Dr. Arvind Lalitbhai Patel And Anr vs Mr. Viral K. Gandhi And Ors
2023 Latest Caselaw 2800 Bom

                                                           22-WP-2522-21.DOC


                                                             Sayali Upasani


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION


                   WRIT PETITION NO.-2522 OF 2021


 Lintas India Pvt Ltd                                     ...Petitioner

                  Vs.
 Bharatiya Kamgar Sena Praphulban                    ...Respondents
 Soc. and Ors

Mr.       Anand Pai a/w Adv. Sakshi Sharma a/w Adv.
Sheroy M.Bhodhanwalla a/w Adv. Burjis Doctor i/b M.s.
Bhodhanwalla and Co., Advocates and Solicitors, for
Petitioner.
Mr. Kiran Bapat, Senior Counsel i/b Mr. Avinash Hari
Fatangare, for Respondents.

                             CORAM:- N. J. JAMADAR, J.

RESERVED ON:- 13th MARCH, 2023 PRONOUNCED ON:- 23rd MARCH, 2023 JUDGMENT:-

1) By this Petition under Article 226 of the Constitution

of India, the petitioner assails the legality, propriety and

correctness of an order passed by the learned Member

Industrial Court, Mumbai in Recovery Application (ULP)

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No.04 of 2018 in complaint (ULP) No.1161 of 1989, whereby

and whereunder the Recovery Application came to be

partly allowed and the petitioner was directed to pay

diverse amount to respondent Nos. 2, 4, 6 and deceased

respondent Nos. 3 and 5 - the applicants therein, along

with interest at the rate of 10% from 24 th December, 1999,

the date of judgment in complaint (ULP) No. 1161 of 1989.

2) For the sake of convenience and clarity, the parties are

hereinafter referred to in the capacity in which they were

arrayed before the learned Member Industrial Court in

Recovery Application (ULP) No. 04 of 2018.

3) Bharatiya Kamgar Sena - the applicant No. 1 claimed

to have right to represent the employees of the respondent

No. 1- company. The applicant Nos. 2 to 6 were working

with the respondent No.1-company for several years

without the benefit of permanency. The applicant No. 1

filed a complaint being complaint (ULP) No.1161 of 1989, on

behalf of the applicant Nos. 2 to 6 and two other workmen

alleging Unfair Labour Practices within the meaning of

items 1(a),1(b) of Schedule-II and 3, 5, 6 and 9 of

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Schedule-IV of the Maharashtra Recognition of Trade

Unions and Prevention of Unfair Labour Practices Act ("the

Act, 1971").

4) By judgment and order dated 24th December, 1999,

the learned Member Industrial Court, Mumbai was

persuaded to allow the said complaint. It was declared that

the respondent Nos. 1 to 5 therein, committed the unfair

labour practices under Items 3, 5, 6 and 9 of the Schedule-

IV of the Act, 1971 and were thus directed to desist from

continuing the same. Respondent Nos. 1 to 4 were also

directed to provide the service conditions and benefits of

permanent employees to the workmen, in respect of whom

complaint was filed, taking into consideration their initial

appointment. The respondent Nos. 1 to 4 were also directed

to pay the arrears of those benefits/wages within two

months from the date of the said order.

5) The respondents challenged aforesaid judgment and

order in this Court in Writ Petition No. 262 of 2000. A

learned Single Judge of this Court was persuaded to

dismiss the Petition by a judgment and order dated 22 nd

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March, 2000. The respondent No. 1 carried the matter in

Appeal before the Division Bench in Appeal No. 408 of

2000. By a judgment and order dated 9 th December, 2016,

the Division Bench was persuaded to dismiss the Appeal.

The Special Leave Petition, being SLP (c) No (s). 12568 of

2017, met the same fate.

