JUDGMENT : (M. K. Thakker, J.) 1. Rule returnable forthwith. Learned advocate Mr.Naik waives service of notice of Rule on behalf of respondent. 2. This petition is filed under Article 14, 19, 226 and 227 of the Constitution of India with following reliefs:- “A) This Hon'ble Court be pleased to Writ of certiorari or any other writ of certiorari, quashing and setting aside the judgment and order dated 28.04.2022 passed by the respondent No.2- Presiding Officer, Labour Court, Vadodara in Recovery Application No.90 of 2018 and be pleased to allow the recovery application No.90 of 2018 filed by the petitioner and be pleased to direct the respondent No.1-company to pay an amount of Rs. 20,15,758/- which is claimed in the recovery application with interest at the rate of 12% p.a. (B) Pending admission, hearing and final disposal of the petition, this Hon'ble Court be stay the execution, operation and implementation of the impugned judgment and order dated 28.04.2022 passed by the respondent No.2-Presiding Officer, Labour Court, Vadodara in Recovery Application No.90 of 2018, at Annexure-A to this petition. (C) Cost of this petition, be provided to the petitioner. (D) This Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice.” 3. Facts arising for the consideration under this petition is that the petitioner was an employee of the respondent-company and was appointed as Assistant Technician and worked with the respondent-company for more than 40 years and thereafter, he retired as a Senior Technical Assistant (Electrical) on reaching the age of superannuation on 31.08.2017. 4. It is the case of the petitioner that earlier on 28.05.1983, the petitioner was illegally terminated from the services and therefore, dispute was raised before the Industrial Court being Reference LCV No. 357 of 1983 in which the award was passed in the favour of the petitioner by granting the benefit of reinstatement alongwith 50% back wages. Petition was filed by the petitioner before this Court being Special Civil Application No.2964 of 1988 and 5483 of 1993 wherein, the settlement arrived between the parties and the respondent-company agreed to pay monetary benefits and other consequential benefits to the petitioner which were wrongly withheld by the respondent-company. The aforesaid petition was disposed of on 02.07.1993. 4.1. Petition was filed by the petitioner before this Court being Special Civil Application No.2964 of 1988 and 5483 of 1993 wherein, the settlement arrived between the parties and the respondent-company agreed to pay monetary benefits and other consequential benefits to the petitioner which were wrongly withheld by the respondent-company. The aforesaid petition was disposed of on 02.07.1993. 4.1. There was further settlement which arrived between the Union of the respondent No.1-company and the respondent on 21.07.1997 wherein, the company agreed to release the various benefits and promotion to the employees to the company. As per the settlement, the petitioner has claimed that he is entitled for the benefit of promotion in Grade IIC/D on completion of seven years of service and therefore, the representations were made by the present petitioner to the respondent No.1- company. It is further alleged by the present petitioner that first time-bound upgraded promotion was released of Grade IIIA vide order dated 14.09.2001 with effect from 13.09.2001 and therefore, petitioner would be entitled for upgraded promotion to Grade IIC/D on completion of seven years from 13.09.2001 which would be completed on 13.09.2008. The reply was given by the respondent No.1-company on 17.10.2008 stating that on completion of seven years an employee is eligible for time-bound promotion. However, considering the service record and performance appraisal report of last three years which are required to be satisfactory and no adverse record if found against the employee, only then the promotion can be granted. As it is stated in the aforesaid communication that petitioner does not fulfill the said requirement and therefore, petitioner is not eligible for time bound promotion. Further representations were made by the petitioner stating that as per the settlement which arrived between the Union and the respondent-company on 21.07.1997, no such condition was imposed. However, only with a view to deprive the benefit of the settlement respondent-company imposed such conditions and has refused to release the benefits of promotion. Thereafter, the representations which were made on 29.10.2012, 02.11.2015, 31.03.2016, 27.04.2017 and 29.12.2017 remained unattended. 5. However, only with a view to deprive the benefit of the settlement respondent-company imposed such conditions and has refused to release the benefits of promotion. Thereafter, the representations which were made on 29.10.2012, 02.11.2015, 31.03.2016, 27.04.2017 and 29.12.2017 remained unattended. 5. On attaining the age of superannuation, the petitioner retired on 31.08.2017 and thereafter the recovery applications were filed being No.90 of 2018 before the learned labour court under section 33(2-C) of the ID Act by submitting the calculations of the amount payable to the petitioner for the period for which he was entitled for the promotion of Grade IIC/D as per the settlement dated 21.07.1997. Learned labour court has rejected the aforesaid application on the ground that as the petitioner does not appear for the interview which is a mandatory requirement as per the settlement, therefore, he is not entitled for the aforesaid benefits and the application cam to be rejected on 28.04.2022 which is subject matter of challenge before this Court. 6. Heard learned advocate Mr.Dipen Desai for the petitioner and learned advocate Mr.Kunan Naik for the respondent. 