Bombay High Court
The Divisional Controller, ... vs Kuwarlal S/O Sukhram Shende on 28 March, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 7583 OF 2019
The Divisional Controller, Bhandara and anr.
Vs.
Kuwarlal s/o Sukhram Shende
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. P.S. Gavai, Advocate for petitioners.
Mr. S.A. Nerkar, Advocate for respondent.
CORAM : MANISH PITALE J.
DATE : 28.03.2022.
By this writ petition, the petitioners have
challenged judgment and order dated 22.10.2018,
passed by the Labour Court, Gondia, whereby an
application under Section 33-C(2) of the Industrial
Disputes Act, 1947, filed by the respondent has been
allowed and the petitioner - Corporation has been
directed to pay an amount of ₹80,000/- to the80,000/- to the
respondent.
2. The respondent filed the aforesaid
application against the petitioner - Corporation for
recovery of the said amount, stating that he was
wrongly granted benefit of time scale of pay with
effect from 01.03.1989 instead of 18.12.1986. The
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respondent placed on record oral and documentary
evidence to support his case for quantification of the
amount payable to him at ₹80,000/- to the80,000/-.
3. It is an admitted position that the
petitioner failed to file even a written statement in
the said application. There was no question of the
petitioner - Corporation having led any evidence in
that backdrop.
4. Considering the material on record, the
Labour Court found that the respondent had proved
his claim of recovery of ₹80,000/- to the80,000/- from the
petitioner - Corporation towards time scale of pay
that ought to have been paid to him from
18.12.1986. Accordingly, the application filed by the
respondent was allowed.
5. In the present writ petition, while issuing
notice on 18.11.2019, this Court granted stay of
execution of the impugned order subject to the
petitioner - Corporation depositing ₹80,000/- to the40,000/- in this
Court. The said amount was deposited.
6. Mr. Gawai, learned counsel appearing for
the petitioner-Corporation submitted that the
application under Section 33-C(2) of the aforesaid
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Act, was not maintainable for the reason that
adjudication of the entitlement of the respondent
towards the said amount was yet to take place. The
aforesaid contention was raised in the backdrop of
earlier rounds of litigation wherein the respondent
and other similarly situated workmen had
approached the Industrial Court for grant of relief.
7. Learned counsel emphasized upon the
judgment and order dated 04.05.2007, passed by this
Court in a bunch of writ petitions wherein order of
the Industrial Court was modified and it was directed
that the petitioner - Corporation shall provide
benefits to workmen like the respondent herein,
provided they satisfy the eligibility criteria and all
conditions prescribed in Resolution No.8856 read
with Clause 19 of the Settlement of 1985.
8. Reliance was also placed by the learned
counsel on the judgment of the Hon'ble Supreme
Court in the case of Maharashtra SRTC Vs. Premlal,
2007 (9) SCC 141, to contend that the claim of the
respondent first required adjudication as regards
satisfaction of the aforesaid conditions and only
thereupon, could the respondent invoke Section 33-
C(2) of the aforesaid Act. On this basis, it was
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submitted that the impugned order deserved to be set
aside and the writ petition deserves to be allowed.
9. On the other hand, Mr. Nerkar, learned
counsel appearing for the respondent at the outset
invited attention of this Court to order dated
04.07.2016 passed by this Court in Writ Petition
Nos.949/2015, 1012/2015 and 1634/2015, wherein
this Court in the case of similarly situated workmen
had dismissed the writ petitions of the petitioner -
Corporation and confirmed identical orders passed by
the Labour Court in applications filed under Section
33-C(2) of the aforesaid Act by the said workmen.
10. It was submitted that the orders passed
in favour of the identical situated workmen were
already implemented by the petitioner - Corporation
and therefore, it could not lie in the mouth of the
petitioner - Corporation to challenge the impugned
order in the present case.
11. It was further submitted that there was
no question of any further adjudication of the claim
of the respondent, in the facts and circumstances of
the present case, because it was not even the case of
the petitioner - Corporation either before the Labour
Court or before this Court in the writ petition that the
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respondent did not satisfy the conditions, particularly
the condition of selection at least once by a
Competent Selection Committee. On this basis, it was
submitted that the Labour Court was justified in
entertaining the application filed by the respondent
under Section 33-C(2) of the aforesaid Act and that
since the petitioner - Corporation failed to even file a
written statement before the Labour Court, the relief
granted to the respondent on the basis of his
pleadings and the evidence placed on record, did not
deserve any inference.
12. Heard the learned counsel for the rival
parties and perused the material on record.
13. In the present case, there is no dispute
about the fact that in terms of the aforesaid judgment
of the Hon'ble Supreme Court in the case of
Maharashtra (supra) and the observations made by
this Court in judgment and order dated 04.05.2007,
passed in Writ Petition No.888/2004, Maharashtra
State Road Transport Corporation vs. Dwarka Das s/o
Nanumal Bharuka and another and connected
petitions, the benefit of time scale of pay would be
available to the respondent upon satisfying the
conditions taken note of in the judgments of the
Supreme Court and this Court.
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14. In the present case, the respondent filed
application under Section 33-C(2) of the said Act, on
the basis that he was eligible for grant of relief of
time scale of pay from 18.12.1986, instead of
01.03.1989. It is an admitted position on record that
the petitioner - Corporation failed to file written
statement in the said application. The respondent
proceeded to adduce oral and documentary evidence
before the Labour Court in support of his claim and in
terms thereof, the Labour Court found that the
respondent was entitled to a sum of ₹80,000/- to the80,000/-
towards the relief claimed in the said application. The
assertions made on behalf of the respondent went
uncontroverted before the Labour Court, for which
the petitioner - Corporation is itself to blame.
15. It is significant that even in the writ
petition filed before this Court, the petitioner -
Corporation has not put-forth specific contentions
with regard to the conditions to be satisfied by the
respondent - workman. There is no statement
regarding his selection at least once by Competent
Selection Committee and therefore, it cannot lie in
the mouth of the petitioner - Corporation to contend
that the application under Section 33-C(2) of the
aforesaid Act was not maintainable.
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16. It is undisputed that in the case of
identically situated workmen, the petitioner has
implemented orders passed on the applications filed
under Section 33-C(2) by the workmen. The order
dated 04.07.2016, passed by this Court in Writ
Petition No.949/2015 and connected petitions shows
that relief granted by Labour Court to identically
situated workmen has been confirmed by this Court
by dismissing the writ petitions. In this situation,
while exercising writ jurisdiction, this Court is not
inclined to consider the contentions raised on behalf
of the petitioner - Corporation. The amount payable
to the respondent - workmen in the present case as
per the order of the Labour Court is only ₹80,000/- to the80,000/-.
17. Hence, in these circumstances, this Court
finds that no ground is made out for invoking writ
jurisdiction in favour of the petitioner - Corporation.
Accordingly, the writ petition is dismissed. The
amount of ₹80,000/- to the40,000/- deposited by the petitioner -
Corporation in this Court shall be disbursed forthwith
to the respondent along with accrued interest, if any.
18. The petitioner - Corporation shall pay
the balance amount in terms of the impugned order
to the respondent within a period of eight weeks from
today.
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19. It is made clear that the present writ
petition has been disposed of in the aforesaid manner
in the peculiar facts and circumstances of the present
case.
JUDGE
Prity
Digitally signed
by PRITY S
GABHANE
PRITY S Date:
GABHANE 2022.03.30
11:13:17
+0530
