-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No. 1007 of 1999 M/s Dave Brothers through their Proprietor having their shop at No.12 Chakala Street, Mumbai 400 003 ..Petitioner vs. 1. Shri Balu Sitaram Korde residing at R.No.11, Kamlabai Bhau Chawl, Majas Tekdi, Jogeshwari (E), Mumbai 400 060 2. Hon’ble 6th Labour Court 6th floor, Arun Chambers Tardeo, Mumbai 400 034 ..Respondents. Writ Petition No. 1830 of 1993 M/s Dave Brothers, Proprietor concerned, formerly carrying on business at 12, Chakla Street, Bombay 400 003 ..Petitioner vs. 1. Shri Balu S.Korde C/o Mulbai Kamgar Sabha Habib Mansion, Dr.Ambedkar Road, Parel, Bombay 400 012 2. Mr.B.A.Shelar Presiding Officer, 2nd Labour Court and Incharge 12th Labour Court, Bombay having his office and Court at Arun Chambers, Tardeo, Bombay 34 3. Mr.V.P.Karekar, Presiding Officer, 2nd Labour Court and office at Tardeo Arun Chambers, Tardeo, Bombay 34 ..Respondents Mr.R.A.Shaikh i/b M/s V.N.Golwala and Co. for petitioner -2- in both petitions. Mr.N.M.Ganguli for respondent no.1 in both petitions. CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI J. J. J. 4th June 2008 4th June 2008 4th June 2008 J U D G M E N T: J U D G M E N T: J U D G M E N T: 1. By this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 14th October, 1998 (Exh.E) in Application (IDA) No.154 of 1994 by which the Judge, 6th Labour Court, Mumbai directed the petitioner/original opponent to pay to respondent no.1/original applicant a sum of Rs.4,03,875.30 within one month from the date of the order. 2. It is not in dispute before me that this petition was admitted on 8th June, 1999. Interim stay in terms of prayer clause (b) subject to the petitioner paying to respondent no.1 a sum of Rs.1,02,000/- towards wages for the period from January, 1983 to October, 1993 was granted and hearing of the writ petition was expedited. Thereafter it appears that there was a delay in payment of the sum of Rs.1,02,000/- and by subsequent order time was granted to deposit in this Court a sum of Rs.1,10,000/- comprising of the amount of Rs.1,02,000/- and interest. 3. The petitioner deposited this sum. Ultimately, the petition was placed for hearing and final disposal but -3- none appeared before this Court on 22nd September, 2005 and, therefore, it was dismissed in default. By order passed on 7th April, 2008, in Notice of Motion No.100 of 2008, the petition was restored to file and that is how it is placed for hearing and final disposal before me. 4. The case of the respondent in the application is that he was employed by the petitioner. He was employed as a counter man from February, 1978. His monthly wages were Rs.335/- The present petitioner is a proprietary concern of one Vinodrai Narottamdas Goradia. He carries on business in the name and style of M/s Dave brothers. The business of the petitioner is of selling Handkerchiefs on wholesale basis. The petitioner had employed the respondent for about 5 years from February, 1978 till 7th February, 1983 on which date he issued notice terminating his services with effect from 9th February, 1983. In the notice, it was stated that that business of the petitioner was not sound financially and, therefore, he decided to wind up the same. The case of the respondent was that termination was malafide and colourable. The real reason for his termination is his taking part in the trade union activities. In such circumstances, the respondent raised the issue with regard to his termination. The dispute could not be resolved and conciliation officer reported -4- failure of negotiations. Thereupon the appropriate Government made a reference to the labour Court for deciding the issue as to whether the termination of the service was wrongful and illegal. The said reference (IDA) No.595 of 1983 was referred to 12th Labour Court and after a detailed hearing of the same, award came to be made on 26th February, 1992 in favour of the respondent workman. The learned Judge presiding over 12th Labour Court directed the petitioner to reinstate the workman with continuity of service and full back wages with effect from 9th February, 1983. The said Award came to be published on 6th May, 1992 and became enforceable after 30 days from the date of publication. 5. The respondent workman further contended that before the Award became enforceable the petitioner approached the Labour Court with an application for restoration on the ground that the Award was an exparte award. The application (Misc. Application) (IDA) No.79 of 1992 was placed before the Labour Court which temporarily stayed the execution of the Award. Thereafter, the workman appeared and contested the application. Ultimately, the application was dismissed. 6. The Writ Petition being Writ Petition No.1830 of 1993 -5- was filed in this Court by the petitioner to challenge the award as well as the order refusing restoration dated 8th September, 1993. The writ petition was placed before this Court on 15th October, 1993. The writ petition was opposed by the workman and though the petition was admitted, this Court did not grant any interim relief. 7. It is undisputed before me that this writ petition although admitted has been dismissed in default. No application for restoration has been made by the petitioner employer. 