Gujarat High Court
Arvindkumar P. Parikh vs Yogendra B. Bhonsle on 22 April, 2025
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C/SCA/2303/2022 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2303 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2308 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2315 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2341 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2422 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2424 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2479 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2502 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2503 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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ARVINDKUMAR P. PARIKH
Versus
YOGENDRA B. BHONSLE & ANR.
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Appearance:
MR YOGI K GADHIA(5913) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 2
MR SUBRAMANIAM IYER(2104) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 22/04/2025
Page 1 of 11
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COMMON ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocates waive service
of notice on behalf of the respective parties.
2. These petitions are filed under Articles 226 and 227 of the
Constitution of India challenging the order passed by the learned
Labour Court by exercising the power under Section 33(C)(2) of
the Industrial Disputes Act,1947 directing the present petitioner
to pay the amount of Rs.1,13,000/- and also directing the
present petitioner to pay the amount towards the difference of
minimum wages, bonus and leave holidays.
3. It is the case of the present petitioner that the petitioner
has been awarded the contract to run the CNG Pump Station by
the respondent No.2. On executing the agreement, the said
contract was terminated in the year 2016. Thereafter, the
complaint came to be filed before the Government Labour
Officer seeking the wages, wherein the settlement was arrived at
between the parties agreeing Rs.10,000/- to pay each applicant.
The said amount was offered, however, the applicant did not
accept and out of 15 employees, 11 employees has filed the
application under Section 33(C)(2) of the Industrial Disputes Act
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claiming that they had worked between 01.03.2011 to
22.01.2016 and has not been paid minimum wages, weekly off,
privilege leave, bonus etc. for the said tenure and the said
amount was claimed with interest. The present petitioner has
contested the recovery application by filing the written
statement and contended that there is no pre-existing right
accrued in favour of the employees. Out of 11 applications, two
recovery applications came to be dismissed for non-prosecution
and remaining 9 applications were adjudicated, wherein the
learned Labour Court has passed an order in favour of the
respondent, which is subject matter of challenge before this
Court.
4. Heard learned advocate Mr. Gadhia for the petitioner,
learned advocate Mr. Dave for the respondent No.2 and learned
advocate Mr. Iyer for respondent No.1.
5. Learned advocate Mr. Gadhia submits that so far as the
minimum wages amount which is claimed, the petitioner is ready
to pay the said amount as the settlement is arrived at between
the parties and the amount was offered to the employees.
Learned advocate Mr. Gadhia submits that except the 9
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employees, other employees had accepted the amount, however,
the present respondent has denied to accept the same. Learned
advocate Mr. Gadhia submits that with regard to the direction
issued by the learned Labour Court granting the difference of
minimum wages, the petitioner is agreeing for the same and
therefore, no challenge is made qua the payment of minimum
wages. Learned advocate Mr. Gadhia submits that so far as the
other benefits, which are claimed regarding bonus is concerned,
as per the provision of the Bonus Act Section 21, the appropriate
Government would have a power to adjudicate the claim and to
pass an order in the event of finding the substance in the claim.
Learned advocate Mr. Gadhia submits that as far as leave
holidays, which is claimed and granted by the learned Labour
Court is concerned, same was only on misinterpreting the
admission made by the present petitioner during the cross-
examination that the amount towards the leave encashment as
well as bonus have been paid to all employees. Learned advocate
Mr. Gadhia submits that the said admission was with regard to
the compliance of the provisions, however that does not reflect
the entitlement of the respondent, which is held by the learned
Reference Court. Learned advocate Mr. Gadhia has relied on the
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Section 7 of the Industrial Disputes Act and has submitted that as
per the 3rd Schedule, the claim with regard to the wages,
including for the period and mode of the payment, hours of work
and rest intervals, leave with wages, holidays and bonus are
concerned, Learned Tribunal is having the power under Section
10 of the Industrial Disputes Act to adjudicate the claim,
however, without exercising the said power, the order was
passed under Section 33(C)(2) of the Industrial Disputes Act
holding the pre-existing right of the respondent in claiming the
said amount. Learned advocate Mr. Gadhia summits that in
absence of any cogent reasons, the order passed by learned
Labour Court, requires to be interfered with and the petition is
required to be allowed.
