President, The Vadodara Gujarati ... vs Martin M Parmar
2021 Latest Caselaw 2989 Guj

        C/SCA/12998/2009                                 JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


        R/SPECIAL CIVIL APPLICATION NO. 12998 of 2009
                             With
    MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2018
                              In
        R/SPECIAL CIVIL APPLICATION NO. 12998 of 2009


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

================================================================

1    Whether Reporters of Local Papers may be allowed              No
     to see the judgment ?

2    To be referred to the Reporter or not ?                       Yes

3    Whether their Lordships wish to see the fair copy             No
     of the judgment ?

4    Whether this case involves a substantial question             No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
PRESIDENT, THE VADODARA GUJARATI CATHOLIC CO OPERATIVE & 1
                           other(s)
                           Versus
                 MARTIN M PARMAR & 1 other(s)
================================================================
Appearance:
MR RD RAVAL(716) for the Petitioner(s) No. 1,2
DECEASED LITIGANT(100) for the Respondent(s) No. 1
MR PJ MEHTA(467) for the Respondent(s) No. 1,1.1,1.2
RULE SERVED(64) for the Respondent(s) No. 1
================================================================

 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                           Date : 22/02/2021

                           ORAL JUDGMENT

C/SCA/12998/2009 JUDGMENT

1. By filing the present petition under Articles 226 and

227 of the Constitution of India, the petitioners have

challenged the award dated 09.10.2009 passed by the

learned Labour Court, Vadodara in Recovery Application

No.384 of 2002, whereby, the application of the workman

came to be partly allowed and the petitioners were

directed to pay Rs.87,000/- (Rupees Eighty Seven

Thousand Only) to the respondent - workman towards the

dues of the salary.

2. For the sake of brevity and convenience, the parties

are referred to as "petitioner" and "respondent".

3. It is contended that the employer is the Cooperative

Society and is established by the educated Christian and

a retired teacher. It is further contended that the

respondent was not employee of the society, but he was

being paid honorarium for his services. It is also

contended that the respondent has committed a fraud and

misappropriation of huge amount of Rs.1,56,324/-

(Rupees One Lakh Fifty Six Thousand Three Hundred

C/SCA/12998/2009 JUDGMENT

Twenty Four Only) and, therefore, the Registrar of the

Cooperative Society has lodged the complaint against the

respondent. It is further contended by the society that the

respondent himself has tendered his resignation and it

was accepted and at that time, he had assured to make

good any amount which is to be paid back to the society.

It is also contended that the respondent was not a

workman within the meaning of the Industrial Disputes

Act, 1947 (hereinafter be referred to as the "I.D. Act.")

as he was a retired teacher who was a promoter of the

society and was officer bearer of the society in honorary

capacity and was drawing Rs.500/- as honorarium. It is

further contended that the Labour Court has failed to

appreciate the fact that there was no master and servant

relationship between the society and the workman. It is

contended that no proof of payment of any sort of wages

was placed on record and in absence of such documents,

no order ought to have been passed by the Labour Court.

It is contended that the Labour Court has committed

serious error of facts and law in holding that the office

bearer under the Cooperative Societies Act working on

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honorary basis be treated as a workman. It is contended

that the Labour Court has failed to appreciate the fact that

the recovery application under Section 33-C(2) of the I.D.

Act can be filed only against a pre-existing right which

could be examined in a proper reference. It is further

contended that in the present case, there was no pre-

existing right and as such, the respondent was not being a

workman, the I.D. Act itself was not applicable. According

to the society, the Labour Court has no jurisdiction and it

has exercised its power without any jurisdiction. It is

contended that the award is bad-in-law and it deserves to

be quashed and set aside and more so because such a

fake recovery application had been created after

inordinate and unexplained delay. On all these grounds,

the society has prayed to pass appropriate writ, order or

direction or writ in the nature of certiorari to quash and

set aside the award passed in Recovery Application

No.384/2002.

4. The original respondent - workman has filed the

affidavit-in-reply wherein he has categorically stated that

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he was the promoter of the society and working on

honorary service has disputed the question of facts and,

has taken any stand that the version of the society is not

tenable. He has stated that in Annual Report of Second

Anniversary of the society 2000-2001 whereby the title

headings of the cover page discloses the fact that the

workman is included in the list of employees as secretary

which was produced before the Labour Court in Recovery

Application. He has further stated that there is no dispute

that in the balance sheet, Loss and Profit, Credit and Debit

Account, Rs.12,000/- has been shown towards the

expenses of salary which is also the part of the said

Annual Report of the society. According to him, the

version of the honorarium as alleged by the society is not

based on good foundation. He has further stated that the

allegation of misappropriation of huge amount is not

proved after police complaint and subsequent

investigation. He has stated that he was a paid employee.

