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LPA/1198/2009 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1198 of 2009
In
SPECIAL
CIVIL APPLICATION No. 7819 of 2008
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ? -
YES
2
To
be referred to the Reporter or not ? - YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? - NO
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 ? - NO
5
Whether
it is to be circulated to the civil judge ? - NO
=================================================
MANAGER,
NAAZ CINEMA
Versus
VASANTBEN
RAMESHBHAI GHUMADIYA
W/D
OF RAMESHBHAI RAIJIBHAI GHUMADIYA
=================================================
Appearance :
MR
JV JAPEE for Appellant(s) : 1,
NOTICE SERVED for Respondent(s) :
1,
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 31/03/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.B.PARDIWALA)
The
appellant original petitioner by way of this appeal under Clause 15
of the Letters Patent calls in question the legality, validity and
propriety of the order passed by the learned Single Judge dated 18th
June 2008 in Special Civil Application No.7819 of 2008 wherein the
learned Single Judge has dismissed the petition filed by the
appellant challenging the award passed by the Labour Court, Nadiad
dated 4th December 2007 under the Industrial Disputes
Act, 1947.
The
brief facts relevant for the purpose of deciding this appeal can be
summarised as under:-
The
appellant – original petitioner is engaged in the business of
running a cinema known as Naaz Cinema in Kheda Town, Taluka
Mehmdavad, District Kheda. The deceased husband of the respondent
raised an industrial dispute against the appellant as his services
were illegally terminated with effect from 1st May 1983.
The deceased workman prayed for reinstatement to his original post
with continuity of service and full back-wages. The industrial
dispute was referred to the Labour Court, Nadiad vide Reference
(LCN) No.1080 of 1983. On 15th June 1998 the Labour
Court, Nadiad passed an award directing reinstatement of the
deceased workman to his original post with continuity of service and
75% of the back-wages from the date of termination till 16th
June 1992. The deceased workman preferred Recovery Application
No.385 of 1999 under Section 33(C)(1) of the Industrial Disputes
Act, 1947 (“I.D. Act”, for short) to recover an amount
of Rs.68,885.93 with 18% interest towards outstanding dues of the
back-wages, bonus, gratuity and leave encashment. It appears from
the record that during the pendency of Recovery Application No.385
of 1999 deceased workman preferred Payment of Wages Application
No.13 of 1999 before the Payment of Wages Authority in respect of
the same claim. The record reveals that Recovery Application No.395
of 1999 was rejected for non prosecution on 14th February
2002 and 11th September 2006 the Payment of Wages
Authority rejected the Application No.13 of 1999 on the ground that
the application was not maintainable for the claims made by the
deceased workman for the recovery of the amount as per the award. A
fresh Recovery Application No.80 of 2006 was filed before the Labour
Court, Nadiad under Section 33C(1) of the Act claiming the
outstanding back-wages of Rs.39,486.03 and leave encashment amount
of Rs.1,920.00 along with 18% interest.
The
Labour Court, Nadiad vide order dated 4.12.2007 allowed the Recovery
Application holding that the respondent was entitled to get an
amount of Rs.1,26,863 as claimed in the Recovery Application and
interest of Rs.1,06,567 with costs of Rs.300/-.
It
is this order dated 4.12.2007 passed by the Labour Court, Nadiad
allowing Recovery Application No.80 of 2006 under Section 33C(1) of
the Act which was made subject matter of challenge before the
learned Single Judge by way of Special Civil Application No.7819 of
2008.
It
deserves to be noted that what was challenged by the appellant –
original petitioner is the order passed by the Labour Court, Nadiad
in Recovery Application based on the substantial award passed by the
Labour Court way back on 16th June 1998. At no point of
time the said award was challenged by the appellant-original
petitioner. Even as on today it remains unchallenged. It is only
because of requisite amount as ordered to be paid by way of award
was not paid that the respondent had to prefer recovery
applications. While adjudicating the recovery application the Labour
Court functions substantially as an executing court. We take notice
of the fact that from 1983 onwards this litigation is being pursued
by the appellant and the workman without reaping the fruits of award
passed by the labour court died. Even after the death of the
workman, they did not spare the helpless widow and continued with
the litigation. The record reveals that she has been made to run
from pillar to post. We also take notice of the fact that she has
not been able to appear before us though served and the reason
appears to be quite obvious. A poor widow would not be able to
meet with the expenses which she would have incurred if she appears
by engaging a lawyer. In this background, we now consider as to
whether the learned Single Judge has rightly rejected the petition
or not.
