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SCA/1075/2009 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1075 of 2009
=========================================================
RAKESH
RAMNARESH TIWARI - Petitioner(s)
Versus
INDUSTRIAL
SECURITY SERVICES - Respondent(s)
=========================================================
Appearance
:
MR
TR MISHRA for
Petitioner(s) : 1,MR UT MISHRA for Petitioner(s) : 1,
NOTICE
SERVED for Respondent(s) : 1,
RULE SERVED for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/04/2010
ORAL
ORDER
1. Heard
learned advocate Mr.U.T.Mishra for petitioner.
2. Rule
is served to respondent but no appearance is filed by him and no
advocate is engaged. Therefore, the matter is taken up for final
hearing in absence of respondent.
2.1 In
this connection, the workman has raised industrial disputed against
Industrial Security Services and Branch Manager, GSIC, Sukhramnagar,
challenging termination order under Reference No.652 of 1992 wherein
Industrial Security Services remained absent. Therefore, Labour
Court, Ahmedabad has passed an award being ex-parte award Exh.56
dated 21.10.2002 in respect of Industrial Security Services. The
Reference has been allowed in favour of petitioner. The direction
issued by Labour Court against Industrial Security Services to
implement the award. On the basis of aforesaid award, Recovery
Application No.293 to 296 of 2003 have been filed by four workmen
including present petitioner before Labour Court, which came to be
decided on 2.11.2004. Even in that Recovery Application, respondent –
Industrial Security Services remained absent. Therefore, direction
issued by Labour Court, Ahmedabad against Industrial Security
Services to pay total amount of Rs.8,36,738.56 ps. by order dated
2.11.2004. The Industrial Security Services has filed MCA No.6 of
2005 against ex-parte award passed in Reference No.652 of 1992 which
also came to be dismissed in default because Industrial Security
Services remained absent and order was passed by Labour Court,
Ahmedabad on 10.11.2006. Therefore, on 12.3.2007, Recovery
Application No.210 of 2007 filed by petitioner with a prayer to grant
recovery certificate in favour of Mamlatdar, Alien Recovery Branch,
Surat under Section 33(c)(1) of the I.D.Act,1947. In support of
recovery application, one affidavit is also filed by one of the
petitioners viz., Rakeshkumar Ramnaresh Tiwari present
petitioner. This affidavit suggests that ex-parte award in MCA which
was dismissed in default against which no proceedings is initiated by
Industrial Security Services and there is no stay operating against
it. Not only that but, the Recovery Application No.293 to 296 of 2003
dated 2.11.2004 which order has been received by Industrial Security
Services and amount is not paid and Industrial Security Services has
not challenged the aforesaid order to higher forum and no stay is in
operation. The Labour Court has, while deciding Recovery Application
No.210 of 2007 under Section 33(c)(1) of the I.D.Act,1947, rejected
the said application on mis-conception of law by order dated
21.11.2008 because recovery application is not filed within a period
of one year from the date of on which the amount is found to be due
in favour of petitioner. The Labour Court has also come to conclusion
that no sufficient cause has been shown by petitioners as to why
delay has been occurred in filing application. This order dated
21.11.2008 is challenged in present petition by petitioner.
3. The
petitioner has challenged the order passed by Labour Court, Ahmedabad
dated 21.11.2008 whereby application preferred by petitioner being
Recovery Application No.210/2007 has been dismissed only on the
ground of delay because the recovery application under Section
33(c)(1) of the I.D.Act,1947 is not filed within a period of one year
from date of passing order by Labour Court in recovery application
dated 2.11.2004.
4. The
Labour Court has discussed this issue in Para.8 of order in question.
This recovery application has been made by petitioner under Section
33(c)(1) of the I.D.Act,1947 with a prayer to issue recovery
certificate against respondent. Initially, recovery application was
filed by petitioner under Section 33(c)(2) of the I.D.Act,1947 being
Recovery Application No.293 to 296 of 2003 wherein the Labour Court
has passed an order on 2.11.2004.
5. Reference
No.652 of 1992 Exh.56 (Annexure-A, Page-8) wherein the Labour Court
has passed an ex-parte award on 21.10.2002 directing to first party
No.2 Industrial Security Services to reinstate the workmen
Shri Kartansinh S. Rajpur, Shri Rakesh R. Tiwari, Shri Umanani R.
Mishra, Shri Ratankumar S. Pandey in service with full back wages of
interim period and in respect to Rambosan J. Tiwari, who died during
pendency of reference, his son Shatradhna Rambosan Tiwari was
directed to be paid back wages of interim period from 30.11.1991 to
19.4.1999 with all consequential benefits by first party No.2.
Therefore, prayer made by petitioner of reinstatement of Shri
Rambosan J. Tiwari not granted. In respect to Shri Dinesh P. Makwana
and Rameshkumar L. Gorkha, who were not remained present before
labour Court, therefore, their case has been dismissed in default. So
labour Court, Ahmedabad has passed an ex-parte award as referred
above in favour of five workmen with reinstatement and back wages by
order dated 21.10.2002. Thereafter, workmen concerned were not
reinstated in service and back wages were not paid. Therefore,
Recovery Application No.293 to 296 of 2003 filed by workmen under
Section 33(c)(2) of the I.D.Act,1947. The labour Court has passed an
ex-parte order in said recovery application on 2.11.2004 in absence
of respondent. The labour Court has granted Rs.2,09,094. 64 ps. in
favour of each workman and in all, it comes to Rs.8,36,738.56 ps. to
be recovered from respondent. This order was passed in recovery
application under Section 33(c)(2) of the I.D.Act,1947 in absence of
respondent on 2.11.2004. Thereafter, the Industrial Security Services
has filed MCA No.6 of 2005 in Reference No.652 of 1992 under Rule 26A
of the Industrial Disputes (Gujarat) Rules where the applicant
Industrial Security Services remained absent. Therefore, that
application has been dismissed in default by labour Court on
10.11.2006. Thereafter, recovery application No.210 of 2007 filed by
workmen with a prayer to issue recovery certificate in favour of
Mamlatdar, Alien Recovery Branch, Surat of Rs.8,36,738.56 as per
application dated 12.3.207 (Annexure-D, Page-23). An application
under Rule 26A of the Rules was filed by the Industrial Security
Services has been dismissed on 10.11.2006. Thereafter, immediately
within a period of four months, recovery application has been filed
by petitioner before labour Court under
Section 33(c)(1) of the I.D.Act,1947. An affidavit is also filed in
support of recovery application 12.3.2007 by Shri R.R.Tiwari.
