GUJARAT POLLUTION CONTROL BOARD Vs. RASIKLAL POLABHAI DHANDHUKIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India is filed challenging proceedings of Recovery Application No.21 of 2023, in Reference (LCAD) No.20 of 1995, filed by the respondent before the Presiding Officer, Labour Court, Rajkot under Sec. 33 C (2) of the Industrial Disputes Act ,1947 (For short "the Act").

(2.) Facts, in brief, are as under: The respondent herein filed an application under Sec. 33 C (2) of the Act claiming Rs.19,77,875.00 with interest at the rate of 10% for his unpaid salary for the period from 13/6/2005 till the date of his superannuation i.e. 30/9/2018. The application under Sec. 33 C (2) is filed by the respondent making averments to the effect that pursuant to the award dtd. 13/6/2005, an amount of Rs.19,77,875.00 is to be paid by the petitioners herein and therefore, the petitioners may be directed to pay the said amount. Recovery application is pending adjudication. Aggrieved by filing of the Recovery Application under Sec. 33-C(2) of the Act by the respondent, the present petition is filed by the petitioners.

(3.) Heard learned advocate Mr.D.G.Chauhan for the petitioners. He submitted that the application filed under sec. 33-C(2) is not maintainable because there is no pre- existing right of the respondent. He submitted that the application under Sec. 33-C(2) of the Act is only maintainable if there is a pre-existing right and therefore, filing of application under Sec. 33-C(2) is beyond the provisions of law. The respondent retired on 30/9/2018 and all his terminal dues/benefits have been paid by the petitioners. For an application under Sec. 33C(2), it requires prior adjudication or recognition of claim and in absence of same, it amounts to abuse of process of law. After a period of 5 years, an application under Sec. 33-C(2) of the Act has been filed by the respondent without there being any right. In support of his submission, he relied upon decision of Hon'ble Supreme Court in the case of Municipal Corporation of Delhi Vs. Ganesh Razak and another reported in (1995) 1 SCC 235 and recent decision of Hon'ble Supreme Court in the case of Bombay Chemical Industries Vs. Deputy Labour Commissioner and another reported in (2022)5 SCC 629. Inviting attention of this Court, he submitted that as held by Hon'ble Supreme Court, application under Sec. 33-C(2) can only be maintainable only if the claimant has a pre-existing right and there must be prior adjudication or recognition of the disputed claim. As the same is missing in the present case, the Recovery proceedings initiated by the respondent by filing application u/s 33C(2), is void ab-initio and nullity in the eye of law.