N TIlt lflGH CCT Ot K AR NATAK AT BAARE DATED TIES THE 4TH DAY Ot JUNE 1998 TEE HOWELl! ),JUTlCt GPA1I BASaVANA GOUD NNo,2861 Rubli Dherwad I 4 unicl pal Cor poraon, relresented by Sriflahendra Jam, Cemmi esi oner HubIi- Dharwad Munipal Corporation, Hubi 1, Di 8t: Dhwad, , Pe ti t tozr ( By SriC,ILJadhavh Advocate ) And: Smt, 110nnavva, V/o Thippanna, agesmajor, R/o, Indiranagar, Hubli, Dist: Dharwad, ,, Respondent ( By Smt,Suman I10gde, Advocate ) This writ 1tition is filed under Articles 226 & 227 of the Constitution of India r*ang to set aside the impugned order passed by the Labour Court, tlubli at Hubli application No. 4/84 dt, 10,8,90 Annexie’D. This writ ttition is caning on for final hearing this day, the Court made the following : . . 2. - 2 t- W.P.No.25856/90 oRR The petitionereip1oyer viz., Hubli Dharwad Munici pal Cor vr ation in this writ Pa ti t ion Under Ar ti ci as 226 & 227 of the Constitutionseeks quashing the order of the Labour Court, Hubli, under Section 33C (2) of the Industrial tispite, Act, 1947 (‘Act’ for srt) at Annexure ‘D’, by which, the Labour Court d1rected the pati tioner to Pay to the resndent a sum of Rs.21,33634 PC, with interest at 6% p.a. from the date of the application under Section 33—0 (2) of the Act till the date of realisation. 2. Resrndent bad been working with the Ps ti tionrrCorporation since 1943 as a Sweeper, The petitionerCorporation sought to retire her from service, with effect from 3.12,1980 ie, R000rctLng to the petitioner, she would attain the age of superannuation, that is, 60 years as on that day. But, having regard to the entry in her service record, she, however, nte nded that she would at tai 11 the age of 60 years only on 3,12.1985. She filed a suit 0.S.No,5 1 45/80 in. the Munsiff Court, at Hubli, for declaration of her date of birth : 3 WP, No, 23856/90 ar for temporary injunction and in the meantime, obtained injunction from the Nunsiff Court, on the strength of which, she continued in service from 3. 12. 1980. The suit, however, came to be dismissed on 16.10,1982, Even then, she was retired from service only on 21.3.1983, In thLs background, she filed an alication under Sotion 33—0 (2) of the Lot claiming a sum of Rs.21,35634 PS, 3, The suit filed by the respondent having eventually been dismissed, for the PurPose of Pension, Gratuity etc., it must be taken that, she retired from service on 3.12.1980 on attaining the age of superannua tion. Her continuance in service from 3.12,80 up to 21,3.1983 was on account of her having ap’ oac bed the Civil Coor t az having obined an order of te mpor ar y injunction. The said services cannot be taken into consideration for any PIwPose, much less, for the purpose of computing Pension, Gratuity, leave encash ment ete, as claimed by the respondent, The Labour Court has grazted relief accepting her claim in its entirety, Having said so, it also needs to be stated that, the contention , * 4. - 4 WP,No,25856/90 of the Petitioner that 1 for the services rendered by the respondent during the period from 3.1241980 to 21.3.1983, she could not have been paid any wages, bcauser s he has failed to establish the date of birth as claimed by her and that, therefore, the wages paid during the said Period should be deducted, cannot be accepted, 1!’or whatever reason she might have been continued in service, the fact remains that, she had been regularly appointed ax had been working in the Corporation since 1943 aixl actually worked as Sweeper even during the Period from 3,12,80 to 21.3. 1983. Whatever Wages are paid to her during this period are wages paid for the work done. By no a tre tch o f iniagi nati on can an employer ask for its refund 1 a in the same way the employer cannot give back the tue anl energy sPent by the respondent in doing actual work The wages paid for the period from 5.12.1980 to 21.3.1983, therefore, are wages for the work done, and the petitioner cannot ask the respondent to refund the game, At the same time, the said period i.e. from 3,12,1980 to 21,3.1983,cannot be considered for any purPoses like computing 4 , 5. —: 3 :- VP.No.25856/90 the per md for Pension, gr atui ty, leave a noash- ment a tc. The Lab r Cour t erred in gr anti zig relief taking the said Period also as Part of the regular service. 14 Writ petition is partly allowed, Impugned order i5 set aside, Vliii e holding that the wagepaid to the respondent for the period from 3.12.1980 to 21,3.S98 carnot be asked to be refunded, the Labour Cotwt is directed to compote the amount due to the rae indent by way of Pension, Gratuity eta,, on the footing that, for the said purposes, respondent retired from service with effect from 3. 12.1980. The matter is, therefore, remi tte d to the Lab our C our t, Hubii, for fresh determination of respondent’s applica tion under Section 33—0 (2) of the Act in accordance with law and in the light of the discussions made above and the ad. usion reached above, Sd/ 3UDE I Ij, %i .__- Bk/