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Gujarat High Court · body

2011 DIGILAW 455 (GUJ)

Botad Municipality v. Dharamsibhai Manjibhai

2011-06-15

H.K.RATHOD

body2011
Judgment H.K. Rathod, J.—Heard Learned Advocate Mr. Premal R. Joshi for petitioner Botad Municipality. Today, Special Civil Application No. 7003 of 2011 and 7005 of 2011 are notified before this Court for hearing on admission. However, when this Court has taken up said petitions for hearing, Learned Advocate Mr. Premal Joshi has submitted that third petition being Special Civil Application No. 7239 of 2011 is also in same subject matter and parties are also same and, therefore, considering request made by Learned Advocate Mr. Joshi for petitioner, papers of Special Civil Application No. 7239 of 2011 were called from registry of this Court and this Court has considered these three petitions having same subject matter between same parties and has disposed of same by way of this common order. 2. In these three petitions, recovery application filed by respondent Dharamsibhai Manjibhai under Section 33-C-1 of ID Act, 1947 claiming back wages for interim period and wages from date of award onward for different period, therefore, three different recovery applications for different period are filed by respondent workman. One recovery No. 1/96 and another is recovery application No. 115/98. Third is recovery No. 10 of 2007. Recovery No. 1/96 and 115/98 are decided by Labour Court, Bhavnagar while consolidating same and common order has been passed by Labour Court, Bhavnagar vide Exh. 49 dated 28th March, 2011. In recovery application No. 1 of 1996, Labour Court, Bhavnagar has granted Rs. 1,31,300.00 with 9 per cent interest from date of application 9.1.1996 and directed petitioner to pay said amount to respondent within 30 days from date of order and also ordered to issue recovery certificate if petitioner fails to pay amount as per said order. In recovery application No. 115/98, Labour Court directed petitioner to pay Rs. 96000.00 to respondent workman with 9% simple interest thereon from 20.11.1988 within 30 days from date of order and also ordered to issue recovery certificate if petitioner fails to pay amount as per said order. In recovery application No. 10 of 2007, Labour Court, Bhavnagar has, by order dated 30.3.2011, directed petitioner to pay Rs. 4,08,000.00 with 9 per cent simple interest thereon from date of application 9.1.1996 within 30 days from date of order and also ordered to issue recovery certificate if petitioner fails to pay amount as per said order. In recovery application No. 10 of 2007, Labour Court, Bhavnagar has, by order dated 30.3.2011, directed petitioner to pay Rs. 4,08,000.00 with 9 per cent simple interest thereon from date of application 9.1.1996 within 30 days from date of order and also ordered to issue recovery certificate if petitioner fails to pay amount as per said order. Therefore, petitioner Botad Municipality has challenged common order dated 28.3.2011 passed by Labour Court, Bhavnagar in Recovery Application No. 1 of 1996 and 115 of 1998 by filing Special Civil Application No. 7003 and 7005 of 2011. By filing Special Civil Application No. 7239 of 2011, petitioner municipality has challenged order passed by Labour Court, Bhavnagar in recovery application No. 10 of 2007 dated 30.3.2011, Exh.19. 3. Learned Advocate Mr. Premal R. Joshi for petitioner municipality has raised only one contention before this Court that recovery applications are filed by respondent under Section 33-C-1 of ID Act, 1947 which are required to be filed within period of one year from date on which money has become due to workman from employer. It is provided further under proviso to said Section 33C(1) that any such application may be entertained after expiry of said period from one year, if appropriate Government is satisfied that applicant had sufficient cause for not making application within said period. According to contention raised by Learned Advocate Mr. Joshi for petitioners, though recovery applications are filed by respondent under Section 33C(1) of ID Act,1947 beyond period of one year, Labour Court has entertained and allowed it and in doing so, Labour Court Bhavnagar has committed gross error. Except this, no other contention has been raised by Learned Advocate Mr. Joshi before this Court on merits and that fact has been clarified by Learned Advocate Mr. Joshi that he has not to make any other submission in respect to merits of matter, means, entitlement of respondent workman for back wages for interim period and salary or regular wages from different period from date of award based on award passed by Labour Court, Bhavnagar in Reference No. 785 of 1987. 4. I have considered contention raised by Learned Advocate Mr. Joshi on behalf of petitioner. I have also perused common order passed by Labour Court in recovery application No. 1/96 and 115/98 dated 28.3.11 and order passed by Labour Court in recovery application No. 10 of 2007 dated 30.3.2011. 