The Divisional Controller vs Jayashree W/O Sridhar Chavan And ...
2022 Latest Caselaw 2760 Kant

             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

        DATED THIS THE 18TH DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

      WRIT PETITION NO.204742 OF 2016 (L-KSRTC)

BETWEEN:

THE DIVISIONAL CONTROLLER
NEKRTC,
VIJAYAPUR DIVN,
ATHANI ROAD, VIJAYAPUR,
THROUGH THE MANAGING DIRECTOR
NEKRTC,
SARIGE SADANA, MAIN ROAD,
KALABURAGI.
REP:BY THE CHIEF LAW OFFICER,
                                             ...PETITIONER
(BY SRI SUBHASH MALLAPUR, ADVOCATE)

AND

1 . JAYASHREE
W/O SRIDHAR CHAVAN
AGE:46 YEARS,
OCC:H.H.WORK,

2 . PREETI
W/O KASHRAI
AGE:29 YEARS,
OCC:H.H.WORK,

3 . SNEHA W/O GOPAL CHAVAN
AGE:28 YEARS,
                                  2




OCC:H.H.WORK

4 . SANDEEP
S/O SHRIDHAR CHAVAN
AGE:24 YEARS,
OCC:PRIVATE SERVICE
ALL R/O OMKAR NIVAS
BHOTADA COLONY,
TORVI ROAD,
VIJAYAPUR.
                                                    ...RESPONDENTS
(BY SRI SANJAY JOSHI, ADVOCATE FOR R2;
 R1, R3 AND R4 SERVED)

     THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT IN NATURE OF CERTIROARI AND QUASH THE ORDER
DATED 20.07.2016 PASSED BY THE LABOUR COURT BIJAPUR, IN
APPLICATION NO.09/2016 VIDE ANENXURE-D; AND ETC.

       THIS PETITION IS COMING FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-

                            ORDER

Though this petition is listed in preliminary hearing 'B'

group, with the consent of the learned counsel appearing for the

parties, the same is taken up for final disposal.

2. In this writ petition the petitioner-Corporation has

challenged the order passed by the Presiding Officer of the

Labour Court under Section 33-C(2) of the Industrial Disputes

Act, 1947. Recently, this Court, vide order dated 14 th February,

2017 made in writ petition No.201637 of 2017, allowed the

petition observing thus:

"5. Perusal of the impugned order would indicate that the Application No.31 of 2016 is filed seeking arrears of wages. In this regard, I have carefully considered the provisions contained under Section 33 of the Act. Undisputably, in the present writ petition, no award or settlement has been passed between the parties. In this regard, it is useful to refer to the law declared by the Hon'ble Apex Court in the case of MUNICIPAL CORORATION OF DELHI v. GANESH RAZAK AND ANOTHER reported in (1995)1 SCC 235, wherein it is observed that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or the dispute relating entitlement is not incidents to the benefit claimed is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The observation made at paragraph 12 of the aforementioned judgment, reads thus:

"12. The High Court has referred to some of these decisions but missed the true import thereof.

The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside

the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."

6. The decision of the Hon'ble Apex Court in the aforementioned case has been reiterated recently by the Hon'ble Apex Court in the case of M/S. BOMBAY CHEMICAL INDUSTRIES v. LABOUR COMMISSIONER in Civil Appeal No.813 of 2022 decided on 04th February, 2022, wherein it is observed that the Labour Court has no jurisdiction to adjudicate the dispute of entitlement or basis of claim of workman, unless there is a settlement or an award. Applying the law declared by the Hon'ble Apex Court referred to above, I am of the view that the impugned order dated 17th January, 2017 passed by the Labour Court, Vijayapur is liable to set aside, accordingly set aside. Writ petition is allowed. However, liberty is reserved to the applicant/respondent to file a claim petition in terms of the provisions contained under Industrial Disputes Act, 1947."

3. In that view of the matter, this writ petition is allowed.

Liberty is reserved to the respondent to approach the competent

authority for redressal of his grievance.

Sd/-

JUDGE

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