SCA/15463/2007 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15463 of 2007 With SPECIAL CIVIL APPLICATION No. 16252 of 2007 To SPECIAL CIVIL APPLICATION No. 16423 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 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 ? ========================================================= MORBI NAGAR PALIKA (NAGAR SEVASADAN) - Petitioner(s) Versus THE STATE OF GUJARAT & 172 - Respondent(s) ========================================================= Appearance : MR KIRTIDEV R DAVE for Petitioner(s) : 1,MR RAHUL K DAVE for Petitioner(s) : 1, Mr. Sunit Shah, GP with Ms. Sandhya Natani, AGP, Mr. Vinay Pandya, Mr. Amit Patel and Mr. Hukum Singh, AGPs for Respondent(s) : 1, None for Respondent(s) : 2 - 173. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 02/07/2007 ORAL JUDGMENT 1. Heard learned Advocate Mr. KR Dave for petitioner and Mr. Sunit Shah, learned SCA/15463/2007 2/31 JUDGMENT Government Pleader with Ms. Sandhya Natani, Mr. Vinay Pandya, Mr. Amit Patel, and Mr. Hukum Singh, Asstt. Gps for Respondent State Authority in this group of petitions. 2. In this group of petitions, petitioner, Morbi Nagarpalika has challenged the order passed by labour court, Rajkot in recovery applications filed under section 33-C-2 of the Industrial Disputes Act, 1947 (“ID Act, 1947” for short)dated 23rd February, 2007 wherein the labour court has determined amount of Rs.6000.00 (Rupees six thousand only) payable to each workman by the opponent – Nagarpalika under section 33-C-2 of the ID Act, 1947 by ordering the Nagarpalika to pay the said amount to each workman within thirty days from the date of receipt of said order. No order was made as to costs by the labour court. 3. Learned Advocate Mr. KR Dave appearing for petitioners in this group of petitions raised certain questions while challenging the orders in question. He submits that the recovery applications were filed by the respondent after a period of 10 years which is beyond the reasonable time and, therefore, labour court has SCA/15463/2007 3/31 JUDGMENT committed error in entertaining such application beyond the reasonable period. He submits that the respondents are having right to claim benefit but they should have to claim such right as early as possible within some reasonable period. He submits that labour court ought to have rejected the applications as time barred. He submits that labour court ought to have appreciated that the workmen are not entitled for benefit of the dress in cash. He submits that respondent workman has decided the figure of Rs.600.00 but on what basis, workmen reached to such figure, that has not been clarified by workman and labour court has also not appreciated that aspect. He submits that respondents were aware about their right to claim such benefit of dress allowance or dress but they remained silent and filed claim under section 33-C-2 of the ID Act, 1947 after a period of ten years and, therefore, labour court should have rejected all these applications on the ground that they are not filed within the reasonable period. In support of his submissions, reliance was placed by him on the following decisions : SCA/15463/2007 4/31 JUDGMENT (1) Civil Appeal NO. 723 of 1966 in case of State of Gujarat versus Patil Raghav Natha and others decided on 21.4.1969. (2) Civil Appeal N. 1239-1244 and 1245 of 2001 in case of SM Nilajkar & Ors. Versus Telecom, District Manager, Karnataka decided on 31.3.2003; (3) Civil Appeal NO. 1084 of 2006 in case of Pune Municipal Corporation versus State of Maharashtra & Ors decided on 26.2.2007; (4) Special Civil Application NO. 6415 of 2006 in case of Botad Nagar Palika versus General Secretary decided on 28.7.2006. 4. I have considered the submissions made by the learned Advocate Mr. Dave for the petitioners in these petitions. Relevant provisions of section 33-C-2 of the ID Act, 1947 are reproduced as under: “33C. Recovery of money due from an employer. - (1) xxx (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which SCA/15463/2007 5/31 JUDGMENT such benefit should be computed, then, the question may, subject to any rules that may be made under this A ct, be decided by such labour court as may be specified in this behalf by the appropriate Government within a period not exceeding three months. Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit. “ 5. In respect of the contention raised by the learned Advocate Mr. KR Dave for the petitioners about limitation or delay in filing of the recovery applications, plain reading of section 33C (2) of the ID Act, 1947 makes it clear that it is not prescribing any period of limitation as to within how much period, such application has to be filed by the workman. This law has been examined by the apex court in two decisions, one in case of Bombay Gas reported in AIR 1964 SC 752 and other in case of Central Bank of India reported in AIR 1964 SC 743 Both the decisions have been considered by this Court SCA/15463/2007 6/31 JUDGMENT in case of GSRTC versus KM Shah reported in 1998 II GLH 996 wherein this Court (Coram : Hon'ble Mr. Justice HL Gokhale,J.) has examined similar contentions raised by the learned Advocate Mr. Dave before this Court and same was rejected by this Court in the said decision. Therefore, considering the language of section 33C (2) of the ID Act, 1947 and also in view of the decisions referred to above, contention about limitation raised by Mr. Dave before this court cannot be accepted and same is required to be rejected as section 33C (2) Of the ID Act, 1947 is