IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 777 of 1990 to SPECIAL CIVIL APPLICATION No 780 of 1990 For Approval and Signature: HON'BLE MISS JUSTICE R.M.DOSHIT ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- NEEKEELON CRIMPERS Versus P S BALKRISHNAN & ORS. -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 777 of 1990 MR DG CHAUHAN for the Petitioner MR JJ YAJNIK for Respondents Nos. 1-4 -------------------------------------------------------------- CORAM : HON'BLE MISS JUSTICE R.M.DOSHIT Date of decision: 13/09/2004 COMMON ORAL JUDGEMENT All these petitions involve identical issues. Therefore, the petitions are decided by this common judgment. The petitioner in Special Civil Application No.777/1990, M/s.Neekeelon Crimpers, a partnership firm, challenges the common judgment and order dated 30th July, 1988 passed by the Labour Court, Bharuch in Recovery Applications Nos.584-A/1987, 585/1987, 586/1987 and 587/1987 and the order dated 30th May, 1989 made on Misc. Application No.14/1988. The petitioner in Special Civil Application No.778/1990, M/s.Deeceelon Crimpers, a partnership firm, challenges the common judgment and order dated 30th July, 1988 passed by the Labour Court, Bharuch in Recovery Applications Nos.588/1987 and 589/1987 and the order dated 30th May, 1989 made on Misc. Application No.16/1988. The petitioner in Special Civil Application No.779/1990, M/s.Deepak Industries, a partnership firm, challenges the judgment and order dated 30th July, 1988 passed by the Labour Court, Bharuch in Recovery Application No.582/1987 and the order dated 25th May, 1989 made on Misc. Application No.13/1988. The petitioner in Special Civil Application No.780/1990, M/s.New Deeceelon Crimpers, a partnership firm, challenges the common judgment and order dated 30th July, 1988 passed by the Labour Court, Bharuch in Recovery Applications Nos.583/1987 and.................................. No.15/1988. For the sake of brevity the petitioners in the present group of petitions are hereafter referred to as "the petitioner-firms". The petitioner-firms have their industrial establishments at A.2, 2501, G.I.D.C. Industrial Estate, Ankleshwar, Bharuch. The respondents - workmen were employed by the petitioner-firms as skilled labourers. The workmen approached the Labour Court, Bharuch under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act") for recovery of various amounts being the amount of overtime wages. Each workman claimed that while he was in service he was made to work overtime for 4 hours daily. Accordingly, each workman claimed overtime wages as under : ======================================================================== ================ Recovery Appn. Date of Name of the Period of Amount of Date of ---------------- filing workman overtime overtime termination Old No. New No. wages wages of service claimed claimed of workman JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ---- -------------------------------------------------------------------------- -------------------------------------------------------------------------- -------------------------------------------------------------------------- -------------------------------------------------------------------------- -------------------------------------------------------------------------- ------------------------------------------------------------------------- ------------------------------------------------------------------------ - ----------------------------------------------------------------------- -- ---------------------------------------------------------------------- --- --------------------------------------------------------------------- ---- -------------------------------------------------------------------- ----- ------------------------------------------------------------------- ------ ------------------------------------------------------JJJJJJJJJJJJ Special Civil Application No.777/1990 1383/86 584A/87 07-08-1986 P.S.Balakrishnan 19-01-1984 to Rs.24,016 32 01-10-1985 01-10-1985 ------------------------------------------------------------------------ ---------------- 1384/86 585/87 - do - Hansraj A.Yadav 08-08-1985 to Rs.95,129 78 - do - JJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ ------------------------------------------------------------------------ ---------------- 1385/86 586/87 - do - K.S.Venugopal 18-08-1985 to Rs.29,551 68 - do - 01-10-1985 ------------------------------------------------------------------------ ---------------- 1386/86 587/87 - do - M.C.Velayudhan 18-02-1982 to Rs.38,904 00 - do - JJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ ======================================================================== ================ Special Civil Application No.778/1990 1387/87 588/87 - do - J.K.Naiyar 01-03-1981 to Rs.80,668 00 - do - 01-10-1985 ------------------------------------------------------------------------ ---------------- 1388/87 589/87 - do - K.Gopinathan 01-07-1982 to Rs.51,294 64 - do - JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 01-10-1985 ======================================================================== ================ Special Civil Application No.779/1990 1380/86 582/87 - do - K.B.Ravi 01-02-1982 to Rs.58,386 00 - do - 01-10-1985 ======================================================================== ================ =================== EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE 1381/86 583/87 - do - O.S.Ramachandran 10-10-1982 to Rs.32,528 00 - do - 01-10-1985 ------------------------------------------------------------------------ ---------------- 1382/86 584/87 - do - Punju Patil 22-05-1984 to Rs.17,146 56 - do - 01-10-1985 ======================================================================== ======JJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ JJJJJJJJJJJJ JJJJJJJJJJJJJ The said applications were supported by the affidavit made by the concerned workman. The said applications were not contested by the petitioner-firms. In absence of contest by the petitioner-firms, the said applications were allowed by the impugned judgments. The petitioner-firms were ordered to pay to each workman the overtime wages claimed by such workman. Feeling aggrieved, the petitioner-firms preferred the above referred Misc. Applications for restoration of the Recovery Applications, under Rule 26(A) of the Industrial Disputes (Gujarat) Rules, 1966. According to the petitioner-firms the notices issued by the Labour Court were not received by the petitioner-firms. The petitioner-firms, therefore, could not appear before the Labour Court and contest the Recovery Applications. The Labour Court, having held that the notice issued to the petitioner-firms in each Recovery Application was duly received by the petitioner-firms, rejected the said applications for restoration of the Recovery Applications. Feeling aggrieved, the petitioner-firms have preferred the present petitions. The petitioner-firms have challenged the orders made on the Misc. Applications as well as on the Recovery Applications. Learned advocate Mr.Chauhan has relied upon the original records and has vehemently argued that the notices issued by the Labour Court did not mention the names of the petitioner-firms correctly. None of the petitioner-firms had received the notice issued in Recovery Applications. He has, therefore, submitted that the Misc. Applications ought to have been allowed by the Labour Court. The Recovery Applications ought to have been restored. The petitioner-firms ought to have been granted the opportunity of appearing before the Labour Court and of contesting the Recovery Applications. As to the service of the notice; except the bare statement made in the memo of the applications the petitioner-firms had led no evidence to prove that the notices issued by the Labour Court were not received by the petitioner-firms. The Labour Court has, after perusing the record and the acknowledgement receipts, recorded that the notice issued in each Recovery Application was received by the petitioner-firms. Nevertheless, the petitioner-firms did not appear before the Labour Court. The orders made by the Labour Court in Recovery Applications, therefore, cannot be said to have been made ex parte. In absence of any evidence led by the petitioner-firms before the Labour Court and in view of the finding of due service recorded by the Labour Court, the impugned orders made on Misc. Applications cannot be interfered with in the present petitions. The challenge to the orders of the Labour Court made on Misc. Applications should, therefore, fail. Mr.Chauhan has submitted that the orders made on the Recovery Applications are also not sustainable. He has read out the contents of the Recovery Applications filed before the Labour Court and has submitted that each workman had filed identical application for recovery of the amount of wages for the alleged overtime. He has submitted that there was no previous adjudication with respect to the workmen's right to receive such overtime wages. In absence of previous adjudication by the competent authority or by the competent court, the Labour Court, exercising power under Section 33C(2) of the Act, had no authority to entertain the said Recovery Applications and to allow the same. The impugned orders made on the Recovery Applications, therefore, be declared to be null and void. In support of this contention, Mr.Chauhan has relied upon the judgment of the Division Bench of this Court in the matter of Gujarat Water Supply and Sewerage Board & Anr. v/s. Ketanbhai Dinkarray Pandya [2003(3) GLR 2281]. In the said matter before the Division Bench, the workmen had claimed overtime wages. Considering the scope of Section 33C(2) of the Act and power of adjudication vested in the competent authority under the Minimum Wages Act, 1948 the Hon'ble Bench held that "the jurisdiction of the Labour Court under Section 33C(2) of the Act can be invoked only if it is found by the competent authority that the workman is entitled to receive money or any benefit which is capable of being computed in terms of money from his employer i.e. there should be prior adjudication by the competent authority or the Court." In view of the settled law that power of Labour Court under Section 33C(2) of the Act is that of a Court of execution, unless the right of a workman to receive money is determined as aforesaid, such money claim cannot be entertained or allowed in exercise of jurisdiction conferred by Section 33C(2) of the Act. The Labour Court, Bharuch has erred in relying upon the bare statements made by the workmen and in allowing the claim for overtime wages made by the workmen. In view of the above discussion, the petitions are partially allowed. The impugned judgments and orders dated 30th July, 1988 passed by the Labour Court, Bharuch in Recovery Applications Nos.582/1987 to 589/1987 are quashed and set aside. The said Recovery Applications stand rejected. Rule nisi issued in each petition is made absolute to the aforesaid extent. The parties shall bear their own cost. The Registry shall maintain copy of this order in each petition. ( Ms. R.M.Doshit, J. ) /sakkaf