Before
the learned Single Judge the appellant-original petitioner put
forward three principal contentions. They are as under:-
The
Labour Court being an executing court has no jurisdiction to grant
interest.
The
Labour Court has not condoned the delay as no prayer is made by the
workman though the application filed under Section 33(C)(1) of the
ID Act was filed after a period of one year.
Leave
encashment claimed by the workman in recovery application was
covered by the third schedule and not second schedule and therefore
the labour court has no jurisdiction to grant such amount.
Having
gone through the exhaustive judgment delivered by the learned Single
Judge on all three counts, we are of the opinion that the learned
Single Judge has not committed any error, much less an error of law
which would warrant interference in this appeal under Clause 15 of
the Letters Patent.
So
far as the first contention as regards interest is concerned,
learned counsel for the appellant – original petitioner has
relied upon the judgment of the Apex Court in the matter of State
of Punjab v. Harvinder Singh (2008) 3 SCC 394. He has relied
upon this judgment to make good his contention that the executing
court does not have power to award interest if not mentioned in the
decree. We take notice of the fact that in this judgment the Apex
Court was dealing with Sections 47 and 34 and Order 21 Rule 1 of the
Civil Procedure Code. This judgment would not be of any help to the
appellant and would not be applicable to the provisions of
Industrial Disputes Act, 1947. The learned Single Judge, therefore,
rightly negatived this contention by holding that the provisions of
Order 21 of the Civil Procedure Code are not applicable to the
proceedings of the Labour Court. The learned Single Judge in
paragraph 30 of the judgment has held as under:-
“30. ……
Accordingly, that application was rejected on 11th
September 2006 by the Payment of Wages Authority. Thereafter, a
recovery application No.80 of 2006 was filed by respondent workman
on 16th October 2006. The Labour Court has granted 75%
backwages for the period from 1st May 1983 to 16th
September 1994. The date of award is 15th June 1998. The
due and undisputed amount is not paid by employer without any valid
justification for a period of 9 years and 4 months. Therefore, this
much amount is utilized by employer or earned the interest, then, on
the principles of restitution, Labour Court has rightly exercised
equitable jurisdiction in granting interest in favour of respondent
workman. The Labour Court has jurisdiction under Section 33C to
decide, if any question arise as to the amount of money due or being
an incidental power or ancillary power which give an equitable
jurisdiction to Labour Court in case of unnecessary delayed in due
payment without justification, then, Labour Court can grant interest
upon such amount. The Labour Court is having wide power if satisfied
that due and undisputed amount of the workman withheld by employer
without justification, then, Labour Court has certainly power to
grant interest upon due amount.”
We
are in complete agreement with the view which has been taken by the
learned Single Judge and which is in consonance with the objects of
social welfare legislation like ID Act. We are of the opinion that
while answering this issue as regards awarding of interest the
learned Single Judge has kept in mind that that Industrial Disputes
Act and other similar legislative instruments are social welfare
legislations and the same are required to be interpreted keeping in
mind the goals set out in the preamble of the Constitution and the
provisions contained in Part-IV thereof in general and Articles 38,
39(a), 43, 43A in particular which mandate that the State should
secure a social order for the promotion of the welfare of the
people, ensure equality between men and women, equitable
distribution of material resources of the community to subserve the
common good and also ensure that the workers get their dues.
As
regards the second contention that the application was filed after a
period of one year and that too without any prayer for condonation
of delay and without condoning the delay the labour court ought not
to have adjudicated the application under Section 33(C)(1) of the
I.D. Act, the learned Single Judge has taken the view that in
preferring an application under Section 33(C)(2) of the Act no
limitation has been prescribed by the statute. In the absence of
any statutory provisions providing for limitation for making an
application of the under Section 33(C)(2) of the ID Act, the
application of the workman cannot be said to be time-barred. On this
ground also we are in complete agreement with the finding recorded
by the learned Single Judge.