not providing for any period of limitation for filing of such application. The submission about filing of such application within reasonable period or within time limit would apply only to cases wherein power has to be exercised and not when the right is to be exercised by any workman, such question of reasonable period or limitation would not come in the way of workman in view of the language of section 33C (2) of the ID Act, 1947. If the employee is having any legal right which is not questioned or disputed by the employer, that each year, two pairs of dresses are available to SCA/15463/2007 7/31 JUDGMENT concerned employee and that dresses have not been made available by the employer to employee concerned, then, naturally, employee concerned is entitled for the benefit of two dress each year as not supplied by the employer. Petitioner has not disputed such right of the workmen herein. It is also not the case of the petitioner that from year 1982-83/1992-93, in any year, two pairs of dresses have been supplied and, therefore, claim of the workmen is false or incorrect. Before the labour court, vide Exh. 9/1, a Service Rules of the Nagarpalika - Staff Dress Rules were produced by the petitioner vide Exh. 22. Thereafter, workman was examined before the labour court vide Exh. 10 and vide Exh. 19, another witness for the petitioner was examined and labour court has considered that if the rules are providing for two pairs of dresses each year and not given by the petitioner and such right is also not challenged or disputed by the petitioner, then, it would crystalize the right of the workmen to claim and receive such benefit from the petitioner employer and, therefore, respondent workmen have proved pre-existing right to claim SCA/15463/2007 8/31 JUDGMENT and receive amount of dress which were not supplied by petitioner from 1982-83/1992-93. Such question was also examined earlier against the petitioner by the labour court in recovery application no. 330 of 1983 to 452 of 1983 wherein same question was examined by labour court and granted benefit in cash in favour of workmen concerned and that order was not challenged by petitioner before the higher forum. Thereafter, labour court considered the evidence which was produced by the respective parties before it and after considering the same, the labour court came to the conclusion while considering to be reasonable amount of two dresses, Rs.600.00, while computing benefits in terms of money looking to the nature of dress which is required to be supplied by the petitioner to male employee and female employee. Amount was suggested by witness for workmen in his evidence Rs.600.00 against which no objection was raised and no evidence contrary thereto was produced by the petitioner. Petitioner had not come forward before the labour court with the contention that amount of Rs.600.00 suggested by witness for workmen is SCA/15463/2007 9/31 JUDGMENT incorrect. On the contrary, witness for the petitioner had deposed in his cross examination that from 1982 to 1993, dress cloth was given to workmen but said witness was not prepared to produce record regarding receipt of dress to workmen before the labour court. It was admitted by said witness before the labour court that earlier, in view of non receipt of dress by the workmen, dispute was raised wherein orders were passed for depositing the amount in cash in lieu of the dress and in view of that, the contention raised by the petitioner before the labour court was rejected by the labour court and recovery applications were allowed by labour court by granting Rs.6000.00 for ten years period two pairs of dress per year dress in favour of each workmen and, therefore, according to my opinion, labour court has not committed any error in quantifying the amount of the benefit of dress at Rs.600.00 per year. In view of that evidence of the witness for the petitioner, contention of learned Advocate Mr. Dave that benefit cannot be converted or encashed in terms of money cannot be accepted by this court and same is therefore rejected by this court. SCA/15463/2007 10/31 JUDGMENT 6. The view taken by this Court in Gujarat State Road Transport Corporation versus Keshavlal Maneklal Shah reported in 1998 (2) GLH 996 as per relevant para 3, 4 and 5 is reproduced as under: “3 Mr Munshaw, learned counsel for the petitioner, submitted that the claim of the workman was a belated one and ought to have been rejected on the ground of laches. He relied upon the judgement of single judge of this Court (Calla, J.) reported in 1996 (2) GLH 161 in the case of ESI SCHEME v. NATWARLAL AMRUTLAL SHAH. In that case, the application for over time had been filed under section 33(C)(2) of the Act belatedly and there was a delay of 17 years in filing that application and no explanation was given for filing it except that the workman was not much educated and had no knowledge of law. That application had been entertained by the learned judge of the Labour Court and that order came to be quashed in the aforesaid judgement of the learned single judge. The learned judge held, "The proceedings under section 33-C (2) of the Industrial Disputes Act initiated in the year 1990 in respect of over time for the period from 1973 SCA/15463/2007 11/31 JUDGMENT to 1986 therefore should not have been entertained by the Labour Court merely because the Limitation Act is not applicable unlesss it could come to the conclusion that the delay has been reasonably explained." In the present case also the overtime for the period 1977-89 is sought to be