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CA/7412/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 7412 of 2011
=========================================
SAVLANI
SILK MILLS - Petitioner(s)
Versus
RAMDIN
BUDDHI KASHYAP C/O GUJARAT SHRAMJIVI KAMDAR - Respondent(s)
=========================================
Appearance :
MR
R.R.Marshal, Senior counsel with Mr. ADIL R MIRZA for the
applicant.
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CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 08/07/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard Senior counsel Mr. R.R.Marshal assisted by Mr. Adil Mirza,
appearing for the appellant. Learned counsel for the appellant has
urged that without there being any adjudication under section 10 of
the Industrial Disputes Act, (for short “Act”)
straightaway, the respondent could not claim the arrears of salary,
bonus, overtime allowance and salary etc. in proceedings under
section 33(C)(2) of the Act. In support of his argument, learned
counsel for the appellant has placed reliance on the decision of the
Apex Court in D.Krishnan and another v.Special Officer, Vellore
Cooperative Sugar Mill and another (2008) 7 SCC 22 wherein the
Apex Court in para-12 has held as under:
“12. We
have considered the arguments advanced by the learned counsel for the
parties. The fact that proceedings under Section 33(C(2) are in the
nature of execution proceedings is in no doubt, and such proceedings
presuppose some adjudication leading to the determination of a right,
which has to be enforced. Concededly there has been no such
adjudication in the present case. It will be seen that the reliance
of the appellant workmen is exclusively on documentary evidence
placed on record which consisted primarily of the punch time cards
and the representations that had been filed from time to time before
the respondents. It is also true that the claim raised by the
appellants had been hotly disputed by the respondents. The question
that arises in this situation is whether reliance only on the
documentary evidence was sufficient to prove the case.”
2. Learned
counsel for the appellant has also placed reliance on another
decision of the Apex Court in State of U.P. and another vs.
Brijpal Singh (2005)8 SCC 58, wherein the Apex Court in para-10
has held as under:
“10. It
is well settled that the workman can proceed under Section 33-C(2)
only after the Tribunal has adjudicated on a complaint under Section
33-A or on a reference under Section 10 that the order of discharge
or dismissal was not justified and has set aside that order and
reinstated the workman. This Court in the case of Punjab Beverages
(P) Ltd. v.Suresh Chand held that a proceeding under Section 33-C(2)
is a proceeding in the nature of execution proceeding in which the
Labour Court calculates the amount of money due to a workman from the
employer, or, if the workman is entitled to any benefit which is
capable of being computed in terms of money, proceeds to compute the
benefit in terms of money. Proceeding further, this Court held that
the right to the money which is sought to be calculated or to the
benefit which is sought to be computed must be an existing one, that
is to say,already adjudicated upon or provided for and must arise in
the course of and in relation to the relationship between the
industrial workman, and his employer…”
In
view of the aforesaid two decisions, we find force in the submission
of the learned counsel for the appellant. The appellant is entitled
for interim relief.
3. Rule
returnable on 29.8.2011. Until further order of this Court, the
effect and operation of the judgment dated 7.4.2011 passed by the
learned Single Judge in Special Civil Application Nos. 509 of 2011 to
519 of 2011 and the order dated 24.9.2010 passed by the Presiding
Officer, Labour Court, Surat in recovery proceedings shall remain
stayed.
(V.M.SAHAI,J)
(G.B.SHAH,J)
***vcdarji
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