As
regards third contention that the leave encashment claimed and
awarded in recovery application is governed by the third Schedule
and not by the Second Schedule and therefore the Labour Court has no
jurisdiction to grant such amount is also devoid of any merits.
The learned Single Judge has taken into consideration the two
notifications issued by the Labour and Employment Department dated
21st April 1982. Firstly, while answering this
contention, the learned Single Judge took notice of the fact that
this contention was never raised by the original petitioner before
the Labour Court and the learned Single Judge has also found that
the said contention is not even taken in the memo of the petition
also. However, the learned Single Judge took pains to consider
this contention and ultimately has held that two notifications which
have been referred in the judgment of the learned Single Judge at
page 27 and 28 is a clear answer to the contention of the appellant
that from 1982 onwards the power has been delegated to the Labour
Court upon appropriate Government while exercising the power under
Section 39 of the Industrial Disputes Act, 1947. The learned
Single Judge has further held that considering the definite
definition of wages where except bonus and contribution paid or
payable to the pension fund or provident fund or for the benefit of
the workman for the time being in force and amount of gratuity is
not included in the definition payment, but except that all kinds of
allowances and service benefits including travelling concession and
commissions are covered by the definition of wages given in Section
2(rr) of the I.D. Act, 1947 meaning thereby all kinds of
remuneration being covered in definition of wages which includes a
benefit of leave encashment and therefore the workman was justified
in claiming it as part of back-wages.
We
are in complete agreement with the findings recorded by the learned
Single Judge on all counts. As a matter of fact, we deem it fit and
proper to state in our judgment the message of the Supreme Court
while dealing with the matter under the Industrial Disputes Act,
1947 and other similar legislative instruments, which are social
welfare legislations. In a recent pronouncement of the Supreme
Court in the matter of Harjinder Sing v. Punjab State Warehousing
Corporation (2010) 3 SCC 192 the Honourable Supreme Court in
paragraphs 17, 18, 19, 26, 27, 28 and 29 has held as under:-
“17.
Before concluding, we consider it necessary to observe that while
exercising jurisdiction under Articles 226 and/or 227 of the
Constitution in matters like the present one, the High Courts are
duty-bound to keep in mind that the/Industrial Disputes Act and
other similar legislative instruments are social welfare
legislations and the same are required to be interpreted keeping
in view the goals set out in the preamble of the Constitution and
the provisions contained in Part IV thereof in general and
Articles 38, 39(a) to (e), 43 and 43-A in particular, which
mandate that the State should secure a social order for the
promotion of welfare of the people, ensure equality between men
and women and equitable distribution of material resources of the
community to subserve the common good and also ensure that the
workers get their dues. More than 41 years ago, Gajendragadkar,
J., opined that “the concept of social and economic justice
is a living concept of revolutionary import; it gives sustenance
to the rule of law and meaning and significance to the ideal of
welfare State” – State of Mysore v. Worker of Gold Mines, AIR
1958 SC 923.”
“18. In Y.A. Mamarde v.
Authority under the Minimum Wages Act (1972) 2 SCC 108 : (AIR 1972 SC
1721), this Court, while interpreting the provisions of Minimum Wages
Act, 1948, observed :
“The
anxiety on the part of the society for improving the general
economic condition of some of its less favoured members appears
to be in supersession of the old principle of absolute freedom of
contract and the doctrine of laissez faire and in recognition of
the new principles of social welfare and common good. Prior to
our Constitution this principle was advocated by the movement for
liberal employment in civilised countries and the Act which is a
pre-constitution measure was the offspring of that movement.
Under our present Constitution the State is now expressly
directed to endeavour to secure to all workers (whether
agricultural, industrial or otherwise) not only bare physical
subsistence but a living wage and conditions of work ensuring a
decent standard of life and full enjoyment of leisure. This
Directive Principle of State Policy being conducive to the
general interest of the nation as a whole, merely lays down the
foundation for appropriate social structure in which the labour
will find its place of dignity, legitimately due to it in lieu of
its contribution to the progress of national economic
prosperity.”
“19.
The preamble and various Articles contained in Part IV of the
Constitution promote social justice so that life of every
individual becomes meaningful and he is able to live with human
dignity. The concept of social justice engrafted in the
Constitution consists of diverse principles essentially for the
orderly growth and development of personality of every citizen.
