The Division Controller, Mah ... vs Vazir Khan Sher Khan
2017 Latest Caselaw 2976 Bom

wp.4386.08.jud                           1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR

                     WRIT PETITION NO.4386 OF 2008


The Divisional Controller,
Maharashtra State Road Transport Corporation,
Nagpur Division, Nagpur,
Tah. & Distt. Nagpur.                                                 .... Petitioner

       -- Versus -

Vazir Khan Sher Khan (Dead),
through L.Rs.

1-a] Fatimbi,
     Aged about 37 years.

1-b] Raisha Farazn,
     Aged about 20 years.

1-c] Zubin Khan,
     Aged about 29 years.

       All r/o Bhaldarpura, Opp. Badi Majjid,
       Nagpur.                                                  .... Respondents


Shri P.B. Patil, Advocate for the Petitioner.
Shri B.M. Khan, Advocate for the Respondents.


                CORAM           : KUM. INDIRA JAIN, J.
                DATE            : JUNE 8, 2017.


ORAL JUDGMENT :-


                This petition is directed against the judgment and

order dated 23/07/2008 passed by the learned Presiding Officer,



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3rd Labour Court, Nagpur in Application (IDA) No.17/2006

granting the benefit of leave encashment to the respondent

(since deceased).



02]             The facts giving rise to the petition may be stated in

brief as under :


            i. Respondent was working as private operator.                          In the

                year       1973,      Maharashtra      State          Road     Transport

                Corporation was established and respondent ceased

                to work as private operator. He was absorbed in the

                establishment            of   Corporation        as    conductor          on

                16/06/1984.


            ii. As the dispute regarding monetary benefits arose,

                respondent filed an application before the Labour

                Court.          The   said    application        was     allowed          on

                11/04/2005 and monetary benefits were granted to

                respondent.


            iii. On 27/02/2006, application (IDA) No.17/2006 was

                moved           by respondent      before the          Labour Court

                claiming         leave    encashment        of    105        days     from




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                01/02/1981 to 31/05/1984 as the same was denied to

                him by the employer.       He assessed the amount of

                leave encashment to the tune of Rs.22,000.65 and

                also claimed interest @ 18% per annum.                     The said

                application was allowed vide impugned order dated

                23/07/2008.     Being aggrieved thereof, employer has

                preferred this writ petition.


03]             Heard Shri P.B. Patil, learned Counsel for petitioner

and Shri B.M. Khan, learned Counsel for the legal representatives

of deceased-employee.


04]             It is not in dispute that respondent [since deceased)

was paid salary for the period from 01/02/1981 to 31/05/1989.

The employer had also not disputed the calculations of leave

encashment given by employee.


05]             It is significant to note that main challenge in the

petition is to the maintainability of application. There is no

whisper in the written statement regarding the same. For the

first time, issue of maintainability is raised before this Court.                    As

calculations were not disputed and salary was paid, there was no




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dispute to be adjudicated as such. The provisions of sub-section

(1) and (2) of Section 33C of the Industrial Disputes Act, 1947

are, therefore, not attracted in the present controversy in the

absence of dispute to be adjudicated upon.



06]             In the above premise, this Court does not find any

fault or error in the impugned order. Writ is thus found without

substance and merits. Hence, the following order :


                                ORDER

i. Writ Petition No.4386 of 2008 stands dismissed.

ii. Legal representatives of respondent (since deceased)

are permitted to withdraw the amount deposited by the

petitioner in this Court vide order dated 14/10/2008, as

per their shares in accordance with the law.

iii. Rule is discharged with no order as to costs.

*sdw                                              JUDGE