He has stated that the dispute raised by the society

regarding non-existence of the employer and employee

relationship is not proved before the Labour Court and the

C/SCA/12998/2009 JUDGMENT

Labour Court has clearly held against the society. It is

further stated that the society has every record, but it has

not been believed by the Labour Court and the same has

not been properly proved by the society before the Labour

Court. It is stated by the respondent in the affidavit-in-

reply that the amount arrived at by the Labour Court on

the basis of the workman regarding monthly salary of

Rs.2000/- as well as unpaid salary of Rs.87,000/- as

against 53 working months in the society and Rs.93,000/-

towards the house rent allowance is proper. It is stated

that the claim of the recovery amount, as put up by the

workman, has not been controverted by the society. It is

also stated that the point raised regarding the powers of

the society under the Gujarat Cooperative Society's Act,

1961 has not been raised before the Labour Court and it

cannot be, now, agitated by the society.

4.1 While referring to Section 33(C)(2) of the I.D. Act, it

is further stated by the respondent that it is based on two

counts (i) on the basis of pre-existing rights which can be

counted on the basis of agreement, award and settlement

C/SCA/12998/2009 JUDGMENT

between employer and employee as contemplated under

Section 10(1) Conciliation proceedings, Section 18 and

Section 2(P) of the I.D. Act and (ii) on consideration of

recovery based on continuous flowing rights based on

regular monthly salaries during the course of

employment. It is stated that the calculations of unpaid

salary for recovery proceeding cannot be removed from

the zone of consideration of Section 33(C)(2) of the

recovery proceedings of the I.D. Act. It is narrated that

the Labour Court has taken into consideration all these

aspects and has properly passed the award in his favour.

5. The society has also filed affidavit-in-rejoinder

denying the stand put up by the respondent and

reiterated its stand in the petition.

6. The respondent has also filed affidavit-in-

surrejoinder against the affidavit-in-rejoinder of the

society relating to the same facts and the counter affidavit

against the sur-rejoinder by the society reiterating his

stand.

C/SCA/12998/2009 JUDGMENT

7. Heard Mr.R. D. Raval, learned advocate for the

petitioner - society and Mr.P. J. Mehta, learned advocate

for the respondent through video conferencing at length.

8. Mr.R. D. Raval, learned advocate for the petitioner -

society has vehemently submitted the same facts which

are narrated in the memo of petition, affidavit-in-rejoinder

and additional affidavit. He has submitted that the

respondent was not servant of the society and he was

working on honorary basis, cannot be treated as a

respondent. He has submitted that respondent is one of

the person who has created the society. He has submitted

that the respondent was working as secretary of the

society and the secretary cannot be an employee of the

society. According to him, the respondent has heavily

relied upon the first page of the annual report wherein his

name is printed in the title of the society, but this cannot

give any right to the respondent to file recovery

application. While referring to the documentary evidence

on record, Mr.Raval, learned advocate has submitted that

C/SCA/12998/2009 JUDGMENT

he was discharging his duty by paying the amount and

that fact has not been challenged by the respondent

before any Court and straightway filed the recovery

application, which is not tenable in the eyes of law. He has

submitted that as per Section 33-C (2) of the I.D. Act,

there must be some pre-existing right in his favour. He

has submitted that there cannot be any pre-existing right

to file the recovery application. He has submitted that the

respondent ought to have first approached the Labour

Court for establishment of his right as a respondent and,

thereafter, if award is passed in his favour, he could have

filed appropriate application under Section 33-C(2) of the

I.D. Act.

8.1 Mr.Raval, learned advocate for the petitioner has

submitted that considering the definition of the

"employer" and "workman" in the provisions of the I.D.

Act, those characteristics are not proved in the case and

the Labour Court has committed serious error of facts and

law in this regard. According to him, the entire award is

based on the assumption and presumption which cannot

C/SCA/12998/2009 JUDGMENT

be sustainable in the eyes of law.