4. I have considered contention raised by Learned Advocate Mr. Joshi on behalf of petitioner. I have also perused common order passed by Labour Court in recovery application No. 1/96 and 115/98 dated 28.3.11 and order passed by Labour Court in recovery application No. 10 of 2007 dated 30.3.2011. Reference (LCD) No. 785 of 1987 was filed by present respondent against petitioner wherein award has been passed by Labour Court on 13th September, 1993 against which present petitioner had approached this Court on 28th October, 1993 but present petitioner has not reinstated to respondent workman within 30 days from date of publication of award as per directions issued by Labour Court. Respondent workman has filed contempt petition before this Court being Miscellaneous Civil Application No. 769 of 1995 wherein this Court has disposed of contempt petition with observation that for claiming right of reinstatement, workman can file recovery application under Section 33C(1) of ID Act, 1947. Therefore, in view of that, respondent workman has filed aforesaid recovery applications under Section 33C(1) of ID Act, 1947 claiming back wages and wages for different period as mentioned in each recovery application. 5. In Recovery Application No. 1 of 1996, respondent workman has been claiming back wages and wages with effect from 21st April, 1987 to 21st December, 1995, total period of 104 months and monthly salary was Rs. 1200.00 and was also claiming bonus for eight years’ period and encashment of 148 earned leave as well as cost of Rs. 500.00. Total amount comes to Rs. 1,40,900.00. 6. In recovery application No. 115 of 1998, respondent workman has been claiming wages for a period of 35 months from 21st December, 1995 to 21st November, 1998, at the rate of Rs. 3000.00 per month and bonus of three months for a period of three years and encashment of 63 days earned leave at the rate of 21 days per year. Total amount comes to Rs. 1,20,000.00. 7. In Recovery Application No. 10 of 2007, respondent workman has been claiming amount of due wages at the rate of Rs. 4000.00 per month for a period of 96 months from 22.11.1998 to 22.11.2006 and bonus for a period of eight years and encashment of 168 days for eight years at the rate of 21 days per year, total amount comes to Rs. 4,40,000.00. 8. Vide Exh. 4000.00 per month for a period of 96 months from 22.11.1998 to 22.11.2006 and bonus for a period of eight years and encashment of 168 days for eight years at the rate of 21 days per year, total amount comes to Rs. 4,40,000.00. 8. Vide Exh. 7, petitioner municipality has filed reply against recovery application No. 1 of 1996 raising contention that Labour Court has no jurisdiction to decide such application. Petitioner also raised contention about delay in filing such application beyond period of limitation of one year. In reply, petitioner has also denied averments made in recovery application and also disputed schedule which has been submitted by respondent workman before Labour Court in recovery application. In other recovery application, vide Exh. 30, reply was submitted by petitioner before Labour Court raising same and similar contention as has been raised in earlier recovery application vide Exh. 7. Present petitioner has also raised contention before Labour Court that workman has not worked during this interim period, therefore, he is not entitled for wages of period during which he has not actually worked with petitioner. In recovery application No. 10 of 2007, reply was filed by present petitioner vide Exh. 6 wherein similar contentions were raised by petitioner. 9. After considering pleadings between both parties, Labour Court, Bhavnagar has framed issues in Paragraph 4 in common order passed in recovery application No. 1 of 1996 and 115 of 1998 and answered issues in Paragraph 5 of common order partly in affirmative. Copy of award in Reference No. 785 of 1987 has been produced on record by respondent workman The respondent workman was examined vide Exh. 18. Exh. 44 resume report has been produced by respondent after award has been published by appropriate Government on 28.10.1993 wherein resume report has been received by petitioner having seal of inward of petitioner establishment. Vide Exh. 45, a reply has been sent by petitioner against resume report dated 28.10.1993. Mark 37/3 is receipt given by petitioner for registering resume report given by respondent workman. Mark 37/4 is copy of contempt petition filed by respondent before this Court and mark 37/5 is letter of Learned Advocate Mr. Yogesh Lakhani received by representative of respondent in view of order passed by this Court that contempt petition is not maintainable and legal proceedings should be initiated under Section 33C(1) of ID Act, 1947. Mark 37/4 is copy of contempt petition filed by respondent before this Court and mark 37/5 is letter of Learned Advocate Mr. Yogesh Lakhani received by representative of respondent in view of order passed by this Court that contempt petition is not maintainable and legal proceedings should be initiated under Section 33C(1) of ID Act, 1947. On behalf of petitioner, vide mark 31/1, order of this Court IN Special Civil Application No. 9330 of 2003 has been produced. Vide mark 31/2, statement showing calculation of the wages available for a period from 21.4.87 to 31.10.1993 has been produced. Vide Exh. 43, affidavit of examination in chief