6. As against the same, learned advocate Mr. Iyer appearing
for the respondent No.1 has submitted that in view of the
admission made by the petitioner with regard to the minimum
wages as well as payment of bonus and the leave holidays, the
learned Labour Court has rightly exercised the power under
Section 33(C)(2) of the Industrial Disputes Acts. Learned
advocate Mr. Iyer submits that when the admission is made, it
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amounts to admitting the claim and therefore, the learned
Labour Court is justifying in holding that there is pre-existing
right in favour of the respondent and on that ground it is prayed
to dismiss the petition being devoid of any merits.
7. Having considered the arguments made by the learned
advocates for the parties and the reasons assigned by the
learned Reference Court, the claim of each respondent to file the
recovery applications is required to be reproduced, which is as
under;
Sr. Recovery Name of Total Dues Claimed
no Application Workman
No. Year SCA No. Min. We Privile Bonus Interes Grand
Wages ekly ge t Total
Off Leave
1. 55 2016 2315/22 Harshadku 2,33,2 51, 23,674 28,747 18% 3,37,1
mar 62.60 468 .30 .29 24.67
Parmar .50
2 56 2016 2503/22 Khokhar 2,70,5 60, 21,825 33,989 18% 3,87,0
Salimbhai 91.76 675 .96 .77 82.99
.50
3 57 2016 2422/22 Jignesh 2,70,5 60, 21,825 33,989 18% 3,87,0
Rana 91.76 675 .96 .77 82.99
.50
4 59 2016 2308/22 Sanjay 2,64,6 58, 22,449 30,962 18% 3,77,0
Parmar 45.75 981 .70 .21 38.76
.10
5 60 2016 2303/22 Yogendra 2,70,5 60, 21,825 33,989 18% 3,87,0
Bhonsle 91.76 675 .96 .77 82.99
.50
6 61 2016 2479/22 Aasik 2,70,5 60, 21,825 33,898 18% 3,87,0
Parmar 91.96 675 .96 .77 82.99
.50
7 62 2016 2502/22 Atul Parab 2,15,6 46, 18,645 26,404 18% 3,07,5
00.20 885 .70 .57 35.97
.50
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8 64 2016 2424/22 Jogendra 2,56,8 57, 22,133 30,573 18% 3,66,8
Dave 82.20 243 .10 .25 31.65
.10
9 65 2016 2341/22 Lakhabhai 2,33,2 51, 23,674 28,747 18% 3,37,1
Bharwad 62.50 468 .30 .29 24.67
.50
Total Dues Awarded Interest Date of
Awarded Judgment
Min. Weekly Privilege Bonus Interest Grand From
Wages Off Leave Total
10,000 51,467.5 23,647.3 28,747.2 8% 1,13,862. 01.03.20 15.12.202
10,000 60,675.5 21,825.9 33,898.7 8% 1,26,491. 26.11.20 15.12.202
10,000 60,675.5 21,875.9 33,898.7 8% 1,26,491. 26.11.20 15.12.202
10,000 58,981.1 22,449.7 30,962.2 8% 1,22,393. 11.02.20 15.12.202
10,000 60,675.5 21,875.9 33,898.7 8% 1,26,491. 26.11.20 15.12.202
10,000 60,675.5 21,875.9 33,898.7 8% 1,26,491. 26.12.20 15.12.202
10,000 46,885.5 18,645.7 26,404.5 8% 1,01,935. 04.09.20 15.12.202
10,000 57,243.1 22,133.1 30,573.2 8% 1,19,949. 22.05.20 15.12.202
10,000 51,467.5 23,647.3 28,747.2 8% 1,13,862. 01.03.20 15.12.202
10,77,96
7.39
8. While adjudicating the claim, learned Tribunal has observed
that the witness of the petitioner was examined below Exh.30/A,
has deposed that the employees were granted the leave holidays
and bonus etc. On the basis of this admission, learned Tribunal
has proceeded further and held that there is pre-existing right
accrued from the said admission. Except the said observation, no
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reasons assigned by the learned Reference Court accepting the
claim with regard to the bonus, leave holidays etc. Reliance on
Section 21 of the payment of Bonus Act, which was made by the
learned advocate Mr. Gadhia, if one would refer, then it emerges
that the employees, on filling the application by the employees
claiming the bonus before the appropriate Government, the
appropriate Government would adjudicate the claim and if
satisfied that money is dues then would issue the certificate for
the amount to the Collector who shall proceed to recover the
same in the manner as an arrears of the land revenue.
