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Vishram Chandrakant Dalvi v/s The Daily Publications, (A Division of Nalanda Exports Pvt.Ltd.) & Another

    WRIT PETITION NO.4167 OF 2009

    Decided On, 01 July 2009

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE V.M. KANADE

    For the Petitioner: Ms. Jane Cox, Advocate. For the Respondents: R.V. Paranjpe, Advocate.



Judgment Text

ORAL ORDER:-


1. By this petition, the petitioner is challenging the judgment passed by the Labour Court dated 15th November, 2008 whereby the application filed by the applicant - petitioner herein under Section 33-C(2) of the Industrial Disputes Act for the recovery of the amount mentioned in the statement annexed to the application is rejected. The Labour Court held that the applicant could not claim benefits beyond the terms of settlement under Section 33-C(2) of the Industrial Act. Brief facts are as under:-


2. The respondent no.1 who was private limited company registered under the Companies Act, was in the business of publishing the newspaper known as ?The Daily?. It is the case of the applicants - petitioner herein that since May 2000, the respondents had stopped paying them earned wages on one pretext or the other. The union, therefore, filed the complaint of unfair labour practice vide Complaint (ULP) No.582 of 2000 before the Industrial Court, Mumbai. The Industrial Court by orders dated 28.6.2000, 4.9.2000, and 6.10.2000 directed the respondents to pay the earned wages and by last order dated 6.10.2000, the respondents were directed to pay entire arrears of earned wages. In the meantime, the Wage Board had passed an order in May 2000 for payment of wages as laid down by the Wage Board. The respondents, however, did not make any payment either by the direction of the Wage Board of by the orders passed by the Industrial Court and as a result, Complaint was filed by the petitioner herein vide Misc.Complaint No.282/2000 in which process was issued against the respondents. Thereafter, the outstanding wages of October 2000 were paid. In the meantime, on 31.1.2001, the respondent company issued a closure notice claiming that due to drop in circulation and lack of advertisement revenue, it has decided to close down the publication of daily newspaper w.e.from 31.1.2001. On 21.1.2001, a settlement was arrived at between the union and the respondents in respect of the terminal dues of the employees. Accordingly, the terminal dues and other benefits were paid according to the award of the Bachavat Wage Board and not according to the Manisana Wage Board award which came into effect from 1.4.2000. Under these circumstances, therefore, the petitioner filed an application before the Labour Court under Section 33-C(2) of the Industrial Disputes Act vide Application No.307/2002 seeking a direction directing the respondent no.1 to pay them their dues according to the Manisana Wage Board award after deducting the amount received by them under the Settlement dated 25.1.2002.


3. This application was opposed by the respondent company. It was contended that the Labour Court had no jurisdiction to entertain or decide the matters which were not adjudicated and where there were no existing rights in favour of the workmen. It was submitted that the Labour Court could not decide the issue as to whether the settlement which was executed between the union and the company was under coercion and the union was forced to sign the settlement due to undue influence and coercion which was in exercise of the contract.


4. The Labour Court accepted the contention of the respondent company and held that the application was not maintainable.


5. The learned Counsel for the petitioner has relied on number of judgments and submitted that the petitioner was forced to accept the settlement which was executed between the union and the respondent company since wages were not paid for almost 18 months and as a result, the union had no other alternative but to accept the settlement since they are on the verge of starvation for 18 months. It was submitted that the Wage Board had already passed an award with effect from 1.4.2000 and it was a statutory award which was binding on the respondent company. The Union, therefore, was forced to accept lower wages and was forced to accept the settlement which was contrary to the statutory award. It was submitted, therefore, the Labour Court was competent to decide this issue since there was existing right in favour of the petitioner herein by virtue of the award passed by the Manisana Wage Board which came into effect from 1.4.2000. In support of the said submission, the learned Counsel relied on judgment of the Punjab and Haryana High Court in the case of Amar Kaur, Petitioner vs. State of Punjab and others, Respondents, reported in 1982 LAB.I.C. 1275. She also relied on the judgment of the Apex Court in the case of Central Bank of India, Ltd. And others vs. Rajagopalan (P.S.) and others reported in 1963(7) FLR 141 (S.C.). She also relied on the Division Bench judgment of this Court in the case of Union of India, representing the Central Railway Administration vs. Samuel Peters and another, reported in 1975 II LLJ Page 185. The learned Counsel for the petitioner also relied on the judgment of the Apex Court in the case of Central Inland Water Transport Corporation Ltd. And another v. Brojo Nath Ganguly and another, Respondents, reported in AIR 1986 SC 1571 and more particularly, paragraphs 90 and 92.


6. The learned Counsel appearing on behalf of the respondents, on the other hand, submitted that the Labour Court could not decide the issue whether the settlement which was signed by the union and respondent no.1 was under coercion or not. He submitted that this issue was not incidental to any existing right and as such, therefore, unless there was adjudication by a competent authority on this aspect, the petitioner is not entitled to file an application under Section 33-C(2).


7. In my view, there is much substance in the submission made by the Counsel for the respondents. In the present case, admitted legal position is that though award was passed by the Wage Board in May 2000, the union entered into a settlement with the respondent company on 25.1.2002. It was always open for the union to file an application under Section 33-C(2) seeking implementation of the award of the Wage Board wherein wages were directed to be paid with effect from May 2000. However, the Union chose to enter into a settlement dated 25.1.2002. The question, therefore, which is raised by the petitioner hereby before the Labour Court under Section 33-C(2) was whether the union was forced by the respondent company to enter into a settlement on 25.1.2002 is, in my view, while exercising its jurisdiction under Section 33-C(2), the Labour Court cannot be called upon to adjudicate such issues. If it is only the existing rights or rights which are incidental to the existing rights, the Labour Court can then in such circumstances, decide the such issues which are incidental to the existing rights of the workmen. The Labour Court, therefore, in my view, was justified in holding that it had no jurisdiction to first decide the workmen?s entitlement and to proceed to continue the benefits so adjudicated on that basis in exercise of the power under Section 33-C(2) of the Industrial Disputes Act.


8. There cannot be any dispute regarding the ratio of the judgment on which reliance in placed by the petitioner in the present case. Taking into consideration the peculiar facts and circums

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tances of case, the ratio will not apply to the facts of the present case. The petitioner, therefore, could not have filed straightway the application under Section 33-C(2) seeking a declaration that the settlement which was entered into between the union and the respondent no.1 company was executed on account of undue influence or coercion by the company on the workers on account of non-payment of their wages for a period of 18 months. Under these circumstances, therefore, I do not see any infirmity in the order passed by the Court. The petitioners are bound to obtain appropriate declaration from the appropriate forum and thereafter, approach the Labour Court under Section 33-C(2). 9. The petition, therefore, is dismissed. Under the circumstances, there shall be no order as to costs.
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