Gujarat High Court
Hiteshkumar S/O Decd. Viththalbhai ... vs Managing Trustee on 6 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11439 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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HITESHKUMAR S/O DECD. VITHTHALBHAI AMBALAL VALALND LH OF DECD
VITHTHALBHAI VALAND
Versus
MANAGING TRUSTEE & ANR.
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Appearance:
MR MA PAREKH(1088) for the Petitioner(s) No. 1
MS DHARA M SHAH(5546) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 06/09/2024
ORAL JUDGMENT
1. Present petition is filed by the petitioner under Articles 226
& 226 of the Constitution of India and under the provisions of
Section 33(C)(2) of the Industrial Disputes Act with the following
prayers :-
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"(A) Your Lordships may be pleased to admit / allow the present
petition, in the interest of justice;
(B) Be pleased to call for the Record & Proceeding from the Labour
Court, Nadiad In Recovery [33-C(2)] Application No. 78/2004,
forthwith, for proper justification, in the interest of justice;
(C) Be pleased to issue a writ of mandamus or a writ of certiorari or
any appropriate writ, order or direction and be quashed & set aside the
Impugned Judgment & Order passed by the Presiding Officer of Hon.
Labour Court, Nadiad (Dist. Kheda) In Recovery (C-2) No. 78/2004
dated 4.8.2016, forthwith, in the interest of justice;
(D) Be pleased to issue a Writ of mandamus or a Writ of certiorari or
any appropriate Writ, order or direction and be directing to the
Respondents, herein, to Implement Ref. LCN Demand 7/88 & Pay Rs.
1,75,320/- as per the list made under the different heads as well as
Agreement of Settlement, forthwith, in the interest of justice;
(E) Pending, admission and final disposal of the present petition
this Hon Court may be pleased to direct the respondents, herein, to
implement the prayer in terms of paragraph 8 (B), in the interest of
justice;
(F) Any other and further relief/s may kindly be granted in the
interest of justice."
2. The brief facts of the present case are as under :-
2.1 The petitioner is a biological son of deceased -Viththalbhai
Ambalal Valand who had been working as an Assistant
Compounder of the Dispensary runs by the Respondents Trust
since 1958 till his retirement on dated 31.10.2003. The father of
the petitioner had been performing his continuous duty more
than 20 Years (without any break or any artificial break) under
the respondents' Trust Dispensary.
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2.2 In the year of 1996 settlement arrived by vide Reference in
LCN Demand No. 7/88, thereby, similar situated other employees
were benefited for getting their legitimate dues except father of
the petitioner despite the facts brought on record before the
learned Presiding Officer that by way of unanimous resolution
No. 16 passed by the respondents in their Board Meeting dated
5.7.1994, whereby, increased last salary of the father of the
petitioner, even by vide Resolution No. 7, the name of father of
petitioner was included but all of sudden while disposing of the
said proceeding the father of the petitioner was deleted oblique
motive and thus he was deprived from all his legitimate dues
which are still withheld by the respondents, herein.
2.3 The petitioner, therefore, thereafter, had preferred an
Application U/s 33-C(2) of the I.D. Act before the Labour Court,
Nadiad (Dist. Kheda) on dated 12.8.2004 by Vide Recovery (C-2)
No. 78/2004 with all concrete documentary evidences but
unfortunately, the learned Presiding Officer has dismissed the
said Recovery Application on very flimsy ground as well as in so
casual manner by not appreciating necessary resolutions and
length of Continuous Service i.e. from 1958 to 2003 and deprived
him from all legitimate dues for which the father of the
petitioner was absolutely entitled. Hence, the present petition.
3. Learned advocate Mr. M.A. Parekh for the petitioner has
submitted that the Presiding Officer has materially erred in law
as well as in facts in not appreciating the Resolution No. 16 dated
5.7.1994, whereby, the right of the petitioner had been
crystallized by the respondents, this Court therefore, may kindly
appreciate that despite the facts remained that the respondents
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had increased the last salary of the petitioner by way of passing
unanimous resolution though deprived him from his legitimate
right.
3.1 It is submitted that the learned Presiding Officer has
materially erred in law as in facts in not considering the
Resolution No. 7, whereby, the Majoor Mahajan Sagh had
inserted the name of the father of the petitioner as a member
but afterwards the name of the petitioner had been deleted
without giving any intimation either in oral or written or without
giving any proper reason with oblique motive, this Court,
therefore, may kindly consider this very material facts.
3.2 It is further submitted that the Presiding Officer ought to
have appreciated that settlement arrived by vide Reference LCN
No. 7/88, whereby, father of the petitioner was also entitled to
get benefit from 10.9.1995 but unfortunately even after these
much struggled to make out the prima-facie case the Presiding
officer has failed to consider length of service of the father of
the petitioner and straight way only on flimsy ground dismissed
the Recovery Application is nothing but gross injustice caused to
the father of the petitioner so the impugned Judgment & Order
passed by the Presiding Officer is require to be quashed and set
aside.
4. On the other hand, learned advocate Ms. Dhara Shah for
the respondent No.1 has submitted the Labour Court has rightly
passed the impugned order and no interference is required in the
present petition. Learned advocate for the respondent has filed
affidavit-in-reply in support of his contention more particularly
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Para-4, 5, 6 & 7 onwards and submitted that the settlement which
is referred and relied by the petitioner in Reference Case No.
7/1988, is against respondent No.1- Trust, copy of the settlement
which is referred by the present petitioner at page-41 of the
petition, wherein it is observed that the party to that reference is
respondent No.1, not respondent No.2. It is also submitted that
since the respondent No.2 was not party to the proceedings, it is
in between the workman and the respondent No.1-Trust only.
