{"id":131689,"date":"2011-03-08T00:00:00","date_gmt":"2011-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/force-motors-ltd-vs-shantilal-hukumchand-sancheti-on-8-march-2011"},"modified":"2016-11-22T22:08:57","modified_gmt":"2016-11-22T16:38:57","slug":"force-motors-ltd-vs-shantilal-hukumchand-sancheti-on-8-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/force-motors-ltd-vs-shantilal-hukumchand-sancheti-on-8-march-2011","title":{"rendered":"Force Motors Ltd. vs Shantilal Hukumchand Sancheti & … on 8 March, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Force Motors Ltd. vs Shantilal Hukumchand Sancheti & … on 8 March, 2011<\/div>\n
Bench: Nishita Mhatre<\/div>\n
                                                                                               WP\/2397\/2010\n                                                         1\n\n                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                                 CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                                                                   \n                                   WRIT PETITION NO.2397 OF 2010\n\n\n\n\n                                                                           \n    Force Motors Ltd., Pune                                                    ...               Petitioner\n                V\/s.\n    Shantilal Hukumchand Sancheti & Anr.                             ...                Respondents\n\n\n\n\n                                                                          \n    Mr. S.K. Talsania, Sr. Counsel, with Mr. Vishal Talsania and \n    Ms. Pallavi Dedhia i\/b. Sanjay Udeshi & Co. for the Petitioner.\n\n\n\n\n                                                         \n    Mrs. Neeta P. Karnik for Respondent No.1.\n\n                                       ig   CORAM                     : SMT. NISHITA MHATRE, J.\n                                     \n                                            RESERVED ON               : 20\n                                                                            TH  DECEMBER, 2010.\n                                                                                               \n\n                                            PRONOUNCED ON   : 8\n                                                                 TH  MARCH, 2011.\n                                                                                 \n             \n\n\n    JUDGMENT :\n<\/pre>\n
    1.      Rule. Rule made returnable forthwith, by consent.\n<\/p>\n
    2.      Once again the vexed question as to what could be considered as an incidental <\/p>\n
    issue in an application under Section 33C(2) of the Industrial Disputes Act, 1947, (for <\/p>\n
    short “the I.D. Act”), arises for determination in the present Petition.\n<\/p>\n
    3.      The first respondent, (hereinafter referred to as “the workman”), was employed <\/p>\n
    with the petitioner, (hereinafter referred to as “the Company”), from 5th October, 1970.\n<\/p>\n
    He   was   recruited   as   a   “Junior   Clerk”   in   the   Traffic   Department.   He   was   later   re-\n<\/p>\n
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    designated as a “Senior Assistant” on 1st November, 1979. Thereafter, he was transferred <\/p>\n
    to the Stores Department on 14th January, 1980. The Company dismissed the workman <\/p>\n
    on   7th  August,   1982   for   having   committed   gross   misconduct   of   insubordination   and <\/p>\n
    disobedience. Aggrieved by that order, the workman preferred Complaint (ULP) No.51 of <\/p>\n
    1988, which was allowed partly by the Labour Court, Pune. The Company was directed <\/p>\n
    to reinstate the workman with continuity of service and to pay him 50% of his back-\n<\/p>\n
    wages by the order of the Labour Court dated 27th September, 1988. Both the workman <\/p>\n
    as   well   as   the   Company   preferred   Revision   Applications   before   the   Industrial   Court, <\/p>\n
    Pune.   By   an   order   dated   1st  March,   1993,   the   Industrial   Court   allowed   the   Revision <\/p>\n
    Application of the workman and granted him full back-wages. The Revision Application <\/p>\n
    of the Company was dismissed.  According to the Company it complied with the order of <\/p>\n
    the Industrial Court by reinstating the workman with effect from 23rd  April, 1993 and <\/p>\n
    paying him  an amount of `2,93,984.34  on 14th May, 1993  as back-wages.\n<\/p>\n
    4.      The  workman filed Miscellaneous  Application  (ULP) No.12  of  1993  before  the <\/p>\n
    Labour Court under Section 50 of the Maharashtra Recognition of Trade Unions  and <\/p>\n
    Prevention of Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”), <\/p>\n
    claiming that he was entitled to the benefits of Settlements which were signed by the <\/p>\n
    Company with the Union representing the employees while he was out of service. These <\/p>\n
    Settlements were signed on 24th  January, 1985, 22nd  June, 1988 and 30th  April, 1993.\n<\/p>\n
    The workman claimed an amount of  `2,41,096\/-. Criminal Complaint (ULP) No.22 of <\/p>\n
    1993 was also filed by the workman under Section 48 of the MRTU & PULP   Act. The <\/p>\n
    process issued by the Labour Court against the Managing Director of the Company was <\/p>\n
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    quashed by the Industrial Court. Criminal Writ Petition No.1066 of 1997 filed by the <\/p>\n
    workman against the order of the Industrial Court was dismissed on 30th  July, 2001.\n<\/p>\n
    Soon   thereafter   on   3rd  September,   2001,   the   Miscellaneous   Application   filed   under <\/p>\n
    Section   50   of   the   MRTU   &   PULP   Act   was   also   dismissed   by   the   Labour   Court   by <\/p>\n
    concluding that it did not have the jurisdiction to decide the Miscellaneous Application.\n<\/p>\n
    The   Industrial   Court   set   aside   this   order   of   the   Labour   Court   and   remanded   the <\/p>\n
    application again to the Labour Court. The application was dismissed once again which <\/p>\n
    lead to another Revision Application being filed by the workman. The Industrial Court <\/p>\n
    dismissed that application. No further proceedings have been initiated by the workman <\/p>\n
    against   that   order   of   the   Industrial   Court   passed   on   5th  October,   2002   in   Revision <\/p>\n
    Application (ULP) No.81 of 2000.\n<\/p>\n
    5.      While these proceedings under the MRTU & PULP Act were pending, the workman <\/p>\n
    filed an application under Section 33C(2) of the I.D. Act, being Application (IDA) No.75 <\/p>\n