8. It is in these circumstances that the respondent workman in the application filed before the Labour Court under sec.33-C(2) of the Industrial Disputes Act, 1947 contended that neither there is reinstatement nor there is payment of back wages. In such circumstances, not only that claim but other benefits which follow the award of reinstatement with continuity of service must be granted. After setting out the relevant facts with regard to the benefits and other details, the respondent computed the sum of Rs.1,09,787.70 without any interest and that was a claim pertaining to his wages. However, he claimed interest thereon. Further, the respondent/applicant stated that the petitioner is a member of registered -6- association namely Bombay Wholesale Hosiery Merchants Association. The said Association has been entering into the periodic settlements directly with the Union, namely, Mumbai Kamgar Sabhya. This is a union of workmen employed in hosiery market. The respondent is a member of the Trade Union. He referred to two settlements dated 18th February, 1985 and 30th June, 1990. These settlements not only speak of rates of basic wages, increments and payment of dearness allowance but other service conditions in the market. It is in such circumstances that the workmen claimed benefits under the settlement and prayed that the same be computed and paid over to him. 9. Lastly, the respondent claimed wages under the Minimum Wages Act. It was urged that the wages paid to him were less than daily minimum wages. Further, there is wrongful termination. It is in such circunstances that the respondent/workman claimed the following sums. 1. Total payable under the market Settlement with interest towards Backwages, arrears of bonus and leave wages Rs.4,28,875.30 Less sum received Rs. 25,000.00 ------------------ 2. Total payable with interest towards backwages, bonus and leave wages dues under the provisions of the M.W.Act, -7- 1948 Rs.3,38,065,40 Less sum received Rs. 25,000.00 Balance Rs.3,13,065.40 --------------- This application was filed on 25th February, 1994. 10. After the notice was served on the petitioner, it filed the written statement. It is pertinent to note that there is no dispute with regard to the employment and quantum of wages namely Rs.335/- p.m. As far as the claims are concerned, the contention is that the company was not in sound financial condition and incurred losses and that is how the unit was closed with effect from 7th February, 1983 and the workman was informed accordingly. Thereafter, the proceedings before the Conciliation Officer are referred to and the reference leading to the Award of reinstatement and back wages. The claim of the petitioner employer was that his writ petition is still pending. That apart, it was contended that the workman was never employed as a counter man but only to do the job of carrying the goods of customers and bringing tea and snacks. This is unskilled work. Therefore, there is absolutely no substance in the claim of the workman as made with regard to any benefits. All contentions with -8- regard to the settlement and minimum wages were denied. It was contended that the respondent is not entitled to any sums much less those claimed from the date of award till the application dated 31st January, 1994. The written statement was filed on 29th October, 1994. 11. The labour Court recorded the examination in chief of the workman who stepped into the witness box. He has not only supported the claim but has produced the relevant documents. He has also produced the copies of the settlements which have been duly accepted. He also stated that the calculations made are as per the prevailing market conditions and terms of settlement. He confirmed the rates of wages. Thus, he proved the contents of the documents and his claim of Rs.4,03,875.30 as above. 12. The workman was cross examined and in cross examination the testimony in so far as the claim is not shaken at all. There is nothing with regard to existence of the settlements. The benefits claimed and assertion of the workman in that behalf together with the terms of settlement have remained uncontroverted. 13. Thereafter the petitioner stepped into the witness box and deposed in terms of its case in the written -9- statement. In the cross examination of the witnesses, in para 9 this is what is stated. "Our Handkerchiefs business is still going on but they are different companies. It is not true that the applicant reported for duties on several occasions. It is not true that we issued to him the notice through his Advocate. It is not true that we are paying wages to our workmen on par with the workers in other shops in Hosiery market. It is not true that the rates of wages payable to other shops in Hosiery Market are applicable to my shop. It is true that the applicant was paid one months’ wages as leave wages and also Bonus at the time of Diwali every year. It is not true that my statement that the applicant did not report for work, is false." 