Gujarat High Court
Pravin Valya Malavkar vs M/S Srini Link on 17 April, 2025
NEUTRAL CITATION
C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12033 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13420 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13442 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13428 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13271 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13818 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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PRAVIN VALYA MALAVKAR
Versus
M/S SRINI LINK
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Appearance:
THAKKAR AND PAHWA ADVOCATES(1357) for the Petitioner(s)
No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 17/04/2025
COMMON ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Dipak Page 1 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025 NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined Dave waives service of rule on behalf of the respondent.
2. As the issues involve in all matters are identical, hence, this Court has decided by this common oral judgment.
3. This petition is filed under Articles 226 and 227 of the Constitution of India challenging the order passed by the learned Presiding Officer dated 01.01.2022 rejecting the application filed under Section 33(C)(2) of the Industrial Disputes Act, 1947 claiming the benefits of Minimum Wages Act as well as the leave encashment and bonus pursuant to the award passed by the learned Labour Court in Reference (LCV) No.504 of 2002 dated 18.02.2015.
4. It is the case of the present petitioner that the petitioner was terminated from the post of Operator by the respondent and challenging the termination, the dispute was raised, which was registered being a Reference (LCV) No.504 of 2002. The said reference was awarded in favour of the present petitioner by granting the relief of reinstatement with full back wages and continuity of service. Challenging the above award, the respondent has filed the petition before this Court being Special Civil Application No.21660 of 2016, wherein this Court has partly Page 2 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025 NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined allowed the petition by modifying the back wages to the extent of 50% vide order dated 22.09.2017. It was observed by this Court that if the respondent would enter into further litigation then the concession, which was given for 50% back wages, would not bind to the petitioner and it was directed to pay the said back wages within a period of 3 months from the date of order, the amount towards the back wages were paid by calculating the last drawn wages to the petitioner, which was accepted on 21.01.2017. It appears from the record that petitioner, on receiving the wages, has claimed the minimum wages along with the leave encashment and bonus, which has not been paid by the respondent. Learned Labour Court, Valsad has rejected the said application on the ground that the back wages is paid according to the last drawn wages and in absence of any specific directions with regard to the payment of minimum wages as well as the leave encashment and the bonus, no relief can be granted in favour of the petitioner by exercising the power under Section 33(C)(2) of the I.D. Act. The said order is subject matter of challenge before this Court.
5. Heard learned advocate Ms. Pahwa for the petitioner and Page 3 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025 NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined learned advocate Mr. Dave for the respondent.
6. Learned advocate Ms. Pahwa submits that the learned Labour Court has committed an error by refusing the payment of minimum wages. It is submitted by the learned advocate Ms. Pahwa that payment of minimum wages is the Constitutional right and any amount, which is paid less than minimum wages, would breach of Article 23 of the Constitution of India. However, learned Reference Court relying on the Section 17-B, which is enacted with different object, refuse the prayer made by the present petitioner. Learned advocate Ms. Pahwa submits that so far as the leave encashment is concerned, the petitioner has provided the calculation, wherein it is calculated, as per 30 days leave per year and during the cross examination of the witness of respondent, it is admitted that they are granting 15 to 16 days leave in each year. Learned advocate Ms. Pahwa submits that learned Labour Court ought to have granted leave encashment, which is admitted by the respondent during the cross examination, however, by discarding the admission, in the cross examination, learned Labour Court has passed an order. Learned advocate Ms. Pahwa further submits that so far as the bonus is Page 4 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025 NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined concerned, the petitioner has established his claim by producing the calculation, wherein 20% bonus, which is claimed. However, during the cross examination, again the witness has admitted that the bonus at the rate of 8.33% has been granted to the workman. Learned advocate Ms. Pahwa submits that instead of granting the said bonus at the rate of 8.33% which is admitted by the witness of respondent, learned Reference Court has concluded the proceedings against present petitioner. Learned advocate Ms. Pahwa submits that learned Reference Court has assigned the reasons that petitioner did not establish his claim by producing any cogent evidence. Learned advocate Ms. Pahwa submits that when the claim was admitted by the respondent during the cross examination, no other evidence is required, however, without having considered the same, learned Labour Court has dismissed the recovery application and therefore, the same is required to be interfered with and the petition is required to be allowed.