of witness Sureshbhai Kevlaji Katara has been produced. Evidence was closed vide Exh. 47. In recovery application No. 115 of 1998, workman was examined vide Exh. 6 and vide mark 11/1, resume report has been produced on record dated 28.10.1993 and similar documents have been produced on record in said recovery application by respondent. Evidence of workman has been closed vide Exh. 13 in recovery application No. 115 of 1998. Thereafter, matter was heard by Labour Court and according to respondent, in reference No. 785 of 1987, on 13.9.1993, relief of reinstatement was granted by Labour Court with continuity of service with full back wages and other consequential benefits of interim period, in favour of respondent workman which was enforceable within thirty days from date of publication thereof by appropriate Government under Section 17/17A of ID Act, 1947, against petitioner. In view of order passed by this Court in contempt petition No. 769 of 1995, recovery application has been preferred by respondent workman. Workman was not reinstated by petitioner in service inspite of submission of resume report by workman before petitioner and, therefore, only on that ground, there was delay in filing of such applications and against present award, present petitioner had filed writ petition and that petition has been decided by this Court and, thereafter, recovery applications filed by respondent under Section 33C(1) of ID Act, 1947 have been decided by Labour Court, Bhavnagar. Therefore, contention raised by respondent workman before Labour Court was to the effect that in such circumstances, delay in filing recovery application under Section 33C(1) beyond period of one year is required to be condoned and Labour Court can entertain such application if sufficient cause is shown by applicant for delay. Witness for petitioner was examined at Exh. Therefore, contention raised by respondent workman before Labour Court was to the effect that in such circumstances, delay in filing recovery application under Section 33C(1) beyond period of one year is required to be condoned and Labour Court can entertain such application if sufficient cause is shown by applicant for delay. Witness for petitioner was examined at Exh. 43 who admitted in his chief examination that in pursuance to award passed by Labour Court in Reference No. 785 of 1987, workman was not reinstated in service and even back wages and wages from date of award, as per award have not been paid by petitioner to respondent. On behalf of petitioner, vide Exh. 48, written arguments have been placed on record raising same contention in respect to delay in filing of recovery application under Section 33C(1) of ID Act, 1947 Recovery application was filed by workman in 1996 and before that, no notice was served to petitioner. Petitioner was relying upon decision of this Court in Special Civil Application No. 5939 of 1998 in case of Director vs. Parmar Maheshbhai Devjibhai reported in 2007 (2) GLH page 488. Second contention raised by petitioner was that respondent has joined present petitioner as well as Shasnadhikari, Nagar Prathmik Shikshan Samiti, Botad both for claiming relief of reinstatement with back wages. Such stand has been taken by petitioner before Labour Court. Labour Court Bhavnagar has incorporated both parties in award passed by Labour Court, Bhavnagar in reference No. 785 of 1987 wherein Labour Court has set aside termination order and granted reinstatement with continuity of service with all consequential benefits with full back wages and directed first party No. 1 to reinstate workman on his original post and pay full back wages for interim period with cost of Rs. 500.00, in favour of present respondent and this award is required to be implemented or enforced within thirty days from date of publication thereof. Therefore, Labour Court has considered in recovery application that aforesaid order has been passed against present petitioner only and not against Shasnadhikari, opponent No. 2. Therefore, Labour Court has discussed observations made by Labour Court in its award passed in Reference No. 785 of 1987 and has also considered contention raised by petitioner that award has been passed against first party No. 1 though first party No. 2 administrative officer was a party to proceedings of reference. Therefore, Labour Court has discussed observations made by Labour Court in its award passed in Reference No. 785 of 1987 and has also considered contention raised by petitioner that award has been passed against first party No. 1 though first party No. 2 administrative officer was a party to proceedings of reference. Labour Court has also observed that it is legal obligation of petitioner to implement award in question passed by Labour Court in aforesaid reference. As per mark 31/2, how much amount is required to be paid, that statement has been produced on record. Labour Court has considered that back wages which have been awarded in favour of respondent by Labour Court and wages from date of award onward till date of reinstatement, whether it is duty of present petitioner to pay aforesaid amount to respondent workman or not, that aspect has been considered by Labour Court. Labour