14. It is in the light of the material placed that the judgment came to be delivered on 14th October, 1998 accepting the claim of the respondent workman. In exercise of powers conferred by section 33-C(2) of the Industrial Disputes Act, 1947 the claim has been awarded in favour of respondent no.1. It is this order which is the subject matter of challenge in this petition. -10- 15. Mr.Shaikh, learned Counsel appearing for the petitioner, contended before me that the order is ex facie erroneous and unsustainable. He submits that the application though styled as one under sec.33-C(2) of the Industrial Disputes Act, 1947 could not have been entertained by the Labour Court at all. He submits that the remedy of the respondent workman, if any, was not to file this application and seek benefits which are not subject matter of the Award. He does not enforce the Award but filed the application seeking substantive relief. This is not something which flows from the Award. At the most he could have requested for issuance of the Recovery Certificate in terms of the Award. In such circumstances, the Labour Court erred in entertaining and allowing the application. 16. Even otherwise, according to Mr.Shaikh, the order passed by the Labour Court suffers from non application of mind. The learned Judge ought to have been aware of the fact that the Award directs reinstatement with back wages and continuity of service. The quantum of back wages is admittedly Rs.335/- p.m. That claim can arise only from the date of termination till the date of award and further until the application was made. Thus, only award benefits -11- could have been granted and that too for restricted period. Therefore, there could not have been any award or order in favour of the workman after the IDA reference was disposed of and in any event till the date of the present application, namely, 31st January, 1994. Therefore, all benefits which are granted in favour of the workman until 31st January, 1994 are incapable of being awarded and could not have been awarded in law. The order, therefore, is vitiated by error apparent on the face of record and deserves to be quashed and set aside. 17. On the other hand Mr.Ganguli, learned Counsel appearing for respondent no.1, supported the impugned order. He submits that the case of the workman falls within section 33-C(2) of the Industrial Disputes Act,1947. Mr.Ganguli submits that the said provision is a marked departure from sec.33-C(1). While section 33-C(1) speaks of an application to the appropriate Government by the workman or his assignee or his heirs for recovery of money due to him under a settlement or award, section 33-C(2) is distinct provision where the workman can apply for a direction to the employer to pay money or any benefits which are capable of being computed in terms of money due or as to the amount at which the benefits should be computed and such question has to be decided by the -12- Labour Court within a period not exceeding 3 months but in terms of the proviso, which time is capable of being extended. Thus, apart from the provisions of sec.33-C(1) itself being without prejudice to any other mode of recovery, section 33-C(2) is independent provision entitling the workman to receive the amount as stated therein. If any question arises, the same has to be decided by the Labour Court. Therefore, in the submission of Mr.Ganguli, there is no substance in the contention of Mr.Shaikh that the application was not maintainable. Further, there is no question of application being time barred in as much as the period of 3 months stipulated in the said provision is for the Labour Court to render its decision. That apart, the decision could be rendered after 3 months as is clear from the proviso. On facts, Mr.Ganguli submits that the writ petition is not an appeal. In limited jurisdiction of this Court it cannot reappreciate or reappraise the factual material and arrive at a different conclusion. The findings of facts are binding upon this Court unless they are demonstrated to be perverse. There is no perversity in the present case as consistent with the oral and documentary evidence, the claim has been granted. For all these reasons he submits that the writ petition be dismissed. -13- 18. It is not necessary to refer to section 33-C(2) or the ambit and scope of the said provision. By now, it is well settled that the labour Court while dealing with the application under sec.33-C(2) calculates the amount of money due to the workman from his employer. Further, the workman, if entitled to the benefits which can be computed or are capable of being computed in terms of the money, then, the said benefits can be granted to the workman. The respondent’s claim is on the basis of his existing right. It has come on record that he was employed in February, 1978 and worked till February, 1983. Further, the workman was awarded reinstatement and back wages in his favour. He made an application on the basis of not just award in his favour but claiming existing rights which accrue to him. The right is based on the fact that not only his termination is wrongful but although business has been continued he has not been reinstated in service. Thus, his claim for back wages so also benefits flowing from the settlement to which Union and the petitioner