other hand, Counsel appearing for the Respondents supported the reasoning of the Labour Court and urged that there is no basis or justification for the claim of the workmen that they are entitled to two hours' of overtime. Learned counsel urged that the workmen would at the highest be entitled to not more than one hour of overtime and it is the case of the Respondents that all payments which were due have in fact been made. 8. On the question of delay, the record before the Court in these proceedings will show that after an order of remand was passed by this Court on 5th June, 2003, affidavits in lieu of the examination in chief were filed by both the workmen who were cross examined. The Labour Court has completely failed to take cognizance of the evidence which was led after remand. The extracts from the judgment of the Labour Court which have been 7 quoted earlier will show that the Labour Court proceeded on the basis that the only evidence that was on the record was the evidence adduced prior to the order of remand. That is clearly an error. Secondly, even on the question of computation it would appear from the complaint that in paragraph 7 thereof the Applicants have referred to Exhibits A to D as showing the place, the date and hours of overtime work by each of the Applicants. 9. For the aforesaid reasons, I am of the view that the order passed by the Labour Court is unsustainable for the reasons which have weighed with the Labour Court. Accordingly, the impugned order dated 29th November, 2007 is quashed and set aside and rule is made absolute in terms of prayer clause (a). Application No. LC- 2/639 of 1998 shall stand restored to the file of the Labour Court insofar as the two Petitioners are concerned. The Labour Court shall hear and decide the application afresh on both the grounds as directed in the judgment and order of this Court dated 5th June, 2003 and having regard to the observations contained in this judgment. On remand, the Labour Court is requested to 8 expedite the disposal of the proceedings and endeavour to do so within a period of six months of the date on which an authenticated copy of this order is placed on the file. There shall be in the circumstances no order as to costs. *****