Court has also considered whether respondent workman is entitled for interest upon said amount which has been claimed by him in recovery application Exh. 44 being resumption report produced by respondent dated 28.10.1993 which was received by present petitioner vide Exh. 45. As per Exh. 46, answer has been given by petitioner to respondent workman that in respect to award passed in Reference (LCD) No 785 of 1987,petition filed in High Court and interim relief has been sought by Chief Officer of Municipality and Administrative Officer before higher forum and, therefore, workman cannot be permitted to resume on duty and application was therefore filed. Thereafter, Labour Court has considered order passed by this Court dated 21.7.2004 in Special Civil Application No. 9330 of 2003. Labour Court has considered Para 11 of said order in particular. Therefore, same is quoted as under: “11. Coming back to the facts of the present case, I find that admittedly the present petition has been filed nearly 10 years after the date of the award. Though the Chief Officer of the petitioner Nagarpalika in his affidavit states that the petition was filed on 24.9.2002, admittedly office objections were removed only in June 2003. Coming back to the facts of the present case, I find that admittedly the present petition has been filed nearly 10 years after the date of the award. Though the Chief Officer of the petitioner Nagarpalika in his affidavit states that the petition was filed on 24.9.2002, admittedly office objections were removed only in June 2003. In the affidavit, the contents of which I have narrated extensively earlier, there is no explanation whatsoever coming forth from the petitioner regarding the gross and inordinate delay of 10 years in filing the petition except the statement that the resspondent-workman did not approach the petitioner except for once in 1993 and that necessary vakalatnama and other details were not supplied to the advocate. No other material is coming forth to suggest that the delay was caused due to reasons beyond the control of the petitioner. The picture that emerges from the reading of the affidavit is that the petitioner had truly and clearly ignored the award and slept over their rights to challenge the same before this Court.” 10. In view of observations made by this Court, Labour Court, Bhavnagar has considered evidence of witness for petitioner at Exh. 43, Sureshbhai Kevlaji Katara and has also considered cross examination where witness for petitioner has admitted in cross examination that award has been made by Labour Court in reference No. 785 of 1987 against both Botad Municipality as well as Shasnadhikari Nagar Prathmik Shikshan Samiti, Botad. Said witness Sureshbhai for petitioner has also admitted that in award, relief of reinstatement with full back wages with other consequential benefits has been granted by Labour Court in favour of workman against which special civil application was filed after a period of ten years and that petition was dismissed by this Court on 21.7.2004 against which no further proceeding is initiated before Supreme Court of India by petitioner. Said witness Sureshbhai also admitted that resume report has been received from respondent dated 28.10.1993 and on that day, no proceeding has been initiated by petitioner against award passed by Labour Court in aforesaid reference. Said witness was not aware about contempt proceedings and was also not able to say anything whether deliberately or intentionally the award was not implemented. He admitted that in mark 31/2, calculations have been made on the basis of daily wager and denied that said calculations have not been made while considering continuous service. Said witness was not aware about contempt proceedings and was also not able to say anything whether deliberately or intentionally the award was not implemented. He admitted that in mark 31/2, calculations have been made on the basis of daily wager and denied that said calculations have not been made while considering continuous service. He has also denied that as amount has not been paid, there is responsibility of interest. After considering aforesaid evidence and facts which are not much in dispute between parties and after considering chief examination and cross examination of witness of petitioner, Sureshbhai Kevlaji Katara, Exh. 43, Labour Court has rightly come to conclusion that in pursuance to award, workman is not reinstated in service and no amount of back wages has been paid by petitioner to respondent workman and whatever calculation made in mark 31/2 are made on basis of daily wage and, therefore, considering calculation made by petitioner against which no documentary evidence was produced by workman, according to my opinion, Labour Court has rightly come to conclusion that demand for amount of bonus cannot be granted by Labour Court under Section 33C(1) of ID Act, 1947 because as per Schedule-2 of ID Act, 1947, Labour Court is not having jurisdiction to pass order about bonus and, therefore, remaining amount has been ordered by Labour Court, Bhavnagar in favour of present respondent workman. It is necessary to note that recovery application No. 1/96 was filed by respondent workman in year 1996 and second recovery application No. 115 of 1998 was filed in year 1998. 