claimed by filing an application in the year 1990. When one peruses the judgement of the learned single judge, there is a reference to the judgement of the Honourable Supreme Court in the case of Bombay Gas Company reported in AIR 1964 SC 752 and it is stated, "... support was sought to be taken from earlier decision of the Supreme Court in Bombay Gas Company's case [AIR 1964 SC pg.752] holding that the claim which was barred by time under the Payment of Wages Act can be made under section 33-C(2) of the I.D.Act. Thus this decision also does not lay down any such proposition of law that the case where no limitation is prescribed the party can approach or initiate proceedings under Section 33-C(2) of the I.D. Act at any time without explaining the delay." With due respect to my brother, he has not noted the observations made by the Hon'ble Supreme Court in para 13 of that judgement which reads as follows:- SCA/15463/2007 12/31 JUDGMENT "A claim under S. 33C(2) is a claim for wages within the meaning of the payment of Wages Act. It is, no doubt, somewhat anomalous that a claim, which would be rejected as barred by time if made under the Payment of Wages Act, should be entertained under S.33C (2) of the Act; but this apparent anomaly does not justify the introduction of considerations of limitation in proceedings under S.33C(2). It is necessary to bear in mind that though the legislature knew howthe problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting S.33C (2). The failure of the legislature to make any provision for limitation cannot be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under S.33C (2)."(underlining added) It is also material to note that in that very volume, the judgement of the Constitution Bench in the case of CENTRAL BANK OF INDIA V. P.S. SCA/15463/2007 13/31 JUDGMENT RAJAGOPALAN AIR 1964 SC 743 is also reported and in that judgement on page 752 the Hon'ble Supreme Court has stated on facts of that case and on law as follows:- "It is true that though the Sastry Award was passed in 1953 and the Labour Appellate Tribunal's decision was pronounced in 1954 and it became final on October 21, 1955, the respondents did not make their claims until 1962. We have had occasion in the past to emphasise the fact that industrial adjudication should not encourage unduly belated claims; but, on the other hand, no limitation is prescribed for an application under S.33C(2) and it would, on the whole, not be right for us to refuse an opportunity to the respondents to prove their case only on the ground that they moved the Labour Court after considerable delay." (underlining added) 4 The nature of these proceedings also came to be considered by the Hon'ble Supreme Court later on in Central Inland Water Transport Corporation Ltd. v. Workmen SCA/15463/2007 14/31 JUDGMENT reported in AIR 1974 SC 1604 where the Hon'ble Supreme Court held that these proceedings are in the nature of execution proceedings and the observations made in para 12 of the said judgement are as follows:- "A proceeding under Section 33C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money." None of these judgements are considered by the learned single judge and the view taken by him is exactly contrary to the long standing judgement of the Hon'ble Supreme Court in the cases of Bombay Gas Company & Central Bank of India (supra). The Labour Court exercising the jurisdiction under section 33-C(2) has to examine the claim of the workman on merits even though the application is filed after a considerable delay and the consideration of limiation and requirement of explaining the delay cannot be introduced therein. Recently, in the case of Bombay SCA/15463/2007 15/31 JUDGMENT Telephone Canteen Employees Association v. Union of India reported in 1997(2) LLJ 647 a Bench of the two Judges of the Hon'ble Supreme Court held that the Telecom Department was not an industry and on a Reference being made to a Bench of 3 Judges in the case of General Manager, Telecom v. Srinivas Rao reported in 1998 1 LLJ 255, the Hon'ble Supreme Court noted that the long standing judgement in the case of Bangalore Water Supply and Sewerage Board reported in 1978 1 LLJ 349 had not been considered by that Bench. The Hon'ble Supreme Court therefore held in Srinivas Rao's case that the judgement in the case of Bombay Telephone Canteen Employees' case cannot be treated as laying down correct law. In that case, the Hon'ble Supreme Court has observed as follows:- "It is needless to add that it is not permissible for us, or for that matter any Bench of lesser strength, to take a view contrary to that in Bangalore Water Supply case (supra) or to bypass that decision so long as it hold the field. Moreover, that decision was rendered long back nearly two decades earlier and we find no reason to think otherwise. Judicial SCA/15463/2007 16/31 JUDGMENT discipline requires us to follow the decision in Bangalore Water Supply case (supra)." 5 I am aware of the fact that I am sitting singly and the judgement of my brother in the case of ESI Scheme (supra) was rendered when he was sitting as a single judge. However, when the law laid down by the Hon'ble Supreme Court time and again is quite clear and those long standing judgements holding field are not considered in the ESI Scheme (supra) judgement, it will be within my jurisdiction to say so inasmuch as the law laid down by the Hon'ble Supreme Court binds the High Court under Article 141 of the Constitution of India. In the circumstances, it will have to be stated that the proposition laid down in the case of ESI Scheme (supra) cannot be treated as laying down the correct proposition of law. The order of the Labour Court cannot therefore be faulted for considering the belated claim of the respondent-workman.” 