8.2 Mr.R. D. Raval, learned advocate for the petitioner

has submitted that as there was misappropriation on the

part of the respondent, the Registrar has already filed the

criminal complaint against him. He has submitted that

there is no evidence as to the respondent being the

respondent and there is no clinching evidence. He has

further submitted that the respondent was retired teacher,

who is one of the promoters of the society. He has

submitted that in view of the interim order of this Court,

the society has already deposited the amount in the High

Court. He has submitted that considering the material

facts on record and the legal aspects, the present petition

may be allowed and the amount which has been deposited

by the society be refunded to the society.

8.3 Mr.Raval, learned advocate for the petitioner has

relied upon the following decisions, in support of his

arguments.

       C/SCA/12998/2009                                          JUDGMENT



(1)     Municipal Corporation of Delhi Vs. Ganesh Razak,
        (1995) 1 SCC 235;
(2)     Manilal Khimjibhai Makwana Vs. Commissioner,

Ahmedabad Municipal Corporation in Special Civil Application No.2243/2019 dated 5.2.2019 passed by the Coordinate Bench of this Court (Coram: Hon'ble Mr.Justice C. L. Soni)

9. Per contra, Mr.P. J. Mehta, learned advocate for the

respondent has submitted that the Labour Court has

properly appreciated the facts and has not committed any

error of facts and law in granting the recovery application.

He has submitted that nobody has appeared on behalf of

the petitioner - society and has not produced any oral and

documentary evidence and, therefore, no fault could be

found in the award of the Labour Court. While referring to

the criminal complaint filed against the respondent by the

Registrar of the society, he has submitted that there is

specific averment to the effect that the the respondent of

the recovery application i.e. respondent herein was

appointed as secretary and during his service as

secretary, he has not committed any fraud. According to

him, this averment itself suggests that the respondent

C/SCA/12998/2009 JUDGMENT

was workman and there is subsistence of the relationship

of employer and employee between the parties.

9.1 Mr.Mehta, learned advocate for the respondent has

submitted that the "secretary" is a workman and even the

present petitioner - society has not produced any

documentary evidence and management has also not

produced the same before the Labour Court. He has

submitted that the management has having every power,

but no such power has been vested to the secretary. He

has submitted that the receipt of the rent paid to the wife

of the secretary is also admitted facts. He has submitted

that as the society did not produce any documentary

evidence, the adverse inference needs to be drawn

against the society.

9.2 Mr.Mehta, learned advocate for the respondent has

submitted that the petition is filed under Articles 226 and

227 of the Constitution of India under the supervisory

jurisdiction of the High Court. According to him, no finding

of facts of the Labour Court can be disturbed as the

C/SCA/12998/2009 JUDGMENT

Labour Court has appreciated the facts and law in its

proper perspective. He has submitted that having a

revisonal power, this Court cannot act as an appellate

forum. He has submitted that it is held in catena of

decisions of the Apex Court that Section 33-C(2) of the

I.D. Act is wide enough which includes every claim of the

respondent which was available to him as of right. He has

submitted that there is no question of application of

Section 10A of the I.D. Act in the present case. He has

submitted that the dues of the society has already been

paid and the ground raised by the petitioner - society in

the present petition was never raised before the Labour

Court and, therefore, in absence of such ground, the

Labour Court has passed the impugned award. He has

submitted that the document which has been produced by

the society, in the present case, was not produced before

the Labour Court and the salary ledger has not been

produced by the society. He has prayed to dismiss the

present petition.

9.3 Mr.Mehta, learned advocate for the respondent has

C/SCA/12998/2009 JUDGMENT

relied upon the following decisions.

(1) Deepak Kumar Vs. Presiding Officer, Labour Court and others in Civil Writ Petition No.7066/1992 dated 3.6.1992 passed by the Division Bench of Punjab and Haryana High Court;

(2) Khalil Ahmed Bashir Ahmed Vs. Tufelhussein Samasbhai Sarangpurwala, AIR 1988 SC 184; (3) Mohd. Yunus Vs. Mohd. Mustaqim and others, AIR 1984 SC 38;

9.4 In rejoinder, Mr.Raval, learned advocate for the

petitioners has submitted that the observation of the

Labour Court is not proper and the decisions cited by the

learned advocate for the respondent is not applicable to

the facts of the present case and the entire case is based

on legal aspects which needs to be decided by this Court.

He has submitted that it was the duty of the Labour Court

to decide the matter as per the provisions of the I.D. Act.

He has prayed to allow the present petition.

