Gujarat High Court
Pravin Valya Malavkar vs M/S Srini Link on 17 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12033 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13420 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13442 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13428 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13271 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13818 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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PRAVIN VALYA MALAVKAR
Versus
M/S SRINI LINK
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Appearance:
THAKKAR AND PAHWA ADVOCATES(1357) for the Petitioner(s)
No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 17/04/2025
COMMON ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Dipak
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Dave waives service of rule on behalf of the respondent.
2. As the issues involve in all matters are identical, hence, this
Court has decided by this common oral judgment.
3. This petition is filed under Articles 226 and 227 of the
Constitution of India challenging the order passed by the learned
Presiding Officer dated 01.01.2022 rejecting the application filed
under Section 33(C)(2) of the Industrial Disputes Act, 1947
claiming the benefits of Minimum Wages Act as well as the leave
encashment and bonus pursuant to the award passed by the
learned Labour Court in Reference (LCV) No.504 of 2002 dated
18.02.2015.
4. It is the case of the present petitioner that the petitioner
was terminated from the post of Operator by the respondent
and challenging the termination, the dispute was raised, which
was registered being a Reference (LCV) No.504 of 2002. The said
reference was awarded in favour of the present petitioner by
granting the relief of reinstatement with full back wages and
continuity of service. Challenging the above award, the
respondent has filed the petition before this Court being Special
Civil Application No.21660 of 2016, wherein this Court has partly
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allowed the petition by modifying the back wages to the extent
of 50% vide order dated 22.09.2017. It was observed by this
Court that if the respondent would enter into further litigation
then the concession, which was given for 50% back wages, would
not bind to the petitioner and it was directed to pay the said back
wages within a period of 3 months from the date of order, the
amount towards the back wages were paid by calculating the last
drawn wages to the petitioner, which was accepted on
21.01.2017. It appears from the record that petitioner, on
receiving the wages, has claimed the minimum wages along with
the leave encashment and bonus, which has not been paid by the
respondent. Learned Labour Court, Valsad has rejected the said
application on the ground that the back wages is paid according
to the last drawn wages and in absence of any specific directions
with regard to the payment of minimum wages as well as the
leave encashment and the bonus, no relief can be granted in
favour of the petitioner by exercising the power under Section
33(C)(2) of the I.D. Act. The said order is subject matter of
challenge before this Court.
5. Heard learned advocate Ms. Pahwa for the petitioner and
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learned advocate Mr. Dave for the respondent.
6. Learned advocate Ms. Pahwa submits that the learned
Labour Court has committed an error by refusing the payment of
minimum wages. It is submitted by the learned advocate Ms.
Pahwa that payment of minimum wages is the Constitutional
right and any amount, which is paid less than minimum wages,
would breach of Article 23 of the Constitution of India. However,
learned Reference Court relying on the Section 17-B, which is
enacted with different object, refuse the prayer made by the
present petitioner. Learned advocate Ms. Pahwa submits that so
far as the leave encashment is concerned, the petitioner has
provided the calculation, wherein it is calculated, as per 30 days
leave per year and during the cross examination of the witness of
respondent, it is admitted that they are granting 15 to 16 days
leave in each year. Learned advocate Ms. Pahwa submits that
learned Labour Court ought to have granted leave encashment,
which is admitted by the respondent during the cross
examination, however, by discarding the admission, in the cross
examination, learned Labour Court has passed an order. Learned
advocate Ms. Pahwa further submits that so far as the bonus is
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concerned, the petitioner has established his claim by producing
the calculation, wherein 20% bonus, which is claimed. However,
during the cross examination, again the witness has admitted
that the bonus at the rate of 8.33% has been granted to the
workman. Learned advocate Ms. Pahwa submits that instead of
granting the said bonus at the rate of 8.33% which is admitted by
the witness of respondent, learned Reference Court has
concluded the proceedings against present petitioner. Learned
advocate Ms. Pahwa submits that learned Reference Court has
assigned the reasons that petitioner did not establish his claim by
producing any cogent evidence. Learned advocate Ms. Pahwa
submits that when the claim was admitted by the respondent
during the cross examination, no other evidence is required,
however, without having considered the same, learned Labour
Court has dismissed the recovery application and therefore, the
same is required to be interfered with and the petition is
required to be allowed.