6) Upon alleged failure to implement the judgment and

order of learned Member Industrial Court in complaint

(ULP) No. 1161 of 1989, initially the applicants filed a

complaint, being Miscellaneous Criminal Complaint (ULP)

No. 42 of 2017 under the provisions of Section 48 (1) of the

Act, 1971. The learned Judge Labour Court dismissed the

complaint under Section 203 of the Code of Criminal

Procedure, 1973, holding that no sufficient ground was

made out to proceed against the accused - respondent Nos.

1 to 5.

7) Thereupon the applicants preferred an application

under Section 50 of the Act, 1971, for recovery of the

amount ordered to be paid by the Industrial Court in

complaint (ULP) No.1161 of 1989. The respondent No. 1-

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company resisted the application by filing written

statement.

8) The learned Member, Industrial Court after appraisal

of the pleadings and the evidence adduced by the

applicants and respondent No. 1 and the documents

tendered for his perusal, was persuaded to partly allow the

application holding, inter alia, that the applicants were

entitled to the arrears of the wages and benefits from the

date of their employment till the date of their termination,

and that since the respondent No. 1-company unjustifiably

withheld those wages and benefits, it was liable to pay the

arrears with interest at the rate of 10% p.a.

9) Being aggrieved, the respondent No. 1-company has

invoked the writ jurisdiction of this Court.

10) I have heard Mr. Anand Pai, the learned Counsel for

the petitioner, and Mr. Kiran Bapat, the learned Senior

Counsel for the respondents.

11) The learned Counsel took the Court through the

judgments and orders passed by the Industrial Court and

this Court leading to the application under Section 50 of

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the Act, 1971, for the recovery of the amount, the evidence

led by the parties therein and the impugned judgment.

12) Mr. Pai, mounted a multi-pronged challenge to the

impugned judgment. Firstly, Mr. Pai would urge, with a

decree vehemence that, the learned Member Industrial

court fell in error in determining the entitlement of the

applicant Nos. 2 to 6 in contradistinction to the exercise of

recovery of due amount under Section 50 of the Act, 1971.

Inviting the attention of the Court to paragraph No. 30 of

the impugned judgment where the learned Member

Industrial Court professed to determine the entitlement,

Mr. Pai would urge that on this singular ground the

impugned judgment warrants interference.

13) Secondly, the Industrial Court again committed an

error in not properly appreciating the evidence adduced by

the parties. Since no credible material was placed on

record to show the amount, which was due to the applicant

Nos. 2 to 6, their entitlement could have been decided only

on the basis of minimum wages. A categorical statement

was made by the witness examined on behalf of the

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respondent No. 1 that the wages which were offered by the

respondent No. 1 were computed on the basis of minimum

wages. The learned Member Industrial Court unjustifiably

discarded the evidence and determined the due amount on

the basis of the calculation sheets furnished by the

applicants for which there was no support, submitted Mr.

Pai.

14) Thirdly, the learned Member Industrial Court to lend

support to its findings relied upon a judgment of a learned

Single Judge of this Court in case of V. Ramanathan,

General Secretary, Hindustan Lever Mazdoor Sabha V/s.

Hindustan Lever Ltd. & Anr1, which was overruled by a

Division Bench of this Court in the case of Ultra Drytech

Engineering Ltd and Anr. V/s. Vaibhav Laxman Suravkar

and anr2 .

15) Lastly, according to Mr. Pai, the learned Member

Industrial Court did not properly appreciate the

entitlement of the applicant Nos. 2 to 6 for interest on due

amount and went on to award interest at an exorbitant rate

1 2002 (92) FLR 265-Bom. H.C.

2 2005 (2)L.L.N. 171

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of 10% p.a. On this count, the impugned order surely

requires to be interfered with, in exercise of writ

jurisdiction, urged Mr. Pai.