10. In the case of Municipal Corporation of Delhi

(supra), the Apex Court has observed in relation to the

C/SCA/12998/2009 JUDGMENT

jurisdiction of the Lanbour Court under Section 33-C(2) of

the I.D. Act that where very basis of claim or entitlement

of the workmen regarding certain benefits is disputed, the

dispute is not incidental to the benefit claimed and,

therefore, outside the scope of Section 33-C(2), the

Labour Court will have no jurisdiction to entertain the

matter. It is further observed by the Apex Court therein

that it can only interpret the award or the settlement on

the rights of the workmen. In that case the question

involved was maintainability of the claim of the workmen

under Section 33-C(2) of the Act and the workmen were

claiming computation of arrears of their wages on the

basis of 'Equal Pay for Equal Work'. The maintainability of

the proceeding were challenged on the ground that their

claim being disputed, the proceedings under Section 33-

C(2) was not maintainable. The Apex Court has ultimately

observed in the said case that the Labour Court has no

jurisdiction to first decide the workmen's entitlement and

then proceed to compute the benefits so adjudicated on

that basis in exercise of powers under Section 33-C(2) of

the Act. It is also observed by the Apex Court that it is

C/SCA/12998/2009 JUDGMENT

only when the entitlement has only been adjudicated or

recognised by the employer and thereafter for the

purpose of enforcement thereof some ambiguity required

interpretation that the application to the Labour Court can

be filed under Section 33-C(2) like an executing Court.

11. In the case of Deepak Kumar (supra), the Division

Bench of Punjab and Haryana High Court has held in

relation to Section 33-C(2) of the I.D. Act wherein it has

been observed that the Labour Court has got jurisdiction

to decide the question whether the applicant was a

"workman" as defined in the aforesaid Act because the

Labour Court can proceed with an application for

computation of the benefits claimed only on proof of the

facts that the applicant was workman. This was inherent

in the provisions of Section 33-C(2) to invest the Labour

Court with the jurisdiction to compute arrears of pay or

wages.

12. In the case of Khalil Ahmed Bashir Ahmed

(supra), the Apex Court, regarding the powers of the High

C/SCA/12998/2009 JUDGMENT

Court under Article 227 of the Constitution, has observed

in para-13 which reads as under:-

"13. The intention here is manifest. In any event this is a possible view that could be taken. This Court in Venkatlal G. Pittie v. Bright Bros. (Pvt.) Ltd. (1987) 2 Scale 115 : (AIR 1987 SC 1939) and Beopar Sahayak (P) Ltd. v. Vishwa Nath (1987) 2 Scale 27 : (AIR 1987 SC 2111) held that where it cannot be said that there was no error apparent on the face of the record, the error if any has to be discovered by long process of reasoning and the High Court should not exercise jurisdiction under Art. 227 of the Constitution. See in this connection the observations of this Court in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137. Where two views are possible and the trial court has taken one view which is a possible and plausible view merely because another view is attractive, the High Court should not interfere and would be in error in interfering with the finding of the trial court or interfering under Art. 227 of the Constitution over such decision."

13. In the case of Mohd. Yunus (supra), while dealing

with the powers of the High Court under Article 227 of the

Constitution, has observed in para-7 which reads as

under:-

"7. The supervisory Jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of

C/SCA/12998/2009 JUDGMENT

law. In this case, there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision."

14. In the case of Mahilal Kimjibhai Makwana (supra),

the Coordinate Bench of this Court (Hon'ble Mr.Justice

C.L. Soni) has, while considering the factual aspects,

observed that "it is not the case where the petitioner got

reinstatement in service by virtue of any order made by

either Labour Court or the Industrial Tribunal or any other

Court. Even if, there is any such order of reinstatement

but without relief for the back wages, it will not be open

to the petitioner to claim recovery of the salary/wages for

the interregnum period, by resorting to the provision of

section 33(C)(2), of the Act. What is being claimed by the

petitioner is to hold that since the Commissioner made

order dated 29.01.2007 for taking him back in service to

his original post, he has automatically become entitled to

C/SCA/12998/2009 JUDGMENT

the benefits of salary/wages, which could be referred as

back wages, for the period from the date of his

termination from service till the date he was taken back in

service pursuant to the order made by the Commissioner.

Such is not permissible in the proceedings under section

33C(2) of the Act and, in that context, the Labour Court

has recorded that the petitioner has no pre-existing right

to claim recovery of the salary/wages for the period

between the date of termination of his services and the

date of his getting back in service pursuant to the order

made by the Commissioner".

