WP/5765/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5765 OF 2010 Pune Zilla Sahakari Krishi Va Gramin Vikas Bank, Pune ... Petitioner V/s. S.W. Kakade, Asst. Commissioner of Labour & Competent Authority, Pune & Ors. ... Respondents Smt. A.P. Purav for the Petitioner. Mr. S.M. Paranjape for the Respondents. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 24 TH NOVEMBER, 2010. PRONOUNCED ON: 23 RD DECEMBER, 2010. P.C. : 1. Rule. Rule made returnable forthwith, by consent of the parties. 2. This Writ Petition has been preferred against the order dated 7th June, 2010 passed by the Assistant Commissioner of Labour, Pune in Application (IDA) No.46 of 2009. 3. The petitioner is a Co-operative Agricultural and Rural Bank functioning in Pune District from October, 2001. It was affiliated to the Apex Bank i.e. the Maharashtra State Co-operative Agricultural and Rural Development Bank Ltd., (hereinafter referred to as “the Apex Bank”). In 1998-1999, it was decided to WP/5765/2010 2 bifurcate the Apex Bank into various District Banks. On 20th September, 2001, the State Government directed the District Banks to obtain independent registrations. Accordingly, the petitioner-Bank came into existence from 20th September, 2001. The workers who were employed with the Apex Bank and in the Branches of the Apex Bank, which were bifurcated into the District Co-operative Banks, continued to work in the newly registered District Banks. All dues and payments to workers prior to September, 2001 were made by the Apex Bank. Thereafter, when the District Banks came into existence, the dues of the workers were paid by the respective District Banks. 4. While the Apex Bank was in existence on 27th October, 1996, a Settlement was signed under Section 2(p) of the Industrial Disputes Act, 1947, (for short “the I.D. Act”), by the Apex Bank with the Maharashtra Rajya Sahakari Bhuvikas Bank Karmachari Sanghatana, a trade union representing the workmen employed in the Bank. Certain benefits were granted to the workmen under this Settlement. 5. The respondent No.2 and 98 other workmen filed applications before the Assistant Commissioner of Labour, Pune under Section 33C(1) of the I.D. Act on 25th September, 2009. These applications were filed claiming benefits under the Settlement dated 27th October, 1996 for the period from 1st December, 1998. The applicants included those who had retired from service from the Apex Bank. The petitioner opposed these applications by filing a written statement and raising several objections such as : WP/5765/2010 3 (i). the jurisdiction of the Assistant Commissioner of Labour, Pune, to try the application when there was a dispute as to whether some of the applicants were workmen as defined under Section 2(s) of the I.D. Act; (ii). the liability of the Apex Bank cannot be foisted on the petitioner-Bank. (iii). the petitioner-Bank was not liable to pay the applicants who had retired from the Apex Bank prior to October, 2001. 6. This written statement was filed by the Administrator appointed for the petitioner-Bank. 7. Despite these objections raised, the Assistant Commissioner of Labour was of the view that the applicants were entitled to Dearness Allowance and Leave Travel Concession from the petitioner-Bank in accordance with the Settlement of 27th October, 1996. The Assistant Commissioner of Labour held that since these amounts have not been paid to the applicants, they were required to be recovered by issuing a Recovery Certificate. Accordingly a Recovery Certificate to recover Rs. 1,26,84,344/- was issued on 29th June, 2010. Hence, the present Petition. WP/5765/2010 4 8. Smt. Purav, the learned Advocate appearing for the petitioner-Bank, while reiterating the contentions raised by the Bank before the respondent No.1 has further submitted that the gross delay of 11 years in filing the applications under Section 33C(1) of the I.D. Act is sufficient to dismiss the applications as an application under Section 33C(1) has to be filed within one year of the amount being payable. She urged that the petitioner-Bank cannot be made liable to pay any amounts due to the workmen prior to 1st October, 2001 as that was the date when the Bank was bifurcated from the Apex Bank. She submitted that the liability was that of the Apex Bank since several employees had retired while the Apex Bank was in existence. According to her, therefore, the petitioner-Bank cannot be saddled with the dues payable to the workmen by the Apex Bank. She further submitted that the respondent No.1 has not checked the calculations which were furnished by the workmen and has accepted them in toto. 9. Mr. Paranjpe, the learned Advocate appearing for respondent No.2, has submitted that the Bank had not raised the issue of delay in filing the applications at any point of time before the Assistant Commissioner of Labour. He submitted further that the calculations filed by the applicants have not been disputed. According to him, since the Settlement under which the applicants had claimed their dues was signed under Section 2(p) of the I.D. Act, the successors of the signatories to the agreement were bound by the contents of the Settlement. WP/5765/2010 5 10. Although it is true that the petitioner-Bank had not raised the issue of delay before the Assistant Commissioner, it has been raised before this Court. The Assistant Commissioner has also considered this issue but has brushed it aside on the ground that the petitioner-Bank had not sought the dismissal of the application on this ground. The Assistant Commissioner of Labour while deciding the same ought to have appreciated the powers conferred on him under Section 33C(1) of the I.D. Act before granting the applications. Section 33C(1) of the I.D. Act reads as follows : “33-C. Recovery of money due from an employer.