16) In opposition to this, Mr. Bapat stoutly submitted that

none of the grounds sought to be pressed into service on

behalf of the petitioner merits countenance. Amplifying the

submission, Mr. Bapat would urge that the learned

Member Industrial Court was within his rights in

calculating the quantum of due amount. By a catena of

decisions, according to Mr. Bapat, it is well neigh

recognized that arithmetical calculation of the due amount

is within the province of the Court exercising jurisdiction

under Section 50 of the Act, 1971.

17) Mr. Bapat submitted the very judgment in the case of

Ultra Drytech Engineering (supra) relied upon by the

petitioner, in terms, rules that the Court is empowered to

direct recovery of the due amount post arithmetical

calculation. Mr. Bapat submitted that the learned Member

Industrial Court has arrived at a justifiable conclusion on

the basis of the appraisal of the material and evidence

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adduced before the Court. The respondent No. 1 made no

efforts to place on record documents to show the wages

paid to similarly circumstanced workmen. In the

circumstances, the learned Member Industrial Court was

justified in directing the recovery of the due amount

calculated on the basis of the wages paid to the

co- workmen. Award of interest on due amount is a

standard norm of recompense where an employee is

deprived of legitimate wages. Therefore, no fault can be

found with the impugned order awarding interest, urged

Mr. Bapat.

18) To bolster up of this submission, Mr. Bapat placed

reliance on a judgment of this Court in the case of Dilip T.

Khandar Vs. State of Maharashtra and Others3, wherein

this Court had directed payment of interest on the due

amount which was ordered to be recovered under Section

50 of the Act, 1971.

19) The aforesaid submissions now fall for consideration.

3 2006 (2) Mh. L.J. 781

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20) First and foremost, the scope of the jurisdiction

exercised by the Industrial Court under Section 50 of the

Act, 1971. Rival submissions, as noted above, were

canvassed in respect of the contours of the power to order

recovery under Section 50 of Act, 1971. It may thus be

expedient to note the text of Section 50 of the Act, 1971. It

reads as under:-

"...50. Recovery of money due from employer:- Where any money is due to an employee from an employer under an order passed by the Court under Chapter VI, the employee himself or any other person authorized by him in writing in this behalf, or in the case of death of the employee, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the Court for the recovery of money due to him, an if the Court is satisfied that any money is so due,l it shall issue a certificate for that amount to the Collector, who shall, proceed to recover the same in the same manner as an arrear of land revenue:

Provided that, every such application shall be made within one year from the date of which the money became due to the employee from the employer.

Provided further that, any such application may be entertained after the expiry of the said period of one year, if the Court is satisfied that the applicant had sufficient cause for not making the application within the said period.... "

21) From the phraseology of Section 50 of the Act, 1971,

the following appear to be jurisdictional conditions for

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issue of a certificate to the Collector for the recovery of the

certificated amount as an arrear of land revenue:

(1) Money is due to an employee from an employer

under an order passed by the Court under Chapter VI,

which subsumes provisions containing unfair labour

practices.

(2) An employee or an Authorized person or his

assignee or heirs, in case of death of the employee,

ought to make an application to the Court for the

recovery of money due to the employee.

(3) The Court ought to be satisfied that the money is

so due.

If aforesaid conditions are satisfied, then

notwithstanding any other mode of recovery, the

employee can approach the Court to grant a certificate

of recovery.

22) Evidently, the linchpin of the provision is "money is

due.... under an order of the Court". It is only when the

Court exercising jurisdiction under Section 50 of the Act,

1971, is satisfied that money is due under the order of the

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Court and it has not been paid, it would be justified in

directing its recovery by the Collector as an arrear of land

revenue. What is the import of the expression "money is

due.... under an order passed by the Court" ?

23) Mr. Pai strenuously submitted the said expression has

been judicially construed to mean the amount which has

already been determined by the Court. The Court

exercising jurisdiction under Section 50 of Act, 1971, can

not resort to determination of "entitlement" of an employee

and must restrict itself to recovery of the money which has

finally been adjudged by the Court.

