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SCA/650/1998 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 650 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE R.S.GARG
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
AHMEDABAD
MUNICIPAL TRANSPORT SERVICE - Petitioner(s)
Versus
HASMUKHLAL
CHUNILAL BHAVSAR - Respondent(s)
=========================================================
Appearance
:
MR
HS MUNSHAW for
Petitioner(s) : 1,
MS PC FERNANDIS for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.S.GARG
Date
: 13/07/2007
ORAL
JUDGMENT
Heard
Mr.H.S. Munshaw, learned counsel for the petitioner and Ms.P.C.
Fernandis , learned counsel for the respondent.
The
petitioner, being aggrieved by the order dtd.23/12/1997 passed by
the Presiding Officer, Labour Court, Ahmedabad in Recovery
Application No.2033 of 1989, is before this Court with the
submissions that neither the application was maintainable under
sec.33-C-2 of the Industrial Disputes Act, nor the same could be
allowed on the merits.
Short
facts necessary for disposal of the writ application are that the
present respondent workman tendered his resignation letter on
11/6/986, it was accepted w.e.f. 11/6/1986, in lieu of the notice,
the workman deposited one month’s salary with the petitioner
employer. Thereafter, the workman withdrew a sum of Rs.25,296.38 ps.
deposited under the Contributory Provident Fund Scheme, because at
the time of his resignation, there was no scheme for grant of
pensionary benefits.
Under
the Circular dtd.2/2/1984, the petitioner evolved a scheme
contending inter-alia that the employees may opt for Contributory
Provident Fund Scheme or may go for pensionary benefits. The
respondent workman, thereafter, taking advantage of yet another
resolution No.102 dtd.31/3/1987, which implemented the scheme, made
an application that he be given pensionary benefits. The petitioner
corporation denied the rights saying that the scheme was applicable
to the persons who were either in service, or, who had retired by
reaching the age of superannuation and the same would not apply to
the persons who had tendered their voluntary resignation.
In
view of the dispute raised by the present petitioner employer, the
workman, instead of filing a Reference under sec.10 of the
Industrial Disputes Act, made an application under sec.33-C-2 of the
Industrial Disputes Act. The present petitioner defended the
application on various counts and submitted that there was
distinction between retirement and resignation, therefore, the
application was not maintainable. Despite there being a dispute
relating to entitlement of the workman and application of the
scheme, the Labour Court allowed the recovery application.
Mr.Munshaw,
learned counsel for the petitioner submitted that proceedings under
sec.33-C-2 of the Industrial Disputes Act are in nature of recovery
/ execution and if there is no pre-existing undisputed right or
pre-adjudicated right in favour of the workman, an application
under sec.33-C-2 of the I.D. Act would not be maintainable. Even on
the merits, he submitted that the respondent workman, having
resigned from the services, would not be entitled to the pensionary
benefits flowing from the scheme of 1984.
Ms.Fernandis,
learned counsel for the respondent, on the other hand, submitted
that as 1984 Circular was made effective under Circular
dtd.31/3/1987 and a person, who resigned and retired as a resignee,
would be entitled to such benefits. She submitted that the learned
Labour Court, after considering the pros and cons, has come to the
right conclusion.
It
would be trite to say that an application under sec.33-C-2 of the
Industrial Disputes Act is in nature of an execution. The execution
would only be maintainable if there is pre-existing undisputed
right or there is some pre-adjudicated right in favour of the
claimant. If the Labour Court is required to make an inquiry into
the entitlement of the claim, then, an application under sec.33-C-2
of the Industrial Disputes Act would not be maintainable. As the
application itself, in the opinion of this Court, not maintainable,
this Court is not required to enter into the larger issue pertaining
to the merits.
The
petition deserves to be allowed, it is accordingly allowed. The
impugned order passed by the learned Labour Court is hereby quashed.
No costs.
(R.S.
GARG, J.)
rafik
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