    of 2000. The workman claimed an amount of `2,45,345.55 as dues payable to him under <\/p>\n
    the   Settlement   dated   30th  April,  1993.   He   also   claimed   interest   @   18%  p.a.   on   that <\/p>\n
    amount.  According  to  the  workman,  after  he  was reinstated   in  service  on 24th  April, <\/p>\n
    1993, the Company did not pay the benefits of the aforesaid Settlement.\n<\/p>\n
    6.      The workman filed another application, being Application (IDA) No.25 of 2003, <\/p>\n
    under Section 33C(2) of the I.D. Act claiming `2,41,096\/- together with interest @ 18% <\/p>\n
    p.a. In this application, he sought dues payable to him under the Settlement of 1984, <\/p>\n
    1988 and 1993 which had not been extended to him after he was reinstated in service.\n<\/p>\n
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    Thus,   the   period   for   which   the   workman   claimed   difference   in   wages   in   both   the <\/p>\n
    applications, taken together, was from 1982 till 1993.\n<\/p>\n
    7.     The  workman  and  five   other  workmen  filed   Complaint (ULP)  No.377  of  1977 <\/p>\n
    before the Industrial Court under Item 9 of Schedule IV of the MRTU & PULP Act. It was <\/p>\n
    alleged that the Company had committed an unfair labour practice by not extending the <\/p>\n
    benefits of certain Settlements to them. The Industrial Court allowed the complaint by <\/p>\n
    an order dated 7th September, 1998. Aggrieved by this decision, the Company preferred <\/p>\n
    Writ Petition No.6605 of 1998 which is pending in this Court. The order of the Industrial <\/p>\n
    Court has been stayed by this Court.\n<\/p>\n
    8.       In   its   written   statement,   the   Company   contended   that   the   workman   was   not <\/p>\n
    given the benefits of the Settlement dated 30th  April, 1993 while paying him his back-\n<\/p>\n
    wages. The Company pleaded that this was because the Settlement of 30 th  April, 1993 <\/p>\n
    was   binding   only   on   such   workmen   who   had   submitted   an   undertaking   in   writing, <\/p>\n
    accepting the terms and conditions of the Settlement. As the workman had not submitted <\/p>\n
    any such undertaking, as required under the Settlement, he was denied the benefits of <\/p>\n
    the Settlement of 30th  April, 1993. It was also pleaded that the application was barred <\/p>\n
    under Section 59 of the MRTU & PULP Act since he had sought the same relief before the <\/p>\n
    Industrial Court.\n<\/p>\n
    9.     Both the applications filed under Section 33C(2) of the I.D. Act, i.e. Application <\/p>\n
    (ULP) Nos.75 of 2000 as well as 25 of 2003, were heard together by the Labour Court, <\/p>\n
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    on an application made by the workman.   The workman filed his affidavit in lieu of <\/p>\n
    examination-in-chief  in which  he  has stated  that he  had sent several  letters and  had <\/p>\n
    orally requested officials of the Company to permit him to sign the undertaking in order <\/p>\n
    to avail of the benefits of the Settlement. However, the Company had refused to accept <\/p>\n
    his   request.   In   his   cross-examination,   when   asked   whether   he   had   furnished   the <\/p>\n
    undertaking   accepting   the   conditions   in   the     aforesaid   Settlements     the   workman <\/p>\n
    answered   that   the   Company   had   not   supplied   the   Form   of   Undertaking   to   him.   He <\/p>\n
    further stated that he had written to the Company asking for the Undertaking Form.\n<\/p>\n
    10.<\/p>\n
            The witness of the Company has stated in his affidavit filed in lieu of examination-\n<\/p>\n
    in-chief that the workman had refused to submit any undertaking accepting the terms <\/p>\n
    and conditions of the Settlement dated 30th  April, 1993 and it was for this reason that <\/p>\n
    the benefits of this Settlement were not extended to him. In his cross-examination, the <\/p>\n
    witness has denied the suggestion that the Company had not furnished Annexure-I of the <\/p>\n
    Settlement to the workman despite his request. Annexure-I was the Form of Undertaking.\n<\/p>\n
    11.     The Labour Court by its Judgement and Order dated 27th April, 2009 has allowed <\/p>\n
    the Application (IDA) No.75 of 2000. It has directed the Company to pay an amount of <\/p>\n
    `2,45,345\/- to the workman along with the interest thereon @ 8% p.a. from the date of <\/p>\n
    the   application,   i.e.   from   29th  April,   2000,   till   realization   of   the   entire   amount.   By <\/p>\n
    another  order  dated  27th  April,  2009  passed  in  Application  (IDA) No.25  of  2003  the <\/p>\n
    Labour Court directed the Company to pay an amount of `2,08,555\/- with interest @ 8% <\/p>\n
    p.a. from the date of the application i.e. from 13th  March, 2003 till realization of the <\/p>\n
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    amount.   The   petitioner   then   preferred   Miscellaneous   Application   No.3   of   2009   for <\/p>\n
    review of the order passed in Application (IDA) No.25 of 2003. That application was <\/p>\n
    dismissed by the Labour Court on 10th February, 2010 on the ground that the review was <\/p>\n
    not maintainable.\n<\/p>\n
                                 ARGUMENTS OF MR. TALSANIA,
\n                            THE LEARNED COUNSEL FOR THE COMPANY<\/p>\n
    12.     Mr. Talsania, the learned Counsel appearing for the Company, pointed out   that <\/p>\n
    the claim under Section 33C(2) of the I.D. Act was not maintainable as the entitlement <\/p>\n
    of   the   workman   to   the   amount   payable   under   the   Settlement   was   disputed.   His <\/p>\n
    submissions were as follows :\n<\/p>\n
    .       The jurisdiction of the Labour Court under Section 33C(2) of the I.D. Act is akin <\/p>\n
    to that of the Civil Court which executes a judgement or order. It cannot traverse beyond <\/p>\n
    the computation of the amount payable. The Labour Court has no jurisdiction to decide <\/p>\n
    the entitlement of the workman. The very fact that the workman had not signed the <\/p>\n
    declaration   would   indicate   that   he   was   not   entitled   to   the   amount.   Any   decision   or <\/p>\n
    enquiry by the Labour Court as to whether the workman was prevented from signing <\/p>\n
    such   a   declaration   or  he  had   voluntarily   refused   to   sign   the   same   would   amount   to <\/p>\n
    deciding   his   entitlement.   Whether   the   workman   was   prevented   from   signing   the <\/p>\n
    declaration is a disputed question which cannot be answered by the Labour Court under <\/p>\n