24) To lend support to this submission, Mr. Pai placed a

strong reliance on the judgment of this Court in the case of

Mahatma Phule Krishi Vidyapeeth, Rahuri, Dist.

Ahmednagar and Another Vs. Ahmednagar Zilla

Shetmajoor Union, Trade Union Centre, Shrirampur and

Another4, wherein a learned Single Judge after adverting to

the judgment of this Court in the cases of V. Ramanathan

(supra) and Ultra Drytech (supra) enunciated the legal

4 2017 (4) Mh. L.J. 426

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position that an application for recovery of money under

Section 50 can be entertained only after the claimant's

entitlement is determined finally by some authority. The

Court, under Section 50, cannot resort to an adjudicatory

process in the form of a complete trial and investigation to

determine whether the claimant was basically entitled to

the claim and then decide the amount of arrears of dues

not paid by the employer. In short, the amount claimed

must be due and payable and the jurisdiction of the Court

under Section 50 cannot be expanded to permit a complete

trial of the matter as if it is an original proceeding.

25) In the aforesaid case, it was further observed that the

disputed claims like the difference in pay scales,

entitlement to leave encashment, bonus, interest, dress

allowance etc., which were claimed in the said case, were

beyond the ambit of the jurisdiction of the Court exercising

power under Section 50 of the Act, 1971.

26) A Division Bench of this Court in the case of Ultra

Drytech (supra) expounded the scope of Section 50 of the

Act, 1971, in the context of the law enunciated by the

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Supreme Court in relation to Section 33-C (1) of the

Industrial Disputes Act, 1947 ("the I.D Act"), which was

held to be pari materia with the provisions contained in

Section 50 of the Act, 1971.

27) To have a clear understanding of the nature of the

jurisdiction exercised by the Court under Section 33C of

the I.D. Act, it may be advantageous to note the provisions

contained in Section 33-C (1) and (2), which read as

under:-

" ......33C. Recovery of money due from an employer:- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter VA or Chapter VB], the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:

Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

(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

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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;1[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.]".......

28) Comparing and contrasting the provisions contained

in Section 33 C(1) of I.D. Act and Section 50 of the Act,

1971 (extracted above) would indicate that the provisions

are pari materia. Under Section 33 C(1) money ought to be

due under a settlement or an award or under the

provisions of Chapter V-A or V-B of the I.D. Act. Whereas

under Section 50 of the Act, 1971, the money ought to be

due under an order passed by the Court under Chapter VI

of the Act, 1971. Undoubtedly, the authority which is

empowered to grant recovery certificate differs under both

the enactments but the essential conditions remain the

same.

29) It would be profitable, at this juncture, to refer to a

Constitution Bench judgment of the Supreme Court in the

case of Kays Construction Co.(Private) Ltd Vs. The State of

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U.P. and Others5, wherein in the context of the provisions

of Section 6-H, of U.P. Industrial Disputes Act, 1947, which

were found to be pari materia with Section 33 C of the I.D.

Act, the Supreme Court exposited the distinction between

Sub Section (1) and (2) of Section 33 C, especially the

difference in the terms "money due" used in Sub Section

(1)" and "benefit which is capable of being computed in

terms of money" used in sub Section (2) of Section 33 C.

30) The observations in paragraph 7 are instructive and,

hence, extracted below:-

7. That there is some difference between the two sub-sections is obvious enough. It arises from the fact that the benefit contemplated in the second sub-section is not "money due" but some advantage or perquisite which can be reckoned in terms of money. The Divisional Bench has given apt examples of benefits which are computable in terms of money, but till so commuted are not "money due". For instance, loss of the benefit of free quarters is not loss of "money due" though such loss can be reckoned in terms of money by inquiry and equation. The contrast between ,'money due" on the one hand and a "benefit" which is not "money due" but which can become so after the money equivalent is determined on the other, marks out the areas of the operation of the two sub-

sections. If the word "benefit" were taken to cover a case of mere arithmetical calculation of wages, the first sub- section would hardly have any play. Every case of calculation, however, simple, would have to

