Parekh And Co. vs S.M. Valvi And Ors.
2003 Latest Caselaw 666 Bom

JUDGMENT

1. Heard learned Advocates for the parties. Perused the records.

The petitioner challenges the order passed under Section 33(1) of the Industrial Disputes Act, 1947 (hereinafter called as "the said Act") and the certificate of recovery issued pursuant thereto on 16-11-2002. The first ground of challenge relates to non-consideration of the issue of non-maintainability of the application under Section 33(1) as the application was filed on 4-7-2001 in relation to the execution of the award passed in 1993 and clarified in 1996. Second ground of challenge relates to failure of the authority to consider the objection to the maintainability of the proceedings under Section 33(1)) of the said Act in view of the bona fide dispute as regards the entitlement of the workmen to the amount claimed as due and payable to them under the said application. The third ground of challenge relates to the absence of power to the concerned officer to pass the impugned order on the day on which it was passed. Reliance is sought to be placed in the decision of the Division Bench of the Delhi High Court in the matter of Colcom Plastic Ltd, and Ors. v. Union of India and Ors. reported in 1997(1) CLR 744. On the other hand, the impugned order is sought to be justified on the ground that the same is passed after considering all the objections which were sought to be raised and that the same has been clarified by the Assistant Labour Commissioner in his affidavit filed on 20.1.2003. Reliance is placed in the decision of the Apex Court in the matter of Fabril Gasosa and Anr. v. Labour Commissioner and Anr., reported in 1997(1) CLR 589 contending that the objections which were sought to be raised were merely in relation to the calculations in respect of amount due and payable under the award and that therefore, Assistant Labour Commissioner had jurisdiction under Section 33(1) of the said Act to deal with the same and that there were no other objections raised by the petitioner. The respondents' further contention is that the provisions of law contained in Section 33(1) of the said Act nowhere prohibit the authority to ascertain as to whether the objections are bona fide or not and also to deal with the same if the same relate merely to calculations of the amount due in terms of an award or other instrument. Attention is also drawn to the order passed by the learned single Judge of this Court in Writ petition No. 796 of 2003 on 17-4-2003 wherein certain observations were made against the same Assistant Labour Commissioner in relation to another order passed by the same officer.

2. As regards the first ground of challenge that the authorities could not have entertained the application, the same having been filed beyond the period of one year as prescribed under first proviso to Section 33C(1), it is the contention of the learned Advocate for the petitioner that admittedly, the amount due is from 1985 and in terms of the award it could be said that the amount became due within a period of one year from the date of award and admittedly the award was passed in 1993 and further clarified in 1996 and therefore, the application, if any, could have been filed latest by 1998 and having not done so, it was clearly barred under the proviso to Section 33C(1) of the said Act. On the other hand it was sought to be contended that the award once passed will remain in force till it is set aside and since the award was not executed till April-2002 it cannot be said that the application was beyond the period of limitation prescribed under the first proviso.

3. The first proviso to Section 33C(1) read thus :--

33-C. Recovery of money due from an employer. -- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter V-A or Chapter V-B], the workman himself or any other person authorised by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue :

Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer.

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

4. The proviso above quoted clearly discloses that the application under Section 33C(1) of the said Act has to be filed within a period of one year from the date on which the money becomes due under the award. The expression "the money became due" would apparently disclose that it relates to the amount becoming due in accordance with the settlement or the award referred to in the main body of Sub-section (1) of Section 33C. The proviso being always to be understood as either as exception or explanation to the main body of the section and the main body of the application relates to the right of the workmen to approach the authority for obtaining a certificate for the purpose of recovery of the amount due to him under a settlement or award or under the provisions of chapter V(a) or V(b), whenever claim would be under an award, the amount will have to be considered as having become due under such award on the day the award is pronounced or made known to the parties and therefore, the period specified under the proviso as "within one year from the date on which the money become due" has necessarily to relate to the date or period fixed for payment under such award and in the absence of fixation of such date or period the date of such award under which amount becomes due. Being so, in the case in hand, amount had become due pursuant to the award in 1993, however, award required further explanation and the same was obtained in the year 1996. The application under Section 33C(1) could have been filed within a period of one year from the date of such explanation. Admittedly, such application was filed much after the said period. However, merely because application is filed beyond such period, it cannot be said that the workmen's claim for recovery certificate and consequently for recovery amount due to him or them would stand defeated.