4.1 It is also submitted that it is admitted fact that the present
petitioner is not workman of respondent No.1, but he was
working under respondent No.2, wherein the Labour Court has
disposed the reference by recording the settlement which is
signed by the concerned and the present application was rightly
rejected by the Labour Court. It is also submitted that since the
original workman was died in the year 2018 till date, the
concerned workman has never objected this settlement and not
filed any recovery on the basis of the said settlement. Even after
the death of his father, the legal heirs of the deceased workman,
after almost one year has filed this application, in fact which is
not maintainable as it was not filed by the concerned workman
during his life time and after the death of the concerned
workman, his legal heirs has preferred the application. It is
further submitted that since both the Trust have their identity
merely by reference made in the balance sheet of the
respondent No.1 with regard to any amount is paid on behalf of
the respondent No.2, it does not mean that the petitioner -
original workman is working under respondent No.1 and
therefore, the Labour Court has not committed any error while
passing the impugned order. It is also submitted that even plain
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reading of the provisions of Section 33(C)(2) of the Industrial
Disputes Act, unless and until the dispute was decided by the
Labour Court and the amount required to be decided under
reference and herein in the present case, there was no dispute
raised by the deceased workman during his life time and on the
basis of the settlement arrived at in some another proceedings,
they want to get benefit and that is also not made by the
workman but his legal heirs of the workman has filed the
reference.
5. I have heard learned advocates for the respective parties
and considering the material on record, this Court finds that at
this juncture the fact noted herein that the workman of
respondent No.1 has filed reference being Reference Case No.
7/1988 in the Labour Court, wherein they have entered into a
settlement with respondent No.1- Trust. It is also admitted fact
that the father of the present petitioner was not working with
respondent No.1- Trust but he was working under respondent
No.2, they have not party to the proceedings before the
Reference Case No. 7/1988, wherein the settlement arrived at
between the parties to the said reference, whereby the
respondent No.1 - Trust agree to increase the amount in their
salary considering the length of service and category of their
employement. The said settlement is recorded by the Labour
Court somewhere in 1996 and on the basis of that settlement,
the said reference came to be disposed of by the Labour Court.
This Court also finds that the settlement came in effect w.e.f.
1996. During the life time of the concerned workman has not
preferred any proceedings with regard to the said settlement,
the recovery is almost after about 6 years. The deceased
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workman has not preferred any proceedings and in 2004 on the
basis of that, the legal heirs of the deceased has filed this
recovery application and prayed for the benefit which is
extended in favour of the workman, who has party to the
proceedings in Reference Case No. 7/1988. It is also not in
dispute that the present petitioner - original workman was not
party to that proceedings because it was between the
respondent No.1- Trust and the workman was working in that
Trust.
5.1 It is undisputed fact that the petitioner has not filed any
reference with regard to the benefits during his life time and
therefore there was an award in favour of the deceased workman
working with respondent No.2, without their being any award in
his favour, he has filed this recovery application without
adjudication as per existing right flown from anywhere, the
concerned workman has directly filed this recovery application
wherein he has prayed relief against the respondent No.1 & 2 and
contended before the Labour Court that since the respondent
No.2 was subsequently registered under the Bombay Public Trust
and earlier point of time, all the liability is satisfied by the
respondent No.1- Trust and therefore, under such circumstances,
now the respondent No.2 can not take shelter of it. It seems that
this contention is attractive but it is without any base. It is an
admitted fact that merely because the respondent No.1-Trust is
showing that they have paid all the liability of respondent No.2
and the same is reflected in the balance sheet and it does not
mean that the respondent No.2 is liable to satisfy the prayer
made by the present petitioner in the present petition and
therefore, under such circumstances, the contention raised by
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the present petitioner is not tenable and the Labour Court has
rightly rejected the said contention after considering the
submission and after considering the reference which is
produced before the concerned Court.
5.2 As stated by the learned advocate for the petitioner that
earlier the name of the deceased was in the reference but
subsequently his name was deleted from the said list produced
by the Union. Under such circumstances, the name of the
deceased was deleted and they were not aware and they have
not raised any objection and not filed any separate reference,
since the deceased workman was not party to the proceedings of
Reference Case No. 7/1988 and therefore, he can not claim the
benefit of the consent terms arrived at between the parties and
the proceedings Reference Case No. 7/1988, even wherein he
was not party to the proceedings. Under such circumstance, the
Labour Court was justified while rejecting the application after
considering the document as well as evidence produced before
it, the Labour Court has not committed any error.
6. This Court finds that in view of the order passed by the Co-
ordinate Bench of this Court in Special Civil Application No. 223
of 2018 with allied matters dated 10.03.2022, this Court is of the
opinion that unless and until there is any pre existing right
decided by the Labour Court there is no question of recovery
under the provisions of Section 33-C (2) of the Industrial Disputes
Act, In the said decision, this Co-ordinate Bench of this Court has
considered the judgemnt of the Hon'ble Apex Court from 1995
onwards. Section 33-C(2) of the Industrial Disputes Act, which
reads as under :-
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"[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 5A or
chapter 5B, 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 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 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 application 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 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."
This Court has also relied on the judgment of the Hon'ble
Apex Court in the case of "Bombay Chemical Industries Vs. Deputy
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Labour Commissioner and another reported in (2022) 5 SCC 629", in
view of the above, the present petition is devoid of merits and
deserves to be dismissed.
7. The present petition is dismissed. Notice is discharged. No
order as to costs. Record and proceedings be sent back to the
concerned Court forthwith.
(HEMANT M. PRACHCHHAK,J)
SALIM/