7. Per contra, learned advocate Mr. Dave submits that as far as the minimum wage, which is claimed by the present petitioner, is concerned, the same is covered by the decision rendered by this Page 5 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025 NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined Court in Special Civil Application No.17361 of 2024, wherein this Court relying on the decision rendered by the Hon'ble Supreme Court in the case of Dena Bank V/s. Kiritkumar T. Patel reported in 1998 AIR SC 511, has dismissed the claim, which was raised in the jurisdiction of Section 33(C)(2) of the I.D. Act. Learned advocate Mr. Dave submits that with regard to the leave encashment and bonus relief which is prayed, there is no specific directions issued by the learned Labour Court while awarding the reference in favour of the present petitioner. Learned advocate Mr. Dave submits that in absence of granting consequential benefits, relief of leave encashment as well as the bonus cannot be granted in favour of the present petitioner. Learned advocate Mr. Dave submits that there are separate criteria for which bonus is to be claimed and in non-compliance of the same, authority can adjudicate the claim, however, while exercising the power under Section 33(C)(2), learned Labour Court has rightly refused the claim made by the petitioner and therefore, no interference is required and the present petition deserves to be dismissed.
8. Having considered the arguments advanced by the learned advocates for the parties and on referring the reasons assigned Page 6 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025 NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined by the learned Labour Court while rejecting the application filed under Section 33(C)(2), it emerges from the record that the award was passed in favour of the present petitioner granting the relief of reinstatement on 18.02.2015. On referring the said award, the learned Reference Court has granted the continuity of service and 100% back wages. The said award was carried before this Court by filing this petition being Special Civil Application Nos.21660 to 21665 of 2016, wherein this Court, vide common order dated 22.09.2017, has altered the back wages to the extent of 50%. In view of the consent given by the workman, it is observed that the said 50% back wages is to be paid within a period of 3 months and if workman would be dragged into further litigation by the employer then the said concession would not bind to them. It is undisputed fact that the award passed by the learned Reference Court, which is modified by this Court, was fully complied and the reinstatement along with 50% back wages was paid to the petitioner by issuing the cheque dated 21.11.2017, which was encashed by the petitioner. Thereafter, the claim was raised with regard to the minimum wage, leave encasement and the bonus before the learned Labour Court by filling the application under Section 33(C)(2) of the Industrial Page 7 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025 NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined Disputes Act. It is also not disputed by the petitioner that while granting the relief of reinstatement, the learned Reference Court has not directed to give the consequential benefits, neither has specified that the back wages is to be paid as per the Minimum Wages Act. In absence of any directions, the payment of back wages was paid calculating the last drawn wages when the petitioner was terminated from the service. 8.1. This Court has referred the decision rendered in Special Civil Application No.17361 of 2024, wherein following observations are made.
"7. It is undisputed fact that the last drawn of the present petitioner was of Rs.4,420/- and considering the 25% back- wages for two years the amount of Rs.26,520/- along with cost of Rs.2,500/- was paid, in all the petitioner has received an amount of Rs.29,020/- from the respondent through the cheque. The petitioner has claimed certain benefits including the leave encashment, raise in the salary and minimum wages. It transpires from the record that there is no any award passed by the learned Labour Court directing the respondent to pay above wages, which was claimed.
8. At this stage, it would also be apt to take note of the recent pronouncement of the Apex Court in the case of Bombay Chemical Industries v. Deputy Labour Commissioner reported in (2022) 5 SCC 629. The relevant paragraphs are quoted as under.
"As per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen.Page 8 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025
NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. (supra), the labour court's jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See Municipal Corporation of Delhi Vs. Ganesh Razak and Anr. (1995) 1 SCC 235)." (Para
8) "In the case of Kankuben (supra), it is observed and held that whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C (2) of the ID Act. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a preexisting benefit or one flowing from a preexisting right.