are parties must also be granted to him. His employment is thus continuing one and that is how the submission has proceeded. From reading of the admissions of the employer in the cross examination and more particularly the paras reproduced above, there cannot be any dispute that the business is continuing and has not been wound up. It is -14- not wound up. It is not permissible for the petitioner now to go beyond the award or the reasons which led to the same being rendered against him, more so, when he has not prosecuted the writ petition challenging the Award. The Award is final. Both sides should abide the award. Once the findings of fact which are rendered on the basis of the pleadings and oral and documentary evidence lead to the conclusion that the benefits claimed are capable of being computed in terms of money and granted to the workman, then, I see no reason to interfere with the same. 19. The Labour Court in para 18 of the impugned order has referred to the version of the petitioner employer. Further it has also referred to the submissions which have been canvassed on behalf of the petitioner. In para 11 of the order the Labour Court has referred to the documents which are filed. The issues have been framed consistent with the pleadings. Issue no. 1 has been answered in favour of respondent no.1 workman after discussing the entire evidence. In paras 13 to 15 of the impugned order oral and documentary evidence rendered on behalf of the workman has been referred to. In para 16 the entire version in the cross examination has been referred to. Thereafter the petitioner’s witness Gunwantrai Garodia’s testimony and deposition is referred to and dealt with. -15- To my mind, appreciation of this material is not something which cannot be done before this Court. There is no question of the learned Judge applying any legal principles either erroneously. He has not passed theorder in ignorance of the material produced. In the peculiar facts of this case what the petitioner calls upon this Court is to reappreciate the factual material. 20. Once the issue of maintainability of the proceeding has been answered against the petitioner, then, on merits of the claim of the workman the jurisdiction of this Court is extremely limited. The learned Judge in para 23 of the impugned order has referred to the aspect of maintainability as also the benefits and claims. The sum of Rs.4,03,875.30 has been awarded by taking into consideration the monthly charges. If the monthly wages at Rs.335/- are taken into account then the quantum will come to Rs.3,13,065.54 including leave wages and bonus. Thereafter the claim of minimum wages has been considered. The version of the petitioner that others were paid minimum wages has not been accepted. It has been observed by the learned Judge that deposition of the petitioner is false and not reliable. He has not produced anything to show that the workman was in unskilled category. He did not produce the appointment letter. He did not produce -16- other material to show that there are no claims of minimum wages by other employees. In para 24 onwards the version of the petitioner as far as other business is concerned. The case law is taken into account. All settled principles have been applied. 21. As observed above, this is not a matter where the finding of facts can be said to be perverse or vitiated by error apparent on the face of record so as to call for interference in writ jurisdiction. The impugned order does not suffer from non application of mind either. Once the claim is considered and granted on the basis of the material produced and if the order is consistent therewith, then, no interference in the extra ordinary, discretionary and equitable jurisdiction of this Court sunder Article 226 of the Constitution of India is permissible 22. Considering the conduct of the petitioner this is not a case for interference either. Accordingly, Rule is discharged. There will be no order as to costs. The costs of Rs.10,000/- deposited in this Court as condition for restoration of the petition be paid over to the respondent employee together with the other amounts which may have been deposited. Needless to state that disposal -17- of this writ petition does not prevent the respondent from initiating such proceedings as are permissible inlaw for recovery of sums which are due and payable to him save and except under the claims covered by the impugned order. All pleas and contentions of both sides in such proceedings are kept open. 23. At this stage Mr.Shaikh prays for continuation of the interim order for a further period of 4 weeks to enable the petitioner to challenge this judgment in appeal. Request is opposed by Mr.Ganguli vehemently. He submits that considering the conduct of the petitioner and that the petition was dismissed and restored lateron and now dismissed on merits this is not a fit case for continuation of the interim order. Taking into account that the petition has been pending in this Court from 1999 interests of justice would be subserved if interim order dated 8th June, 1999 is continued for a period of four weeks. Petition dismissed. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)