Tularam S/O. Adkuji Bhogare vs Maharashtra State Cooperative ...
2017 Latest Caselaw 4160 Bom

 WP 1783.16.odt                               1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                      WRIT PETITION NO.1783 OF 2016


 Tularam s/o Adkuji Bhogare,
 Age 60 years,
 Occupation-Pensioner,
 R/o. Village & Post-Khajri,
 Tahsil-Sadak Arjuni,
 District-Gondia.                                  ..               PETITIONER


                               .. VERSUS ..

 1]     Maharashtra State Co-operative Tribal
        Development Corporation Limited
        (MSCTDC LTD), through its Managing
        Director, Ram Ganesh Gadkari Chowk,
        Old Agra Road, Nashik (M.S.).

 2]     Maharashtra State Co-operative Tribal
        Development Corporation Limited,
        (MSCTDC LTD) Through its Regional
        Manager, Sainath Nagar, Takiya Ward,
        Bhandara (M.S.).

 3]     Maharashtra State Co-operative Tribal
        Development Corporation Limited,
        (MSCTDC LTD) Through its Sub-Regional
        Manager, At & Post-Navegaonbandh,
        Tahsil-Arjuni (Moregaon) M.S. ..     RESPONDENTS


                     ..........
 Shri A.N. Vastani, Advocate for Petitioner,
 Shri P.D. Meghe, Advocate for Respondents.
                     ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : JULY 07, 2017.

ORAL JUDGMENT

Rule. Rule made returnable forthwith. Heard

finally with the consent of the learned counsel for parties.

2] The challenge in petition is to the common order

dated 20.1.2016 passed by the Industrial Court, Bhandara in

Revision Application (ULP) Nos.76/2015 and 77/2015 thereby

setting aside the judgment and order passed by the Labour

Court, Gondia in Miscellaneous Application (ULP) No.2/2014

directing non-applicants to pay Rs.6,79,305/- to applicant.

3] The facts giving rise to the petition may be stated

in brief as under :

(i) Petitioner was appointed as Grader with

respondent no.1 and discharged his duties with respondent

nos.2 and 3. He was promoted to the post of Senior

Assistant in the year 2012. He retired from service on

30.4.2013 and thereby rendered his services for more than

34 years. On retirement, petitioner was entitled to receive

retiral benefits. Respondent nos.2 and 3 sent proposal for

sanction of retirement benefits to petitioner. Proposal was

sanctioned and pension is paid to petitioner regularly.

However, proposal for sanction of gratuity and encashment

of leave sent by respondent nos.2 and 3 to respondent no.1

though sanctioned, amount of gratuity and encashment of

295 days earned leave was not paid to petitioner. On the

contrary, respondent no.1 issued a letter dated 28.11.2013

and directed recovery of Rs.6,17,833/- from the petitioner

from the amount of gratuity and leave encashment payable

to him.

(ii) Petitioner then moved an application

under Section 50 of the Maharashtra Recognition of Trade

Unions and Prevention of Unfair Labour Practices Act, 1971

and under Section 33-C (2) of the Industrial Disputes Act,

1947 before Labour Court, Gondia. Vide judgment and

order dated 14.10.2015, Labour Court partly allowed the

application under Section 33-C (2) of the Industrial Disputes

Act and directed the respondents to pay Rs.6,79,305/- to

petitioner within thirty days from the date of order.

The court, however, declined to grant interest to applicant

on the amount due.

(iii) Being dissatisfied with the order, Revision

Application nos.76/2015 and 77/2015 came to be filed by

respondents and petitioner respectively. The Industrial

Court, Bhandara vide judgment and order dated 20.1.2016

allowed revision application preferred by respondents and

rejected the revision filed by petitioner against the order

declining interest. It is this order which is the subject matter

of present writ petition.

4] Heard Shri Vastani, learned counsel for petitioner

and Shri Meghe, learned counsel for respondents.

5] Shri Vastani, learned counsel for petitioner

submitted that vide communication dated 28.11.2013,

respondent no.1 admitted the entitlement of petitioner to

gratuity of Rs.4,55,400/- as per Rule 84 of Corporation

Employees Service Rules of respondent no.1 and

encashment of earned leave to the tune of Rs.2,23,905/-.