5. Infact the said Act clearly empowers the authority to entertain such application even after the expiry of the period of one year. Undoubtedly while entertaining such application, the authority must be satisfied about the fact that the applicant has sufficient cause for not making the application within the period of one year. As the law prescribes specific period of limitation for entertaining the application under Section 33C(1) of the said Act and a discretion has been given to the authority to entertain such application even beyond such period, but subject to satisfaction about the sufficient cause for the applicant for not making the application within prescribed period, needless to say that such discretion has to be exercised judicially by the authority. When the authority is expected to exercise its discretion judicially, it has necessarily to apply its mind to the materials placed on record disclosing the sufficient cause for not filing such application within the specified period. Obviously, therefore, it, would be obligatory upon the applicant to place on record sufficient materials which can disclose sufficient cause for the delay in filing such application. In the absence of statutory provision in that regard, such materials need not necessarily be in the form of application for condonation of delay but even in some other form including mere affidavit or some other material which can satisfy the authority about the sufficiency of cause for delay in approaching the authority under Section 33C(1) of the said Act. However, the authority is expected to disclose the exercise done by the authority to ascertain as to whether sufficient cause is disclosed by the applicant or not in the order to be passed while entertaining such application under Section 33C(1) of the said Act. In other words, the fact that the authority has applied its mind to the materials disclosed by the applicant, must be revealed from the order on the face of it. In case the order fails to reveal such exercise by the authority, then it cannot be sought to be explained by way of an affidavit.

6. In the circumstances, therefore, the petitioner is justified in contending that the authority below has passed the impugned order without application of mind to the issue of limitation and without ascertaining as to whether the respondent No. 3 had disclosed sufficient cause for delay in approaching the authority under the said provisions of law.

7. As regards the second ground of challenge which relates to non consideration of the objections raised by the petitioner, the contention of the learned Advocate for the petitioner is that the authority has passed the older merely on the basis of the claim put-forth by the respondent No. 3 totally ignoring the objections which were raised by the petitioner. Whereas according to the respondent the authorities have duly considered the objections, and bare reading of the impugned order reveals that the authority has applied its mind to the objections sought to be raised on behalf of the petitioner. Undoubtedly, though the learned Advocate for the petitioner submitted that the petitioner had raised various objections to the application filed by the respondent No. 3, as rightly submitted by the learned Advocate for the respondent, all those objections were in relation to the calculations of the amount due under the award and not relating to any other matter. Perusal of the copy of the objections filed before the authority apparently reveals that there is admission on the part of the petitioner that there is some amount still due to the workmen but the calculations placed on record by the respondent No. 3 in respect of those dues were not correct. At the same time, the impugned order nowhere discloses any consideration of even such objection by the petitioner. It is true that in the reply to the notice pursuant to the application filed by the respondent No. 3, the petitioner had submitted that the application under Section 33C of the said Act was not maintainable and the respondents were required to approach under Section 33(2)(C) of the Act for determination of the amount of arrears arising out of the award. However, in this regard the law is well settled pursuant to the decision of the Apex Court relied upon by the learned Advocate for the respondents.

8. The Apex court therein while considering the scope of powers under Section 33C(1) and 33C of the said Act held thus --

"An analysis of the scheme of sections 33-C(l) and 33C(2) shows that the difference between the two sub-sections is quite obvious while the former sub-section deals with cases where money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or V-B, Sub-section (2) deals with cases where a workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. Thus, where the amount due to the workmen, flowing from the obligations under a settlement, is pre-determined and ascertained or can be arrived at by any mathmetical calculation or simpliciter verification and the only enquiry that is required to be made is whether it is due to the workman or not, recourse to the summary proceedings under Section 33-C(l) of the Act is not only appropriate but also desirable to prevent harassment to the workmen. Sub-section (1) of Section 33C entitles the workmen to apply to the appropriate Government for issuance of a certificate of recovery for any money due to them under an award or a settlement or under the provisions of Chapter V-A and the government, if satisfied, that a specific sum is due to the workmen, is obliged to issue a certificate for the recovery of the amount due. After the requisite certificate is issued by the Government to the Collector, the Collector is under a statutory duty to recover the amounts due under the certificate issued to him. The procedure is aimed at providing a speedy, cheap and summary manner of recovery of the amount due, which the employer has wrongfully withheld. It, therefore, follows that where money due is on the basis of some amount predetermined like the VDA, the rate of which stands determined in terms of the settlement an award under Chapter V-A or V-B, and the period for which the arrears are claimed is also shown, the case would be, covered by Sub-section (1) as only a calculation of the amount is required to be made."

9. The Apex Court therefore, has clearly held that whether the amount due to the workmen flowing from the obligations under the settlement is predetermined or ascertained or can be arrived at by any mathematical calculation or simpliciter verification and the only enquiry that is required to be made is whether it is due to the workmen or not, recourse to the summary proceedings under Section 33C(1) of the Act is not only appropriate but also desirable to prevent harassment to the workmen. The law on the point in issue being well settled by the decision of the Apex Court, there is hardly any room to entertain objection on the part of the petitioner that in spite of the award having been passed and further explained, the Union could not have filed application for recovery of the amount in terms of the award. Undoubtedly if any other objection was to be raised, the same could not been adjudicated upon by the authority while dealing proceedings under Section 33C(1) of the said Act. However, that would not preclude the authority from giving effect to the award or settlement as to calculation of the amount payable in terms of award. The Apex Court in that regard has held that even an enquiry can be held by the authority. Needless to say that enquiry has to relate only to the issue of mathematical calculation in respect of amount due in terms of the award.