5 AIR 1965 SC 1488

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go first before a Tribunal. In our judgment, a case such as the present, where the money due is back wages for the period of unemployment is covered by the first sub-section and not the second. No doubt some calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of the type mentioned in the second sub-section and cannot be made to fit in the elaborate phrase "benefit which is capable of being computed in terms of money". The contrast in the two sub-sections between "money due" under the first sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes "money due" under the second sub-section shows that mere arithmetical calculations of the ).mount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the "amount due" and they are being investigated because State Government must first satisfy itself that the amount claimed is in fact due. But the antithesis between "money due" and a "benefit which must be computed in terms of money" still remains, for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit. The judgment of the Division Bench was thus right. The appeal fails and will be dismissed with costs. The companion appeal will also be dismissed but we make no order about costs in that appeal. Appeal dismissed."

(emphasis supplied)

31) The Supreme Court has in terms enunciated that

where the money is due towards the backwages for the

period of unemployment, it would be covered by sub

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Section (1) and not sub Section (2). The Court proceeded to

observe that some calculation to determine the amount for

which the certificate has to be eventually issued is

inevitable. However, such calculation does not partake the

character of inquiry, which falls within the ambit of the

elaborate phrase, "benefit which is capable of being

computed in terms of money".

32) The aforesaid pronouncement was followed by another

Constitution Bench Judgment in the case of The Sawtram

Ramprasad Mills Co. Ltd., Akola Vs. Baliram Ukandaji and

another6. The observations in paragraph No. 5 again

emphasize that a simple arithmetical calculation is

permissible under Section 33 C (1) of the I.D. Act. They

read as under:-

"....5. The next contention is that the claim for lay off is not a claim for money due because calculations have to be made before the money due can be found. This argument has been considered on more than one occasion and it was rejected recently by this Court in Kays Construction Co. (P) Ltd. v. State of U.P. (C. AS.1108 and 1109 of 1963, D/26-11-1964:(AIR 1965 SC 1488). It is not essential that the claim which can be brought before the Government or its delegate under S.

33C(1) must always be for a predetermined sum. The Government or the Labour Court may satisfy itself

6 AIR 1966 SC 616

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about the exact amount and then take action under that section. In the present case the dates of lay off are known and each workmen will show to the Second Labour Court that he is qualified to receive compensation for lay off. That will be shown from the muster roll which the employer is required to maintain and it will then be a simple arithmetical calculation which, in our judgment, S.33C permits to be made. If there is any question whether there was lay off or not the Labour Court will decide it. This argument, therefore, has no force...."

(emphasis supplied)

33) Again in the case of U.P. Electric Supply Co. Ltd Vs.

R.K. Shukla and Another, Etc.7 , the distinction between

sub Section (1) and (2) of Section 33 C of I.D. Act was

illuminatingly postulated as under:-

".....14.......The legislative intention disclosed by Sections 33 C ( 1 ) and 33 -C (2) is fairly clear. Under Section 33-C(1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of Ch. V-A, the workman himself, or any other person authorised by him in writing in that behalf, may make an application to the appropriate Government to recover of the money due to him. Where the workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, applies in that behalf, the Labour Court may under Section 33-C(2) decide the questions arising as to the amount of money due or as to the amount at which such benefit shall be computed. Section 33-C(2) is wider than Section 33C(1). Matters which do not fall within the terms of Section 33C(1) may, if the workman is shown to be entitled to receive the benefits, fall within the terms of Section 33C(2). If the liability arises from an

7 1969 (2) SCC 400

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award, settlement or under the provisions of Ch. V-A, or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under Section 33-C(2) before the Labour Court. Where however the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon a reference, it would be straining the language of section 33C(2) to hold that the question whether there has been retrenchment may be decided by the, Labour Court. The power of the Labour Court is to compute the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen. Where retrenchment is conceded, and the only matter in dispute is that by virtue of Section 25-FF no liability to pay compensation has arisen the Labour Court will be competent to decide the question. In such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability. Where, however, the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, in our judgment, the Labour Court will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested....."

