Ushabai Sahebrao Salve vs The Commissioner Jalgaon Shahar ...
2016 Latest Caselaw 4278 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                       
                            WRIT PETITION NO.9087 OF 2010

    Ushabai Sahebrao Salve,
    Age-40 years, Occu-Sweeper,




                                                      
    R/o Gurunanak Nagar, Jalgaon,
    Tq. and Dist. Jalgaon                                          PETITIONER
    VERSUS 




                                            
    1. The Commissioner,
        Jalgaon Shahar Mahanagarpalika,
        Jalgaon,              
    2. Vishwanath Rameshwar Pawar,
        Age-55 years, Occu-Contractor,
                             
        R/o Kalabhavan, Nawal Colony,
        Sindhi Colony Road, Jalgaon,
        Tq. and Dist. Jalgaon                                      RESPONDENTS 

Mr.A.S.Shelke, Advocate for the petitioner. Mr.P.R.Patil, Advocate for respondent No.1.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 29/07/2016

ORAL JUDGMENT :

1. The petitioner/employee is aggrieved by the judgment and

order dated 12/08/2010 delivered by the Labour Court, Jalgaon by

which Appl.(IDA) No.360/2005, filed by the petitioner claiming

unpaid wages u/s 33(C)(2) of the I.D.Act, has been rejected only on

the ground that there is no employer-employee relationship between

the applicant and the respondents.

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2. This petition was admitted vide order dated 18/04/2011. I

have considered the submissions of the learned Advocates at length.

3. Mr.Patil, learned Advocate for the Corporation has strenuously

supported the impugned order. He submits that Section 33(C)(2)

mandatorily requires the claim to be lodged against the employer. It

also mandates that a pre-existing right must flow from the terms and

conditions of the employment and the applicant has to establish

unpaid amounts by the employer.

4. Mr.Patil has submitted that the Corporation was respondent

No.1 before the Labour Court and was impleaded, though not being

the direct employer of the petitioner/applicant. The applicant has

admitted in evidence that she was never appointed by the

Corporation and she had never worked under the orders of the

Corporation. She was engaged by respondent No.2 / Labour

Contractor and he was responsible to pay the wages.

5. Mr.Patil further submits that the Labour Court has rightly

concluded that the application is not maintainable. No claim could

have been entertained by the Labour Court as against the

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Corporation. Her admission in cross examination that she worked

only when respondent No.2 allotted work to her, has therefore

rendered the application untenable before the Labour Court.

6. Having considered the submissions of the learned Advocates

and upon considering the provisions of the Contract Labour

(Regulation and Abolition) Act, 1970 (For short, the Act of 1970), I am

remitting the application filed by the applicant to the Labour Court

and hence I am not dealing with the extensive submissions of

Mr.Patil and Mr.Shelke since any verdict on the said submissions

would amount to pre-judging the matter.

7. It is trite law that an application for seeking recovery of dues

u/s 33(C)(2) is not bound by limitation. It is equally settled that the

claim has to be made against an employer. Right to the unpaid

amounts has to flow from the service conditions and non-payment of

dues has to be established by the applicant who has staked the

claim.

8. The Corporation has admitted before the Labour Court that

respondent No.2 was it's contractor and the applicant may have been

engaged through the said Contractor. The application filed by the

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petitioner, therefore, was maintainable as against the Contractor. The

Labour Court has erred in concluding that the application was not

maintainable at all.

9. The provisions of the Act of 1970 indicate that if the Contractor

does not pay the legal dues of the employees, the principle employer

is required to pay and the said amount can be recovered by the

principle employer from the Contractor. In my view, neither of the

parties have pointed out to the Labour Court the entire scheme

flowing from the Act of 1970 and the Rules framed thereunder.

10. As such, this petition is partly allowed. The impugned order

dated 12/08/2010 is quashed and set aside as being perverse and

erroneous. The Labour Court shall, therefore, reconsider the

application afresh by noting that the applicant claims to be the

employee of the Contractor and the Corporation is the principle

employer.

11. In order to ensure that sufficient evidence is brought before the

Labour Court, the litigating sides are at liberty to adduce fresh oral

and documentary evidence, in addition to the evidence already

recorded. It is expected that the Labour Court shall decide

khs/JULY 2016/9087-d

Application (IDA) No.360/2005 afresh on its own merits and without

taking note of any observations made in the impugned judgment,

which is set aside.

12. It be noted that this Court has avoided dealing with the actual

claim of the petitioner since the matter is being remitted and hence

any observations appearing in this order shall not be construed to

mean that this Court has decided any issue framed by the Labour

Court.

13. Rule is made partly absolute in the above terms. Needless to

state, all contentions of the litigating sides are kept open.

14. Pending civil applications do not survive and hence are

disposed of.

( RAVINDRA V. GHUGE, J.)

khs/JULY 2016/9087-d