11. I have considered documents which are annexed to present petitions. I have also considered common order passed by Labour Court, Bhavnagar in recovery application No. 1/96 and 115 of 1998 dated 28.3.2011 and separate order dated 30.3.2011 passed by Labour Court, Bhavnagar in recovery application No. 10 of 2007 and recovery application No. 115/98 annexure B page 22 and reply given by petitioner page 25 in recovery application No. 115 of 1998. Except that, no other documents are produced to SCA No. 7005 of 2011. Similarly, in special civil application No. 7003 of 2011, documents have been produced on record. One is common order in both recovery application along with original order passed by Labour Court in both recovery applications Exh. 49 and one is recovery application page 22 and another is page 25 reply submitted by petitioner. Similarly, in special civil application No. 7003 of 2011, documents have been produced on record. One is common order in both recovery application along with original order passed by Labour Court in both recovery applications Exh. 49 and one is recovery application page 22 and another is page 25 reply submitted by petitioner. Except that, no other documents are annexed to special civil application No. 7003 of 2011. Similarly, in Special Civil Application No. 7239 petitioner municipality has produced copy of order dated 30.3.2011 in recovery application No. 10 of 2007 page 11 to 19 at annexure A and copy of recovery application page 20-21 at annexure B as well as copy of written statement page 22 to 24 at annexure C which have been considered by this Court. Except that, no other documents have been produced by petitioner to said petition. 12. For considering contention raised by Learned Advocate Mr. Joshi for petitioner that recovery applications are filed under Section 33C(1) of ID Act, 1947 beyond period of one year from date on which money become due to workman from employer, therefore, Labour Court ought not to have decided such applications beyond period of one year, for that, it is necessary to consider relevant provisions of Section 33C(1) and 33C(2) of Industrial Disputes Act, 1947. Therefore, both provisions are quoted as under: “33C. Recovery of money due from an employer.—(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB workman himself or any other person authorized by him in writing in this behalf, or, in the case of the death of the workman, his assignee or his heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue. Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer. Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer. Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then, the question may, subject to any rules that may be made under this A ct, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months. Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.” 13. Labour Court has jurisdiction to condone delay if sufficient cause is shown by applicant for not making such application within stipulated period provided under Section 33C(1) of ID Act, 1947. Recovery applications are filed for claiming back wages of interim period from date of termination till date of award as well as wages from date of award onward which has been found to be due each month because workman is not reinstated in service by petitioner and, therefore, each month, wages are become due which amounts to continue breach committed by petitioner in not paying regular wages to workman on the date on which that amount is becoming due in favour of respondent workman. Therefore, this being continuous breach committed by petitioner by not paying regular wages to workman after publication of award by appropriate Government, workman has filed contempt petition as petitioner has not implemented award in question in favour of respondent workman wherein this Court has observed that for implementation of award in question, workman can file recovery application under Section 33C(1) of ID Act and, therefore, it is clear that workman has waited because of contempt petition filed by him before this Court and he waited upto order passed by this Court in contempt petition and thereafter, workman has also waited for further period because award in question has not been challenged by petitioner before this Court till special civil application No. 9330 of 2003 was filed by petitioner before this Court which has been decided on 21st July, 2004. Therefore, these are the reasons which have been considered to be sufficient cause by Labour Court, as established by for respondent workman, for entertaining recovery application filed by respondent workman under Section 33C(1) of ID Act, 1947. It is also necessary to note that though contention has been raised by petitioner before Labour Court, Bhavnagar in reply Exh. 7 and 30 in both recovery application to the effect that recovery application is not maintainable beyond period of one year under Section 33C(1) of ID Act, 1947, however, facts which have been considered by Labour Court being undisputed facts, meaning thereby that workman was not reinstated in service in terms of award passed in reference No. 785 of 1987 and amount of back wages was also not paid by petitioner to workman and petition challenging award was filed by petitioner after delay of 10 years and, therefore, these are circumstances which have been considered by Labour Court being sufficient cause for filing recovery application by workman beyond period of one year and, therefore, considering such undisputed facts, contention raised by Learned Advocate Mr. Joshi for petitioner cannot be accepted. 