Bombay High Court
Zilla Parishad Amravati By Its ... vs Ravishankar Ramrasad Shukla on 30 November, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 20 OF 2011
IN WRIT PETITION No. 2247 OF 2001.
Zilla Parishad, Amravati
by its Chief Executive Officer,
Amravati. ....APPELLANT.
VERSUS
Ravishankar Ramprasad Shukla,
Aged 47 years, resident of
Pathrot, Tq. Achalpur,
District Amravati. ....RESPONDENT
.
-----------------------------------
Mr. J.B. Kasat, Advocate for the Appellant.
Mr. A.V. Bhide, Advocate for Respondent.
------------------------------------
CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : NOVEMBER 30, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard Shri J.B. Kasat, learned Counsel for the appellant and Shri
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A.V. Bhide, learned Counsel for the respondent.
2. The appellant - Zilla Parishad, is a Local Authority constituted
under the provisions of the Maharashtra Zilla Parishad and Panchayat
Samiti Act. It assails adjudication dated 10.09.1999, by the Labour Court,
Amravati in Application IDA No. 71/1990, under Section 33-C[2] of the
Industrial Disputes Act, 1947. The Labour Court allowed wages for the
period from 20.02.1975 till 30.09.1990, and also awarded costs to
respondent workman. Zilla Parishad approached this Court in Writ Petition
No.2247/2001, and on 01.10.2009, that Writ Petition came to be dismissed
with costs of Rs. 5000/-, payable by Zilla Parishad to the workman. Zilla
Parishad, thereafter moved Civil Application (W) No. 2291/2009 for
Speaking to Minutes, and pointed out omission to consider a binding
precedent reported at (2001) 1 SCC 73 ( State Bank nof India .vrs.
Ramchandra Dubey and others). The learned Single Judge has dismissed
that application also on 13.11.2009 with costs of Rs. 500/-.
3. It is not in dispute that during the pendency of the Writ Petition
before the learned Single Judge, the employer deposited the amount as
awarded by the Labour Court, and the workman has also withdrawn that
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amount. It is also not in dispute that the workman, aged about 47 years in
the year 2001, has reached age of superannuation on 28.02.2012.
4. Shri Kasat, learned counsel appearing for the appellant submits
that to enable the Labour Court to exercise jurisdiction under Section 33-
C[2] of the Industrial Disputes Act, the workman has to demonstrate an
existing right. There was/is no such existing right in present matter. He
invites our attention to a decree dated 22.01.1982, passed in Regular Civil
Suit No.175/1976, by the Civil Judge, Senior Division, Achalpur to show
that though finding that order of termination dated 18.02.1975 was void,
has been reached, the Civil Court has expressly refrained from granting any
consequential relief and left it to adjudication in a fresh suit to be instituted
by the workman. That fresh suit has never been instituted. He contends
that in this situation, the approach to Labour Court under Section 33-C[2]
for wages from the date of termination onwards is unsustainable, and
application ought to have been rejected.
5. He has taken us through the Judgment of Hon'ble Supreme Court
in case of State Bank of India .vrs. Ram Chandra Dubey and others (supra),
to substantiate his arguments. He also submits that in this situation, when
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litigation was being fought honestly, imposition of costs by the learned
Single Judge is unwarranted.
6. Shri Bhide, learned counsel appearing for the respondent/
workman states that the workman was not required to file fresh suit and
his employer accepted declaration that termination was void and has
reinstated him. With the result, the recourse to Section 33-C[2] was just
and proper. As termination was void, all consequential benefits were bound
to follow and accordingly, Labour Court as also learned Single Judge has
correctly exercised the jurisdiction.
7. Shri Bhide, learned counsel also states that amount for period in
dispute is about Rs. 1,37,000/- and allowing/permitting its recovery at this
stage, when workman has already superannuated, would be too harsh. He
states that learned Single Judge has rightly noted too technical approach of
the employer and imposed costs. He therefore, prays for dismissal of the
Letters Patent Appeal.
8. The Civil Suit No.175/1976 assailing termination dated
18.02.1975 came to be decided by the Civil Judge, Senior Division,
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Achalpur on 22.01.1982. It is important to note the issues framed therein
and also operative order passed by the Civil Court. The same are as under :
"Issues
1. Whether plaintiff can be deemed to be a
permanent employee of the defendant ?
...........Finding :- No.
2. Whether plaintiff's services were legally
terminated ? ............Finding :- No.
3. Can plaintiff claim reinstatement in service ?
.......... Finding :- Yes, by filing
separate suit.
4.(a) Whether notice is necessary under Section
280 of the Maharashtra Zilla Parishad Act ?
............. Finding :- Yes.
4.(b) If yes, effect on the suit ?
.............. Finding :- suit is not
maintainable.
5. Is the suit claim barred by limitation ?
.........Finding :- No.
6.(a) Is the plaintiff entitled to claim back wages ?
............ Finding :- Yes, by filing a
separate suit.
(b) If so, should the plaintiff be permitted to file
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a separate suit for back wages ?
............ Finding :- Yes.
(c) If so, on what terms ?
..............Finding :- Does not arise.
7. What order and decree ?
........... Finding :- As per order.
The learned Civil Judge, (Sr. Dn), passed the
judgment accordingly in the aforesaid suit on
22.01.1982 and decreed as follows :
ORDER
It is hereby ordered that the Order No.
Estt/Health/890 dated 18.2.1975 passed by Chief
Executive Officer, Zilla Parishad, Amravati
terminating the service of the plaintiff is void, illegal
and improper.
2. The parties are at liberty to seek their
remedies in a proper forum in the light of quashing the
order of termination dated 18.2.1975.
