INDIAN SAILORS HOME SOCIETY Vs. S D PATHRE

JUDGEMENT

(1.) HEARD the learned Advocate for the petitioners and the respondent in-person. Perused the records. The petitioners challenge the judgment and order dated 3-12-2001 passed by the Labour Court, mumbai on an application filed by the respondent under section 33-C (2) of the Industrial Disputes Act. 1947, hereinafter called as "the said Act".

(2.) FEW facts relevant for the decision are that the respondent was employed with the petitioners since December, 1986. In February 1991 the services of the respondent came to be terminated and being aggrieved, the respondent raised dispute which was referred to the Labour Court for necessary adjudication and by award dated 8-7-1997 the respondent was directed to be reinstated with full back wages and with continuity of service. The respondent was according reinstated in service by the petitioners. While the dispute between the petitioners and the respondent was pending for adjudication, a settlement was arrived at between the petitioners and its employees on 25-7-1996. Pursuant to the reinstatement of the respondent, and in june 1998 the respondent while contending that he was not paid with all the dues which the respondent was entitled to, filed an application under section 33-C of the said Act. It was the case of the respondent that in terms of the award dated 8-7-1997 directing reinstatement of the respondent with full backwages and continuity in service, and considering the payment already made by the petitioners to the respondent, a sum of Rs. 1,23,001/- was still due and payable for period from 2-1-1991 to 27-8-1997 being the difference in the amount of wages and the interest thereon and that which the petitioners were required to pay. The claim of respondent was denied by the petitioners on the ground that the settlement dated 25-7-1996 was not applicable to the respondent as his name was not listed in the Schedule-A to the said settlement and the respondent had not executed the declaration in accordance with the said settlement and that in the absence of compliance of both these requirements the respondent was not entitled to claim benefit under the said settlement. In the course of hearing of the matter, the respondent filed affidavit in support if his claim and therein quantified the amount payable by the petitioners to the tune of Rs. 1,95,174/- being the dues for the period from 1-7-1990 to 31-7-1999. The Labour Court on analysis of the materials placed before it held that the petitioners were, liable to pay a sum of rs. 1,95,174/- to the respondent in terms of the settlement dated 25-7-1996 on or before 30-1-2001 failing which the amount would carry interest at the rate of 9% per annum from the date of the judgment i. e. 13-12-2001 till the date of the payment.

(3.) THE impugned judgment is sought to be challenged on four grounds. Firstly, that the respondent was not entitled to claim benefit under the settlement dated 25-7-1996 as neither his name was figuring in the schedule annexed to the settlement nor he had submitted the declaration duly executed in accordance with the procedure prescribed under the said settlement, inspite of repeated requests in that regard by the petitioners. In that respect, attention is drawn to three letters written by the petitioners to the, respondent, namely, letters dated 27-9-1997, 18-10-97 and 28-10-1997. Reliance is placed in the decisions in the matter of (Dilip P. Mehta v. Mercury paints and Varnishes Ltd. and others), reported in 2003 (11) C. L. R. 888 and (PAL vrs Employees Welfare Association v. Premier Automobiles Ltd. and another), reported in 2002 (11) C. L. R. 645 in support of the contention that in the absence of compliance with the requirement of the settlement, no benefit can be claimed thereunder by the respondent and hence the claim based upon the settlement could not have been stated to be a subsisting right within the meaning of said expression under section 33-C (2) of the said Act. Secondly, it is sought to be challenged on the ground that the claim of the respondent in the application under section 33-C of the said Act was to the tune of Rs. 1. 23. 001/- and therefore no evidence beyond the scope of the pleadings could have been made the ground for grant of relief in excess of what was prayed for in the original application and hence the impugned judgment directing payment of Rs. 1,95,174/- is contrary to the pleadings of the respondent and therefore is bad in law. Reliance is sought to be placed in that regard in the decision of the Apex Court in (Shankar Chakravarti v. Britannia Biscuit Co. and another), reported in 1979 (11) L. L. J. 194 and in (J,k. Iron and Steel Co. Ltd, kanpur v. The Iron and Steel Mazdoor Union, Kanpur), reported in A. I. R. 1956 s. C. 231. Thirdly, the impugned judgment is sought to be challenged on the ground that the Labour Court did not apply its mind to the issue as to whether the respondent had established his claim by producing necessary evidence in support there to in as much as that the Labour Court even did not bother to ascertain whether there had been proper calculation done by the respondent to arrive at the figure of Rs. 1,95,174/- According to the learned Advocate for the petitioner, it was obligatory upon the Labour Court to apply its mind to this issue and to arrive at the findings as to whether the figure afrived at in relation to the claim pertaining to the dues was correctly arrived at or not and having not done so, the impugned order is to be held as bad in law. Fourthly, it is sought to be contended that the Labour Court failed to take note of the admission on the part of the respondent that he was already paid with the sum of Rs. 92,205/- at the time of reinstatement in relation to the arrears and while granting the relief, if any, the Labour Court ought have given credit in favour of the petitioner to the said amount and having not done so, that direction to pay the sum of 1,95,174/- discloses arbitary exercise of jurisdiction on the part of the Labour Court while allowing the application under section 33-C (2) of the said Act, On the other hand, the respondent appearing in person, while drawing attention to the original application has submitted that through the claim therein was quantified at Rs. 1,23,001 /-, it was specified that the same was in relation to the period upto 27-8-1997 and the prayer was for direction for payment of the dues till the date of final disposal of the application and as evidence in the form of an affidavit was produced during the pendency of the proceeding and in the month of June, 2001, the amount was quantifies at Rs. 1,95,174/- being the amount payable till July, 1999 which was the last month till which the amount was due and payable. He has further submitted that the amount of Rs. 92,205/-, which was paid, was in relation to the difference in the amount payable and actually paid to the respondent. Further, drawing attention to the original application, the respondent has submitted that the application under section 33-C (2) of the said Act was essentially in relation to the amount due and payable towards the difference in wages i. e. the difference between the amount which ought to have been paid to the respondent in terms of the settlement dated 25-7-1996 and the amount which was actually paid, and being so, the amount of Rs. 92. 205/- which did not form part of such difference in the amount could not have been deducted from the amount of rs. 1,95,174/- and hence no fault can be found with the order of the Labour court in that regard. He has also drawn attention to the fact that the respondent had already signed the declaration in terms of the settlement dated 30-9-1997 when the said settlement and the declaration form was brought to the notice of the respondent.