(emphasis supplied)

34) In the case of Ultra Drytech (supra), the Division

Bench referred to the aforesaid judgments to draw support

to the following enunciation about the scope of Section 50

of the Act, 1971:-

"....10....A mere perusal of the said section indicates that the said provisions are in fact summary provisions and provide for recovery of dues by an employee from the employer which are already due and payable and/or determined by the earlier proceedings.

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The provisions of Section 50 nowhere prescribe that the money which is due and payable should be the exact determined sum and that an Industrial Court cannot undertake an exercise of simple arithmetical calculation. Once the rights of the parties are already determined under a valid award or an order then for the execution of such determined rights the provisions of Section 50 of the MRTU and PULP Act, 1971 are enacted. The provisions of Section 50 of the said MRTU and PULP Act, 1971 are in para materia with the provisions of Section 33(C)(1) of the Industrial Disputes Act, 1947 which have been the subject matter of interpretation in various pronouncements of the Honourable Supreme Court of India......"

(emphasis supplied)

35) The aforesaid exposition of law thus indicates that the

remit of power under Section 50 of Act, 1971, is not

restricted to ordering recovery of predetermined amount.

The Court is not precluded from arriving at what was the

"money due" after resorting to arithmetical calculation.

What the Court is certainly precluded from is

determination of the entitlement to the money and not the

computation of money. If it is a question of computation of

money as distinct from determination of entitlement, the

power under Section 50 of the Act, 1971, can be

legitimately exercised. A constricted view of Section 50 of

the Act, 1971, as was sought to be urged on behalf of the

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petitioner, would defeat the legislative object of providing a

swift remedy by empowering the Court to issue the

recovery certificate and would drive the employees to

protracted proceedings to recover the amount, entitlement

to which has already been adjudicated by the Court under

Chapter VI of the Act, 1971. Such construction is required

to be avoided.

36) What is the nature of the jurisdiction exercised by the

Industrial Court in the case at hand ? Would it fall within

the ambit of computation and recovery or determination of

entitlement? These are the questions which crop up for

consideration. To explore an answer, of necessity, recourse

to the order passed by Industrial Court in complaint (ULP)

No.1161 of 1989, dated 24th December, 1999, becomes

inevitable.

37) By the said order, the petitioner was directed to

provide the service conditions and benefits of permanent

employees to the workmen in the said complaint taking

into consideration their initial appointment. The petitioner

was also directed to pay the arrears of those

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benefits/wages within two months from the date of the

said order.

38) Mr. Pai would urge that the aforesaid order can not be

construed as an order crystallizing the money, which

became due and payable to the employees.

39) I am afraid to accede to this submission. There was a

clear direction to the petitioner to extend the service

conditions and benefits of permanent employees to

respondent Nos. 2 to 6 and also pay the arrears of those

benefits/wages. The money thus became due to respondent

Nos. 2 to 6 under the said order. What remained to be

determined was the quantum of the said benefits/wages,

which is essentially a matter of computation.

40) Reverting to the impugned order, the learned Member

Industrial Court has computed the amount due and

payable to the respondent Nos. 2 to 6 on the basis of the

benefits extended and wages drawn by similarly

circumstanced employees. The said course, in the

circumstances of the case, can not be said to be

unjustifiable. It is pertinent to note that the learned

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Member Industrial Court took care to cap the

benefits/wages payable under the order dated 24 th

December, 1999 to 6th July, 2000, the day respondent Nos.

2 to 6 were terminated, a challenge to which is subjudice.

41) This leads me to second limb of the submissions of

Mr. Pai.

