Bombay High Court
Chief Engineer, Irrigation ... vs Dhanlal S/O Rajaram Bisen on 9 December, 2021
Bench: Avinash G. Gharote
1 36.WP.3289-2020 & ORS..odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3289 OF 2020
( Chief Engineer, Irrigation Vibhag, Sinchan Bhawan, Nagpur & Ors.
Vs.
Dhanlal s/o Rajaram Bisen )
WITH
WRIT PETITION NO. 2766 OF 2017
( The Sub-Divisional Officer, Irrigation Sub-Division, Tirora & Ors.
Vs.
Dhanlal Harichand Thakre & Anr. )
WITH
WRIT PETITION NO. 2769 OF 2017
( The Sub-Divisional Officer, Irrigation Sub-Division, Gondia & Ors.
Vs.
Ramchandra Maniram Lanjewar & Anr. )
WITH
WRIT PETITION NO. 2768 OF 2017
( The Sub-Divisional Officer, Irrigation Sub-Division, Tirora & Ors.
Vs.
Anantram Surajlal Lilhare & Anr. )
WITH
WRIT PETITION NO. 2765 OF 2017
( The Sub-Divisional Officer, Irrigation Sub-Division, Tirora & Ors.
Vs.
Udelal Kusoba Katre & Anr. )
WITH
WRIT PETITION NO. 2764 OF 2017
( The Sub-Divisional Officer, Irrigation Sub-Division, Tirora & Ors.
Vs.
Tularam Mayaramji Kawle & Anr. )
WITH
WRIT PETITION NO. 2767 OF 2017
( The Sub-Divisional Officer, Irrigation Sub-Division, Tirora & Ors.
Vs.
Madanlal Dadu Raut & Anr. )
WITH
2 36.WP.3289-2020 & ORS..odt
WRIT PETITION NO. 2763 OF 2017
( The Sub-Divisional Officer, Irrigation Sub-Division, Tirora & Ors.
Vs.
Madhukar Motiram Bhandarkar & Anr. )
WITH
WRIT PETITION NO. 3291 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Rewaram S/o Aadku Kakirwar )
WITH
WRIT PETITION NO. 3416 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Prithviraj Modku Ambekar )
WITH
WRIT PETITION NO. 3417 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Chhaganlal Thuna Aagase )
WITH
WRIT PETITION NO. 3290 OF 2020
( The Chief Engineer, Irrigation Vibhag, Sinchan Bhawan, Nagpur & Ors.
Vs.
Shriram s/o Kusan Kokude )
WITH
WRIT PETITION NO. 3362 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Gendlal Namaji Chaudhari )
WITH
WRIT PETITION NO. 3403 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Ravindra Udaram Sahare )
WITH
WRIT PETITION NO. 3374 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
3 36.WP.3289-2020 & ORS..odt
Tukudu S/o Zithoba Tumsare )
WITH
WRIT PETITION NO. 3363 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Harilal alias Haribhau Brijlal Biranwar )
WITH
WRIT PETITION NO. 3375 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Ghanshyam S/o Tiju Maskare )
WITH
WRIT PETITION NO. 3373 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Toliram S/o Kusan Kokude )
WITH
WRIT PETITION NO. 2142 OF 2021
( The Chief Engineer, Irrigation Vibhag, Sinchan Bhawan, Nagpur & Ors.
Vs.
Aadku s/o Doma Kakirwar )
WITH
WRIT PETITION NO. 3378 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Vasant s/o Motiram Uikey )
WITH
WRIT PETITION NO. 3379 OF 2020
( The Chief Engineer, VIDC, Nagpur & Ors.
Vs.
Shakuntalabai wd/o Parasram Biranwar & Anr. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. S.G. Jagtap, Mr. H.D. Marathe, Mr. K.R. Lule, Mr. U.A. Gosavi,
Mrs. U.A. Patil & Ms. A.S. Athalye, Advocates' for the Petitioners in
some matters.
Mr. R.S. Bhure, Advocate for the Respondent No.1 in some matters.
Mr. B.C. Chandrikapure, Advocate for the Respondent in some matters.
4 36.WP.3289-2020 & ORS..odt
CORAM: AVINASH G. GHAROTE, J.
DATED : 9th DECEMBER, 2021.
