SCA/4169/1994 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4169 of 1994 With SPECIAL CIVIL APPLICATION No. 4446 of 1994 With SPECIAL CIVIL APPLICATION No. 4447 of 1994 With SPECIAL CIVIL APPLICATION No. 4444 of 1994 With SPECIAL CIVIL APPLICATION No. 4445 of 1994 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? ========================================================= AHMEDABAD MUNICIPAL TRANSPORT CORPORATION - Petitioner(s) Versus GOPALSING G RAJPUT - Respondent(s) ========================================================= Appearance : MR MG NAGARKAR for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/05/2008 SCA/4169/1994 2/8 JUDGMENT ORAL JUDGMENT 1. As common question of facts and law arise, they are being disposed of by this common judgment. 2. By way of these petitions under Article 227 of the Constitution of India, the petitioner – Ahmedabad Municipal Transport Service has prayed for an appropriate Writ, direction and/or order quashing and setting aside the orders passed by the learned Presiding Officer, Labour Court, Ahmedabad dated 24.01.1994 in Recovery Application Nos.3 of 1983 to 5 of 1983, 505 of 1982 and 35 of 1983, by which the learned Labour Court, Ahmedabad partly allowed the aforesaid Recovery Applications filed by the respective respondents under Section 33-C(2) of the Industrial Dispute Act (hereinafter referred to as 'the Act') directing the petitioner to pay 50% of the amount prayed in the respective Recovery Application with 18% interest. 3. All the respondents were appointed as Electrician – II in the pay scale of Rs.260-430 and that the next higher post was of Electrician – I SCA/4169/1994 3/8 JUDGMENT carrying scale of Rs.1200-2040. It was the case on behalf of the respective respondents – workmen that they were required to discharge duties of Electrician-I and therefore, they were entitled to said payment on the basis of salary of the post of Electrician-I. Respective respondents – workmen submitted Recovery Applications before the Labour Court, Ahmedabad under Section 33-C(2) of the Act. All the Recovery Application were resisted by the petitioner – employer and it was denied that the respondents – workmen worked as Electrician-I and as such it was also contended on behalf of the employer that as Electrician-II, they might have to discharge same type of duties but further a supervision is needed in respect of work discharged by Electrician- II while the incumbment of Electrician-I is required to do same work independently. It was also contended that the Recovery Applications under Section 33-C(2) of the Act for the aforesaid reliefs is not maintainable. On the contrary there are no pre- existing right and that employees are required to raise industrial dispute and such dispute cannot be resolved under Section 33-C(2) of the Act. Inspite of SCA/4169/1994 4/8 JUDGMENT above, learned Presiding Officer, Labour Court, Ahmedabad by impugned orders dated 24.01.1994 partly allowed the aforesaid Recovery Applications directing the petitioner to pay 50% of the amount claimed by the respective workmen in the respective Recovery Applications. Being aggrieved and dissatisfied with the common judgment and order dated 24.01.1994 passed by the learned Presiding Officer, Labour Court, Ahmedabad passed in Recovery Application Nos.3 of 1983 to 5 of 1983, 505 of 1982 and 35 of 1983, the common petitioner-employer – Ahmedabad Municipal Transport Service has preferred the present petitions under Article 227 of the Constitution of India. 4. Mr.Nagarkar, learned Advocate appearing on behalf of the common petitioner – employer has vehemently submitted that the learned Labour Court, has materially erred in allowing the Recovery Applications under Section 33-C(2) of the Act more particularly, when there was no pre-existing right and/or adjudication in favour of the workmen. He has submitted that in view of dispute with regard to maintainability of Recovery Applications under SCA/4169/1994 5/8 JUDGMENT Section 33-C(2) of the Act and that there was no pre- existing right and that entitlement of the claim of the workmen was denied and/or contested, the learned Labour Court, ought to have dismissed the Recovery Applications by relegating the workmen to raise any independent industrial dispute by holding that such dispute cannot be resolved under Section 33-C(2) of the Act. He has relied upon following decisions in support of his above submissions and maintainability of Recovery Applications under Section 33-C(2) of the Act for the aforesaid reliefs: 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 292; and 4) Naranji Peraji Transport Co. v/s. Ramnikbhai B.Waghela reported in 1998 (1) GLH 88. By making above submissions and relying upon the aforesaid decisions, Mr.Nagarkar, learned Advocate appearing on behalf of the petitioner has SCA/4169/1994 6/8 JUDGMENT requested to allow the present Special Civil Applications. Though served, nobody appears on behalf of the respective respondents- workmen. 5. Heard Mr.Nagarkar, learned Advocate appearing on behalf of the petitioner and gone through the impugned judgment and order passed by the learned Presiding Officer, Labour Court, Ahmedabad and contentions raised in the petitions. It appears that all the workmen were serving as Electrician-II and they were claiming their salary on the post of Electrician-I. It is admitted position that there is no pre-existing adjudication and/or pre-existing right in favour of the respondent – workmen. It also appears that the claim of the respondent-workmen was disputed by the employer the petitioner- herein. As held by the Hon'ble Supreme Court in the case of Birendra Bhandari (supra) claiming a benefit enforceable has to be a pre-existing benefit or one flowing from a pre-existing right. In the said decision, the Hon'ble Supreme Court has held that Recovery Applications under Section 33-C(2) was not applicable and/or maintainable as there was no pre- SCA/4169/1994 7/8 JUDGMENT existing benefit or right available to the workmen. Similar view has been expressed by the Hon'ble Supreme Court in the case of Union of India and Anr. v/s. Kankuben (Dead) by LRS. and Ors. (supra). 6. Even this Court while considering many decisions of the Hon'ble Supreme Court, in the case of Naranji Peraji Transport Co.(supra) has held that in Recovery Applications under Section 33-C(2) of the Act, the Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to exercise power under Section 33-C(2) of the Act. It is also held that in absence of prior adjudication of a claim, the extent of wages was disputed and, therefore, exercise under Section 33-C(2) of the Act was not warranted. 7. In view of the above and in the facts and circumstances of the case narrated hereinabove, the Labour Court has materially erred in entertaining and partly allowing the Recovery Applications as claims of the respective workmen were denied and there was no pre-existing right in favour of the respective – respondent workmen. Proper remedy for the concerned SCA/4169/1994 8/8 JUDGMENT workmen was to raise industrial dispute. However, straightway Recovery Applications under Section 33- C(2) of the Act were not maintainable. Under the circumstances, learned Labour Court, Ahmedabad has materially erred in partly allowing the Recovery Applications. 8. For the reasons stated above, all the petitions succeed. Impugned judgment and order dated 24.01.1994 passed by Labour Court, Ahmedabad in Nos.3 of 1983 to 5 of 1983, 505 of 1982 and 35 of 1983 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent in each of the petitions. However, there shall be no order as to costs. [M.R.Shah,J.] satish