LALA RAM Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) THIS writ petition has been filed under Article 226 of the Constitution of India with the prayers that the order (Annexure-II) of the learned Industrial Tribunal-cum-Labour Court, Jodhpur, dated August 3, 1985 be quashed and the respondent No. 1 be directed to make payment of Rs. 4,561. 60 P, with interest to the petitioner. The facts of the case giving rise to this writ petition may be summarised thus.

(2.) THE petitioner was Junior Filter Attendant, Filter House, Jodhpur in the year 1965. He had prolonged illness during the years 1965, 1966 and 1967. He reported on duty on January 1, 1968. He was not taken back in service. At the instance, the State Government made a reference under Section 10, Industrial Disputes Act (hereinafter to be called the Act ). It was decided by the Industrial Tribunal No. 2, Rajasthan, Jaipur on January 22, 1975, directing that the petitioner would be taken back in the service on his production of a medical fitness certificate. It was also ordered that the period of absence from duty from July , 1965 to the date of production of the fitness certificate would be counted as extra ordinary leave without pay. The State Government filed writ petition No. 105 of 1976 against this award and it was dismissed by this Court on January 11, 1985 with the direction that the State Government will give effect to the order of the Tribunal. Immediately after the publication of the award, petitioner reported on duty on May 21, 1975. The respondent directed him to appear before the Medical Board, M. C. Hospital, Jodhpur on July 21, 1975 for his medical examination. The Superintendent, Associated Groups of Hospitals, Jodhpur intimated the respondent No. 1 that the petitioner had been found fit to resume his duty vide his letter dated August 22, 1975 (Annexure-4 ). Meanwhile, this Court granted stay on July 21, 1976 and it was vacated on August 31, 1976. Thereafter, the petitioner again reported on duty on September 4, 1976 and he was taken on duty with effect from September 10, 1976. He claimed wages for the period from May 21, 1975 to September 9, 1976 but the respondent refused to pay the same. Thereafter, he moved application (Annexure-9) under Section 33-C (2) of'the Act before the Industrial Tribunal-cum-Labour Court, Jodhpur. The respondent No. 1 filed his reply (Annexure-10 ). During the hearing of this application, the learned counsel for the respondent No. 1 raised an objection before the learned Industrial Tribunal-cum-Labour Court, Jodhpur that the petitioner's application is not maintainable under Section 33-C (2) of the Act and he could move an application under Section 33-C (1) of the Act for the recovery of the amount which has been awarded to him under the said award. After hearing the parties, the learned Labour Court, Jodhpur accepted the preliminary objection and dismissed the petitioner's application by his order (Annexure-11 ).

(3.) IT has been contended by the learned counsel for the petitioner that the learned Labour Court has seriously erred to hold that the petitioner's application moved under Section 33-C (2) of the Act is not maintainable as he can get the necessary amount by moving an application under Section 33-C (1) of the Act. He further contended that no amount has been awarded to the petitioner under the award (Annexure-1), as such there was no question of recovery of any amount and the claim has been made in respect of the period subsequent to the award. He also contended that it is clear from the claim petition (Annexure-9) and the reply (Annexure-10) that the petitioner has claimed his wages for the period from May 21, 1975 to September 9, 1976 the same have seriously been contested by the respondent No. 1 in his reply and they could be determined under Section 33-C (2) of the Act.