1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2805 OF 2008 Maharashtra State Co-operative Cotton Growers Marketing Federation Limited and others ..Petitioners. Vs. Baburao Ganpat Sonwane ..Respondent. .... Mr. Jayesh Desai i/b M/s. Desai & Desai Associates for the Petitioners. Ms. Ketaki Rege for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 23rd April, 2008. P.C. : 1. Rule, made returnable forthwith. Counsel appearing for the Respondent 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 on 13th December, 2007 in proceedings under Section 33-C (2) of the Industrial Disputes Act, 1947. The Petitioner is a co- operative society registered under the Maharashtra Co-operative 2 Societies Act, 1960 and is engaged in the activity of procuring, processing and marketing of cotton. The Respondent was working as a seasonal clerk and joined the administrative office on 6th September, 1996. On 28th January, 1997 there was a theft in the godown following which a police complaint was lodged. The Respondent was terminated from service on 3rd February, 1997. A charge-sheet was issued to the Respondent on 26th September, 1997 and the Enquiry Officer came to the conclusion that the Respondent was guilty of the charges levelled against him. A punishment of a stoppage of two increments was imposed. The punishment which was imposed on the Respondent was not assailed by him and attained finality. On 7th September, 1999 the Respondent requested the Petitioner to consider engaging his services and on 1st November, 1999 the Petitioner engaged the Respondent as a seasonal clerk. A scheme for voluntary retirement was propounded by the Petitioner in pursuance of which the Respondent applied for and obtained voluntary retirement some time in 2004. The Respondent thereafter filed an application under Section 33-C(2) for the recovery of his backwages for the 3 period between 4th February, 1997 (the date on which the initial order of termination was passed) and 30th October, 1999 (the date on which the First Respondent was reinstated). A claim of Rs.1.75 lacs was made by way of backwages besides which there was a claim on account of compensation and reimbursement of legal fees. 3. The Petitioner filed a written statement and in paragraph 2 thereof the maintainability of the application was questioned on the ground that the Respondent had accepted voluntary retirement under a scheme introduced by the Petitioner on 8th April, 2004 in pursuance of a Government Resolution dated 25th February, 2004. A defence was raised to the effect that Clause 17 of the scheme specifically bars employees of the Petitioner from instituting any proceedings for the recovery of monies / compensation. The Respondent having accepted voluntary retirement it was asserted that Clause 17 would bar an application for the recovery of backwages for the period prior to the cessation of service. 4 4. The Labour Court has allowed the application in part by an order dated 13th December, 2007, holding that the Petitioner is liable to pay an amount of Rs.1.75 lacs together with interest at the rate of 6% per annum from 7th December, 2004 towards backwages. 5. On behalf of the Petitioner it has been asserted that Clause 17 of the scheme for voluntary retirement would clearly bar any claim on the part of the Respondent towards payment of backwages during the period between 3rd February, 1997 and 1st November, 1999. It was submitted that Clause 17 stipulated that employees who took the benefit of the scheme for voluntary retirement would not be entitled to assert any other right through a proceeding before the Court of law; nor would be they entitled to any measure of compensation other than what was provided in the scheme. Learned counsel urged that having regard to this defence, an application under Section 33-C(2) of the Industrial Disputes Act, 1947 which was in the nature of a summary remedy was not maintainable since the claim of the Respondent would 5 require adjudication. On the other hand it has been urged on behalf of the Respondent that from 5th May, 2001 the Respondent had by several letters agitated his claim for the payment of backwages and the Petitioner having reinstated the Respondent in service, there was no warrant or justification to withhold the payment of backwages. 6. Having heard the learned counsel appearing for the parties, I am of the view that there is merit in the submission which has been urged on behalf of the Petitioner. An application under Section 33-C(2) of the Industrial Disputes Act, 1947 is maintainable where a workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. It is settled law that the remedy under Section 33-C(2) is summary in nature where there is an existing right to receive any money or benefit from the employer. In the present case the Respondent accepted voluntary retirement. The claim for backwages for the period between the date of termination and the date of reinstatement was according to the employer barred by 6 Clause 17 of the scheme for voluntary retirement. The defence that the application under Section 33-C(2) would not be maintainable was specifically raised in the written statement. The Labour Court was manifestly in error in overlooking the provisions of the scheme and in not appreciating the legal position in relation to the interpretation of Section 33-C(2). Clearly the dispute raised by the Respondent requires adjudication and would lie outside the jurisdiction of the Court under Section 33-C(2) of the Industrial Disputes Act, 1947. In the circumstances, the Petition will have to be allowed and is accordingly allowed. The order passed by the Labour Court on 13th December, 2007 shall stand quashed and set aside and application (IDA) 456 OF 2004 shall accordingly stand dismissed. However, while doing so, it is clarified that it would be open to the Respondent to raise a demand for a reference to adjudication under Section 10 of the Industrial Disputes Act, 1947. Nothing contained in this order shall be construed as any observation either in regard to the maintainability of such a demand for reference or for that matter in regard to the merits of the rival contentions between the parties. 7 7. All the defences of the Petitioner in respect of any demand that may be raised including on the question of delay are kept open. The Petition shall stand allowed accordingly. There shall be no order as to costs. *****