The submission is that despite admitting entitlement of

petitioner, respondent no.1 abruptly directed recovery of

Rs.6,17,833/- from the amount of gratuity and leave

encashment. According to learned counsel, once the claim

was admitted and there was no dispute regarding

entitlement of petitioner, Labour Court had rightly directed

the respondents to pay the legal dues to petitioner under

Section 33-C (2) of the Industrial Disputes Act. It is

submitted that the provisions of the Payment of Gratuity

Act, 1972 would not be applicable in the factual matrix of

the case in view of unequivocal admission of respondents

regarding entitlement of gratuity and leave encashment to

petitioner. The learned counsel submits that Industrial Court

misread the judgment of the Hon'ble Supreme Court and

wrongly held that application under Section 33-C (2) of the

Industrial Disputes Act would not lie before the Labour Court

in such a case. It is submitted that no dispute as regards

quantum or entitlement of petitioner was ever raised and

under Section 33-C (2) of the Industrial Disputes Act, Labour

Court has jurisdiction to decide the application. In short,

submission is that the controversy is not governed by the

provisions of the Payment of Gratuity Act, but by Section

33-C (2) of the Industrial Disputes Act. In support of

submissions, learned counsel for petitioner placed reliance

on :

(i) Pettai Co-operative Milk Supply Society Limited .vs. Presiding Officer, Labour Court, Madurai and another. [1976 Lab.I.C. 278]

(ii) State of Punjab .vs. The Labour Court, Jullundur and others [AIR 1979 SC 1981]

(iii) Rajinder Kumar Nangia .vs.

Rashtriya Chemicals & Fertilizers Limited [2002 (1) Mh.L.J. 518]

6] Per contra, Shri Meghe, learned counsel for

respondents submitted that huge recovery of Rs.6,79,305/-

is to be made from petitioner and vide communication dated

28.11.2013, respondent no.1 ordered to adjust the dues

from gratuity and leave encashment amount. The learned

counsel submits that under Section 8 of the Payment of

Gratuity Act, 1972, petitioner was required to approach the

controlling authority and Labour Court has no jurisdiction

under Section 33-C (2) in such a case. The submission is

that the order of Labour Court is without jurisdiction and

error committed was rightly rectified by the Industrial Court.

On the object and scope of Section 33-C (2) of the Industrial

Disputes Act, learned counsel for respondents relied upon :

(i) Central Inland Water Transport Corporation Limited .vs. The Workmen and another [1974 Lab.I.C.1018]

(ii) State of Punjab .vs. The Labour Court, Jullundur and others [AIR 1979 SC 1981]

(iii) P.K. Singh and others .vs.

Presiding Officer and others [(1988) 3 SCC 457]

(iv) Municipal Corporation of Delhi .vs. Ganesh Razak and another [1994 AIR SCW 5000]

(v) Municipal Council, Bhandara

through its Chief Officer .vs. Vimal widow of Sadaram Kodape [ 2014 II CLR 57].

7] Based on the above referred judgments,

submission on behalf of respondents is that provisions of the

Payment of Gratuity Act, 1972 would be applicable, as

respondent no.1 has ordered recovery of dues and its

adjustment against the entitlement of petitioner towards

gratuity and leave encashment. It is further submitted that

proceedings under Section 33-C (2) of the Act are in the

nature of execution proceedings which envisages a prior

adjudication or recognition by the employer of the claim of

workman to be paid to him and if the same is disputed,

remedy under Section 33-C (2) of the Act is not available to

the workman. Learned counsel contended that in the

present case there was no earlier adjudication and

entitlement being disputed proceedings under Section 33-C

(2) of the Act were not maintainable.

8] With the assistance of the learned counsel for the

parties, this court has gone through the impugned judgment

and order passed by the Industrial Court. The moot

question is, whether proceedings under Section 33-C(2) of

the Industrial Disputes Act, 1947 were maintainable before

the Labout Court. For ready reference, Section 33-C (2) of

the Act is reproduced here as under :

33-C. Recovery of money due from an employer :

                          (1)      ......
                          (2)      Where any workman is

entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the Appropriate Government [within a period not exceeding three months].

[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]

9] On the careful reading of the provisions of Section

33-C (2) of the Act and the well settled principles of law laid

down by the Hon'ble Supreme Court in the judgments relied

upon by the learned counsel for parties, it is apparent that

proceedings under Section 33-C (2) of the Act are in the

nature of executing proceedings. Since the proceedings are

analogues to the execution proceedings, the same does not

extend to the determination of disputes of entitlement if

there is no prior adjudication or recognition of the same by

the employee.

10] In the cases before the Hon'ble Supreme Court

relied upon by the learned counsel for respondents,

employers had disputed the entitlement and claim of the

workmen.

11] In the case on hand facts are distinguishable.

Respondent no.1 issued order dated 28.11.2013. From this

order, it is apparent that an amount of Rs.4,55,400/- was

sanctioned to petitioner towards gratuity and Rs.2,23,905/-

towards encashment of 295 days earned leave. The

entitlement towards gratuity and encashment of leave is not

disputed by respondents any where either in the order or in

communication or in written statement filed before the

Labour Court.

12] The contention raised by respondents is that

amount of Rs.6,17,833/- pertaining to years 2002-2010 is

recoverable from petitioner and this amount has to be

adjusted from the amount of gratuity and leave encashment

sanctioned to petitioner. This is not permissible. Once

respondents admit entitlement of petitioner to the claim

towards gratuity, provisions of Section 33-C(2) of the

Industrial Disputes Act would be attracted and submission of

respondents that provisions of the Payment of Gratuity Act

are applicable is misconceived.

13] It is significant to note that Industrial Court has

relied upon the judgment of the Hon'ble Supreme Court in

the State of Punjab .vs. The Labour Court, Jullundur

and others, [AIR 1979 SC 1981] and came to the

conclusion that in view of Section 8 of the Payment of

Gratuity Act, application ought to have been moved before

the Controlling Authority and Labour Court had no

jurisdiction to deal with the controversy regarding the claim

of gratuity.

14] In this case before the Hon'ble Supreme Court,

respondents nos.2 to 8 were employed as work-charged

employees. On completion of the work assigned to them,

they were retrenched and retrenchment compensation was

paid to them. Employees claimed that they were also

entitled to gratuity, bonus, certain other allowances and

benefits. The claim was disputed by the employer and

submission was that employees were not entitled to gratuity

under the Payment of Gratuity Act, 1972. In view of the

dispute raised, the Hon'ble Apex Court held that applications

under Section 33-C (2) of the Industrial Disputes Act do not

lies.

15] As indicated above, in the present case, there is no

dispute regarding entitlement of petitioner to the claim of

gratuity. On the contrary, there is unequivocal admission in

the order dated 28.11.2013 itself that petitioner is entitled

to gratuity and encashment of leave. Since there is no

denial by respondents to entitlement of petitioner to

gratuity, this court is of the view that jurisdiction of Labour

Court under Section 33-C (2) of the Act is not excluded by

the provisions of Section 14 of the Payment of Gratuity Act,

1972. So far as jurisdiction of Controlling Authority under

the Payment of Gratuity Act is concerned, in case of dispute

to the entitlement, Controlling Authority is vested with the

jurisdiction to decide the same. Where there is no dispute

to entitlement and even to the computation, as in the

present case, jurisdiction of Labour Court under Section

33-C (2) of the Industrial Disputes Act cannot be said to be

in conflict with any of the provisions of the Payment of

Gratuity Act. Needless to state that Section 33-C (2) of the

Act is of general character and its wider application is not

excluded by Section 14 of the Payment of Gratuity Act.

16] So far as interest claimed by petitioner on the

amount due is concerned, Labour Court has assigned the

convincing reasons and declined payment of interest.

Revisional Court has dismissed Revision Application

No.77/2015 preferred by petitioner against the order of

Labour Court refusing to grant interest.

17] In the above premise and in view of the concurrent

findings on interest recorded by the courts below, this court

is not inclined to interfere with the same in writ jurisdiction.

However, regarding entitlement of petitioner to receive

gratuity and payment towards encashment of leave, this

court finds that the view taken by Industrial Court is

erroneous and unsustainable in law. Interference is thus

warranted in writ jurisdiction. Hence, the following order :

ORDER

(i) Writ Petition No.1783/2016 is partly allowed.

(ii) Rule is made absolute in terms of prayer clauses

(ii) & (iii).

 (iii)          No costs.


                                       (Kum. Indira Jain, J.)
 Gulande, PA