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Judgment
A.P. Lavande, J.—Heard Mr. Sardessai, learned Counsel for the petitioner and Mr. Usgaonkar, learned Counsel for respondent no. 3. By this petition, the petitioner challenges notice dated 13th July, 2011 issued by respondent no. 1 and also demand notice dated 4th August, 2011 issued by respondent no. 2 by which an amount of Rs.1,10,441.17 is sought to be recovered from the petitioner.
An Industrial Dispute was raised by respondent no.3 regarding his termination by the petitioner which was referred to the Industrial Tribunal by the Government of Goa. The Industrial Tribunal passed an award dated 4th February, 2002 in Reference NO.IT/72/1994 holding that the action of the petitioner in retrenching the service of respondent no.3 with effect from 21st June. 1993 was not legally justified and directed the petitioner to pay to respondent no.3 full back wages and consequential benefits from the date of retrenchment of his service. The award was challenged by the petitioner before this Court by filing writ petition which was dismissed. Letters Patent Appeal preferred against the said judgment and order was also dismissed. SLP preferred by the petitioner was also dismissed by the Apex Court. Thereafter, respondent no.3 sought recovery certificate u/s 33(C)(1) of Industrial Disputes Act, 1947 (''The Act'' for short) which was issued by respondent no.1 on 24th July, 2008. By communication dated 5th February, 2009, the petitioner requested respondent no.1 to withdraw the recovery certificate. By communication dated 10th February, 2009, respondent no.1 informed the Collector, South Goa District that recovery proceedings "could be held in abeyance". It appears that thereafter, show cause notice was issued to the petitioner, who showed cause. Respondent no.1 again issued fresh notice dated 13th July, 2011 for the same amount, pursuant to which respondent no.2 issued notice of demand dated 4th August, 2011 on the petitioner. The petitioner has challenged the notice dated 13th July, 2011 issued by respondent no.1 as well as demand notice dated 4th August, 2011 issued by respondent no.2.
Mr. Sardessai, learned Counsel for the petitioner submits that the amounts which are claimed by respondent no.3 by way of provident fund, leave wages and bonus, are included in the recovery certificate and respondent no.3 is not entitled to the claim the said amounts and, therefore, respondent no.1 was not legally justified in issuing certificate and consequently, the demand notice is unsustainable in law. Learned Counsel further submitted that respondent no.3 was not entitled to claim any amounts which were not granted in terms of the award and as such, the claim made by respondent no.3 towards provident fund, leave wages and bonus, could not have been included in the recovery certificate and, therefore, the recovery certificate and consequently, the demand notice, are liable to be quashed and set aside. In support of his submissions, Mr. Sardessai placed reliance upon the judgment of this Court in the case of Maharashtra State Road Transport Corporation, Nagpur Vs. Leeladhar and another, .
Mr. Usgaonkar, learned Counsel for respondent no.3 invited my attention to the recovery certificate dated 24th July, 2008 and submitted that respondent no.1 having issued recovery certificate dated 24th July, 2008, could not have issued fresh certificate for the very same amount inasmuch as he ceased to have jurisdiction to issue any certificate contrary to the earlier certificate. Mr. Usgaonkar, further submitted that the petitioner has not challenged the communication dated 24th July, 2008 as well as the recovery certificate issued on the same date i.e. 24th July, 2008 and as such, at this stage, the petitioner is not entitled to challenge the notice dated 13th July, 2011 issued by respondent no.1 and demand notice dated 4th August, 2011 issued by respondent no.2.
Mr. Sardessai, learned Counsel appearing for the petitioner submitted that the petitioner may be allowed to amend the petition to challenge the recovery certificate dated 24th July, 2008.
Having considered the rival submissions and having perused the record, I am of the considered opinion that no case has been made out for interference by this Court in exercise of extraordinary jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of India. Considering the conduct of the petitioner, I am not inclined to grant leave to the petitioner to carry out amendment to the petition to challenge the recovery certificate dated 24th July, 2008.
Recovery certificate dated 24th July, 2008 was issued by respondent no.1 in exercise of powers in terms of Section 33(C)(1) of The Act. If at all the petitioner was aggrieved by the said certificate, the petitioner ought to have challenged the said certificate by resorting to appropriate proceedings. I am of the considered opinion that respondent no.1 having issued certificate in terms of Section 33(C)(1) of The Act, had no jurisdiction to keep the certificate in abeyance or to pass any contrary order and thereafter issue a certificate contrary to earlier certificate. This being the position, the mere fact that respondent no.1 chose to keep the certificate dated 24th July, 2008 in abeyance and again issued the fresh notice dated 13th July, 2011, by itself would not entitle the petitioner to challenge the second notice dated 13th July, 2011, having not challenged the first certificate. In my considered opinion, the petitioner having not challenged the certificate dated 24th July, 2008, is not entitled to challenge the second notice dated 13th July, 2011 and consequently, the demand notice dated 4th August, 2008. Moreover, it is pertinent to note that the present award in favour of respondent no.3 in respect of his termination in the year 1993, was passed in the year 2002. Respondent no.3 has not been able to get the entire amount due in terms of the said award although recovery certificate was issued in the year 2008. On this ground also, the petitioner is not entitled for any indulgence from this Court. Insofar as the judgment relied upon by Mr. Sardessai is concerned, the issue involved in that case was whether the complainant, having not claimed any particular relief in the first complaint, was entitled to claim relief by subsequent application. As such, the issue in the said judgment is entirely different and does not advance the case of the petitioner. For the reasons aforesaid, I do not find any merit in the petition. Hence, the petition is dismissed.