Heard Mr. Jagtap, learned counsel for the
petitioners in some of the petitions. He contends, that the
proceedings under Section 33 (C)(2) of the Industrial
Disputes Act, 1947 (hereinafter to be refereed as "the
I.D. Act") were not maintainable at the instance of the
complainant for the reason, that the complainant
themselves claimed that they were no longer in service
since 2007 and the complaint was filed in the year 2015.
He further submits, that the complainant themselves
averred, that they were daily wagers doing manual work,
considering which, the Kalelkar Award could not have
been applied to them for the reason that for applicability
of the Kalelkar Award, in view of the requirement as
contained in clause 28 of the said award, it was
necessary to establish that the employee was in
continuous uninterrupted employment for a period of
five years, as a daily wager, only on which finding being
rendered that the said employment could be treated as
being a Converted Regular Temporary Establishment
(hereinafter to be refereed as "the C.R.T.E."). He
submits, that since the employees were not fulfilling this
criteria, therefore the impugned judgment cannot be
sustained. He further submits, that due to the averment,
that the employees were disengaged from the year 2000,
in view of the fact, that the C.R.T.E. was personal to the
employee and ceased to be in existence left services or
5 36.WP.3289-2020 & ORS..odt
termination, in considering, that the disengagement of
the year 2000, was not challenged, it was not permissible
for the provisions of Section 33 (C)(2) of the I.D. Act to
be invoked. He further submits, that there is no
relationship between the employer and employee
remaining, and therefore, on this ground also Section 33
(C)(2) of the I.D. Act, could not be invoked. On the
question, whether the Irrigation Department is an
Industry submitting in the negative, reliance is placed on
The State of Madhya Pradesh & Ors. Vs. Somdutt
Sharma, Civil Appeal No. 6093/2021, decided on
29.09.2021. Mr. H.D. Marathe, learned counsel for some
of the petitioners, adopts the argument of Mr. Jagtap.
2. Mr. Kasat, learned counsel for some of the
petitioners submits, that the provisions of section 33 (C)
(2) of the I.D. Act, are in nature of execution
proceedings, and therefore, while exercising jurisdiction
under it, the Labour Court cannot grant back wages nor
could grant any difference in wages, as there was no
predetermined entitlement in that regard. Reliance is
placed upon State Bank of India Vs Ram Chandra Dubey
2001 (1) S.C.T. 637 and Central Inland Water Transport
Corporation Ltd Vs. The Workmen and another, 1974(4)
SCC 696.
3. Mrs. Patil, learned counsel for some of the
petitioners submits, that Section 33 (C)(2) of the I.D. Act
can be invoked only in case there is an admitted position
on record and in case there are disputed facts Section 33
(C)(2) of the I.D. Act, would not be attracted as the role
6 36.WP.3289-2020 & ORS..odt
of the Labour Court under Section 33 (C)(2) of the I.D.
Act is not adjudicatory in nature. Mr. Gosavi, Ms. Athalye
& Mr. Lule, learned counsels for some of the petitioners,
adopt the argument of Mr. Kasat and Mrs. Patil, learned
counsels for some of the petitioners.
4. Mr. R.S. Bhure, learned counsel for some of
the respondents submits, by relying upon Chief Engineer
Irrigation Vibhag (Govt. of Maharashtra), Sinchan
Bhavan, Civil Lines, Nagpur & Ors Vs. Sadaram Muka
Sahare, Writ Petition No. 6380/2013 with connected
matters and State of Maharashtra Vs. M.V. Ghalge and
another, 1991(2) Mh.L.J. 1557, submits, that it would be
permissible for the learned Labour Court to decide the
entitlement of employees claiming the applicability of the
Kalelkar Award and the consequent entitlement. He
submits, that since as such a determination has been
done, the same cannot be gone into or interfered by this
Court.
5. Mr. Chandrikapure, learned counsel
appearing for some of the respondents submits, when
there is a preexisting right under the Kalelkar Award, the
employees having worked for more than five years
continuously, the question of any adjudication of this
issue again would not arise.
6. List the matter on 14.12.2021 at the end of
the board.
Signed By:SHRIKANT
DAMODHAR BHIMTE
Signing Date:10.12.2021 17:44
JUDGE
SD. Bhimte