6.1. Learned advocate Mr.Desai submits that the reasons assigned for the rejection of the application that petitioner is required to clear the interview and as he did not appear in the interview process after 2008 having no barring as there was no criteria for giving benefit of promotion Grade IIC/D as per the settlement dated 21.07.1997 and only the requirement is that on completion of seven years service in grade IIIA, petitioner will be placed in Grade IIC/D. 6.2. Learned advocate Mr.Desai further submits that it is neither the reason for rejecting application nor the case of the respondent that the criteria which is mentioned in II of terms of settlement would be applicable to the present petitioner, as the terms of settlement itself suggests that interview process would be required to be cleared for the employees who are claiming regular promotion in Grade IIC/D. Learned advocate Mr.Desai submits that as the petitioner was claiming time bound promotion the said prons would not be applicable in the case of the present petitioner, however, on wrong interpretation the aforesaid terms of the settlement the application came to be rejected. Learned advocate Mr.Desai submits that learned labour court has committed further error in holding that petitioner did not appear for the interview after 2008 as there was no interview held after 2008 and therefore, no question arises for appearing for the interview in absence of any interview process. Learned advocate Mr.Desai submits that the benefit which are accrued from the settlement dated 21.07.1997 is required to be released in favour of the present petitioner, therefore, application of the petitioner was required to be allowed. However, learned labour court without giving any satisfactory reasons has rejected the application and therefore, this petition is required to be allowed. 7. Per contra it was submitted by learned advocate Mr.Naik for the respondent-company that the settlement which was executed between the Union and the respondent No.1-company on 21.07.1997 was only with a view to remove the anomaly which were there in the memorandum of settlement dated 03.04.1995 and as it is stated in the recital of the settlement that except this amendment, other conditions remained unchanged. Learned advocate Mr.Naik submits that till retirement he did not approach any forum for raising his grievance and the claim which was made with regard to the benefit of the promotion Grade IIC/D cannot be said a preexisting right and therefore, learned labour court has rightly refused the prayer which was made in application under section 33 (C)(2) and therefore, no interference is required and the petition is required to be rejected. 8. Having considered the submission made by the learned advocate and the reasons assigned by the learned labour court wherein, learned labour court has held that petitioner is not entitled for the benefits of promotion Grade IIC/D on the ground that petitioner has not cleared the interview process which is mandatory requirement as per the settlement scheme. 8. Having considered the submission made by the learned advocate and the reasons assigned by the learned labour court wherein, learned labour court has held that petitioner is not entitled for the benefits of promotion Grade IIC/D on the ground that petitioner has not cleared the interview process which is mandatory requirement as per the settlement scheme. On referring the memorandum of settlement which is a part of the record it transpires that there are two different categories of employees for which the settlement is arrived, one is that if the benefit of time bound promotion is to be granted then as per condition No.I of terms of settlement, employee has to complete the seven years service in grade IIIA and in case of regular promotion as per condition No.II of settlement terms of the the promotees has to appear before the authority in the interview process and in the case where the employees are claiming the promotion on completion of four years in grade IIIA then also the interview has to be cleared by the employees. In the instant case it is not disputed that the present petitioner has already been promoted to grade IIIA on 13.09.2001 and therefore, as per the memorandum of settlement-term on completion of seven years petitioners would be entitled for the benefit of Grade IIC/D from 13.09.2008. 9. Learned labour court without examining the aforesaid aspect has rejected the application only on the ground that the petitioner is claiming the benefit of promotion on the basis of the settlement which arrived between the petitioner and the respondent in the proceedings filed before this Court being Special Civil Application No.5483 of 1993 which was never the case of the petitioner. Infact the case of the petitioner is that he is entitled for the benefit of the settlement which is arrived between the Union and the respondent dated 21.07.1997. However, learned labour court has by recording incorrect facts rejected the application by holding that as the petitioner did not clear the interview process therefore, he is not entitled for the promotion benefit. 10. However, learned labour court has by recording incorrect facts rejected the application by holding that as the petitioner did not clear the interview process therefore, he is not entitled for the promotion benefit. 10. This Court is of the view that the learned labour court ought to have decided the case after examining the contention made in the application of the present petitioner filed under section 33 (C)(2) as well as the reply which was filed by the respondent No.1, however, by creating new reasons learned labour court has decided the application and therefore present petition is required to be allowed. 11. Resultantly this petition is allowed and the impugned order dated 28.04.2022 is hereby quashed and set aside. The matter is remanded back to the learned labour court and learned labour court is directed to decide the recovery application No.90 of 2018 after considering the contention made by the learned advocates for the respective parties and averments made in the application as well as in the reply filed by the respondent No.1-company. 12. Considering the fact that petition has already retired from the service, learned labour court is directed to conclude the proceedings within a period of four months preferably from the date of receipt of the order. 13. Rule made absolute to the above extent. 14. Learned labour court shall decide the case without being influenced by any observation made herein. 15. The petition is disposed of accordingly.