1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4788 OF 2009 The Superintending Engineer & Administrator, Command Area Development Authorities, Aurangabad. - PETITIONER VERSUS Yeshwant Bhika Weldode Age: Major, r/o Pangri, Post Ambhai, Tq. Sillod, Dist.Aurangabad. - RESPONDENT ***** Mr.SD Dhongade,Advocate for Petitioner; Mr.AS Shelke, Advocate for Respondent. ----- CORAM : R.K.DESHPANDE, J. DATE : 10th June, 2010. ORAL JUDGMENT : 1) Rule, Rule made returnable forthwith by consent of parties. Mr.Shelke learned Counsel 2 waives service for sole respondent. 2) This petition challenges the order dated 22.12.2008 passed by the Learned Judge of the Labour court, Jalna on the application under Section 33-C(ii) of the Industrial Disputes Act, 1947. The Labour Court has directed the petitioner/employer to pay arrears of salary w.e.f. 2.8.1983 to 31.3.1998as per the admissible rates of daily wages. 3) Shri Dhongade, learned Counsel appearing for the petitioner, has raised only one point that the Labour Court ought not to have granted arrears of salary on the principle of `no work no pay' and he has relied upon the decision of the Apex Court reported in AIR 2006 SC 2466 in the matter of U.P.S.T.R.C. Ltd. Vs. Sarda Prasad Misra and Anr. 4) The undisputed factual position is that the respondent/employee has claimed that he was 3 working on temporary ad hoc basis in the services of the petitioner/employer w.e.f. 9.7.1982 and in the year 1983 he was removed from service and, therefore, he filed complaint (ULP) No.134/1983 before the Labour Court, challenging his removal from service. The said complaint(ULP) was allowed and the petitioner/employer was directed to reinstate the complainant, giving continuity in service and back wages w.e.f 2.8.1983. The petitioner/employer challenged the said order in Revision(ULP) No.8/1988 before the Industrial Court, which was dismissed in default. Miscellaneous Application No.2/1998 which was moved for restoration also dismissed in default on 14.6.1994. Writ Petition No.3034/2002, challenging the orders of the Labour Court and the Industrial Court was also dismissed on 19.9.2002. The petitioner/employer did not carry the matter further. The order of reinstatement with full back wages w.e.f 2.8.1983 became final. 5) In spite of the said order, the 4 complainant/employee was not paid the arrears of wages from 2.8.1983 to 31.3.1998 although he was reinstated in service. An application being IDA No.16/1998 under Section 33-C(2) of the Industrial Disputes Act was moved. The said application is now decided and the employer is directed to pay arrears of salary from 2.8.1983 to 31.3.1998. 6) The question, whether the employee could be denied back wages on the principle of `no work no pay' could have been raised in the Complaint (ULP) No.134/1983 itself. That seems to have not been raised and the matter is adjudicated, holding that the complainant/employee is entitled to get full back wages. In an application under Section 33-C(2) of the Industrial Disputes Act, which is in the nature of execution proceeding, such a plea cannot be raised, requiring the Labour Court to go behind the order dated 12.12.1986 passed in Complaint (ULP) No. 134/1983. The Judgment cited by the learned 5 Counsel for the petitioner arises out of the reference, in which reinstatement and back wages was granted, which was modified ultimately by awarding only 50% of back wages. Such is not the position in the instant petition. The order of back wages has already attained the finality and the Labour Court in the proceedings under Section 33-C(2) of the Act cannot go behind the order which has attained the finality. 7) In the result, there is no substance in this petition, the same is, therefore, dismissed. Rule discharged. sd/- (R.K.DESHPANDE) JUDGE bdv/p/wp4788.09 Authenticated copy (BD VADNERE, PS)