Admittedly, there is no award or any order passed by the
authority adjudicating the claim, which was made by the
respondent, the learned Labour Court, while exercising the
power under Section 33(C)(2), has allowed the claim made by the
respondent without being adjudicated by the authority or
without any settlement agreed between the parties. The
reference of Section 7, which is made by the learned advocate
Mr. Gadhia, wherein it is provided that the appropriate
Government, by notification in the Official Gazette, Constitute
one or more Labour Courts for adjudication of the dispute
relating to the matters specified in 2nd Schedule and for
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performing such other functions as may be assigned to them
under the Act. On referring the 2 nd Schedule and 3rd Schedule, it
is provided that the claim with regard to the leave with wages,
holidays bonus, profit sharing, provident fund and gratuity is to
be adjudicated by the learned Tribunal, which is admittedly not
done by any Tribunal under the Act, as learned advocate has not
disputed the claim with regard to the payment of difference of
minimum wages.
9. This Court has referred the decision rendered by the
Hon'ble Apex Court in the case of M/s Bombay Chemical
Industires v/s. Deputy Labour Commissioner & Anr. reported in
2022 LiveLaw (SC) 130, wherein it is held as under para 6 and 7.
"6. At the outset it is required to be noted that respondent No.2
herein filed an application before the Labour Court under Section
33(C)(2) of the Industrial Disputes Act, demanding difference of
wages from 01.04.2006 to 31.03.2012. It was thus the case on
behalf of respondent No.2 that he was working with the appellant
as a salesman. However, the appellant had taken a categorical
stand that respondent No.2 was never engaged by the appellant. It
was specifically the case on behalf of the appellant that
respondent No.2 had never worked in the establishment in the post
of salesman. Therefore, once there was a serious dispute that
respondent No.2 had worked as an employee of the appellant and
there was a very serious dispute raised by the appellant that
respondent No.2 was not in employment as a salesman as claimed
by respondent No.2, thereafter, it was not open for the Labour
Court to entertain disputed questions and adjudicate upon the
employer-employee relationship between the appellant and
respondent No.2. As per the settled proposition of law, in an
application under Section 33(C)(2) of the Industrial Disputes Act,
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the Labour Court has no jurisdiction and cannot adjudicate dispute
of entitlement or the basis of the claim of workmen. 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).
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
33C (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.
7. 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 right crystalized and/or adjudicate
upon. Therefore, the order passed by the Labour Court was beyond
the jurisdiction conferred under Section 33(C)(2) of the Industrial
Disputes Act. The High Court has not appreciated the aforesaid
facts and has confirmed the same without adverting to the scope
and ambit of the jurisdiction of the Labour Court under Section
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33(C)(2) of the Industrial Disputes Act."
10. This Court is of the view that the order qua granting the
benefit of difference of minimum wages of Rs.10,000/- is
required to be upheld, however, with regard to the leave,
holidays as well as leave encashment and bonus amounts
required to be interfered.
11. Resultantly, these petitions are partly allowed with above
directions. This Court has upheld the order passed by the learned
Labour Court with regard to the granting the benefit of
difference of minimum wages of Rs.10,000/-, remaining part of
the order has been set aside.
Rule is made absolute.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