    Section 33C(2) of the I.D. Act as that would lead to adjudication of his entitlement. Such <\/p>\n
    an enquiry would not amount to deciding whether there was an existing right as the <\/p>\n
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    enquiry would not be incidental to the main issue of computation of an amount under <\/p>\n
    Section   33C(2)   of   the   I.D.     Act.   Clause   (1.2)   of   the   Settlement   of   30th  April,   1993 <\/p>\n
    required each individual workman to signify the acceptance of the terms and conditions <\/p>\n
    of the Settlement by giving a declaration in the form of Annexure-I to the Settlement.\n<\/p>\n
    This declaration was not furnished by the workman and, therefore, the amount was not <\/p>\n
    paid to him. No letters signifying his acceptance were produced by the workman, neither <\/p>\n
    was any letter produced indicating that the Company had refused permission to him to <\/p>\n
    sign  the   declaration     envisaged   under   the   Settlement   of   30th  March,   1993.      By   the <\/p>\n
    impugned order, the Labour Court has modified the Settlement by observing that no <\/p>\n
    declaration was required from the Senior Clerk.   It was only in his evidence that the <\/p>\n
    workman contended that he was willing to sign the relevant declaration.  Such an offer <\/p>\n
    made after seven years is of no consequence. Therefore, the application ought to have <\/p>\n
    been dismissed.\n<\/p>\n
                                 ARGUMENTS OF MRS. NEETA KARNIK, <\/p>\n
                           THE LEARNED ADVOCATE FOR THE WORKMAN<\/p>\n
    13.       Mrs. Karnik’s submissions were as follows: The benefits claimed under Section <\/p>\n
    33C(2) of the I.D. Act by the workman flows from a pre-existing right contained in the <\/p>\n
    Settlement dated 30th April, 1993. The refusal by the Company to permit him to sign the <\/p>\n
    Settlement was because the workman had litigious tendencies. The entitlement of the <\/p>\n
    dues is envisaged in the Settlement. The undertaking required to be furnished under the <\/p>\n
    Settlement   had   not   been   furnished   by   the   workman   because   of   the   refusal   by   the <\/p>\n
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    Company to furnish him the format in which the undertaking was expected. The issue as <\/p>\n
    to   whether   the   workman   was   refused   permission   or   he   voluntarily   did   not   sign   the <\/p>\n
    declaration is a question which is incidental to the main issue of payment of the amounts <\/p>\n
    under the Settlement of 30th  April, 1993. The furnishing of the undertaking does not <\/p>\n
    dictate the entitlement as the entitlement is contained in the Settlement itself.\n<\/p>\n
    14.     Both the learned Counsel have referred to several judgements   which I will deal <\/p>\n
    with presently.\n<\/p>\n
    15.<\/p>\n
            By   a   letter   dated   20th  September,   1995,   the   workman   had   called   upon   the <\/p>\n
    Company to recalculate the amounts paid to him in accordance with the Settlement of <\/p>\n
    1993. Several similar letters have been written by the workman to the Company. By a <\/p>\n
    letter dated 15th January, 1996, the Company has stated that the question of payment of <\/p>\n
    arrears in accordance with the Settlement of 30th  April, 1993 was a subject matter of <\/p>\n
    various cases filed by the workman in Court and, therefore, it had not extended the <\/p>\n
    benefits of that Settlement to the workman. There does not appear to be any letter on <\/p>\n
    record written by the Company to the workman calling upon him to sign the declaration <\/p>\n
    in order to pay him the amount. The Labour Court by the impugned order has held that <\/p>\n
    the Company had avoided the request of the applicant, i.e. the workman, to permit him <\/p>\n
    to sign the undertaking with an intention to deny him the benefits of the Settlement of <\/p>\n
    30th  April, 1993. It was, therefore, of the view that the workman was entitled to the <\/p>\n
    amount claimed by him together with interest @ 8% p.a. <\/p>\n
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    16.    The  issue  involved in the  present case is as to  whether  the  workman had  not <\/p>\n
    signed the declaration because of the Company denying him the opportunity to do so or <\/p>\n
    because of an overt act on the part of the workman refusing to sign the undertaking.\n<\/p>\n
    There can be no dispute that the Labour Court is not vested with the jurisdiction to <\/p>\n
    adjudicate an entitlement of any amount payable to the workman. It can merely compute <\/p>\n
    the amount. However, while doing so it can always conduct an incidental enquiry which <\/p>\n
    would facilitate its decision while computing the amount.\n<\/p>\n
    17.    In the case of The Mahalaxmi Co-operative Housing Society Ltd. vs. Dilip Singh  <\/p>\n
    Parocha & Ors., reported in 2007(1) ALL MR 571, the Division Bench of this Court has <\/p>\n
    considered the judgements of the Supreme Court in the cases of Central Bank of India  <\/p>\n
    Ltd. vs. P.S. Rajagopalan,<\/a> reported in AIR 1964 SC 743, R.B. Bansilal Abirchand Mills  <\/p>\n
    Co.   Pvt.   Ltd.   vs.   The   Labour   Court,   Nagpur,<\/a>   reported   in  AIR   1972   SC   451, <\/p>\n
    Ramakrishna   Ramnath   vs.   State   of   Maharashtra,<\/a>   reported   in  1975   LIC   1561, <\/p>\n
    Municipal   Corporation  of  Delhi   vs.   Ganesh   Razak,  reported   in  (1995)   I  CLR  170, <\/p>\n
    Central Inland Water Transport vs. The Workman, reported in  (1974) 4 SCC 696, <\/p>\n
    Som   Vihar   Apartment   Owners   Housing   Maintenance   Society   Ltd.   vs.   Workmen, <\/p>\n
    reported in (2001) I LLJ 1413, P.K. Singh vs. Presiding Officer,<\/a> reported in AIR 1988  <\/p>\n
    SC 1618, Tara vs. Director, Social Welfare, reported in AIR 1999 SC 1508, State of U.P.\n<\/p>\n
    vs. Brijpal Singh, reported in 2006 (2) ALL MR (S.C.) 6,  R.S.R. Mohata Spinning &  <\/p>\n
    Weaving Mills Pvt. Ltd., Hinganghat vs. Chintaman Govindrao, reported in 2001 LAB <\/p>\n
    I.C. 2269, Central Group vs. Motiram Thakre, reported in (2005) II LLJ 492 (Bom), <\/p>\n
    and  Divisional   Personnel   Officer,   Southern   Railway,   Palghat   vs.   P.   Ramchandren, <\/p>\n
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    reported in (1991) 11 CLR 364. Speaking for the Bench, Desai J. has elucidated in para <\/p>\n
    40 of the judgement in the case of The Mahalaxmi Co-operative Housing Society Ltd.\n<\/p>\n
    (supra)  the propositions which emerged on consideration of the aforesaid judgements.\n<\/p>\n
    Para 40 of the  judgement reads as under :\n<\/p>\n
          “40.   From the judgments of the Supreme Court and of this     Court   to <\/p>\n
                 which     we   have       made       a     reference   following   propositions
\n                 emerge:- <\/p>\n
                 a)     The     legislature       recognised       that       individual <\/p>\n
                        workmen   should be given a speedy remedy to enforce
\n                        their   existing   individual   rights   and   so   it   inserted
\n                        Section   33C in the said Act in 1956.   By resorting to <\/p>\n
                        Section   33C   individual   workmen   can   enforce   their
\n                        rights without having to take recourse to Section 10(1)
\n                        of the said Act or without having to depend upon their <\/p>\n
                        union to espouse their cause. <\/p><\/blockquote>\n
                 b)     There is no bar preventing a Labour Court dealing with
\n                        an application under Section 33C(2) of the     said Act
\n                        from determining the workmen’s                         right to <\/p>\n
                        receive benefit if it is disputed by the employer.\n<\/p><\/blockquote>\n
                 c)     This view is consistent with the legislative intent and a
\n                        contrary view would mean that it would be     at the
\n                        option of the employer to allow the workmen to avail
\n                        himself of the remedy provided by Subsection (2) of <\/p>\n
                        Section   33C   because   he   has   merely   to   raise   an
\n                        objection on the ground that the right claimed by the
\n                        workman is not admitted to oust the jurisdiction of the
\n                        Labour Court, to entertain the workman’s application.\n<\/p><\/blockquote>\n
                 d)     In   some   cases   determination   of   the   question   about
\n                        computing the benefit in terms of money may have to
\n                        be   preceded   by   an   enquiry   into   the   existence   of   the
\n                        right,   and   such   an   enquiry   must   be   held   to   be
\n                        incidental.\n<\/p><\/blockquote>\n
                 e)     Whether such inquiry is incidental or not will depend
\n                        on the facts and circumstances of each case.\n<\/p><\/blockquote>\n
                 f)     When Labour Court’s jurisdiction is sought to be ousted
\n                        by raising objection to it, the Labour Court will have to <\/p>\n
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          examine whether it has jurisdiction or not. In such a
\n          situation the question of status of the person applying
\n          under   Section   33C(2)   becomes   an   incidental   matter <\/p>\n
          and the Labour Court can enquire into that matter.\n<\/p><\/blockquote>\n
     g)   In a given case it may be necessary to determine the
\n          identity of the person against whom the claim is made
\n          if there is challenge and such determination would be
\n          incidental.\n<\/p>\n
     h)   Interpretation of an Award or a Settlement on which
\n          the workman’s right exists is incidental to the Labour
\n          Court’s power under Section 33C(2).\n<\/p>\n
     i)   Under   Section   33C(2)   the   Labour   Court   cannot   be
\n          asked   to   disregard   the   dismissal   of   the   workman   as
\n          wrongful and on that basis compute his wages.\n<\/p>\n
     j)   Under Section 33C(2) the workman cannot claim that
\n          his  dismissal or demotion is  unlawful and, therefore, <\/p>\n
          he continues to be the workman of   the employer and
\n          he is entitled to the benefits due to him under a pre-\n<\/p>\n
          existing contract.\n<\/p>\n
     k)   Under   Section   33C(2),   it   would   not   be   open   to   an <\/p>\n
          employee, notwithstanding a settlement, to    claim the
\n          benefit as though the said settlement has come to an <\/p>\n
          end.\n<\/p>\n
     l)   If the workman makes his claim on the basis of a lay
\n          off and the employer raises a plea that there was no lay <\/p>\n
          off   but   closure,   the   Labour   Court   must   decide   as   to
\n          whether there was really a lay off or a closure and if it
\n          takes   the   view   that   there   was   a   lay   off   without   any
\n          closure of the business, it would be acting within its
\n          jurisdiction if it awarded compensation in terms of the <\/p>\n
          provisions of Chapter V-A. In such a situation the plea
\n          raised by the employer is a jurisdictional plea and the
\n          Labour Court has to decide whether it has jurisdiction
\n          to   make   the   computation.   Thus,   jurisdictional   pleas
\n          will have to be decided by the Labour Court. <\/p>\n
     m)   If   the   workers   claim   that   they   had   been   actually
\n          promoted to a particular cadre and the     management
\n          denies the     promotion the Labour Court can decide
\n          whether there was such a promotion or not it being an <\/p>\n
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                            incidental   question,   but   under   Section   33C(2)   the
\n                            Labour Court cannot reclassify the workers.\n<\/p>\n
                    n)      While   dealing   with   an   application   under   Section
\n                            33C(2)   the   Labour   Court   has   to   keep   the   legislative <\/p>\n
                            intent in enacting this provision in mind.  It must adopt
\n                            a cautious approach and it must not allow an attempt
\n                            to oust the jurisdiction of the Labour Court by raising
\n                            frivolous plea succeed for that would mean driving the
\n                            workman       unnecessarily to another forum.   In such <\/p>\n
                            cases   it     will   have   to   conduct   incidental   inquiry   to
\n                            determine the identity of the person against whom the
\n                            claim is made and the person who makes the claim.\n<\/p>\n
                            Nature of incidental inquiry will obviously depend on <\/p>\n
                            facts and circumstances of each case. ”\n<\/p>\n
    18.<\/p>\n
            Thus,   an   incidental   enquiry   can   always   be   conducted   to   determine   whether   a <\/p>\n
    workman is entitled to the benefits as computed by him. The issue as to whether the <\/p>\n
    declaration was not signed because of an overt act by the employer or the workman is an <\/p>\n
    incidental   issue   involving   no   complicated   question   relating   to   the   entitlement   of   the <\/p>\n
    workman to the amounts payable under Section 33C(2) of the I.D. Act. Therefore, in my <\/p>\n
    opinion, the Labour Court was correct in deciding the application under Section 33C(2) <\/p>\n
    of the I.D. Act.\n<\/p>\n
    19.     According   to   Mr.  Talsania,  in   the   case   of  Indu   Vishnu   Mahajan  vs.   National  <\/p>\n
    Safety Council & Ors.,<\/a> reported in  1987 II CLR 259, another Division Bench of this <\/p>\n
    Court, while interpreting the law laid down by the Supreme Court in the case of  R.B.\n<\/p>\n
    Bansilal   Abirchand  Mills  Co.  Pvt.  Ltd.  (supra)  ,    takes  a  view   contrary   to   the   one <\/p>\n
    expressed by the Division Bench in The Mahalaxmi Co-operative Housing Society Ltd.\n<\/p>\n
    (supra). He pointed out that a judgement in the case of Indu Vishnu Mahajan (supra) <\/p>\n
    was not noticed by the Division Bench while deciding the case of  The Mahalaxmi Co-\n<\/p>\n
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    operative Housing Society Ltd. (supra). In the case of Indu Vishnu Mahajan (supra), <\/p>\n
    the   workman   was   terminated   from   service   without   following   the   procedure   required <\/p>\n
    under  the  rules governing  her service  conditions and  in  breach  of     the  provisions  of <\/p>\n
    Section 25F of the I.D. Act. She claimed her wages by filing an application under Section <\/p>\n
    33C(2) of the I.D. Act, contending that her termination from service was thus non est. <\/p>\n
    The Labour Court dismissed the application on the ground that it could go on decide <\/p>\n
    whether the respondent in that case was an “Industry” or whether the “Claimant” was a <\/p>\n
    workman. It further held that there was substantial compliance with Section 25F of the <\/p>\n
    I.D. Act. The Labour Court was of the view that it was only upon the striking down of the <\/p>\n
    order of termination that the claimant could be considered to have an existing right to <\/p>\n
    collect   the   salary   from   the   employer.   This   could   not   be   considered   as   an   incidental <\/p>\n
    matter.   The   salary   was   claimed   by   the   employee   contending   that   there   was   no <\/p>\n
    termination of service as there was a breach of the provisions of Section 25F of the I.D.\n<\/p>\n
    Act and, therefore, she was entitled to wages as the order terminating her services was <\/p>\n
    void, ab initio, invalid and inoperative. After considering the judgement of the Supreme <\/p>\n
    Court in the case of  Central Bank of India Ltd. (supra), the Division Bench held that <\/p>\n
    the Labour Court acting  under Section 33C(2) of the  I.D. Act is not vested with the <\/p>\n
    powers to adjudicate the issue as to whether the provisions of Section 25F of the I.D. Act <\/p>\n
    had   been   complied.   The   Division   Bench   noticed   the   judgement   in   the   case   of  R.B.\n<\/p>\n
    Bansilal Abirchand Mills Co. Pvt. Ltd. (supra)  and held that the Labour Court could <\/p>\n
    not give a wrong decision on the jurisdictional plea. The Court further observed that the <\/p>\n
    Labour Court’s jurisdiction could not be ousted by a mere plea denying the workman’s <\/p>\n
    claim to  computation of the  benefits. In the  circumstances of the  facts before  it, the <\/p>\n
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    Division Bench held that there was no existing right in the employee to claim salary <\/p>\n
    when there was an order of termination passed against her and until that order was set <\/p>\n
    aside, she was not entitled to claim the salary by filing an application under Section <\/p>\n
    33C(2) of the I.D. Act.\n<\/p>\n
    20.     In   my   opinion,   there   is   no   conflict   between   the   two   decisions   of   the   Division <\/p>\n
    Benches. In the case of  Indu Vishnu Mahajan (supra)  all that the Division Bench has <\/p>\n
    observed   is   that   in   the   facts   and   circumstances   of   that   case,   the   Labour   Court   had <\/p>\n
    rejected   the   application  correctly   as  it  could   not   arrogate   to   itself   the   jurisdiction   to <\/p>\n
    determine   whether   the   workman  had   been  terminated   from  service   in   breach   of   the <\/p>\n
    provisions of Section 25F of the I.D. Act while considering an application under Section <\/p>\n
    33(C)   of   the   I.D.   Act.   The   Court   has   merely   held   that   a   wrong   decision   on   the <\/p>\n
    jurisdictional plea cannot confer jurisdiction on the Labour Court. This finding, in my <\/p>\n
    opinion, is not contrary to the decision of the Division Bench in Mahalaxmi’s case. The <\/p>\n
    Division   Bench   has   held   in  Mahalaxmi’s  case   that   an   enquiry   which   precedes   the <\/p>\n
    determination of the benefit in terms of money may be incidental depending on the facts <\/p>\n
    and   circumstances   of   each   case.   Both   the   Division   Benches   have   noticed   that   the <\/p>\n
    jurisdiction of the Labour Court cannot be ousted merely by raising an objection to the <\/p>\n
    maintainability of the application. In the case of  Indu Vishnu  Mahajan (supra), the <\/p>\n
    Division Bench has noted as under :\n<\/p>\n
            “17.     ………………………………………………………………………………………..\n<\/p><\/blockquote>\n
                     The denial of the right would only require the Labour Court to
\n                     enquire whether the right was existing. The labour Court had
\n                     jurisdiction to decide and determine this jurisdictional question.\n<\/p><\/blockquote>\n
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                  The enquiry under Section 33-C(2) in such case would have to
\n                  be proceeded by an enquiry into the existence of the right and
\n                  such an enquiry was incidental to the main determination which <\/p>\n
                  had been assigned to the Labour Court by Section 33-C(2). Just
\n                  as an executing Court was competent to interpret the decree, so <\/p>\n
                  also   the   Labour   Court   was   competent   to   construe   the
\n                  settlement, award or statute under which the right was claimed.
\n                  Matters   such   as   the   interpretation   of   an   award,   whether   the
\n                  workman fell within a particular class of workmen entitled to
\n                  benefits under a settlement, award or statute, the total amount <\/p>\n
                  due or the amount at which benefits should be computed were
\n                  all matters falling within the jurisdiction of the Labour Court
\n                  under Section 33-C(2).”\n<\/p><\/blockquote>\n
    21.    According to Mr. Talsania, the Division Bench of this Court in the case of  The  <\/p>\n
    Mahalaxmi   Co-operative   Housing   Society   Ltd.   (supra)  has   not   considered   the   true <\/p>\n
    import of the judgement of the Supreme Court in the case of Municipal Corporation of <\/p>\n
    Delhi (supra). He submitted that the Supreme Court has interpreted its earlier decision <\/p>\n
    in the case of Central Bank of India Ltd. (supra) and after quoting the relevant part of <\/p>\n
    that judgement has held that  “this decision itself indicates that the power of the Labour  <\/p>\n
    Court under Section 33-C(2) extends to interpretation of the award or settlement on which  <\/p>\n
    the workman’s right rests, like the Executing Court’s power to interpret the decree for the  <\/p>\n
    purpose of execution, where the basis of the claim is referable to the award or settlement,  <\/p>\n
    but it does not extend to determination of the dispute of entitlement or the basis of the claim  <\/p>\n
    if there be no prior adjudication or recognition of the same by the employer. This decision  <\/p>\n
    negatives instead of supporting the submission of learned counsel for the respondents.” The <\/p>\n
    workmen in the case of Municipal Corporation of Delhi (supra) claimed wages at the <\/p>\n
    same rate as the regular workers, although they were daily rated\/casual workers. They <\/p>\n
    claimed such wages on the basis of principle of “equal pay for equal work”. It is in these <\/p>\n
    circumstances that the Court held that there was need for adjudication of the claim of <\/p>\n
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    the entitlement to the benefit before computation of such benefit which was sought by <\/p>\n
    the workmen. There was no prior adjudication of the entitlement to equal pay and in <\/p>\n
    these circumstances the Court held that such a determination could not be termed as an <\/p>\n
    incidental enquiry under the powers of jurisdiction vested in the Labour Court under <\/p>\n
    Section 33C(2) of the I.D. Act. The Supreme Court has not noticed its earlier judgement <\/p>\n
    in the case of  R.B. Bansilal Abirchand Mills Co. Pvt. Ltd. (supra)  which is that of a <\/p>\n
    Constitution Bench. The Appeal in the case of  R.B. Bansilal Abirchand Mills Co. Pvt.\n<\/p>\n
    Ltd. (supra) was heard by a Constitution Bench but on the demise of one of the learned <\/p>\n
    judges of the Bench, the matter was heard once again by a Bench of four learned Judges <\/p>\n
    and they have stated in the judgement that their opinion formed as a Constitution Bench <\/p>\n
    remained   unchanged.     In   the   case   of  R.B.   Bansilal   Abirchand   Mills   Co.   Pvt.   Ltd.\n<\/p>\n
    (supra), the issue which arose before the Supreme Court was whether the Labour Court <\/p>\n
    has   jurisdiction   to   entertain   an   application   for   lay   off   compensation   under   Section <\/p>\n
    33C(2) of the I.D. Act. The employer in that case contended that there was a closure of <\/p>\n
    Mills and not a lay off. It was, therefore, submitted that since a serious dispute has arisen <\/p>\n
    as to whether there was a closure or a lay off, the Labour Court under Section 33C(2) of <\/p>\n
    the I.D. Act was not vested with the jurisdiction to decide that dispute. The Supreme <\/p>\n
    Court considered its earlier judgement in the case of Central Bank of India Ltd. (supra) <\/p>\n
    and after quoting extensively from that judgement, the Court observed thus :\n<\/p>\n
           “In substance the point urged by the appellants was that if a claim is made
\n           on the basis of a lay-off and the employer contends that there was no lay-
\n           off but closure, it is not open to a labour court to entertain an application
\n           under s. 33-C(2). The more so it was stated, when the dispute was not
\n           between a solitary workman on the one hand and the employer on the
\n           other but a whole body of workmen ranged against their employer who <\/p>\n
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            was   faced   with   numerous   applications   before   the   Labour   Court   for
\n            computation of benefit in terms of money. As has been said already, the
\n            Labour   Court   must   go   into   the   matter   and   come   to   a   decision   as   to <\/p>\n
            whether there was really a closure or a lay-off. If it took the view that there
\n            was a lay-off without any closure of the business it would be acting within <\/p>\n
            its jurisdiction if it awarded compensation in terms of the provisions of
\n            Chapter V-A. In our opinion the High Court’s conclusion that;\n<\/p><\/blockquote>\n
                    “In fact the business of this Company was continuing. They
\n                    in   fact   continued   to   employ   several   employees.   Their <\/p>\n
                    notices say that some portions of the mills would continue
\n                    to work.”\n<\/p><\/blockquote>\n<\/blockquote>\n
            was unexceptionabe.(sic) The notices which we have referred to can only <\/p>\n
            lead to the above conclusion. The Labour Court’s jurisdiction could not be
\n            ousted by a mere plea denying the workman’s claim to the computation of
\n            the benefit in terms of money; the Labour Court had to to into the question <\/p>\n
            and   determine   whether   on   the   facts,   it   had   jurisdiction   to   make   the
\n            computation.   It   could   not   however   give   itself   jurisdiction   by   a   wrong
\n            decision on the jurisdiction plea.”\n<\/p><\/blockquote>\n
    22.     In my view the submission of Mr. Talsania is without merit. In any event once the <\/p>\n
    Division   Bench   has   authoritatively  pronounced   on  the   scope   of   Section   33C(2)   I   am <\/p>\n
    bound   by   it.  It   cannot   be   said   that   the   judgement   in  The   Mahalaxmi   Co-operative  <\/p>\n
    Housing Society Ltd. (supra)  is per incuriam as Mr. Talsania attempted to suggest.\n<\/p>\n
    23.     In the case of  Ramakrishna Ramnath (supra),  the Supreme Court considered <\/p>\n
    whether   the   Labour   Court   has   the   jurisdiction   to   make   a   preliminary   enquiry   as   to <\/p>\n
    whether there was a closure when compensation payable under Section 25FFF of the I.D.\n<\/p>\n
    Act was claimed under Section 33C(2) of the I.D. Act. The Supreme Court held that a <\/p>\n
    mere denial of the fact of retrenchment would not be enough to oust the jurisdiction of <\/p>\n
    the Labour Court. The examination of the claim under Section 33C(2) of the I.D. Act <\/p>\n
    may in some cases have to be preceded by an enquiry into the existence of the right, <\/p>\n
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    observed   the   Court.   The   Supreme   Court   held   that   the   Labour   Court   in   such <\/p>\n
    circumstances   could   always   determine   whether   there   was,   in   fact,   a   closure   of   the <\/p>\n
    undertaking. The judgement in the case of  Ramakrishna Ramnath (supra)  which has <\/p>\n
    also been considered in  The Mahalaxmi Co-operative Housing Society Ltd. (supra),  <\/p>\n
    has been reiterated in the case of Voltas Ltd. vs. J.M. Demello & Anr.,<\/a> reported in AIR  <\/p>\n
    1971 SC 1902.\n<\/p>\n
    24.    In   the   case   of  Sadanand   D.   Phansekar   and   Ors.   vs.   National   Textile  <\/p>\n
    Corporation (South Mah.) Ltd. & Ors., reported in  1997 II CLR 801, which was not <\/p>\n
    cited   before   the   Division   Bench   deciding   the   case   in  The   Mahalaxmi   Co-operative  <\/p>\n
    Housing Society Ltd. (supra),  a learned Single Judge of this Court (Kapadia, J., as he <\/p>\n
    then was), has observed thus :\n<\/p>\n
           “Therefore, a bare reading of the two enactments clearly indicates that <\/p>\n
           both under BIR Act and the I.D. Act, justifiability of suspension, stoppage
\n           or refusal to give work warrants adjudication. Section 78(1)(A) read with
\n           the IIIrd Schedule of the BIR Act clearly indicates that a dispute dealing
\n           with unemployment of a worker or a dispute  concerning compensation <\/p>\n
           required to be paid by the Mills on the ground of closure, is covered and
\n           falls within the adjudicatory process. On the other hand, under Section
\n           33-C(2)   of   the   Industrial   Disputes   Act   it   is   laid   down   that   the   Labour
\n           Court performs functions which are generally performed by an Executing
\n           Court. If a worker claims a right benefit accruing to him from an award or <\/p>\n
           a Settlement or an Agreement or under statutory enactment as an existing
\n           right, then the Labour Court is invested with the jurisdiction to compute
\n           the   benefit  in  terms  of  money.  In  such   a   case,  the   dispute   involves  an
\n           existing   right.  An  existing   right  is  a   right  which  is  crystallized  right  in
\n           favour of the workman. It is a right which is already adjudicated upon. It
\n           is a right which is provided for under the statute. In such cases, the object
\n           of adjudication under Section 33-C(2) is based only on computation. It
\n           does not involve determination of a right. It does not involve adjudication
\n           of rights and liabilities, inter se, between the parties. An existing right in a
\n           workman corresponds to an existing liability against the employer. If the <\/p>\n
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          workman is able to show that a right exists in him under the Settlement,
\n          Award or Agreement or even under the statutory provisions, then a bare of
\n          that right by the Mills or NTC will not defeat the claim of the workman.  A <\/p>\n
          bare denial of that right will not oust the jurisdiction of the Labour Court
\n          under Section 33-C(2) of the I.D. Act, but where the applicant is required <\/p>\n
          to   prove   the   conditions  precedent  to   the   accrual   of   the   liability   of   the
\n          employer, then Section 33-C(2) has no applicability.  Similarly, where the
\n          nature of the relief is in issue, Section 33-C(2) does not apply.  Similarly,
\n          where circumstances leading to closure or stoppage of work are in issue,
\n          then Section 33-C(2) will not apply because in such cases, the Court is <\/p>\n
          required to go into justifiability for such stoppage of work.”\n<\/p><\/blockquote>\n
    25.   In the case of D. Krishnan & Anr. vs. Special Officer, Vellore Co-operative Sugar  <\/p>\n
    Mill & Anr., reported in (2008) 7 SCC 22, the Supreme Court has observed thus :\n<\/p>\n
          “12.\n<\/p><\/blockquote>\n
                  We have considered the arguments advanced by the learned
\n                  counsel   for   the   parties.   The   fact   that   proceedings   under <\/p>\n
                  Section 33-C(2) are in the nature of execution proceedings is
\n                  in   no   doubt,   and   such   proceedings   presuppose   some
\n                  adjudication leading to the determination of a right, which
\n                  has   to   be   enforced.   Concededly   there   has   been   no   such
\n                  adjudication   in   the   present   case.   It   will   be   seen   that   the <\/p>\n
                  reliance   of   the   appellant   workmen   is   exclusively   on
\n                  documentary   evidence   placed   on   record   which   consisted <\/p>\n
                  primarily of the punch time cards and the representations that
\n                  had been filed from time to time before the respondents. It is
\n                  also   true   that   the   claim   raised   by   the   appellants   had   been
\n                  hotly disputed by the respondents. The question that arises in <\/p>\n
                  this   situation   is   whether   reliance   only   on   the   documentary
\n                  evidence was sufficient to prove the case.\n<\/p><\/blockquote>\n
          13.     We are of the opinion that the reference to Municipal Corpn.\n<\/p><\/blockquote>\n