7. Per contra, learned advocate Mr. Dave submits that as far as
the minimum wage, which is claimed by the present petitioner, is
concerned, the same is covered by the decision rendered by this
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Court in Special Civil Application No.17361 of 2024, wherein this
Court relying on the decision rendered by the Hon'ble Supreme
Court in the case of Dena Bank V/s. Kiritkumar T. Patel reported
in 1998 AIR SC 511, has dismissed the claim, which was raised in
the jurisdiction of Section 33(C)(2) of the I.D. Act. Learned
advocate Mr. Dave submits that with regard to the leave
encashment and bonus relief which is prayed, there is no specific
directions issued by the learned Labour Court while awarding the
reference in favour of the present petitioner. Learned advocate
Mr. Dave submits that in absence of granting consequential
benefits, relief of leave encashment as well as the bonus cannot
be granted in favour of the present petitioner. Learned advocate
Mr. Dave submits that there are separate criteria for which bonus
is to be claimed and in non-compliance of the same, authority can
adjudicate the claim, however, while exercising the power under
Section 33(C)(2), learned Labour Court has rightly refused the
claim made by the petitioner and therefore, no interference is
required and the present petition deserves to be dismissed.
8. Having considered the arguments advanced by the learned
advocates for the parties and on referring the reasons assigned
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by the learned Labour Court while rejecting the application filed
under Section 33(C)(2), it emerges from the record that the
award was passed in favour of the present petitioner granting
the relief of reinstatement on 18.02.2015. On referring the said
award, the learned Reference Court has granted the continuity of
service and 100% back wages. The said award was carried before
this Court by filing this petition being Special Civil Application
Nos.21660 to 21665 of 2016, wherein this Court, vide common
order dated 22.09.2017, has altered the back wages to the extent
of 50%. In view of the consent given by the workman, it is
observed that the said 50% back wages is to be paid within a
period of 3 months and if workman would be dragged into
further litigation by the employer then the said concession would
not bind to them. It is undisputed fact that the award passed by
the learned Reference Court, which is modified by this Court, was
fully complied and the reinstatement along with 50% back wages
was paid to the petitioner by issuing the cheque dated
21.11.2017, which was encashed by the petitioner. Thereafter,
the claim was raised with regard to the minimum wage, leave
encasement and the bonus before the learned Labour Court by
filling the application under Section 33(C)(2) of the Industrial
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Disputes Act. It is also not disputed by the petitioner that while
granting the relief of reinstatement, the learned Reference Court
has not directed to give the consequential benefits, neither has
specified that the back wages is to be paid as per the Minimum
Wages Act. In absence of any directions, the payment of back
wages was paid calculating the last drawn wages when the
petitioner was terminated from the service.
8.1. This Court has referred the decision rendered in Special
Civil Application No.17361 of 2024, wherein following
observations are made.
"7. It is undisputed fact that the last drawn of the present
petitioner was of Rs.4,420/- and considering the 25% back-
wages
for two years the amount of Rs.26,520/- along with cost of
Rs.2,500/- was paid, in all the petitioner has received an
amount of Rs.29,020/- from the respondent through the
cheque. The petitioner has claimed certain benefits including
the leave encashment, raise in the salary and minimum wages.
It transpires from the record that there is no any award passed
by the learned
Labour Court directing the respondent to pay above wages,
which was claimed.
8. At this stage, it would also be apt to take note of the
recent pronouncement of the Apex Court in the case of
Bombay Chemical Industries v. Deputy Labour
Commissioner reported in (2022) 5 SCC 629. The relevant
paragraphs are quoted as under.
"As per the settled proposition of law, in an application
under Section 33(C)(2) of the Industrial Disputes Act, the
Labour Court has no jurisdiction and cannot adjudicate
dispute of entitlement or the basis of the claim of workmen.
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It can only interpret the award or settlement on which the
claim is based. As held by this Court in the case of Ganesh
Razak and Anr. (supra), the labour court's jurisdiction under
Section 33(C)(2) of the Industrial Disputes Act is like that of
an executing court. As per the settled preposition of law
without prior adjudication or recognition of the disputed
claim of the workmen, proceedings for computation of the
arrears of wages and/or difference of wages claimed by the
workmen shall not be maintainable under Section 33(C)(2)
of the Industrial Disputes Act. (See Municipal Corporation of
Delhi Vs. Ganesh Razak and Anr. (1995) 1 SCC 235)." (Para
8)
"In the case of Kankuben (supra), it is observed and held
that whenever a workman is entitled to receive from his
employer any money or any benefit which is capable of
being computed in terms of money and which he is entitled
to receive from his employer and is denied of such benefit
can approach Labour Court under Section 33-C (2) of the ID
Act. It is further observed that the benefit sought to be
enforced under Section 33C (2) of the ID Act is necessarily a
preexisting benefit or one flowing from a preexisting right.
The difference between a preexisting right or benefit on one
hand and the right or benefit, which is considered just and
fair on the other hand is vital. The former falls within
jurisdiction of Labour Court exercising powers under
Section 33C (2) of the ID Act while the latter does not."