7. The view taken by the Division Bench of this Court (Coram : Hon'ble Mr. Justice M.S. Shah and Hon'ble Mr. Justice D.H. Waghela,JJ.) in SCA/15463/2007 17/31 JUDGMENT Lallubhai Bapubhai Parmar v. Panchmahals District Panchayat and another reported in 2005 (3) GLR page 1907 in para 8 is reproduced as under: “8. The only ground which has weighed with the learned Single Judge for allowing the petitions of the District Panchayat and setting aside the orders dated 29.9.2003 of the Labour Court is that there was no pre-existing right in favour of the workmen and, therefore, without any adjudication in a reference under Section 10(1) of the Industrial Disputes Act, the Labour Court could not have made any order for issuance of recovery certificates for benefits arising out of the Government Resolution dated 17.10.1988. The question of maintainability of the recovery applications would have been of any consequence and relevance only if the district panchayat had contended that the Government Resolution dated 17.10.1988 was not applicable to the district panchayat or that the workmen were not employed by the district panchayat for any activity like construction and maintenance. Apart from the fact that the district panchayat had not raised any such dispute in any previous round of litigation, the case of the district panchayat itself is that the Government Resolution dated 17.10.1988 is applicable to the appellant-workmen, but they were entitled to the benefits under the said resolution only with effect from 1.4.2000. Even according to the district panchayat, the workmen were paid the benefits under the said Government Resolution dated 17.10.1988 with effect from 1.4.2000 and the controversy between the parties, therefore, merely was whether the workmen were entitled to the benefits of the said Government Resolution for the period from 1990-91 to 1993-94 or any other period between 1990-91 and 31.12.1999. The pre-existing right of the workmen flowing from the Government Resolution dated 17.10.1988 was, therefore, not disputed. Since the said Government Resolution stipulated that in order to get the minimum of the pay-scale the workman should have completed atleast five years' service with minimum 240 days' service in each year as contemplated by Section 25B of the Industrial Disputes Act, 1947, such provision did not detract from the fact that the workmen had pre-existing right to get the benefit of the Government Resolution dated 17.10.1988 upon fulfillment of the requirements stipulated in the said Government Resolution. When the specific jurisdiction is conferred on the Labour Court for passing an order under Section 33C(2) in favour of the workmen for recovery of dues and such jurisdiction is conferred in order to provide expeditious and inexpensive remedy to the workmen, the very object of such expeditious and inexpensive remedy under Section 33C(2) cannot be defeated by holding that the Labour Court could SCA/15463/2007 18/31 JUDGMENT not have considered the question of implementation of the Government Resolution dated 17.10.1988 in case of the appellant-workmen without their first getting adjudication under Section 10(1) of the Act. The workmen were employed by the district panchayat way back in the year 1973. When the workmen completed five years' service with minimum 240 days' service in each year between 1973 and 1990 or similar inquiry would be made on the basis of such material as may be produced by the authorities before the Labour Court. Such inquiry does not require any adjudication of the question whether the Government Resolution dated 17.10.1988 was applicable to the district panchayat or whether the workmen were covered by the said Government Resolution, when admittedly the district panchayat itself has given the benefits of the said Government Resolution to the appellant-workmen, albeit with effect from a subsequent date and not from the date from which such benefits were claimed by the workmen. As per the settled legal position, Section 33C(2) is more comprehensive than Section 33C(1). Section 33C(2) applies not only to cases of settlement or award or cases under Chapter VA of the Act, but to other cases as well. By a process of computation or calculation to be applied by it, the Labour Court has to determine the amount due. We are, therefore, clearly of the view that the recovery applications filed by the appellant-workmen were certainly maintainable under Section 33C(2) of the Industrial Disputes Act, 1947 and that the applications were certainly not premature. Whether the workmen had filed second set of recovery applications even after receiving payments ? 8. In The Central Bank of India Ltd. v. P.S. Rajagpalan etc., reported in AIR 1964 Supreme Court 743, the apex court observed as under in para 15 and 16: “15. The legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted S. 33-A in the Act in 1950 and added S. 33-C in 1956. These two provisions illustrate the cases in which individual workmen can enforce their SCA/15463/2007 19/31 JUDGMENT rights without having to take recourse to S. 10(1) of the Act, or without having to depend upon their Union to espouse their cause. Therefore, in construing S. 33-C we have to bear in mind two relevant considerations. The construction should not be so broad as to bring within the scope of S. 33-C