Social justice is thus an integral part of justice in the generic
sense. Justice is the genus, of which social justice is one of its
species. Social justice is a dynamic devise to mitigate the
sufferings of the poor, weak, dalits, tribals and deprived
sections of the society and to elevate them to the level of
equality to live a life with dignity of person. In other words,
the aim of social justice is to attain substantial degree of
social, economic and political equality, which is the legitimate
expectation of every section of the society. In a developing
society like ours which is full of unbridgeable and ever widening
gaps of inequality in status and of opportunity, law is a catalyst
to reach the ladder of justice. The philosophy of welfare State
and social justice is amply reflected in large number of judgments
of this Court, various High Courts, National and State Industrial
Tribunals involving interpretation of the provisions of the
Industrial Disputes Act, Indian Factories Act, Payment of Wages
Act, Minimum Wages Act, Payment of Bonus Act, Workmen’s
Compensation Act, the Employees’ State Insurance Act, the
Employees’ Provident Funds and Miscellaneous Provisions Act and
the Shops and Commercial Establishments Act enacted by different
States.”
“26. Judges of the last Court
in the largest democracy of the world have a duty and the basic duty
is to articulate the Constitutional goal which has found such an
eloquent utterance in the Preamble. If we look at our Preamble, which
has been recognised, a part of the Constitution in His Holiness
Kesavananda Bharati Sripadagalvaru and others vs. State of Kerela and
another [AIR 1973 SC 1461], we can discern that as divided in three
parts. The first part is a declaration whereby people of India
adopted and gave to themselves the Constitution. The second part is a
resolution whereby people of India solemnly resolved to constitute
India into a sovereign, socialist, secular, democratic republic.
However, the most vital part is the promise and the promise is to
secure to all its citizens :
“JUSTICE, social, economic
and political;
LIBERTY of thought, expression,
belief, faith and worship;
EQUALITY of status and of
opportunity;
And to promote among them all
FRATERNITY assuring the dignity of
the individual and the unity and integrity of the Nation;”
[See Justice R.C. Lahoti, Preamble
– The Spirit and backbone of the Constitution of India, Anundoram
Barooah Law Lectures, Seventh Series, Eastern Book Company, 2004, at
p. 3].”
“27. Judges and specially the
Judges of the highest Court have a vital role to ensure that the
promise is fulfilled. If the Judges fail to discharge their duty in
making an effort to make the Preambular promise a reality, they fail
to uphold and abide by the Constitution which is their oath of
office. In my humble opinion, this has to be put as high as that and
should be equated with the conscience of this Court.”
“28. As early as in 1956, in
a Constitution Bench judgment dealing with an Article 32 petition,
Justice Vivian Bose, while interpreting the Article 14 of the
Constitution, posed the following question :
“After all, for whose benefit
was the Constitution enacted?”
[Bidi Supply Co. vs. Union of India
and others, AIR 1956 SC 479 at Para 23, pg. 487]”
“29. Having posed the.
question, the Learned Judge answered the same in his inimitable words
and which I may quote :
“I am clear that the
Constitution is not for the exclusive benefit of Governments and
States; it is not only for lawyers and politicians and officials and
those highly placed. It also exists for the common man, for the poor
and the humble, for those who have businesses at stake, for the
“butcher, the baker and the candlestick maker”. It lays
down for this land a “rule of law” as understood in the
free democracies of the world. It constitutes India into a Sovereign
Democratic Republic and guarantees in every page rights and freedom
to the individual side by side and consistent with the overriding
‘power of the State to act for the common good of all.”
[Ibid, Emphasis supplied)”
For
the reasons recorded above and more particularly keeping in mind
that this Court has a duty to interpret statutes with social welfare
benefits in such a way as to further the statutory goal, the appeal
deserves to be dismissed. The same is hereby dismissed with costs
of Rs.10,000/- imposed upon the appellant – original
petitioner to be paid to the widow of the deceased workman i.e.
respondent herein either by cash or by cheque and produce the
receipt of the same with the Registry of this Court within a period
of 15 days from today.
(S.J. Mukhopadhaya, CJ.)
(J.B.Pardiwala, J.)
*mohd
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