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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7342 OF 2008
Shri Saptashrung Niwasini Devi Trust
Sevakanchi Pat Sanstha Limited ..Petitioner.
Vs.
Nandkumar Motiram Chitte and another ..Respondent.
....
Mr. Suresh S. Pakale for the Petitioner.
Mr. Anilkumar Patil for Respondent No.1.
.....
CORAM: DR. D.Y. CHANDRACHUD, J.
ig 1st December, 2008.
ORAL JUDGMENT :
1. Rule, by consent of the learned counsel made returnable
forthwith. Counsel appearing for the Respondent waives service.
With the consent of the learned counsel and at their request, the
matter is taken up for hearing and final disposal.
2. The Petitioner before the Court is a co-operative society
registered under the Maharashtra Co-operative Societies Act, 1960.
The First Respondent is in the employment of the Petitioner and holds
the post of Secretary since 7th June, 1995. The First Respondent
instituted proceedings under Section 33-C(2) of the Industrial
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Disputes Act, 1947 claiming the benefit of a difference in wages
between September 1999 and June 2005 on the basis that he was
entitled to the benefit of the recommendations of the 5th Pay
Commission. The Labour Court allowed the application and directed
the Petitioner to pay a sum of Rs.1,57,175/- before 31st October, 2008
failing which the amount was to carry interest at the rate of 6% per
annum.
2A.
Counsel appearing for the Petitioner submitted that in
allowing the claim of the First Respondent which admittedly was
founded on an assertion that the First Respondent was entitled to the
benefit of the 5th Pay Commission recommendations – an assertion
which was disputed by the Petitioner – the Labour Court has acted in
excess of its jurisdiction under Section 33-C(2). It was urged that
Section 33-C(2) is in the nature of an execution proceeding where all
that remains is a quantification on the basis of an established right
whereas in the present case the entitlement of the First Respondent
was in dispute, and the Labour Court could not have adjudicated
thereon in proceedings under Section 33-C(2).
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3. On the other hand, it was urged on behalf of the First
Respondent that the entitlement of the First Respondent stands
concluded in terms of an order passed by the Industrial Court in a
judgment dated 9th September, 2004 passed in Complaint (ULP) 17 of
2004. Hence, it was urged that all that has been done by the Labour
Court in proceedings under Section 33-C(2) is to quantify the amounts
due and payable to the First Respondent in terms of an entitlement
that flows out of the previous judgment dated 9th September, 2004 in
a complaint of unfair labour practices.
3A. In order to appreciate the rival submissions, it would be
necessary at the outset to note that the First Respondent had
instituted a complaint of unfair labour practices, Complaint (ULP) 596
of 1998, under the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971. During the
pendency of the complaint, a resolution was passed by the managing
committee of the Petitioner on 16th September, 1998 and in
pursuance thereof agreed terms came to be filed before the Labour
Court. Clause 2 of the Consent Terms records that the First
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Respondent was being granted a scale of Rs.950/- on which he
would be entitled to Dearness Allowance to the extent of 100% until
1st September, 1999 and that thereafter he would be entitled to
Dearness Allowance in accordance with the rules. The complaint was
disposed of by the Industrial Court as settled out of Court by an order
dated 27th November, 1998. In 2004 the First Respondent instituted a
fresh complaint of unfair labour practices contending that the
Petitioner had failed to comply with the agreement that was arrived at
between the parties in the earlier proceedings. The second complaint
was allowed in the following terms :
“It is hereby declared that the respondent has
engaged in and continued to engage in unfair labourpractices under Item-9 of Sch-IV of the MRTU & PULP Act,
1971.
The respondents are directed to cease and desist
from continuing to engage in unfair labour practices by
granting the relief as per the Resolution passed on 16-09-
1998 under Subject No. 8 and Resolution No. 8 in the
meeting No. 5 of the Respondent No. 1 society.”