The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C (2) of the ID Act while the latter does not." (Para 9) "Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his Page 9 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025 NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined right crystalized and/or adjudicate upon." (Para 10)
9. As there was no any pre-existing right established by the present petitioner, this Court is of the view that no error has been committed by the learned Labour Court in rejecting the application filed by the present petitioner. The decision which was relied by the learned advocate in the case of K.S. Ravindran (Supra), where there was a case, when the learned Labour Court has dismissed the reference seeking reinstatement with full back-wages and the learned Single Judge of the concerned High Court has allowed the reference by granting benefit of 25% back-wages, which was altered by the Division Bench in intra-appeal to stoppage of increment for a period of three years with cumulative effect and the same was under challenge before the Apex Court, wherein the Apex Court has awarded the relief of reinstatement along with 50% back wages. While granting the relief the Apex Court has relied on the judgment in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324 and has observed that when the termination was held illegal, the employee would entitled for the back -wages. "
8.2 In the instant case also in absence of any directions, learned Labour Court, while exercising the power under Section 33(C)(2), has justified in declining the claim of the petitioner for minimum wages. The other claim with regard to the leave encasement and the bonus was made by interpreting the relief of continuity of service, which is granted by the learned Labour Court. This Court is of the view that the leave encasement as well as the bonus, even if the said relief is to be given, then it would be granted at the time of retirement, but not by interpreting the award that is in terms of continuity of service, as no relief of consequential benefit is granted by learned Reference Court.Page 10 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025
NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined 8.3 This Court has also clarified that difference between the relief of continuity of service and consequential benefits in the case of Divisional Controller Shri Gujarat State Road Transport Corporation V/s. The president, Vinayak Karmachari Mandal, wherein this Court has observed as under:
"11. Considering the above law, this Court is of the view that the continuity of service includes the period of time when the employee has worked including the paid or unpaid leave that count as a service. The meaning of consequential benefitsis that by granting the benefits, the respondent would entitle for the monetary benefits that may be awarded by employee in certain circumstances such as back wages, reinstatement, increments and seniority and other terminal benefits. By awarding relief of consequential benefits, intention of the Court would be that the employee would be treated as if they were never terminated and they are still in the service, learned Labour Court has held that the respondent would entitle for the benefit of time-scale on completion of period of 5 years from the date of his appointment without considering the fact that he did not serve for the period of 10.06.2011 to 02.05.2015. The absence of any direction to grant the consequential benefits by learned Labour Court while awarding the reference in favour of the present respondent, this Court is of the opinion that learned Labour Court has committed error by giving above direction and therefore, the same is required to be set aside.
12. There is a distinction between the order of reinstatement accompanied by simple direction for continuity of service and direction where reinstatement is accompanied with a specific relief that employee shall be entitled to all consequential benefits which necessarily flows from reinstatement or accompanied by specific direction that an employee shall be entitled to the benefit of increments during the period of absence. In absence of relief of consequential benefits learned labour court has erred in interpreting the award of Page 11 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025 NEUTRAL CITATION C/SCA/12033/2022 JUDGMENT DATED: 17/04/2025 undefined continuity of service by granting the benefit of time scale from date of his initial appointment discarding the period from 10.06.2011 to 02.05.2015. It is true that continuity of service is a normal rule when the court has reintsated. However, in absence of the relief of consequential benefits counting the service from his date of appointment for the time scale of pay in the opinion of this Court misinterpretation of the award, therefore, the respondent would be entitled for the benefit of time scale in accordance with the rules wherein, it is provided that on completion of actual service he would be entitled for the benefit of time pay scale subject to fulfilling of other conditions. In view of the above, impugned award passed by the learned labour court deserves to be set aside."
9. In view of the above, this Court is of the view that the learned Labour Court is justifying in denying the relief, which is prayed by the present petitioner in application under Section 33(C)(2) of the I.D. Act, hence these petitions deserve to be dismissed.
10. Resultantly, These petitions are dismissed. Rule is discharged.
(M. K. THAKKER,J) Vikramsinh Amarsinh Page 12 of 12 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:22 IST 2025