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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4167 OF 2009
Vishram Chandrakant Dalvi ...Petitioner
vs.
The Daily Publications,
(A Division of Nalanda Exports
Pvt.Ltd.) & Anr. ...Respondents
Ms.Jane Cox for the Petitioner.
Mr.R.V. Paranjpe for Respondents.
ig CORAM : V.M. KANADE, J.
DATED : JULY 1, 2009
ORAL ORDER :-
1 By this petition, the petitioner is
challenging the judgment passed by the Labour Court
dated 15th November, 2008 whereby the application
filed by the applicant petitioner herein under
Section 33-C(2) of the Industrial Disputes Act for
the recovery of the amount mentioned in the
statement annexed to the application is rejected.
The Labour Court held that the applicant could not
claim benefits beyond the terms of settlement under
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Section 33-C(2) of the Industrial Act. Brief facts
are as under :-
2 The respondent no.1 who was private limited
company registered under the Companies Act, was in
the business of publishing the newspaper known as
The Daily . It is the case of the applicants
petitioner herein that since May 2000, the
respondents had stopped paying them earned wages on
one pretext or the other. The union, therefore,
filed the complaint of unfair labour practice vide
Complaint (ULP) No.582 of 2000 before the Industrial
Court, Mumbai. The Industrial Court by orders dated
28.6.2000, 4.9.2000, and 6.10.2000 directed the
respondents to pay the earned wages and by last
order dated 6.10.2000, the respondents were directed
to pay entire arrears of earned wages. In the
meantime, the Wage Board had passed an order in May
2000 for payment of wages as laid down by the Wage
Board. The respondents, however, did not make any
payment either by the direction of the Wage Board of
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by the orders passed by the Industrial Court and as
a result, Complaint was filed by the petitioner
herein vide Misc.Complaint No.282/2000 in which
process was issued against the respondents.
Thereafter, the outstanding wages of October 2000
were paid. In the meantime, on 31.1.2001, the
respondent company issued a closure notice claiming
that due to drop in circulation and lack of
advertisement revenue, it has decided to close down
the publication of daily newspaper w.e.from
31.1.2001. On 21.1.2001, a settlement was arrived at
between the union and the respondents in respect of
the terminal dues of the employees. Accordingly, the
terminal dues and other benefits were paid according
to the award of the Bachavat Wage Board and not
according to the Manisana Wage Board award which
came into effect from 1.4.2000. Under these
circumstances, therefore, the petitioner filed an
application before the Labour Court under Section
33-C(2) of the Industrial Disputes Act vide
Application No.307/2002 seeking a direction
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directing the respondent no.1 to pay them their dues
according to the Manisana Wage Board award after
deducting the amount received by them under the
Settlement dated 25.1.2002.
3 This application was opposed by the
respondent company. It was contended that the Labour
Court had no jurisdiction to entertain or decide the
matters which were not adjudicated and where there
were no existing rights in favour of the workmen.
It was submitted that the Labour Court could not
decide the issue as to whether the settlement which
was executed between the union and the company was
under coercion and the union was forced to sign the
settlement due to undue influence and coercion which
was in exercise of the contract.
4 The Labour Court accepted the contention of
the respondent company and held that the application
was not maintainable.
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5 The learned Counsel for the petitioner has
relied on number of judgments and submitted that the
petitioner was forced to accept the settlement which
was executed between the union and the respondent
company since wages were not paid for almost 18
months and as a result, the union had no other
alternative but to accept the settlement since they
are on the verge of starvation for 18 months. It was
submitted that the Wage Board had already passed an
award with effect from 1.4.2000 and it was a
statutory award which was binding on the respondent
company. The Union, therefore, was forced to accept
lower wages and was forced to accept the settlement
which was contrary to the statutory award. It was
submitted, therefore, the Labour Court was competent
to decide this issue since there was existing right
in favour of the petitioner herein by virtue of the
award passed by the Manisana Wage Board which came
into effect from 1.4.2000. In support of the said
submission, the learned Counsel relied on judgment
of the Punjab and Haryana High Court in the case of
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Amar Kaur, Petitioner vs. State of Punjab and
others, Respondents, reported in 1982 LAB.I.C. 1275.
She also relied on the judgment of the Apex Court in
the case of Central Bank of India, Ltd. And others
vs. Rajagopalan (P.S.) and others reported in
1963(7) FLR 141 (S.C.). She also relied on the
Division Bench judgment of this Court in the case of
Union of India, representing the Central Railway
Administration
vs. Samuel Peters and another,
reported in 1975 II LLJ Page 185. The learned
Counsel for the petitioner also relied on the
judgment of the Apex Court in the case of Central
Inland Water Transport Corporation Ltd. And another
v. Brojo Nath Ganguly and another, Respondents,
reported in AIR 1986 SC 1571 and more particularly,
paragraphs 90 and 92.
6 The learned Counsel appearing on behalf of
the respondents, on the other hand, submitted that
the Labour Court could not decide the issue whether
the settlement which was signed by the union and
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respondent no.1 was under coercion or not. He
submitted that this issue was not incidental to any
existing right and as such, therefore, unless there
was adjudication by a competent authority on this
aspect, the petitioner is not entitled to file an
application under Section 33-C(2).
8 In my view, there is much substance in the
submission made by the Counsel for the respondents.
In the present case, admitted legal position is that
though award was passed by the Wage Board in May
2000, the union entered into a settlement with the
respondent company on 25.1.2002. It was always open
for the union to file an application under Section
33-C(2) seeking implementation of the award of the
Wage Board wherein wages were directed to be paid
with effect from May 2000. However, the Union chose
to enter into a settlement dated 25.1.2002. The
question, therefore, which is raised by the
petitioner hereby before the Labour Court under
Section 33-C(2) was whether the union was forced by
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the respondent company to enter into a settlement on
25.1.2002 is, in my view, while exercising its
jurisdiction under Section 33-C(2), the Labour Court
cannot be called upon to adjudicate such issues. If
it is only the existing rights or rights which are
incidental to the existing rights, the Labour Court
can then in such circumstances, decide the such
issues which are incidental to the existing rights
of the workmen. The Labour Court, therefore, in my
view, was justified in holding that it had no
jurisdiction to first decide the workmen s
entitlement and to proceed to continue the benefits
so adjudicated on that basis in exercise of the
power under Section 33-C(2) of the Industrial
Disputes Act.
9 There cannot be any dispute regarding the
ratio of the judgment on which reliance in placed by
the petitioner in the present case. Taking into
consideration the peculiar facts and circumstances
of case, the ratio will not apply to the facts of
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the present case. The petitioner, therefore, could
not have filed straightway the application under
Section 33-C(2) seeking a declaration that the
settlement which was entered into between the union
and the respondent no.1 company was executed on
account of undue influence or coercion by the
company on the workers on account of non-payment of
their wages for a period of 18 months. Under these
circumstances, therefore, I do not see any infirmity
in the order passed by the Court. The petitioners
are bound to obtain appropriate declaration from the
appropriate forum and thereafter, approach the
Labour Court under Section 33-C(2).
10 The petition, therefore, is dismissed.
Under the circumstances, there shall be no order as
to costs.
(V.M. KANADE, J.)
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