3. The defendant shall pay the costs of the suit
to the plaintiff and bear its own. "
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9. Here it needs to be mentioned that status of department or status
of employer of workman in 1975, as an Industry, was doubtful because of
conflicting judgments holding the field. The situation was resolved in the
year 1978 when the Hon'ble Supreme Court through its Larger Bench
answered Bangalore Water Supply and Severage Board .vrs. R. Rajappa
and others ( AIR 1978 SC 548
).
10. It is in this background that above issues and order in
appreciation, the Civil Court found termination to be void, but, then could
not and did not grant any relief as statutory notice under Section 280 of the
Maharashtra Zilla Parishad Act, was not served by the workman upon the
employer. Correctness of this finding again is not in dispute as this stage.
Parties have proceeded further on that basis.
11. At this stage, it will be appropriate to refer to the application
under Section 33-C[2] of the Industrial Disputes Act, moved by the
workman, which came to be registered as IDA No.71/1990 on the file of
Labour Court, Amravati. There on 01.10.1990, the workman has made
following prayers :
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"Prayer : It is therefore prayed that Hon'ble Court
may pleased to order the opponent to
pay Rs. 2,00,000/- as shown in Schedule
'A'.
(ii) further opponent be ordered to
pay the monthly wages on due dates in
future period till retirement age with
other benefits such as pension etc.
(iii) any other just and equitable
orders."
12. In this application, the workman no where points out that he has
been reinstated and therefore, he was claiming consequential benefits. The
reinstatement has come after 01.10.1990. Whether it is reinstatement or
then he was simply taken back in the employment without any order
without any back wages, are all disputed questions which are not answered
in the present matter.
13. The judgment of Hon'ble Supreme Court in case of State Bank of
India .vrs. Ramchandra Dubey and others (supra), particularly paragraph
nos. 7 and 8 point out limited scope of jurisdiction available to the Labour
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Court. It is like a court executing decree under Order XXI of Civil Procedure
Code. If there is a decree, there can be execution. In execution rights
cannot be worked out for the first time. Similarly in proceedings under
Section 33-C[2], rights cannot be determined for the first time. There has to
be already some recognition statutorily or then a declaration by a competent
Court of such right and thereafter computation of amount due and payable
because of such declaration is only envisaged under Section 33-C[2].
14. The judgment and decree of Civil Court reproduced supra declares
termination to be nonest in a suit found not maintainable. Because of this
position only, that court did not issue any mandatory injunction or direction
to th employer and left it to the workman to file separate suit. As facts
show that workman was not required to file that suit and he was taken back
by the employer some time after 1990, and he was therefore without work
and out of employment after date of decree i.e. 22.01.1982 till he was taken
back. Thus, even after declaration of law by the Hon'ble Supreme Court in
case of Bangalore Water Supply and Severage Board .vrs. R. Rajappa and
others (supra), from 1982 onwards for period of 8 to 10 years, he did not
file any proceedings for getting his rights adjudicated.
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15. In this situation, when the observations of Hon'ble Supreme Court
in paragraph no.8 of the judgment in case of State Bank of India .vrs.
Ramchandra Dubey and others (supra), are read, it is apparent that the
Labour Court in exercise of jurisdiction under Section 33-C[2] of the Act for
the first time could not have overlooked the specific refusal by the Civil
Court to answer the issue. Perusal of the judgment and order of Civil Court
reproduced supra, reveals that the said Court has left those questions open
in a subsequent suit. Those disputed questions needed answer in
appropriate proceedings. And without answer to those proceedings recourse
to Section 33-C[2] in present matter was not possible. The learned Single
Judge has also overlooked this aspect.
16. Hence, we are satisfied that here the order of Labour Court under
Section 33-C[2] passed on 10.09.1999 in Application IDA No.71/1990 is
unsustainable and should be quashed and set aside. We are also satisfied
that Writ Petition no. 2247/2001 filed by the employer Zilla Parishad should
have been entertained and allowed by this Court.
17. However, considering the fact that for said period during which
the workman was without employment, he has received amount of Rs.
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1,37,000/- and he has withdrawn that amount some time before the year
2009, and has been superannuated on 28.02.2012 and is living retired life
thereafter, it would be harsh to permit the employer to recover that amount
at this stage from him.
18. During hearing Shri Bhide, learned counsel has produced before
us an order dated 18.09.2013. Said order is issued by the Chief Executive
Officer of the appellant Zilla Parishad. It mentions that order of Labour
Court in IDA case No.3/2001 dated 19.09.2002 and then certain directions
issued. It appears that in those proceedings workman is found entitled to
arrears of salary and allowance for period from 01.10.1990 to 12.10.1999.
The workman has waived 75% of that amount and he has been paid only
25% thereof. We take on record copy of the said order and mark it as
Exh.X, for identification. It therefore, appears that later on the controversy
was amicable settled between the parties.
19. In this situation, though we find substance in all the contentions
raised by the learned counsel for the appellant, we are not inclined to permit
the Zilla Parishad to recover back any amount from respondent Workman at
this stage. However, the amount of costs saddled upon the appellant Zilla
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Parishad by the learned Single Judge on 01.10.2009 while dismissing Writ
Petition no.2247/2001 and thereafter while rejecting Civil Application No.
2291/2009 on 13.11.2009, is unwarranted. Accordingly the said cost and its
grant is deleted.
20. We therefore, partly allow this Letters Patent Appeal by quashing
and setting aside the part of judgment of learned Single Judge dated
01.10.1999 saddling costs of Rs. 5000/- on appellant and also order dated
13.11.2009 saddling costs of Rs. 500/- upon it. In the present facts, the
other part of impugned judgment of learned Single Judge and the order of
Labour Court is however, maintained.
21. Letters Patent Appeal is thus partly allowed and disposed of. No
costs.
JUDGE JUDGE
Rgd.