-(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter VA or Chapter VB], the workman himself or any other person authorised by him in writing in his behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.” (Emphasis added) WP/5765/2010 6 11. The first proviso to the Section makes it abundantly clear that an application under Section 33C(1) of the I.D. Act could be filed only within one year from the date on which the money became due to the workman from the employer. If the application is filed after a delay of one year, the appropriate Government i.e. the Assistant Commissioner of Labour must be satisfied that the applicant had sufficient cause for not making the application within the period specified. It is only if this condition is fulfilled that the Assistant Commissioner of Labour has been empowered to entertain the application in view of the second proviso to the section. A perusal of the impugned order indicates that the Assistant Commissioner of Labour has held that the delay is not relevant for consideration of the issues involved in the application. He has further held that although the Section required the application to be made within one year from the date on which the money became due to the workmen, the opponent, i.e. the petitioner herein, had not prayed for the application to be dismissed on the ground of delay. 12. Even assuming the employer does not raise the issue of delay, the Assistant Commissioner of Labour can entertain an application under Section 33C(1) of the I.D. Act only if it is filed within one year from the date the money became due from the employer. The second proviso to Section 33C(1) of the I.D. Act makes an exception to this period of limitation. The Assistant Commissioner can entertain WP/5765/2010 7 the application if he is satisfied that the applicant has shown sufficient cause for not preferring the application within one year. Respondent No.1 in the present case has held that the right of the workers does not get forfeited only on the ground that the claim was not made immediately and, therefore, concluded that the application could be entertained by him. In my view, this reasoning of the Assistant Commissioner of Labour is incorrect. Though the right of the workers may not get “forfeited” only because of the delay in demanding the amount under the Settlement, a claim under Section 33C(1) of the I.D. Act, the application is certainly not maintainable unless for cogent reasons the Assistant Commissioner of Labour expresses his satisfaction that there was sufficient cause for not making the application within the stipulated period i.e. of one year from the date on which the money became due to the workmen from the employer. The Settlement is of the year 1996. Therefore, the dues would be payable under that Settlement immediately thereafter. The workers waited till 2009 before they filed the application. No reasons whatsoever have been mentioned in the application for approaching the Assistant Commissioner of Labour late i.e. after a period of almost 15 years. In these circumstances, in my opinion, the application ought to have been dismissed by respondent No.1. Even assuming that the workers are right in their contention that their claim for benefits under the aforesaid Settlement is genuine, the Authority specified under Section 33C(1) of the I.D. Act had no jurisdiction to entertain the application. WP/5765/2010 8 13. Apart from this, it appears that the Assistant Commissioner of Labour has not considered whether an application under Section 33C(1) of the I.D. Act would be maintainable when the employer disputes the status of the applicants in as much as the employer contends that the applicants were not workmen as defined under Section 2(s) of the I.D. Act. This issue has not been considered at all by the Assistant Commissioner of Labour. 14. It appears that the employees of several District Co-operative Banks had filed various proceedings for dues under the Settlement signed by the Apex Bank with the Union representing the workers. The Supreme Court in Special Leave Petition No.9068 of 2009 has confirmed the entitlement of retired employees to the benefits of the Settlement by its order dated 24th April, 2009. The Supreme Court has directed that the dues should be paid in 36 equal installments. On this basis the Assistant Commissioner of Labour has held that the retired employees were also entitled to their dues under the Settlement and that the liability was that of the petitioner-Bank. The Assistant Commissioner of Labour has not accepted the interpretation placed by the petitioner on the Government Notification dated 20th September, 2009 that the applicants who had retired prior to 1st October, 2001 were employees of the Apex Bank and not the petitioner-Bank and, therefore, the petitioner was not liable to pay such employees. The issues as to whether retired employees should be paid or not or whether the employees whom the Bank claims were not workmen, as defined under Section 2(s) of the WP/5765/2010 9 I.D. Act, because they were officers cannot be considered by the Assistant Commissioner of Labour under Section 33C(1) of the I.D. Act. The Section stipulates that an application could be made by a workman or his assignee or heirs. However, there is no jurisdiction vested in the Authority under Section 33C(1) of the I.D. Act to decide whether the applicant is a workman, as defined under Section 2(s) of the I.D. Act. The Constitution Bench of the Supreme Court in the case of Central Bank of India Ltd. & Ors. vs. Rajagopalan (P.S.) & Ors., reported in 1963 II L.L.J. 89, has interpreted Sections 33C(1) and 33C(2) of the I.D. Act and expounded on the differences in the jurisdiction vested in the two Authorities i.e. the Assistant Commissioner of Labour and the Labour Court respectively under these provisions of law. The Court has considered the legislative history of Section 33C of the I.D. Act and has observed that a disputed status of an employee or applicant cannot be decided under Section 33C(1) of the I.D. Act. 15. In these circumstances, the Petition must be allowed. However, the applicants are free to file fresh proceedings in accordance with law, if so advised, to claim the benefits under the Settlement.