ARORA INDUSTRIES Vs. ABDULHAMEED ABDULRASHEED

JUDGEMENT

(1.) Heard learned advocate Mr. Dipak R. Dave for petitioner. Notice of rule issued by this Court has been served upon respondent but no one has remained present on behalf of respondent. Respondent has also not remained present in person before this Court. Therefore, this matter is taken up for final hearing in absence of respondent. While issuing rule, ad.interim relief in terms of paragraph 5(B) was granted by this Court. In this petition, petitioner has challenged award passed by labour court, Ahmedabad in Recovery Application No. 2421 of 1994 dated April 2, 2003 wherein labour court has allowed application and directed present petitioner to pay Rs.28,828.80 to respondent workman towards dues of over time within thirty days from the date of receipt of copy of said order and also ordered to pay Rs.1000.00 towards costs for said application.

(2.) Learned advocate Mr. Dave appearing for petitioner submitted that labour court has no jurisdiction to examine disputed claims between the parties. He also submitted that since the claim of over time was not admitted by petitioner and since it was disputed by petitioner, labour court has erred in exercising powers under section 33-C-2 of ID Act, 1947. According to him, though evidence was accordingly given by petitioner before labour court, labour court granted amount of Over Time as if claim of respondent was adjudicated upon and his right to receive such over time wage was crystallized and in doing so, labour court has committed jurisdictional error warranting interference of this Court in exercise of powers under Article 227 of Constitution of India. He also submitted that the claim of over time was not admitted by petitioner, respondent has not proved pre-existing right to get over time wages encashed by filing recovery application before labour court. So, respondent is not entitled for amount of over time which was granted by labour court and in doing so, labour court has committed jurisdictional error. He also submitted that labour court has not properly appreciated evidence of workman and witness of petitioner. Further, he submitted that normally, such application for recovery under section 33-C-2 of ID Act, 1947 is being filed by workman after termination of his service as a measure for bringing pressure on employer and such type of tactics are being adopted by union or workman. In this case also, such application for alleged unpaid over time wages of period of about six years was filed by workman only after termination of his service by petitioner and, therefore, such type of application is mala fide to have some bargaining with employer in termination case, therefore, considering all these aspects, labour court ought not to have exercised jurisdiction under section 33-C-2 of ID Act, 1947 in favour of workman.

(3.) I have considered submissions made by learned advocate Mr. Dave on behalf of petitioner. I have perused order of labour court which is under challenge in this petition. I have also examined submission of Mr. Dave that labour court has no jurisdiction to adjudicate issue while deciding recovery application under section 33-C-2 of ID Act, 1947 as if it was having power under section 10 of ID Act. Law on this point is settled by Hon'ble Supreme Court. (See : Municipal corporation of Delhi versus Ganesh Razak and Another, 1995-I-LLJ 395 SC; Naranji Peraji Transport Co. versus Ramnikbhai B. Waghela, 1998 (1) GLH 88; Lallubhai Bapujibhai Parmar versus Panchmahal District Panchayat, 2005 (3) GCD 2621 (Guj); State of UP and Another versus Brijpal Singh, 2005 SCC (L&S) 1081; Regional Manager, Bank of Baroda v. Gitaben Harihai Darji (D) by LRs and others, 2005 Lab IC 2917; M/s. Central Group and others etc. v. Motiram S> Thakare and etc., 2005 Lab IC 2933].