- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.784 OF 2004 IN WRIT PETITION NO.1110 OF 2002 ... Sushila T.Bhagat ...Appellant v/s. N.T.C. (M.N.) Ltd. ...Respondent AND APPEAL NO.785 OF 2004 IN WRIT PETITION NO.1109 OF 2002 ... Arvind Mahadeo Gharat ...Appellant v/s. N.T.C. (M.N.) Ltd. ...Respondent ... Mr.P.M.Patel for the Appellants. Ms.Vasanti G. Kander for the Respondent. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 26TH FEBRUARY, 2009 P.C.: 1. In both these Appeals, common order passed by the - 2 - learned single Judge dated 3-9-2004 in Writ Petition No.1109 of 2002 and Writ Petition No.1110 of 2002 is challenged. 2. The relevant facts are that two applications under Section 33C(2) of the Industrial Disputes Act, 1947 were filed before the Labour Court, Bombay. One was filed by Arvind Mahadeo Gharat, who is Appellant in Appeal No.785 of 2004 and other was filed by Sushila T. Bhagat, who is Appellant in Appeal No.784 of 2004. Mr.Arvind Gharat claimed that he was in the service of Kohinoor Mills. There was a general strike of Mill operatives from 18-1-1982. He did not join the strike. He was reporting for work. But he was not being provided with the work and therefore he is claiming wages from 1/1/1982 to 13-12-1995. In the application filed under section 33C(2) of the Industrial Disputes Act by Sushila, she claimed that her husband was in the employment of Kohinoor Mills. She also claimed that there was a general strike of Mill operative from 18-1-1982, but her husband did not join the strike. He was reporting for work, but the work was not given to him. Therefore, wages from 1983 to 1986 when her husband tendered resignation were claimed and bonus was also claimed. The Labour - 3 - Court allowed both the applications. 3. Feeling aggrieved by the orders passed under Section 33C(2) of the Industrial Dispute Act by the Labour Court, the employer filed two Writ Petitions in this Court, being Writ Petition No.1109 of 2002 and Writ Petition No.1110 of 2002. Both the petitions were decided by common order dated 3-9-2004 by the learned single Judge of this Court. Perusal of the order of the learned single Judge shows that according to the learned single Judge for holding that the Applicants before the Labour Court were entitled to the relief claimed by them, it was necessary for them to establish that generally all workers working in the Mills were on strike, they did not join the strike and that they were reporting daily for work, but they were not given work. Establishment of these facts is a condition precedent for them being entitled to the wages for that period. The learned single Judge relying on the judgment of the Division Bench of this Court in the case of Sadanand D. Phansekar & Ors. v/s. National Textile Corpn. (South Mah.) Ltd. & Ors., reported in 1997 II C.I.R. 801 held that as determination of these disputed facts were necessary, applications under - 4 - Section 33C(2) of the Industrial Disputes Act were not maintainable. 4. The learned Counsel appearing for the Appellants submitted that as the contract of employment between the employer and two applicants before the Labour court were intact, as termination of the services was not brought about, they were entitled to wages and therefore their applications under Section 33C(2) of the Act for determination of wages were maintainable. He relies on the judgment of the Division Bench of this Court in the case of N.T.C. v/s. Rohit Vasavda & ors. decided on 15-7-2003 in Appeal No.789 of 2000 and contended that the Division Bench has held that an application under Section 33C(2) of the Industrial Disputes Act is maintainable as contract of employment is not being disputed. 5. We have heard the learned Counsel appearing for the employer also. Perusal of the judgment of the learned single Judge shows that he has referred to the contentions urged on behalf of the Applicants before the Labour court. In our opinion, the learned single Judge has rightly observed that in order to establish their entitlement for the wages for the - 5 - period mentioned in their applications, it was necessary for the Applicants to establish that the workers did not join general strike and they were regularly reporting for work to the Mill and they were not given work. The learned single Judge has, therefore, relied on the judgment of the Division Bench referred to above in the case of Sadanand Phansekar, and in our opinion, has rightly held that where the court finds that the matter involves determination of rights and liabilities of the parties,inter se, or where the court finds the liability of the employer to pay wages is dependent upon the workman proving the conditions precedent to accrual of such liability, then application under Section 33C(2) of the Act is not maintainable. His remedy is to make reference under Section 10 of the Industrial Disputes Act or Section 78 of the Bombay Industrial Resolution Act. So far as the judgment of the Division Bench in the case of Rohit Vasavda relied on by the learned Counsel appearing for the Appellants is concerned, in that case it appears that it was not being disputed that the workers did not go on strike and they were reporting for work. It appears that it was an admitted position that the contract of employment was intact and only defence - 6 - raised was because of the operation of Section 25FF of the Industrial Disputes Act the termination of services was brought about. That contention was rejected by the court holding that because of operation of Section 25FF though the termination of services is brought about, the fact remains that the employees were in the employment and therefore Section 33C(2) application is maintainable. But in the present case, there is a dispute between the parties about the fact that the workers concerned had not gone on strike and they were reporting for work. Determination of these questions is necessary for recording a finding that they were entitled to wages. In our opinion, therefore, the learned single Judge was perfectly justified in holding that applications under Section 33C(2) were not maintainable. 6. In the result, therefore, both Appeals fail and are dismissed. No order as to costs. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)