15. Considering the submissions made on behalf of both

the sides as well as legal provisions as referred to by both

the parties and having considered the materials placed on

record, it appears that the contentions made by the

respondent to the effect that he was serving as secretary

and getting Rs.2,000/- as wages from the society and his

house is rented to the society and there is arrears of

salary and house rent on the part of the society are

contentious issues. According to the respondent, the

C/SCA/12998/2009 JUDGMENT

society has not paid him the wages as agreed between the

parties and has also not paid the rent of the house to him.

On that basis, the respondent has filed Recovery

Application No.384/2002 under Section 33-C(2) of the I.D.

Act. It also appears that the present society has taken the

stand that there is no employer or employee relationship

between the parties and the respondent was serving as

honorary secretary and he was not staff member of the

employee of the society.

16. It also appears that the respondent has examined

himself on oath and has also produced documentary

evidence where the society has not led any oral evidence

nor any documentary evidence is placed on record. On the

basis of the fact available and the evidence on record, the

Labour Court has granted the prayer of the respondent

and directed the petitioner - society to pay Rs.87,000/-.

17. On perusal of the impugned award, it appears that

the Labour Court has heavily relied on the material printed

on the front page of the report wherein the respondent

C/SCA/12998/2009 JUDGMENT

has been shown as an employee of the society. Except

that document, there is no other document on record to

suggest that the respondent was employee of the society.

On perusal of the oral evidence of the respondent herein,

it appears that he has admitted that he was serving as

secretary and he has already resigned from that post. The

petitioner - society has also raised the claim of the

respondent on the ground that the respondent was not a

employee of the society. At this stage, it is worthwhile to

referred to Section 33-C(2) of the I.D. Act which reads as

under:-

"33-C (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 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 [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.]"

18. On analysis of the aforesaid provisions, it is crystal

C/SCA/12998/2009 JUDGMENT

clear found that this provision applies only in the case

where there is pre-existing right available to the

respondent. It is also well settled by the Apex Court in the

very decisions that in recovery petition, the Labour Court

is competent to interpret the award passed in the

concerned matter and functioning of the Labour Court in

such matter would like an Executing Court and the power

of the Labour Court under Section 33-C(2) extends to

interpretation of the award or settlement on which the

respondent's right rests, like the Executing Court's power

to interpret the decree for the purpose of execution,

where the basis of the claim is referable to the award or

settlement, but it does not extend to determination of the

dispute of entitlement or the basis of the claim if there be

no prior adjudication or recognition of the same by the

employer. Further, the right to get benefits as alleged by

the petitioner needs and prior existence. Admittedly, in

this case, there is no prior adjudication upon claim made

by the respondent herein. When there is no pre-

adjudication of the right of the respondent earlier or there

is genuine dispute regarding the same, raised by the

C/SCA/12998/2009 JUDGMENT

employer, then, the jurisdiction of the Labour Court to

entertain and decide the recovery application under

Section 33-C(2) of the I.D. Act is not available.

19. Considering the factual as well as legal aspects of the

present case, this Court is of the considered view that

since there was no pre-existing right in existence as

employer has already raised the dispute regarding

entitlement of the respondent as to alleged salary of

Rs.2000/- per month, the exercise taken by the Labour

Court in entertaining and adjudicating the claim of the

respondent in recovery application under Section 33-C(2)

of the I.D. Act is erroneous on facts and law. Thus, when

there is inherent lack of jurisdiction on the part of the

Labour Court, under Article 227 of the Constitution of

India, the High Court has power to interfere with such

finding of facts as well as legal aspect. In the present

case, it is crystal clear that the Labour Court has acted

upon without any jurisdiction and has passed the

impugned award which is not tenable in the eyes of law.

C/SCA/12998/2009 JUDGMENT

20. In view of the above discussions, the present petition

deserves to be allowed and the impugned award passed

by the Labour Court deserves to be set aside.

21. Accordingly, the present petition is allowed. The

impugned award dated 09.10.2009 passed by the Labour

Court, Vadodara in Recovery Application No.384 of 2002 is

hereby quashed and set aside. The amount, if any,

deposited by the petitioner - society be refunded to the

petitioner - society, after due verification by the registry

along with the interest accrued thereon, if any. Rule is

made absolute to the aforesaid extent.

21. In view of the disposal of the main petition, the Misc.

Civil Application No. 2/2018 stands disposed of

accordingly.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL