Dismissed

M/S.Dave Brothers v. Shri Balu S.Korde and Anr.

Bombay HC4 Jun 2008WP/1007/1999

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's writ petition challenging a Labour Court order that granted monetary benefits to a terminated workman under Section 33-C(2) of the Industrial Disputes Act. The Court held that the order was legally maintainable and the findings were not perverse, refusing interference in labour disputes based on evidence.

What did the court decide?

Rule discharged. Costs deposited paid to respondent. Interim order continued for four weeks. Disposal of writ petition does not prevent further recovery proceedings.

M/S.Dave Brothers Vs Shri Balu S.Korde and Anr. — Pension and Retirement Benefits | Bombay HC (2008)

¶1

-1-

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

 Writ Petition No. 1007 of 1999
 M/s Dave Brothers
 through their Proprietor
 having their shop at No.12
 Chakala Street, Mumbai 400 003 ..Petitioner

¶4

vs.

¶5

 1. Shri Balu Sitaram Korde
 residing at R.No.11, Kamlabai
 Bhau Chawl, Majas Tekdi,
 Jogeshwari (E), Mumbai 400 060

¶6

2. Hon’ble 6th Labour Court 6th floor, Arun Chambers Tardeo, Mumbai 400 034 ..Respondents.

¶7

 Writ Petition No. 1830 of 1993

¶8

 M/s Dave Brothers,
 Proprietor concerned, formerly
 carrying on business at
 12, Chakla Street, Bombay 400 003 ..Petitioner
 vs.
 1. Shri Balu S.Korde
 C/o Mulbai Kamgar Sabha
 Habib Mansion, Dr.Ambedkar
 Road, Parel, Bombay 400 012
 2. Mr.B.A.Shelar
 Presiding Officer, 2nd Labour
 Court and Incharge 12th Labour
 Court, Bombay having his office
 and Court at Arun Chambers,
 Tardeo, Bombay 34
 3. Mr.V.P.Karekar,
 Presiding Officer, 2nd Labour
 Court and office at Tardeo
 Arun Chambers, Tardeo,
 Bombay 34 ..Respondents
 Mr.R.A.Shaikh i/b M/s V.N.Golwala and Co. for petitioner

¶9

-2-

¶10

 in both petitions.

¶11

 Mr.N.M.Ganguli for respondent no.1 in both petitions.

¶12

CORAM: S.C.DHARMADHIKARIJ.
4th June 2008

¶13

J U D G M E N T:

¶14

 1. By this petition under Article 226 of the Constitution
 of India, the petitioner challenges the order dated 14th
 October, 1998 (Exh.E) in Application (IDA) No.154 of 1994
 by which the Judge, 6th Labour Court, Mumbai directed the
 petitioner/original opponent to pay to respondent
 no.1/original applicant a sum of Rs.4,03,875.30 within one
 month from the date of the order.

¶15

 2. It is not in dispute before me that this petition was

¶16

 admitted on 8th June, 1999. Interim stay in terms of
 prayer clause (b) subject to the petitioner paying to
 respondent no.1 a sum of Rs.1,02,000/- towards wages for
 the period from January, 1983 to October, 1993 was

¶17

 granted and hearing of the writ petition was expedited.
 Thereafter it appears that there was a delay in payment of
 the sum of Rs.1,02,000/- and by subsequent order time was
 granted to deposit in this Court a sum of Rs.1,10,000/-
 comprising of the amount of Rs.1,02,000/- and interest.

¶18

 3. The petitioner deposited this sum. Ultimately, the
 petition was placed for hearing and final disposal but

¶19

-3-

¶20

 none appeared before this Court on 22nd September, 2005
 and, therefore, it was dismissed in default. By order
 passed on 7th April, 2008, in Notice of Motion No.100 of
 2008, the petition was restored to file and that is how it
 is placed for hearing and final disposal before me.

¶21

 4. The case of the respondent in the application is that
 he was employed by the petitioner. He was employed as a
 counter man from February, 1978. His monthly wages were
 Rs.335/- The present petitioner is a proprietary concern
 of one Vinodrai Narottamdas Goradia. He carries on
 business in the name and style of M/s Dave brothers. The
 business of the petitioner is of selling Handkerchiefs on
 wholesale basis. The petitioner had employed the
 respondent for about 5 years from February, 1978 till 7th
 February, 1983 on which date he issued notice terminating
 his services with effect from 9th February, 1983. In the
 notice, it was stated that that business of the petitioner
 was not sound financially and, therefore, he decided to
 wind up the same. The case of the respondent was that
 termination was malafide and colourable. The real reason
 for his termination is his taking part in the trade union
 activities. In such circumstances, the respondent raised
 the issue with regard to his termination. The dispute
 could not be resolved and conciliation officer reported

¶22

-4-

¶23

 failure of negotiations. Thereupon the appropriate
 Government made a reference to the labour Court for
 deciding the issue as to whether the termination of the
 service was wrongful and illegal. The said reference
 (IDA) No.595 of 1983 was referred to 12th Labour Court and
 after a detailed hearing of the same, award came to be
 made on 26th February, 1992 in favour of the respondent
 workman. The learned Judge presiding over 12th Labour
 Court directed the petitioner to reinstate the workman
 with continuity of service and full back wages with effect
 from 9th February, 1983. The said Award came to be
 published on 6th May, 1992 and became enforceable after 30
 days from the date of publication.

¶24

 5. The respondent workman further contended that before
 the Award became enforceable the petitioner approached the
 Labour Court with an application for restoration on the
 ground that the Award was an exparte award. The
 application (Misc. Application) (IDA) No.79 of 1992 was
 placed before the Labour Court which temporarily stayed
 the execution of the Award. Thereafter, the workman
 appeared and contested the application. Ultimately, the
 application was dismissed.

¶25

 6. The Writ Petition being Writ Petition No.1830 of 1993

¶26

-5-

¶27

 was filed in this Court by the petitioner to challenge the
 award as well as the order refusing restoration dated 8th
 September, 1993. The writ petition was placed before this
 Court on 15th October, 1993. The writ petition was
 opposed by the workman and though the petition was
 admitted, this Court did not grant any interim relief.

¶28

 7. It is undisputed before me that this writ petition
 although admitted has been dismissed in default. No
 application for restoration has been made by the
 petitioner employer.

¶29

 8. It is in these circumstances that the respondent
 workman in the application filed before the Labour Court
 under sec.33-C(2) of the Industrial Disputes Act, 1947
 contended that neither there is reinstatement nor there is
 payment of back wages. In such circumstances, not only
 that claim but other benefits which follow the award of
 reinstatement with continuity of service must be granted.
 After setting out the relevant facts with regard to the
 benefits and other details, the respondent computed the
 sum of Rs.1,09,787.70 without any interest and that was a
 claim pertaining to his wages. However, he claimed
 interest thereon. Further, the respondent/applicant
 stated that the petitioner is a member of registered

¶30

-6-

¶31

 association namely Bombay Wholesale Hosiery Merchants
 Association. The said Association has been entering into
 the periodic settlements directly with the Union, namely,
 Mumbai Kamgar Sabhya. This is a union of workmen employed
 in hosiery market. The respondent is a member of the
 Trade Union. He referred to two settlements dated 18th
 February, 1985 and 30th June, 1990. These settlements not
 only speak of rates of basic wages, increments and payment
 of dearness allowance but other service conditions in the
 market. It is in such circumstances that the workmen
 claimed benefits under the settlement and prayed that the
 same be computed and paid over to him.

¶32

 9. Lastly, the respondent claimed wages under the Minimum
 Wages Act. It was urged that the wages paid to him were
 less than daily minimum wages. Further, there is wrongful
 termination. It is in such circunstances that the
 respondent/workman claimed the following sums.

¶33

1. Total payable under the market Settlement with interest towards Backwages, arrears of bonus and leave wages Rs.4,28,875.30

¶34

 Less sum received Rs. 25,000.00

¶35

 ------------------

¶36

2. Total payable with interest towards backwages, bonus and leave wages dues under the provisions of the M.W.Act,

¶37

-7-

¶38

 1948 Rs.3,38,065,40

¶39

 Less sum received Rs. 25,000.00
 Balance Rs.3,13,065.40

¶40

 ---------------

¶41

 This application was filed on 25th February, 1994.

¶42

 10. After the notice was served on the petitioner, it
 filed the written statement. It is pertinent to note that
 there is no dispute with regard to the employment and

¶43

 quantum of wages namely Rs.335/- p.m. As far as the
 claims are concerned, the contention is that the company
 was not in sound financial condition and incurred losses

¶44

 and that is how the unit was closed with effect from 7th
 February, 1983 and the workman was informed accordingly.
 Thereafter, the proceedings before the Conciliation
 Officer are referred to and the reference leading to the
 Award of reinstatement and back wages. The claim of the
 petitioner employer was that his writ petition is still
 pending. That apart, it was contended that the workman
 was never employed as a counter man but only to do the job

¶45

 of carrying the goods of customers and bringing tea and

¶46

 snacks. This is unskilled work. Therefore, there is
 absolutely no substance in the claim of the workman as
 made with regard to any benefits. All contentions with

¶47

-8-

¶48

 regard to the settlement and minimum wages were denied.
 It was contended that the respondent is not entitled to
 any sums much less those claimed from the date of award
 till the application dated 31st January, 1994. The
 written statement was filed on 29th October, 1994.

¶49

 11. The labour Court recorded the examination in chief of
 the workman who stepped into the witness box. He has not
 only supported the claim but has produced the relevant
 documents. He has also produced the copies of the
 settlements which have been duly accepted. He also stated
 that the calculations made are as per the prevailing
 market conditions and terms of settlement. He confirmed
 the rates of wages. Thus, he proved the contents of the
 documents and his claim of Rs.4,03,875.30 as above.

¶50

 12. The workman was cross examined and in cross
 examination the testimony in so far as the claim is not
 shaken at all. There is nothing with regard to existence
 of the settlements. The benefits claimed and assertion of
 the workman in that behalf together with the terms of
 settlement have remained uncontroverted.

¶51

 13. Thereafter the petitioner stepped into the witness
 box and deposed in terms of its case in the written

¶52

-9-

¶53

 statement. In the cross examination of the witnesses, in

¶54

 para 9 this is what is stated.

¶55

 "Our Handkerchiefs business is still going on but
 they are different companies. It is not true that
 the applicant reported for duties on several
 occasions. It is not true that we issued to him
 the notice through his Advocate. It is not true
 that we are paying wages to our workmen on par with
 the workers in other shops in Hosiery market. It
 is not true that the rates of wages payable to
 other shops in Hosiery Market are applicable to my
 shop. It is true that the applicant was paid one
 months’ wages as leave wages and also Bonus at the
 time of Diwali every year. It is not true that my
 statement that the applicant did not report for
 work, is false."

¶56

 14. It is in the light of the material placed that the
 judgment came to be delivered on 14th October, 1998
 accepting the claim of the respondent workman. In
 exercise of powers conferred by section 33-C(2) of the
 Industrial Disputes Act, 1947 the claim has been awarded
 in favour of respondent no.1. It is this order which is
 the subject matter of challenge in this petition.

¶57

 -10-

¶58

 15. Mr.Shaikh, learned Counsel appearing for the
 petitioner, contended before me that the order is ex facie
 erroneous and unsustainable. He submits that the
 application though styled as one under sec.33-C(2) of the
 Industrial Disputes Act, 1947 could not have been
 entertained by the Labour Court at all. He submits that
 the remedy of the respondent workman, if any, was not to
 file this application and seek benefits which are not
 subject matter of the Award. He does not enforce the
 Award but filed the application seeking substantive
 relief. This is not something which flows from the Award.
 At the most he could have requested for issuance of the
 Recovery Certificate in terms of the Award. In such
 circumstances, the Labour Court erred in entertaining and
 allowing the application.

¶59

 16. Even otherwise, according to Mr.Shaikh, the order
 passed by the Labour Court suffers from non application of
 mind. The learned Judge ought to have been aware of the
 fact that the Award directs reinstatement with back wages
 and continuity of service. The quantum of back wages is
 admittedly Rs.335/- p.m. That claim can arise only from
 the date of termination till the date of award and further
 until the application was made. Thus, only award benefits

¶60

 -11-

¶61

 could have been granted and that too for restricted
 period. Therefore, there could not have been any award or
 order in favour of the workman after the IDA reference was
 disposed of and in any event till the date of the present
 application, namely, 31st January, 1994. Therefore, all
 benefits which are granted in favour of the workman until
 31st January, 1994 are incapable of being awarded and
 could not have been awarded in law. The order, therefore,
 is vitiated by error apparent on the face of record and
 deserves to be quashed and set aside.

¶62

 17. On the other hand Mr.Ganguli, learned Counsel
 appearing for respondent no.1, supported the impugned
 order. He submits that the case of the workman falls
 within section 33-C(2) of the Industrial Disputes
 Act,1947. Mr.Ganguli submits that the said provision is a
 marked departure from sec.33-C(1). While section 33-C(1)
 speaks of an application to the appropriate Government by
 the workman or his assignee or his heirs for recovery of
 money due to him under a settlement or award, section
 33-C(2) is distinct provision where the workman can apply
 for a direction to the employer to pay money or any
 benefits which are capable of being computed in terms of
 money due or as to the amount at which the benefits should
 be computed and such question has to be decided by the

¶63

 -12-

¶64

 Labour Court within a period not exceeding 3 months but in

¶65

 terms of the proviso, which time is capable of being
 extended. Thus, apart from the provisions of sec.33-C(1)
 itself being without prejudice to any other mode of
 recovery, section 33-C(2) is independent provision
 entitling the workman to receive the amount as stated
 therein. If any question arises, the same has to be
 decided by the Labour Court. Therefore, in the submission
 of Mr.Ganguli, there is no substance in the contention of
 Mr.Shaikh that the application was not maintainable.
 Further, there is no question of application being time
 barred in as much as the period of 3 months stipulated in
 the said provision is for the Labour Court to render its
 decision. That apart, the decision could be rendered
 after 3 months as is clear from the proviso. On facts,
 Mr.Ganguli submits that the writ petition is not an
 appeal. In limited jurisdiction of this Court it cannot
 reappreciate or reappraise the factual material and arrive
 at a different conclusion. The findings of facts are
 binding upon this Court unless they are demonstrated to be
 perverse. There is no perversity in the present case as
 consistent with the oral and documentary evidence, the
 claim has been granted. For all these reasons he submits
 that the writ petition be dismissed.

¶66

 -13-

¶67

 18. It is not necessary to refer to section 33-C(2) or
 the ambit and scope of the said provision. By now, it is
 well settled that the labour Court while dealing with the
 application under sec.33-C(2) calculates the amount of
 money due to the workman from his employer. Further, the
 workman, if entitled to the benefits which can be computed
 or are capable of being computed in terms of the money,
 then, the said benefits can be granted to the workman.
 The respondent’s claim is on the basis of his existing
 right. It has come on record that he was employed in
 February, 1978 and worked till February, 1983. Further,
 the workman was awarded reinstatement and back wages in
 his favour. He made an application on the basis of not
 just award in his favour but claiming existing rights
 which accrue to him. The right is based on the fact that
 not only his termination is wrongful but although business
 has been continued he has not been reinstated in service.
 Thus, his claim for back wages so also benefits flowing
 from the settlement to which Union and the petitioner are
 parties must also be granted to him. His employment is
 thus continuing one and that is how the submission has
 proceeded. From reading of the admissions of the employer
 in the cross examination and more particularly the paras

¶68

 reproduced above, there cannot be any dispute that the
 business is continuing and has not been wound up. It is

¶69

 -14-

¶70

 not wound up. It is not permissible for the petitioner

¶71

 now to go beyond the award or the reasons which led to the
 same being rendered against him, more so, when he has not
 prosecuted the writ petition challenging the Award. The
 Award is final. Both sides should abide the award. Once
 the findings of fact which are rendered on the basis of
 the pleadings and oral and documentary evidence lead to
 the conclusion that the benefits claimed are capable of
 being computed in terms of money and granted to the
 workman, then, I see no reason to interfere with the same.

¶72

 19. The Labour Court in para 18 of the impugned order has
 referred to the version of the petitioner employer.
 Further it has also referred to the submissions which have
 been canvassed on behalf of the petitioner. In para 11 of
 the order the Labour Court has referred to the documents
 which are filed. The issues have been framed consistent
 with the pleadings. Issue no. 1 has been answered in
 favour of respondent no.1 workman after discussing the
 entire evidence. In paras 13 to 15 of the impugned order
 oral and documentary evidence rendered on behalf of the
 workman has been referred to. In para 16 the entire
 version in the cross examination has been referred to.
 Thereafter the petitioner’s witness Gunwantrai Garodia’s
 testimony and deposition is referred to and dealt with.

¶73

 -15-

¶74

 To my mind, appreciation of this material is not something
 which cannot be done before this Court. There is no
 question of the learned Judge applying any legal
 principles either erroneously. He has not passed theorder
 in ignorance of the material produced. In the peculiar
 facts of this case what the petitioner calls upon this
 Court is to reappreciate the factual material.

¶75

 20. Once the issue of maintainability of the proceeding
 has been answered against the petitioner, then, on merits
 of the claim of the workman the jurisdiction of this Court
 is extremely limited. The learned Judge in para 23 of the
 impugned order has referred to the aspect of
 maintainability as also the benefits and claims. The sum
 of Rs.4,03,875.30 has been awarded by taking into
 consideration the monthly charges. If the monthly wages
 at Rs.335/- are taken into account then the quantum will
 come to Rs.3,13,065.54 including leave wages and bonus.
 Thereafter the claim of minimum wages has been considered.
 The version of the petitioner that others were paid
 minimum wages has not been accepted. It has been observed
 by the learned Judge that deposition of the petitioner is
 false and not reliable. He has not produced anything to
 show that the workman was in unskilled category. He did
 not produce the appointment letter. He did not produce

¶76

 -16-

¶77

 other material to show that there are no claims of minimum
 wages by other employees. In para 24 onwards the version
 of the petitioner as far as other business is concerned.
 The case law is taken into account. All settled
 principles have been applied.

¶78

 21. As observed above, this is not a matter where the
 finding of facts can be said to be perverse or vitiated by
 error apparent on the face of record so as to call for
 interference in writ jurisdiction. The impugned order
 does not suffer from non application of mind either. Once
 the claim is considered and granted on the basis of the
 material produced and if the order is consistent
 therewith, then, no interference in the extra ordinary,
 discretionary and equitable jurisdiction of this Court
 sunder Article 226 of the Constitution of India is
 permissible

¶79

 22. Considering the conduct of the petitioner this is not
 a case for interference either. Accordingly, Rule is
 discharged. There will be no order as to costs. The
 costs of Rs.10,000/- deposited in this Court as condition
 for restoration of the petition be paid over to the
 respondent employee together with the other amounts which
 may have been deposited. Needless to state that disposal

¶80

 -17-

¶81

 of this writ petition does not prevent the respondent from
 initiating such proceedings as are permissible inlaw for
 recovery of sums which are due and payable to him save and
 except under the claims covered by the impugned order.
 All pleas and contentions of both sides in such
 proceedings are kept open.

¶82

 23. At this stage Mr.Shaikh prays for continuation of the
 interim order for a further period of 4 weeks to enable
 the petitioner to challenge this judgment in appeal.
 Request is opposed by Mr.Ganguli vehemently. He submits
 that considering the conduct of the petitioner and that
 the petition was dismissed and restored lateron and now
 dismissed on merits this is not a fit case for
 continuation of the interim order. Taking into account
 that the petition has been pending in this Court from 1999
 interests of justice would be subserved if interim order
 dated 8th June, 1999 is continued for a period of four
 weeks. Petition dismissed.

¶83

(S.C.DHARMADHIKARI J.)

M/S.Dave Brothers v. Shri Balu S.Korde and Anr.

Case brief

What is this about?

What did the court decide?

M/S.Dave Brothers v. Shri Balu S.Korde and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Parasaram G. Purohit Vs Kaniyalal P. Maru

Bank of Baroda Vs Kirit Indulal Khatadia

Rasiklal Shah Vs Harshad Parekh

Rupee Co-Operative Bank Ltd. Vs Shriram Narayan Shastri

Matrukrupa Developers Pvt. Ltd. Vs the Slum Rehabilitation Authority and 4 Ors.

Lloyds Steel Industries Vs Parasram Purohit