Gujarat High Court
Agricultural Produce Market ... vs Harshadgiri Mansukhgiri Goswami Heir ... on 12 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10150 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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AGRICULTURAL PRODUCE MARKET COMMITTEE, KALAVAD (SHITLA)
Versus
HARSHADGIRI MANSUKHGIRI GOSWAMI HEIR AND LEGAL
REPRESENTATIVE OF MANSUKHGIRI REVAGIRI GOSWAMI & ANR.
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Appearance:
MR DIPAN DESAI(2481) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 12/09/2025
ORAL JUDGMENT
1. The present petition is filed by the petitioner challenging
the order passed by the learned Labour Court while exercising
the power under Section 33-C(2) of the Industrial Disputes Act
dated 05.05.2025 in Recovery Application No.52 of 2023,
whereby the learned Labour Court has directed the present
petitioner to pay an amount of Rs.7,00,030/- qua the 5th and 6th
Pay Commission recommendations.
2. It is the case of the present petitioner that the petitioner is
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an Agricultural Produce Market Committee, Kalavad and the
father of the respondent No.1 was working as a Watchman in the
Market Committee. The father of respondent No.1 had raised an
industrial dispute for regularization of his service, which was
preferred to the learned Labour Court, Jamnagar, by registering
Reference (LCD) No.04 of 1996. The learned Labour Court has
awarded the reference in favour of the father of respondent
No.1 on 06.08.2010 and the petitioner - Committee was directed
to regularize the service of the father of respondent No.1 along
with another employees from 01.01.2005 and to pay the arrears
payable to the regular employees within a period of 30 days.
Challenging the said award, writ petition came to be filed before
this Court being a Special Civil Application No.12387 of 2010, in
which this Court has initially granted the stay vide its order dated
12.10.2010. However, the matter was subsequently dismissed for
non-prosecution vide its order dated 10.07.2019. After the
dismissal of the petition, the respondent No.1 has filed Recovery
Application being a Recovery Application No.52 of 2023, seeking
the payment of retirement benefits by applying the 5th and 6th
Pay Commission recommendations for the period of 01.01.2005
to 31.12.2014 and thereby claiming approximately Rs.7,00,000/-.
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Learned Labour Court, after considering the evidence placed on
record, has allowed the petition, which is the subject matter of
challenge before this Court.
3. Heard learned advocate Mr. Dipan Desai for the petitioner.
4. Learned advocate Mr. Desai for the petitioner submits that
the recovery application was filed after a delay of 4 years and
without establishing a pre-existing right, which is the primary
consideration while adjudicating an application under Section 33-
C(2) of the Industrial Disputes Act. Learned advocate Mr. Desai, in
support of his said statement, has relied on the decision
rendered by the Hon'ble Apex Court in the case of S. K. Kapur
V/s. New Delhi Municipal Council reported in 2004 (10) SCC 679
and submitted that in an identical situation, the Hon'ble Apex
Court has affirmed the order passed by the High Court rejecting
the claim on the ground of delay.
4.1 Learned advocate Mr. Desai submits that the power under
Section 33-C(2) is limited to enforcing a pre-existing right and any
claim not previously adjudicated cannot be entertained under the
provisions of Section 33-C(2). In that background, the learned
Court has committed an error in directing the present petitioner
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to pay the amount towards the 5th and 6th Pay Commission
recommendations. Learned advocate Mr. Desai submits that even
if the respondent is entitled to the same, as per the provisions of
the Market Committee, unless and until sanction has been
accorded by the higher Officer, the same cannot be granted in
favour of the respondent and therefore, the impugned award
deserves to be set aside. Learned advocate Mr. Desai, by
submitting the same, has prayed to allow this petition by setting
aside the impugned award passed by the learned Labour Court.
5. Having considered the arguments advanced by the learned
advocate Mr. Desai for the petitioner and on referring to the
reasons assigned by the learned Labour Court, certain
undisputed facts are required to be considered, which are
mentioned herein below. The claim of regularization, which was
raised by the father of the respondent No.1, was awarded in his
favour vide award dated 06.08.2010. The petition filed by the
petitioner challenging the said award came to be dismissed for
non-prosecution vide order dated 10.07.2019. Thereafter, neither
any restoration application was filed nor any other proceedings
were initiated to get the impugned award set aside. As per the
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statement made by the learned advocate Mr. Desai for the
petitioner, the benefit of the 5th Pay Commission has been given
to the other employees from the year 1999 and the 6 th Pay
Commission recommendation from the year 2004. Undisputedly,
the award passed by the learned Labour Court remains non-
complied with. The father of the respondent No.1 was expired on
31.05.2014, as mentioned at page No.15 of the award, para
No.1.3 and till his death, he remained a daily wager and did not
reap the fruit of the award. In that background, respondent No.1,
who is the son of the workman, waited for 4 years and thereafter
has filed the recovery application.
5.1 The judgment which was relied upon by the learned
advocate Mr. Desai with regard to the delay in filing the recovery
application, rendered in a case of S. K. Kapur (supra) by the
Hon'ble Apex Court, pertained to a delay of 8 years in filing the
recovery application for availing the benefit of the decision in the
R.D. Gupta case. However, in the present case, the deceased -
workman, during his life time, had filed proceedings for
regularization, which were decided in his favour, but the award
remained unimplemented and due to the fault of the petitioner
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in non-complying with the order, the son has approached the
learned Labour Court after a delay of 4 years. In the considered
opinion of this court, the said judgment would not be applicable
in the present case.
5.2 With regard to exercising the power under Section 33-C(2),
this Court has referred to the decision rendered by the Hon'ble
Apex Court in the case of Union of India v. Kankuben reported in
(2006) 9 SCC 292, wherein the principle enunciated for exercising
the powers under Section 33-C2 has been held as under.
"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 Act. The benefit sought to be
enforced under Section 33-C(2) of the Act is necessarily a pre-
existing benefit or one flowing from a pre-existing right. The
difference between a pre-existing 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 33-C(2) of the Act while
the latter does not."
5.3 Considering the overall circumstances, in the opinion of this
Court, no error has been committed by the learned court in
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granting the benefit of the recommendations of the 5 th and 6th
Pay Commission. Hence, present petition deserves to be
dismissed.
6. Resultantly, the present petition is dismissed.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