(Para 9)
"Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, when there was
no prior adjudication on the issue whether respondent No.2
herein was in employment as a salesman as claimed by
respondent No.2 herein and there was a serious dispute
raised that respondent No.2 was never in employment as a
salesman and the documents relied upon by respondent
No.2 were seriously disputed by the appellant and it was the
case on behalf of the appellant that those documents are
forged and/or false, thereafter the Labour Court ought not
to have proceeded further with the application under
Section 33(C)(2) of the Industrial Disputes Act. The Labour
Court ought to have relegated respondent No.2 to initiate
appropriate proceedings by way of reference and get his
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right crystalized and/or adjudicate upon." (Para 10)
9. As there was no any pre-existing right established by the present
petitioner, this Court is of the view that no error has been
committed by the learned Labour Court in rejecting the application
filed by the present petitioner. The decision which was relied by the
learned advocate in the case of K.S. Ravindran (Supra), where
there was a case, when the learned Labour Court has dismissed the
reference seeking reinstatement with full back-wages and the
learned Single Judge of the concerned High Court has allowed the
reference by granting benefit of 25% back-wages, which was
altered by the Division Bench in intra-appeal to stoppage of
increment for a period of three years with cumulative effect and the
same was under challenge before the Apex Court, wherein the Apex
Court has awarded the relief of reinstatement along with 50% back
wages. While granting the relief the Apex Court has relied on the
judgment in the case of Deepali Gundu Surwase vs. Kranti Junior
Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324 and has
observed that when the termination was held illegal, the employee
would entitled for the back -wages. "
8.2 In the instant case also in absence of any directions, learned
Labour Court, while exercising the power under Section 33(C)(2),
has justified in declining the claim of the petitioner for minimum
wages. The other claim with regard to the leave encasement and
the bonus was made by interpreting the relief of continuity of
service, which is granted by the learned Labour Court. This Court
is of the view that the leave encasement as well as the bonus,
even if the said relief is to be given, then it would be granted at
the time of retirement, but not by interpreting the award that is
in terms of continuity of service, as no relief of consequential
benefit is granted by learned Reference Court.
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8.3 This Court has also clarified that difference between the
relief of continuity of service and consequential benefits in the
case of Divisional Controller Shri Gujarat State Road Transport
Corporation V/s. The president, Vinayak Karmachari Mandal,
wherein this Court has observed as under:
"11. Considering the above law, this Court is of the view
that the continuity of service includes the period of time when
the employee has worked including the paid or unpaid leave
that count as a service. The meaning of consequential
benefitsis that by granting the benefits, the respondent
would entitle for the monetary benefits that may be awarded
by employee in certain circumstances such as back wages,
reinstatement, increments and seniority and other terminal
benefits. By awarding relief of consequential benefits,
intention of the Court would be that the employee would be
treated as if they were never terminated and they are still in
the service, learned Labour Court has held that the
respondent would entitle for the benefit of time-scale on
completion of period of 5 years from the date of his
appointment without considering the fact that he did not
serve for the period of 10.06.2011 to 02.05.2015. The
absence of any direction to grant the consequential benefits
by learned Labour Court while awarding the reference in
favour of the present respondent, this Court is of the opinion
that learned Labour Court has committed error by giving
above direction and therefore, the same is required to be set
aside.
12. There is a distinction between the order of reinstatement
accompanied by simple direction for continuity of service and
direction where reinstatement is accompanied with a specific
relief that employee shall be entitled to all consequential
benefits which necessarily flows from reinstatement or
accompanied by specific direction that an employee shall be
entitled to the benefit of increments during the period of
absence. In absence of relief of consequential benefits
learned labour court has erred in interpreting the award of
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continuity of service by granting the benefit of time scale
from date of his initial appointment discarding the period
from 10.06.2011 to 02.05.2015. It is true that continuity of
service is a normal rule when the court has reintsated.
However, in absence of the relief of consequential benefits
counting the service from his date of appointment for the
time scale of pay in the opinion of this Court
misinterpretation of the award, therefore, the respondent
would be entitled for the benefit of time scale in accordance
with the rules wherein, it is provided that on completion of
actual service he would be entitled for the benefit of time pay
scale subject to fulfilling of other conditions. In view of the
above, impugned award passed by the learned labour court
deserves to be set aside."
9. In view of the above, this Court is of the view that the
learned Labour Court is justifying in denying the relief, which is
prayed by the present petitioner in application under Section
33(C)(2) of the I.D. Act, hence these petitions deserve to be
dismissed.
10. Resultantly, These petitions are dismissed. Rule is
discharged.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
