Bombay High Court
Vibhgagiya Dugdh Vikas Adhikari vs Mir Kausarali Mir Kusmanali ... on 20 October, 2016
Bench: R.V. Ghuge
*1* 911.wp.139.97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 139 OF 1997
1 Vibhagiya Dugdha Vikas Adhikari,
Aurangabad Vibhag,
Aurangabad.
2 Maha Vyavasthapak,
Government Milk Scheme,
Udgir, District Latur.
...PETITIONERS
-VERSUS-
Mir Kausarali Mir Usmanali Jahagirdar,
Age : 35 years, Occupation : Service,
R/o Udgir, District Latur.
...RESPONDENT
...
AGP for Petitioners : Shri S.B.Joshi.
Advocate for Respondent : Shri S.V.Warad.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 20th October, 2016
Oral Judgment :
1 I have heard the learned AGP appearing for the Petitioner and
Shri Warad, learned Advocate appearing for the sole Respondent. With
their assistance, I have gone through the petition paper book and the
material available on record.
*2* 911.wp.139.97
2 The Petitioner is aggrieved by the judgment and order dated
17.12.1994 delivered by the Labour Court by which Application (IDA)
No.13/1992 filed by the Respondent under Section 33(C)(2) of the
Industrial Disputes Act, 1947, has been allowed.
3 The Respondent had filed an ULP complaint before the
Industrial Court and had claimed permanency on the post of Assistant
Dairy Chemist. By judgment and order dated 24.04.1989, his complaint
was allowed and it was concluded in paragraph 5 of the judgment that the
Respondent was actually discharging duties of the Assistant Dairy
Chemist. It was, therefore, a settled position before the Labour Court,
while dealing with the claim for recovery of money from the employer,
that the Respondent was actually working as an Assistant Dairy Chemist.
4 The claim put forth by the Respondent before the Labour
Court under Section 33(C)(2) of the Industrial Disputes Act, 1947 was
that he was not paid the difference of wages as per the pay scale from
01.08.1982. He was also not paid the bonus. He was not paid encashment
for 08 paid holidays and overtime in each year.
5 Since the Industrial Court had already confirmed the service
of the Respondent as an Assistant Dairy Chemist, his claim for difference
*3* 911.wp.139.97
in wages and the bonus admissible was rightly allowed by the Labour
Court as the Respondent had a preexisting right for wages as per the pay
scale that was admissible and the bonus that was payable on parity.
6 Insofar as the claim of overtime/ paid holidays is concerned,
the Labour Court has specifically come to the conclusion in paragraph 18
that "It is true the specific evidence is not on record in respect of eight paid
holidays. There is no specific evidence regarding the overtime duties." The
Labour Court has concluded that had the Petitioner produced the record
regarding overtime duties and 08 paid holidays, the issue could have been
decided. There is no observation that a notice for production of
documents was filed by the Respondent and that the Labour Court had
allowed such notice and had directed the Petitioner to produce the record.
In the absence of any evidence, the claim for 08 paid holidays and
overtime wages could not have been allowed.
7 I am, therefore, allowing this petition to this extent and I am
quashing the conclusion of the Labour Court under Issue No.6 in
paragraph 18 of the impugned judgment. Consequentially, the conclusion
of the Labour Court below Issue Nos.7 and 9 that the Respondent is
entitled for all the claims, stands modified due to the rejection of his claim
towards overtime and 08 paid holidays.
*4* 911.wp.139.97
8 Insofar as the grant of 9% interest on the amount is
concerned, I am unable to concur with the conclusion of the Labour Court.
The Respondent has raised the claim under Section 33(C)(2) in 1992 and
the claims were related to the difference in wages effective from
01.08.1982 i.e. over a period of 10 years. Though Section 33(C)(2) does
not prescribe any limitation, it cannot be ignored that the Respondent has
raised the claim after 10 years and for doing so, the Labour Court could
not have rewarded him with interest at the rate of 9% as it would amount
to rewarding him for the delay caused by him.
9 Considering the above, the conclusion of the Labour Court
below Issue No.8 of granting 9% interest is modified by granting 6%
interest on the amount of difference in the pay scale, from the date of the
judgment of the Labour Court.
10 In the light of the above, this Writ Petition is partly allowed.
The impugned judgment is modified by sustaining the direction of the
Labour Court to the extent of the difference of wages as per the pay scale
and for the bonus effective from 01.08.1982. The direction to pay wages
for 08 paid holidays every year from 01.08.1982 is quashed and set aside.
Similarly, the direction to make the payment for overtime wages from
*5* 911.wp.139.97
01.08.1982 is quashed and set aside. The direction to pay 9% interest per
annum is also modified and the Respondent would be entitled to interest
of 6% per annum on the amount of difference in wages and bonus only,
from the date of the judgment of the Labour Court.
11 Rule is made partly absolute in the above terms.
kps ig (RAVINDRA V. GHUGE, J.)
