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2019 DIGILAW 2163 (BOM)

State Of Maharashtra v. Rashidkhan

2019-09-19

A.S.CHANDURKAR

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JUDGMENT : A.S. Chandurkar, J. The question that arises for adjudication in this writ petition is whether the deductions made by the employer from the salary of the employee pursuant to the liability saddled on the employer as well as the employee to satisfy the claim for compensation under provisions of the Motor Vehicles Act, 1988 can be sought to be recovered by initiating proceedings under Section 33C(2) of the Industrial Disputes Act, 1947 (for short, the said Act) ? 2. The respondent herein was engaged as a driver with the Irrigation Department of the State Government. On 09/04/1989 when the respondent was driving a Tipper belonging to the Irrigation Department he gave a dash to one Dilip. As a result of that accident Dilip succumbed to injuries. His parents filed claim petition under Section 166 of the Motor Vehicles Act, 1988. In those proceedings the Motor Accident Claims Tribunal directed the Irrigation Department as well as the driver of the Tipper-respondent herein to jointly and severally pay compensation of Rs.50,000/- to the claimants therein. After paying that compensation the Irrigation Department deducted an amount of Rs.500/- per month from the salary of the respondent. In that manner an amount of Rs.37,000/- was deducted from the salary of the respondent. He therefore filed an application under Section 33C (2) of the said Act on 06/03/2004 praying that the petitioners be directed to pay an amount of Rs.37,000/- with interest to him. In the written statement it was pleaded that the claim as made under provisions of Section 33C(2) of the said Act was not tenable. It was further pleaded that in view of the joint and several liability of the Department and its driver such deductions were legally made. 3. The learned Judge of the Labour Court after considering the material on record came to a conclusion that under the Service Rules of the Irrigation Department, if any deductions were liable to be made from the salary of an employee it was necessary to first hold an enquiry and then make such deductions. Since the amounts were illegally deducted from the salary of the respondent at Rs.500/- per month, he was entitled to receive that amount. Hence by judgment dated 17/07/2010 the learned Judge of the Labour Court directed the petitioners to pay an amount of Rs.34,500/- to the respondent within a period of two months. Since the amounts were illegally deducted from the salary of the respondent at Rs.500/- per month, he was entitled to receive that amount. Hence by judgment dated 17/07/2010 the learned Judge of the Labour Court directed the petitioners to pay an amount of Rs.34,500/- to the respondent within a period of two months. Being aggrieved the said judgment has been challenged in the present writ petition. 4. Shri A.V. Palshikar, learned Assistant Government Pleader for the petitioners submitted that the Labour Court committed an error in entertaining and thereafter allowing the application filed by the respondent herein under Section 33C(2) of the said Act. These proceedings were in the nature of execution and there was no question of determining any right or corresponding liability of the parties. Considering the limited jurisdiction of the Labour Court in such matters as held in Central Inland Water Transport Corporation Limited vs. The Workmen and another, (1974) 4 SCC 696 it was submitted that the Labour Court exceeded its jurisdiction in entertaining and adjudicating the claim. It was further submitted that under said provisions, the Labour Court has no jurisdiction to first decide the entitlement of a workman and then compute the benefits. Only when any money is due under any settlement or an award or under provisions of Chapter-VA or VB of the said Act, such proceedings were tenable. In the present case it was submitted that if the respondent was aggrieved by the deduction of the amount of Rs.500/- per month, he ought to have challenged that action of deduction. It was not permissible for the Labour Court to record a finding that such deduction was illegal. Moreover, the respondent did not dispute the award passed by the Motor Accident Claims Tribunal and hence no fault could be found with the action of the petitioners in making such deduction specifically when a finding was recorded that the respondent was negligent while driving the vehicle. Reference was also made to the decision in Municipal Corporation of Delhi vs. Ganesh Razak and anr., (1995) 1 SCC 235 . It was thus submitted that the impugned order was liable to be set aside. 5. The respondent is duly served but he has not chosen to contest the writ petition. Reference was also made to the decision in Municipal Corporation of Delhi vs. Ganesh Razak and anr., (1995) 1 SCC 235 . It was thus submitted that the impugned order was liable to be set aside. 5. The respondent is duly served but he has not chosen to contest the writ petition. With the assistance of learned Assistant Government Pleader for the petitioners I have perused the records of the case and I have given due consideration to his submissions. 6. It is not in dispute that when the respondent was engaged as a driver, the vehicle driven by him met with an accident. Claim Petition No.84/1989 came to be filed seeking grant of compensation. Those proceedings were allowed on 11/11/1994 and the Department as well as the respondent were held jointly and severally liable to pay an amount of Rs.50,000/- as compensation. Pursuant to that adjudication the Department deducted Rs.500/- per month from the salary of the respondent. In the application filed under Section 33C(2) of the said Act reliance has been placed on the judgment in Criminal Case No.1031/1989 which was filed against the respondent and wherein he was acquitted on 14/11/2000. According to the respondent as it was held in that judgment that the respondent was not negligent, the deduction as made from his salary was illegal. It is only on that basis that such application under Section 33C(2) of the said Act was filed seeking repayment of the amounts deducted. 7. Under provisions of Section 33C(1) of the said Act with regard to any money due to a workman from his employer under any settlement or award or under provisions of Chapter VA or VB of the said Act, recovery thereof could be made by resorting to provisions of Section-33C(2) of the said Act. The said provisions had been considered in Central Inland Water Transport Corporation Ltd. (supra) wherein it has been held that such proceedings are in the nature of execution proceedings. Determination of the entitlement to such amount cannot be undertaken under those proceedings. In Municipal Corporation of Delhi (supra) it has been held that the Labour Court cannot adjudicate the dispute in respect of entitlement or the basis of claim as made. It can only interpret the award or settlement on the basis of which the claim is based. 8. Determination of the entitlement to such amount cannot be undertaken under those proceedings. In Municipal Corporation of Delhi (supra) it has been held that the Labour Court cannot adjudicate the dispute in respect of entitlement or the basis of claim as made. It can only interpret the award or settlement on the basis of which the claim is based. 8. In the light of aforesaid legal position it is clear that on the basis of adjudication of the claim petition holding the petitioners as well as the respondent jointly and severally liable, the petitioners as employer had made deduction of an amount of Rs.500/- per month from the salary of the respondent. The respondent sought to rely upon his acquittal in the criminal proceedings along with the finding that he was not negligent in driving the said vehicle. On the other hand the petitioners were relying upon the finding recorded by the Motor Accident Claims Tribunal that the respondent was rash and negligent in driving the vehicle. An adjudication whether such deduction of Rs.500/- per month was legal or not was therefore first necessary. Without having that aspect adjudicated and without questioning the monthly deduction of Rs.500/-, the respondent straightway invoked provisions of Section 33C(2) of the said Act. Without there being any adjudication as to the liability of the petitioners to pay the entire amount of compensation or correctness of the action of the petitioners in deducting that amount, the application under Section 33C(2) of the said Act was not maintainable. Despite raising a specific defence in that regard the Labour Court proceeded to allow the said application. Its order dated 17/07/2010 is thus found unsustainable. 9. In the light of aforesaid discussion the judgment dated 17/07/2010 in I.D.A. Case No.4/2004 is set aside. The application filed by the respondent stands rejected. The Writ Petition is allowed in aforesaid terms with no order as to costs.