Thereafter, labour Court has examined recovery application No.210 of
2007 which was filed under Section 33(c)(1) of the I.D.Act,1947
where provision is that such application is required to be filed
within a period of one year from date of amount is due in favour of
concerned workman. The relevant provisions Section 33(c)(1) of the
I.D.Act,1947 is quoted as under :
33C.
Recovery of money due from an employer. (1) Where any
money is due to a workman from an employer under a settlement or an
award or under the provisions of 4*[Chapter VA or Chapter VB], the
workman himself or any other person authorised by him in writing in
this behalf, or, in the case of the death of the workman, his
assignee or heirs may, without prejudice to any other mode of
recovery, make an application to the appropriate Government for the
recovery of the money due to him, and if the appropriate Government
is satisfied that any money is so due, it shall issue a certificate
for that amount to the Collector who shall proceed to recover the
same in the same manner as an arrear of land revenue:
Provided
that every such application shall be made within one year from the
date on which the money became due to the workman from the employer.
Provided
further that any such application may be entertained after the expiry
of the said period of one year, if the appropriate Government is
satisfied that the applicant had sufficient cause for not making the
application within the said period.
6. Considering
discussion made by labour Court, Ahmedabad in Recovery Application
No.210 of 2007 which was rejected only on the ground that said
application must have to be filed within a period of one year from
date on which amount is due in favour of concerned workmen. The
Labour Court has come to conclusion that if beyond one year period,
such application is filed by workman then labour Court has power to
condone delay if sufficient cause is established by workman. The
labour Court has examined this matter and discussed the issue in
Para.8. The Labour Court has ignored that ex-parte award which was
passed against present respondent in Reference No.652 of 1992,
Exh.25, dated 21.10.2002. Thereafter, MCA No.6 of 2005 is filed by
respondent which was dismissed in default on 10.11.2006. Therefore,
so long ex-parte award which was passed by labour Court in respect to
Reference No.652 of 1992 filed by employer is not become final and
meanwhile application made by employer under Rule 26A of the Rules to
set aside ex-parte award, naturally workman is not able to file
recovery application under Section 33(c)(1) of the I.D.Act,1947 with
a prayer to labour Court to issue recovery certificate. Therefore,
this aspect has been lost sight by labour court while examining the
matter for issuing recovery certificate in favour of petitioner. The
recovery application under Section 33(c)(1) of the I.D.Act,1947 was
filed by workman on 12.3.2007 and application under Rule 26A of the
Rules was filed by respondent has been dismissed in default on
10.11.2006. Therefore, labour Court has committed gross error in
considering order passed by labour Court on 21.10.2002 which was
ex-parte award passed by labour Court against respondent. The
respondent has filed application under Rule 26A of the Rules which
was dismissed in default on 10.11.2006. That order has not been at
all considered by labour Court. Therefore, from date of order dated
10.11.2006 which was passed by labour Court in MCA No.6 of 2005, the
present application filed by workman on 12.3.2007 is within a period
of one year. Therefore, labour court has ignored the order passed by
labour Court in MCA No.6 of 2005 dated 10.11.2006. Therefore, finding
given by labour Court in Para.8 considering relevant provisions of
Section 33(c)(1) of the I.D.Act,1947 and come to conclusion that
sufficient cause is not established by workman. Therefore, delay is
not condoned in filing recovery application under Section 33(c)(1)
of the I.D.Act,1947, because application preferred by workman under
Section 33(c)(1) of the I.D.Act,1947 is found to be beyond the period
of one year. That finding of fact itself is incorrect and contrary to
record because MCA No.6 of 2005 has been dismissed in default on
10.11.2006. Thereafter, immediately recovery application has been
filed by workman under Section 33(c)(1) of the I.D.Act,1947 with a
prayer to issue recovery certificate in favour of Mamlatdar, Alien
Recovery, Surat.
7. Therefore,
according to my opinion, labour Court, Ahmedabad has committed gross
error in deciding recovery application by order dated 21.11.2008 and
also committed gross error in rejecting said application. Therefore,
order passed by labour court, Ahmedabad on 21.11.2008 in Recovery
Application No.210 of 2007 is hereby quashed and set aside with a
direction to Labour Court, Ahmedabad to issue recovery certificate in
favour of Mamlatdar, Alien Recovery, Surat as per order passed by
Labour Court on 2.11.2004 in Recovery Application Nos.293 to 296 of
2003, Exh.17. It is further directed to Labour Court, Ahmedabad to
issue recovery certificate in favour of workman addressing to
Mamlatdar, Alien Recovery, Surat to recover total amount of
Rs.8,36,738.56 ps. from the Industrial Security Services. This order
is required to be implemented by labour Court, Ahmedabad within a
period of one month from date of receiving copy of present order.
Accordingly, Rule is made absolute.
(H.K.RATHOD,J.)
(vipul)
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