10. The Division Bench of the Delhi High Court has clearly stated in relation to the provisions contained in Section 33C(1) of the said Act that though the authorities have no power or jurisdiction to adjudicate disputed fact under Section 33C(1), the said proceeding being necessarily in the nature of execution proceeding, the authority is not prohibited from going into the issue as to whether the objections sought to be raised on behalf of the employer are bona fide or not needless to say here again, that the enquiry as to whether the objections raised are bona fide or not, will have to be in relation to the issue of calculation of the amount payable under the award. In case any dispute relating to the right of the applicant for the wages is sought to be raised in the proceedings under Section 33C(1) of the said Act, then the authority cannot have jurisdiction to adjudicate the same. The scope of enquiry by such authority would be strictly in relation to calculation and verification of the amount due under the award or the amount due in terms of the settlement or the provisions of chapter V-A and V-B of the said Act as specified in the said Section 33C(1).

11. The petitioner, however, is justified in contending that the impugned order nowhere discloses any application of mind by the authority even to the objections raised by the petitioner in relation to the calculation of the amount due under the award. It is true that the Assistant Labour Commissioner in his affidavit dated 20-1-2003 has stated that he has taken into consideration the calculations submitted to the authorities and order has been passed in accordance with the provisions of law. The fact that the authority has considered the objections, as already observed above, must be disclosed from the order itself. Since the impugned order does not disclose any application of mind to the objections raised by the petitioner in relation to the calculations submitted by the respondent, the impugned order cannot be sustained and is liable to be set aside.

12. In the circumstances, it is not necessary to deal with the third ground of challenge raised by the petitioner in the matter. However, it is to be noted that the two affidavits filed by the same Assistant Labour Commissioner viz. S. M. Valvi disclose two different statements as regards the period for which he was holding the charge of the office of Assistant Commissioner of Labour, Mumbai. In the affidavit dated 20-1-2003 filed in the present proceedings he has stated that he was holding charge from 23-3-2002 to 16-11-2002 whereas in the affidavit dated 16-4-2003 filed in Writ Petition No, 796 of 2003 he had stated that he was holding charge of Assistant Commissioner of Labour from 31-3-2002 to 31-8-2002. Apparently there is discrepancy in the statements in relation to the period during which Mr. Valvi was posted as the Assistant Commissioner of Labour at Mumbai. Certainly the discrepancy in the statements of fact relating to the duration for which Mr. S. M. Valvi was holding the charge of the office of the Assistant Commissioner of Labour reveals carelessness on the part of Mr. Valvi in the matter of filing of affidavits in the High Court. It also discloses irresponsible attitude in relation to the affidavit filed in the Court by an officer holding the post of Asstt. Commissioner of Labour. The respondent No. 2 to take note of this fact and should take appropriate steps to see to it that such an Officer is not allowed to file any affidavit on behalf of the State Government or of its department unless specifically directed by this Court. Copy of this Judgment therefore, to be sent to the Chief Secretary of State of Maharashtra. Registry to do the needful in the matter.

13. In the result, the petition succeeds. The impugned order is hereby set aside. The matter is remanded to the Assistant Commissioner of Labour, Mumbai to decide the application filed by the respondent No. 3 afresh in accordance with the provisions of law and bearing in mind the observations here-in-above. It should be ensured that the matter is not dealt with or decided by Shri S. M. Valvi. Copy of this order should be sent to the concerned officer viz. S. M. Valvi by the respondent No. 2.

14. Rule is made absolute in above terms with no order as to costs. Needless to say that considering the award which was passed in 1995 and clarified in 1996, the authority shall dispose of the application expeditiously in accordance with the provisions of law and in any case within a period of four weeks from the date of receipt of the writ of this Court. It is also made clear that this Court has not expressed any opinion as regards merits of the objections pertaining to the calculations raised by the petitioner and all the contentions in that respect are kept open.

15. At this stage, the learned Advocate for the petitioner submits that at the time of admission, the petitioner was directed to deposit sum of Rs. 5,00,000/-which the petitioner has already deposited and the same be refunded to the petitioner. The learned Advocate for the respondent No. 3 submits that the amount may be kept invested till the disposal of the application by the Assistant Labour Commissioner. Considering the fact that the matter has been remanded to decide the same in accordance with the provisions of law, it is in the fitness of the case that the amount should be kept invested in any nationalised bank for a period of six months from today. Registry is therefore, directed to invest the amount accordingly forthwith.

Parties to act on ordinary copy of this order duly authenticated by the Associate/P. S. of this Court as true copy.