                  Case  is completely misplaced as in that matter, the fact that <\/p>\n
                  different categories of workers were doing identical kind of
\n                  work was virtually admitted but different scales of pay were
\n                  nevertheless being paid to them. It is also relevant that oral
\n                  evidence had been adduced by the workmen to supplement
\n                  the documentary evidence and it was in that situation that
\n                  the Court felt that an application under Section 33-C(2) was
\n                  maintainable.\n<\/p><\/blockquote>\n
          14.     We   find   that   the   claim   by   the   appellants   herein   has   been
\n                  disputed from the beginning and that the documents filed by <\/p>\n
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                    the appellants themselves suggest that they were unsure of
\n                    their own status.”\n<\/p><\/blockquote>\n
    26.     Based on the facts before it, the Supreme Court held that the application filed <\/p>\n
    under Section 33C(2) of the I.D. Act was not maintainable when the documents relied <\/p>\n
    on by the employees in support of their case prima facie shows that they were managers <\/p>\n
    and, therefore, it would be beyond the jurisdiction of the Labour Court to determine <\/p>\n
    their status in proceedings under Section 33C(2) of the I.D. Act.\n<\/p>\n
    27.     As stated earlier, the ambit of the provisions of Section 33C(2) of the I.D. Act.\n<\/p>\n
    have   been   clearly   enunciated   in   the   case   of  The   Mahalaxmi   Co-operative   Housing  <\/p>\n
    Society Ltd. (supra), and I am bound by that judgement as it is not per incuriam.\n<\/p>\n
    28.     In the present case, it is not possible to accept the submission of Mr. Talsania that <\/p>\n
    an enquiry as to whether the workman had not signed the declaration because of his <\/p>\n
    own conduct or because of the Company’s refusal to furnish him the declaration form <\/p>\n
    would   amount   to   determination   of   his   entitlement.   The   entitlement   to   the   wages   is <\/p>\n
    stipulated   by   the   Settlement   itself.   Under   Clause   (1.2)   the   workman   was   entitled   to <\/p>\n
    certain benefits. I have perused the undertaking which was expected to be signed. The <\/p>\n
    declaration is in the following terms :\n<\/p>\n
              “I have read\/have been explained and have understood all the terms
\n              and conditions of the settlement dated 30th  April 93 between Bajaj
\n              TEMPO Ltd. and Bhartiya Kamgar Sena, (Bajaj Tempo Unit), Pune.\n<\/p><\/blockquote>\n
              I hereby accept all the terms and conditions of the said settlement and
\n              the same are binding on me in all respect. I further undertake that the
\n              benefits arising out of this settlement will be applicable to me as I <\/p>\n
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               have   accepted   the   terms   and   conditions   and   provisions   of   this
\n               settlement.\n<\/p><\/blockquote>\n
               I request you to please extend the benefits to me as above.”\n<\/p><\/blockquote>\n
    29.     In my opinion, whether such a declaration was furnished or not would not in any <\/p>\n
    way   impede   the   right   of   the   workman   to   secure   benefits   under   the   Settlement.   The <\/p>\n
    Settlement has been signed by a Union representing the workman and, therefore, it is <\/p>\n
    obvious   that   the   workman   would   be   bound   by   the   terms   of   the   Settlement.   The <\/p>\n
    declaration was merely a back-up for the Company to ensure that the workmen complied <\/p>\n
    with   the   terms   and   conditions   in   the   Settlement.   An   enquiry   as   to   whether   such   a <\/p>\n
    declaration was not furnished due to the default of the workman or the Company would <\/p>\n
    in my opinion not amount to a determination of the right of the workman to the benefits <\/p>\n
    of   the   Settlement.   The   benefits   are   due   and   payable   under   the   Settlement   itself.\n<\/p>\n
    Assuming the workman had not signed the Settlement, the determination of the reasons <\/p>\n
    for   not   signing   the   same   is   only   incidental   to   the   main   issue   of   computation   of   the <\/p>\n
    benefits under the aforesaid Settlement of 30th April, 1993.\n<\/p>\n
    30.     In   my   opinion,   therefore,   the   Labour   Court   has   not   committed   any   error   in <\/p>\n
    upholding the contention of the workman and granting him the amount claimed by him.\n<\/p>\n
    Mr.   Talsania   has   pointed   out   that   interest   has   been   awarded   from   the   date   of   the <\/p>\n
    application @ 8% p.a. He has submitted that such a direction could not have been given <\/p>\n
    by the Court under Section 33C(2) of the I.D. Act. In my opinion, this contention is not <\/p>\n
    available to the learned Counsel in view of the judgement of a learned Single Judge of <\/p>\n
    this Court (Vazifdar, J.) in the case  of  Mrs. Prabhavati Ramgarib B. Vs. Divisional  <\/p>\n
    Railway Manager, Western Railway, Mumbai, reported in 2010 I C.L.R. 1039.\n<\/p>\n
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\n                                               22<\/span><\/p>\n
    31.    In my view, therefore, the Writ Petition deserves to be dismissed. Accordingly, the <\/p>\n
    Writ Petition is dismissed.\n<\/p>\n
    32.    Rule discharged. No order as to costs.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 17:03:49 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Force Motors Ltd. vs Shantilal Hukumchand Sancheti & … on 8 March, 2011 Bench: Nishita Mhatre WP\/2397\/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2397 OF 2010 Force Motors Ltd., Pune … Petitioner V\/s. Shantilal Hukumchand Sancheti & Anr. … Respondents Mr. S.K. Talsania, Sr. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-131689","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nForce Motors Ltd. vs Shantilal Hukumchand Sancheti & ... on 8 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/force-motors-ltd-vs-shantilal-hukumchand-sancheti-on-8-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Force Motors Ltd. vs Shantilal Hukumchand Sancheti & ... on 8 March, 2011 - 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