14. Contention raised by petitioner being technical in nature and facts are not much in dispute between parties, whatever amount has been claimed in recovery application is found to be due in favour of respondent workman and such due amount has not been disputed by petitioner before Labour Court. Joshi for petitioner cannot be accepted. 14. Contention raised by petitioner being technical in nature and facts are not much in dispute between parties, whatever amount has been claimed in recovery application is found to be due in favour of respondent workman and such due amount has not been disputed by petitioner before Labour Court. Labour Court has jurisdiction to entertain recovery application under Section 33C(1) of ID Act, 1947 after expiry of said period of one year if Labour Court is satisfied that applicant had sufficient cause for not making such application within said period. Therefore, Labour Court has jurisdiction to condone delay and entertain such application on merits if sufficient cause is established by respondent before Labour Court at Bhavnagar. According to my opinion, respondent workman has established sufficient cause which aspect has been rightly appreciated and considered by Labour Court and accordingly, Labour Court has rightly entertained applications filed by respondent and in doing so, no error has been committed by Labour Court, Bhavnagar which would require interference of this Court in exercise of powers under Article 227 of Constitution of India. 15. It is necessary to note that such recovery application can also be filed by respondent workman under Section 33C(2) of ID Act, 1947 wherein no period of limitation is prescribed for filing such application under Section 33C(2) of ID Act, 1947. Therefore, though recovery application is filed under Section 33C(1) of ID Act, 1947, in substance, it can be considered to be recovery application under Section 33C(2) of ID Act, 1947 wherein no period of limitation is prescribed for filing such application under Section 33C(2) of ID Act, 1947. Therefore, while examining these petitions filed by petitioner Municipality, this Court has considered substance of claim made by respondent workman on the basis of award passed by Labour Court in Reference No. 785 of 1987 and this Court has also considered undisputed facts being admitted by petitioner before Labour Court Bhavnagar and considering substance of claim made by respondent workman on the basis of award passed by Labour Court in Reference No. 785 of 1987 and also considering undisputed facts being admitted by petitioner before Labour Court, Bhavnagar, contentions raised by Learned Advocate Mr. Joshi on behalf of petitioner are purely technical in nature but having no substance on merits of matter and, therefore, on that ground also, contentions raised by Learned Advocate Mr. Joshi on behalf of petitioner are purely technical in nature but having no substance on merits of matter and, therefore, on that ground also, contentions raised by Learned Advocate Mr. Joshi are not accepted by this Court. 16. Respondent workman has filed recovery applications under Section 33C(1) of ID Act, 1947 because while disposing of contempt petition, this Court has mentioned Section 33C(1) of ID Act, 1947 and, therefore, workman has filed recovery application under Section 33C(1) of ID Act, 1947 but in substance, whatever claim made by workman being claim for due amount on the basis of award, for that, recovery application under Section 33C(2) of ID Act, 1947 is also maintainable for which there is no period of limitation prescribed. That aspect has been considered by this Court in case of Gujarat State Road Transport Corporation vs. Keshavlal Maneklal Shah, 1998 (2) GLH page 996. In said case, this Court has considered similar contention which has been raised by petitioner in these petitions. Therefore, relevant observations made by this Court in Para 3,4 and 5 are quoted as under: “3 Mr. Munshaw, learned Counsel for the petitioner, submitted that the claim of the workman was a belated one and ought to have been rejected on the ground of laches. He relied upon the judgement of single judge of this Court (Calla, J.) reported in 1996 (2) GLH 161 in the case of Esi Scheme vs. Natwarlal Amrutlal Shah. In that case, the application for over time had been filed under Section (C)(2) of the Act belatedly and there was a delay of 17 years in filing that aplication and no explanation was given for filing it except that the workman was not much educated and had no knowledge of law. That application had been entertained by the learned judge of the Labour Court and that order came to be quashed in the aforesaid judgement of the learned single judge. That