4. The First Respondent instituted proceedings under Section
33-C(2) in August 2005 seeking the benefit of wages in accordance
with the recommendations of the 5th Pay Commission. The contention
of the First Respondent is that as a Secretary of the Petitioner, his
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appointment has been approved by the Registrar of Co-operative
Societies and that he is therefore entitled to the benefit of the 5th Pay
Commission wages. It may be noted at this stage that in the reply
which was filed by the Assistant Registrar, the position that was taken
was that though the State Government has adopted the
recommendations of the 5th Pay Commission, these were applicable
to only government employees or to holders of civil posts and that the
benefit of the aforesaid recommendations had not been granted to
employees of co-operative societies. The Labour Court while
disposing of the application under Section 33-C(2) observed that the
resolution that was passed by the Petitioner on 16th September, 2008
only stipulated that the First Respondent would be paid Dearness
Allowance in accordance with the rules, but this did not clarify as to
whether the reference to rules related to the rules of the government
or of the Petitioner. The Labour Court was, however, of the view that
the subsequent conduct of the Petitioner evinced an intent to allow
the benefit of the 5th Pay Commission to the First Respondent and it
was on that ground that the application came to be allowed. The
conduct of the Petitioner which was relied upon by the Labour Court
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consisted of certain letters which were addressed to the First
Respondent by the chairmen of the Petitioner accepting his request
for the grant of 5th Pay Commission scales. Before the Labour Court,
the contention of the Petitioner was that these letters were fabricated.
The Labour Court, however, rejected the contention holding that the
Petitioner had not examined its chairmen in evidence in order to
substantiate its case that the letters upon which reliance is placed by
the First Respondent were fabricated.
5. Counsel appearing for the Petitioner submitted that the
question as to whether the First Respondent was entitled to the
benefit of the 5th Pay Commission scales could not have been
adjudicated upon in proceedings under Section 33-C(2) and the
defence that the letters upon which the First Respondent placed
reliance were fabricated was one that would require adjudication in
appropriate proceedings. On the other hand, as already noted earlier,
it has been urged on behalf of the First Respondent that the
entitlement of the First Respondent stands concluded by the prior
judgment dated 9th September, 2004 in complaint (ULP) 17 of 2004.
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6. Proceedings under Section 33-C(2) are in the nature of
execution when the right on the basis of which the claim has been
preferred is an established right. In the present case, the First
Respondent sought the benefit of wages payable in accordance with
the recommendations of the 5th Pay Commission. The terms of
agreement that were arrived at between the parties in complaint
Rs.950/- and
(ULP) 596 of 1998 allowed the First Respondent a pay scale of
Dearness Allowance after 1st September, 1999 in
accordance with rules. The entitlement of the First Respondent to the
benefit of the 5th Pay Commission wages was therefore not accepted
in the terms of settlement which were arrived at between the parties
or in the underlying resolution of the management dated 16th
September, 1998. Similarly, in the subsequent complaint of unfair
labour practices the Industrial Court by its judgment of 9th September,
2004 directed the management to grant relief in terms of its resolution
dated 16th September, 1998. That resolution again did not accept the
entitlement of the First Respondent to the 5th Pay Commission wages.
The First Respondent purported to rely upon certain letters executed
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by the chairmen of the Petitioner as recognizing his right to receive
the 5th Pay Commission emoluments. The contention of the Petitioner
was that the letters were fabricated and that in any event without a
resolution of the co-operative society, it was not within the authority of
the chairpersons to grant the benefit of a wage revision. The Labour
Court manifestly acted in excess of its jurisdiction by adjudicating
upon this dispute in proceedings under Section 33-C(2). The First
Respondent has no pre-existing right on the basis of which recourse
could have been taken to proceedings under Section 33-C(2). In
these circumstances, it was for the First Respondent to seek an
adjudication into his claim to receive the benefit of the
recommendations of the 5th Pay Commission. That the First
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Respondent did not have a pre-existing right was also evident from
the reply filed by the Assistant Registrar, Co-operative Societies
before the Labour Court.
7. In these circumstances, the impugned order of the Labour
Court passed in proceedings under Section 33-C(2) of the Industrial
Disputes Act, 1947 is in excess of jurisdiction and is unsustainable.
The Petition will have to be allowed and is accordingly allowed. Rule
is made absolute in terms of prayer clause (A). The judgment of the
Labour Court dated 29th July, 2008 is set aside. Application (IDA) 13
of 2005 shall stand dismissed. The Petition is accordingly disposed
of.
There shall be no order as to costs.
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