42) It was urged that in any event the benefits/wages

ought to have been computed on the basis of minimum

wages. On the one hand, the respondent Nos. 2 to 6 did

not produce any material of unimpeachable character to

lend support to the calculation sheets tendered for the

perusal of the Industrial Court and, on the other hand, the

assertion of petitioner's witness that the amounts which

were offered by the petitioner to respondent Nos. 2 to 6

were calculated on the basis of minimum wages went

untraversed, submitted Mr. Pai.

43) The learned Member Industrial Court was of the view

that it was incumbent upon the petitioner to place

documents on record to show the wages paid to the

similarly circumstanced employees. No material was placed

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to show that the petitioner had paid a particular salary in

a particular month. An attempt was made to wriggle out of

the situation by asserting that since the matter was very

old, no documents were available. The Industrial Court was

not prepared to accede to this submission.

44) The approach of the learned Member Industrial Court

can not be faulted at. In the given circumstances, the

applicants adduced the evidence, which they were capable

of, place on record the calculation sheets of the benefits

extended and wages paid to similarly circumstanced

employees. The applicants, thus, did do, what was within

their power. If the petitioner intended to establish to the

contrary, the petitioner ought to have brought credible

material on record, as it was enjoined to maintain the

muster roll and other documents which would have

facilitated the computation of the amount due and payable

under the order of the Court. Failure to bring such

material on record was at the own peril of the petitioner.

45) Lastly, a feeble attempt was made on behalf of the

petitioner to urge that the learned Member Industrial

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Court could not have awarded interest on the due amount.

The submission is required to be stated to be repelled.

Interest on the delayed payment of wages due to an

employee is a well recognized mode of compensating the

employee, who has been kept away from legitimate dues.

46) In the case of Dilip T. Khandar (supra), a Division

Bench of this Court awarded interest on the amount, for

which a recovery certificate was granted under Section 50

of the Act, 1971. The Division Bench had drawn support

from provisions contained in Section 267 (1) of the

Maharashtra Land Revenue Code, 1966, under which the

amount is to be recovered as an arrear of land revenue.

The Court thus awarded interest on the amount due under

the recovery certificate at the rate of 6% p.a.

47) An issue which merits consideration is the rate at

which the interest is awarded by the Industrial Court.

Interest has been ordered to be paid from the date of the

judgment in complaint (ULP) No. 1161 of 1989 till the date

of realisation. The said period exceeds 20 years. It is

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common knowledge that interest rate moves in cycles. It is

rarely static for even a couple of years.

48) In the totality of the circumstances, in my view, it

would be appropriate to modify the rate of interest awarded

by the learned Member Industrial Court. A direction for

payment of interest at the rate of 8% p.a. would be just and

equitable.

49) For the foregoing reasons, I am persuaded to partly

allow the Petition and modify the impugned order to the

extent of rate of interest only.

Hence, the following order.

-:ORDER:-

(i) The Petition stands partly allowed.

(ii) The order passed by the learned Member

Industrial Court dated 26th August, 2021, in Recovery

Application (ULP) No.4 of 2018, stands modified to the

extent of interest only.

(iii) The respondent Nos. 2 to 6 are entitled to recover

the arrears of wages as ordered by the Industrial

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Court along with interest at the rate of 8% p.a. from

the date of judgment in complaint (ULP) No. 1161 of

1989 i.e. 24th December, 1999.

(iv) Rest of the order stands affirmed.

(v)      No costs.

(vi)     Rule made absolute to the aforesaid extent.

(vii) The amount deposited by the petitioner be paid to

respondent Nos. 2 to 6 in proportion to their

entitlement under the impugned order as modified by

the aforesaid order.

At this stage, the learned Counsel for the

petitioner seeks continuation of the interim order for a

period of two weeks.

Mr. Bapat makes a statement that the

respondent Nos. 2 to 6 would not withdraw the

amount deposited by the petitioner in this Court for a

period of two weeks from today.

Statement accepted.

[N. J. JAMADAR, J.]