application had been entertained by the learned judge of the Labour Court and that order came to be quashed in the aforesaid judgement of the learned single judge. The learned judge held, “The proceedings under Section 33-C (2) of the Industrial Disputes Act initiated in the year 1990 in respect of over time for the period from 1973 to 1986 therefore should not have been entertained by the Labour Court merely because the Limitation Act is not applicable unlesss it could come to the conclusion that the delay has been reasonably explained.” In the present case also the overtime for the period 1977-89 is sought to be claimed by filing an application in the year 1990. When one peruses the judgement of the learned single judge, there is a reference to the judgement of the Honourable Supreme Court in the case of Bombay Gas Company reported in AIR 1964 SC 752 and it is stated, “... support was sought to be taken from earlier decision of the Supreme Court in Bombay Gas Company’s case [AIR 1964 SC pg.752 ] holding that the claim which was barred by time under the Payment of Wages Act can be made under Section 33-C(2) of the I.D.Act. Thus this decision also does not lay down any such proposition of law that the case where no limitation is prescribed the party can approach or initiate proceedings under Section 33-C(2) of the I.D. Act at any time without explaining the delay.” With due respect to my brother, he has not noted the observations made by the Hon’ble Supreme Court in Para 13 of that judgement which reads as follows:— “A claim under Section 33C(2) is a claim for wages within the meaning of the payment of Wages Act. It is, no doubt, somewhat anomalous that a claim, which would be rejected as barred by time if made under the Payment of Wages Act, should be entertained under Section 33C (2) of the Act; but this apparent anomaly does not justify the introduction of considerations of limitation in proceedings under Section 33C(2). It is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting Section 33C (2). It is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting Section 33C (2). The failure of the legislature to make any provision for limitation cannot be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under Section 33C (2).” (underlining added) It is also material to note that in that very volume, the judgement of the Constitution Bench in the case of Central Bank of India vs. P.S. Rajagopalan, AIR 1964 SC 743 is also reported and in that judgement on page 752 the Hon’ble Supreme Court has stated on facts of that case and on law as follows:— “It is true that though the Sastry Award was passed in 1953 and the Labour Appellate Tribunal’s decision was pronounced in 1954 and it became final on October 21, 1955, the respondents did not make their claims until 1962. We have had occasion in the past to emphasise the fact that industrial adjudication should not encourage unduly belated claims; but, on the other hand, no limitation is prescribed for an application under Section 33C(2) and it would, on the whole, not be right for us to refuse an opportunity to the respondents to prove their case only on the ground that they moved the Labour Court after considerable delay.” (underlining added) 4 The nature of these proceedings also came to be considered by the Hon’ble Supreme Court later on in Central Inland Water Transport Corporation Ltd. vs. Section Workmen reported in AIR 1974 SC 1604 where the Hon’ble Supreme Court held that these proceedings are in the nature of execution proceedings and the observations made in Para 12 of the said judgement are as follows:— “A proceeding under Section 33C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money.” None of these judgements are considered by the learned single judge and the view taken by him is exactly contrary to the long standing judgement of the Hon’ble Supreme Court in the cases of Bombay Gas Company & Central Bank of India (Supra). The Labour Court exercising the jurisdiction under Section 33-C(2) has to examine the claim of the workman on merits even though the application is filed after a considerable delay and the consideration of limiation and requirement of explaining the delay cannot be introduced therein. Recently, in the case of Bombay Telephone Canteen Employees Association vs. Union of India reported in 1997 (2) LLJ 647 a Bench of the two Judges of the Hon’ble Supreme Court held that the Telecom Department was not an industry and on a Reference being made to a Bench of 3 Judges in the case of General Manager, Telecom vs. Srinivas Rao reported in 1998 1 LLJ 255 , the Hon’ble Supreme Court noted that the long standing judgement in the case of Bangalore Water Supply and Sewerage Board reported in 1978 1 LLJ 349 had not been considered by that Bench. The Hon’ble Supreme Court therefore held in Srinivas Rao’s case that the judgement in the case of Bombay Telephone Canteen Employees’ case cannot be treated as laying down correct law. In that case, the Hon’ble Supreme Court has observed as follows:— “It is needless to add that it is not permissible for us, or for that matter any Bench of lesser strength, to take a view contrary to that in Bangalore Water Supply case (Supra) or to bypass that decision so long as it hold the field. Moreover, that decision was rendered long back nearly two decades earlier and we find no reason to think otherwise. Judicial discipline requires us to follow the decision in Bangalore Water Supply case (Supra).” 