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Judgment
Biren Vaishnav, J
1 Heard Mr.H.S.Munshaw, learned counsel for the petitioner. Though served, nobody appears for the respondents.
2 In this petition under Article 226 of the Constitution of India, the order under challenge is that of the Labour Court, Rajkot, in Recovery Application No. 55 of 2019 dated27.01.2022, by which, the Labour Court has directed the petitioner-Agency to pay an amount of Rs.1,49,394/- as minimum wages for the period from 10.1.1992 to 31.12.2018.
3 Mr.H.S.Munshaw, learned counsel for the petitioner, would submit that the respondent was working as a Peon on a part time basis under the District Rural Development Agency. He was accordingly paid remuneration. He was discontinued from service on 23.03.1985.
3.1 On a challenge made by the deceased, Dilipbhai Upadhyaya before the Labour Court, the order of reinstatement without backwages was passed on 30.11.1991. Challenge to the award was dismissed in 1992. The deceased, petitioner, was reinstated as a part timer with effect from 12.05.2003. The deceased approached the Labour Court by filing Recovery Application No. 55 of 2019 praying for a differential amount from 10.01.1992 to 31.12.2018 on the ground that he was entitled to the minimum wage for that period. That order is under challenge.
3.2 Mr.Munshaw, learned counsel for the petitioner, would submit that for entitlement for the benefits under the Minimum Wages Act, unless and until a pre-existing right is established, no recovery proceedings can be filed. He would rely on a decision in the case of Bombay Chemical Industries vs. Dy. Labour Commissioner & Anr., reported in (2022) 5 SCC 629., the relevant paras 8 to 11 of the decision read as under:
“8 As per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. (supra), the labour court’s jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See Municipal Corporation of Delhi Vs. Ganesh Razak and Anr. (1995) 1 SCC 235).
9 In the case of Kankuben (supra), it is observed and held that whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C (2) of the ID Act. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C (2) of the ID Act while the latter does not.
Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to proceedings by way of right crystalized and/or initiate reference adjudicate appropriate and get his upon.
11 Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section 33(C)(2) of the Industrial Disputes Act.”
4 Apparently therefore, for the purposes of entitlement to a wage under the Minimum Wages Act, unless a competent authority adjudicates the issue, it cannot be said to be a pre-existing right and be decided by the Labour Court under the proceedings under Sec.33(C) (2) of the Act.
5 Accordingly, the order dated 27.01.2022 passed in Recovery Application No. 55 of 2019 is hereby quashed and set aside. The petition is allowed, accordingly.