IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9755 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE RAVI R.TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- KADI MUNICIPALITY Versus PUSHPABEN J DESAI -------------------------------------------------------------- Appearance: MR DIPAK R DAVE for Petitioner No. 1 MR DJ BHATT for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE RAVI R.TRIPATHI Date of decision: 21/01/2002 ORAL JUDGEMENT Rule. Mr.D.J. Bhatt, learned advocate waives service of rule. 2. The present petition is filed by Kadi Municipality challenging the order passed by the Labour Court, Kalol in Recovery Application No.197 of 1997 dated 2.6.2001. The respondent workman filed a recovery application claiming that the petitioner be paid an amount of Rs.9350.05 paise which is wrongly deducted from the legally payable amount to the workman as the amount for overtime wages. He also claimed that he should be paid an amount of Rs.7632.85 paise which too is wrongly deducted from the amount payable to the petitioner towards the amount payable on account of additional charge held by the respondent workman. It is the case of the petitioner that these amounts are deducted from the difference of pay payable to the respondent workman on account of new Pay Commission and the amount of gratuity. The respondent workman has also prayed for retrenchment compensation for his service of 28 years including one month's notice amounting to Rs.43,999/- and difference of gratuity amount of Rs.7302/-. The total of these amounts comes to Rs.68,274.90 paise. The learned Judge though was conscious of the scope of the application under section 33(C)(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") came to the conclusion that so far as the amount of gratuity, i.e. Rs.7302/- is concerned the respondent workman is required to make an application to the appropriate authority under the Payment of Gratuity Act. The learned Judge also held that so far the retrenchment compensation is concerned the respondent workman is not entitled to that. But so far as the other two amounts, i.e. Rs.9350.05 paise and Rs.7632.85 paise which are deducted by the petitioner Municipality from the legally payable amount which admittedly was that of the gratuity is wrongly deducted by the Municipality. The amount of Rs.9350.05 paise was the amount which was already paid to the respondent workman as overtime wages. But the petitioner Municipality's case is that it was wrongly paid as noted in the auditor's report. So far as the amount of Rs.7632.85 paise is concerned the same was paid towards additional charge allowance and that was also wrongly paid as noted in the auditor's report. The learned Judge though conscious that if towards gratuity any amount is less paid, an application agitating such grievance cannot be entertained by the Labour Court under section 33(C)(2) of the Act and an application under Payment of Gratuity Act is required to be filed. The learned Judge came to the conclusion that as the amount already paid to the respondent workman is sought to be recovered, he ordered payment of these two amounts in an application under sec.33(C)(2) of the Act overlooking the fact that the net effect was the gratuity amount otherwise payable to workman was paid less. 3. The learned Judge erred in overlooking the aspect of the matter that the amount which was payable to the respondent workman was nothing but the gratuity amount and from that amount if any amount even assuming that it is wrongly deducted, a complaint would lie to the Gratuity Authority. In those proceedings petitioner Municipality will have an opportunity to plead that it had valid reason to deduct the same. 4. In view of the aforesaid discussion the impugned judgement and award of the Labour Court, Kalol (N.G.) is hereby quashed and set aside. It is made clear that if the respondent workman has any grievance, he can agitate the same before appropriate authority under the Payment of Gratuity Act. 5. The petition is allowed. Rule is made absolute. No order as to costs. (Ravi R. Tripathi, J.) karim