5 I am aware of the fact that I am sitting singly and the judgement of my brother in the case of ESI Scheme (Supra) was rendered when he was sitting as a single judge. However, when the law laid down by the Hon’ble Supreme Court time and again is quite clear and those long standing judgements holding field are not considered in the ESI Scheme (Supra) judgement, it will be within my jurisdiction to say so inasmuch as the law laid down by the Hon’ble Supreme Court binds the High Court under Article 141 of the Constitution of India. In the circumstances, it will have to be stated that the proposition laid down in the case of ESI Scheme (Supra) cannot be treated as laying down the correct proposition of law. The order of the Labour Court cannot therefore be faulted for considering the belated claim of the respondent-workman.” [See : 2011 (1) CLR 936 Bombay in case of Force Motors Ltd., Pune vs. Shantilal Hukumchand Sancheti & Anr.] 17. The order of the Labour Court cannot therefore be faulted for considering the belated claim of the respondent-workman.” [See : 2011 (1) CLR 936 Bombay in case of Force Motors Ltd., Pune vs. Shantilal Hukumchand Sancheti & Anr.] 17. In light of aforesaid observations made by this Court and also considering reasoning given by Labour Court in orders in question which are challenged in these petitions by petitioner Municipality and also keeping in mind fact that against award passed in aforesaid reference, petition was preferred by petitioner before this Court after a period of ten years and that petition has been rejected by this Court as stated above and that order of this Court has not been challenged further by petitioner before higher up, in such circumstances, petitioner being public body, State Authority, must have to respect award passed by Labour Court, Bhavnagar in favour of respondent when challenge has failed. It is also necessary to note that before Labour Court and also before this Court, petitioner Municipality has not been able to point out any cause that why award passed by Labour Court granting reinstatement with continuity of service with full back wages for interim period has not been implemented by petitioner which has compelled respondent workman to file such recovery applications for such long period and amount of wages has been ordered by Labour Court in each application which is required to be paid by public body without taking respondent workman in service. For that, who is responsible and liable? It is necessary for administration of Botad Municipality to inquire why such a situation has occurred and who is responsible for such payment of wages without taking work from respondent. Such inquiry by administration of Botad Municipality is necessary because such amount will go from treasury of public body of Nagarpalika to respondent workman and, therefore, it is clear that there is lapse and culpable negligence on the part of petitioner for not implementing award as referred to above in favour of respondent workman though it has been confirmed by this Court by dismissing petition preferred by petitioner against it after a period of about ten years. For that also, it is required to be inquired by higher authority of Nagarpalika that who is erring officer in Botad Municipality for such delay in filing of petition. For that also, it is required to be inquired by higher authority of Nagarpalika that who is erring officer in Botad Municipality for such delay in filing of petition. Petitioner municipality has forgotten and condoned delay and lapse of its officer/s who are responsible for such a situation but it is raising such technical contentions against respondent about not filing recovery application within period of one year from date on which amount is due. This stand which has been taken by petitioner before this Court is considered to be meaningless and having no substance on merits which are against petitioner and therefore, it is clear that such contentions have been taken by petitioner only for the sake of raising knowing fully well that on merits, petitioner Municipality is having no case because of undisputed facts as recorded by Labour Court Bhavnagar and considered by this Court while deciding these petitions. Therefore, in such circumstances, Labour Court Bhavnagar has not committed any jurisdictional error. Labour Court Bhavnagar has given detailed reasons in support of its conclusion and has rightly appreciated oral and documentary evidence which are produced by both parties on record and for that, finding of fact recorded by Labour Court cannot be considered to be baseless or perverse and in such circumstances, when Labour Court Bhavnagar has not committed any error while passing orders in question, this Court cannot interfere with same while exercising powers under Article 227 of Constitution of India. Therefore, there is no substance in these petitions and therefore, these petitions are dismissed.