Indian Sailors Home Society Vs. S.D. Pathare - Court Judgment

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labour and industrial - termination - section 33c (2) of industrial disputes act, 1947 - application under section 33-c on ground that respondent was not paid all dues pursuant to settlement dated 28.07.1996 - contention of petitioner that respondent's name was not listed in schedule to settlement and no declaration was executed in accordance with settlement not maintainable - held, respondent entitled to amount claimed. - - 1,95,174/- is contrary to the pleadings of the respondent and therefore is bad in law. 1,95,174/-.according to the learned advocate for the petitioner, it was obligatory upon the labour court to apply its mind to this issue and to arrive at the finding as to whether the figure arrived at in relation to the claim pertaining to the dues was correctly arrived at or not and having not done so, the impugned order is to be held as bad in law. fourthly, it is sought to be contended that the labour court failed to take note of the admission on the part of the respondent that he was already paid with the sum of rs. in the case in hand, as already pointed out above, the letter dated 28-10-1997 by the petitioners themselves disclose that the settlement dated 25-7-1996 was accepted by the respondent and the said fact was duly noted by the petitioners, 8. as regards the second ground of challenge pertaining to the evidence being beyond the scope of the pleadings in the original application and the relief being based on such evidence and therefore the impugned order being bad in law, it is to be noted that the application under section 33-c(2) of the said act by the respondent was specifically in relation to the difference in wages paid and payable to the respondent, that is to say, it was in relation to the amount of difference between the amount of wages which ought to have been paid to the respondent in terms of the settlement dated 25-7-1996 and the amount of wages which were actually paid. ' applying this rule to the facts of the case, it is apparent that the respondent in his application under section 33-c(2) of the said act had clearly pleaded that the claim of the respondent was in relation to the difference in wage amount and secondly it was in relation to the period from july, 1990 onwards till the disposal of the application. the case of the respondent in the matter in hand was clearly disclosed in the application and the respondent only quantified the amount which was due till the date of filing of the affidavit to be rs. 11. as regards the third ground of challenge, bare regarding of the written statement as well as the evidence which was led by the petitioners before the labour court would disclose that at no point of time the petitioners sought to dispute the calculation for arriving at the figure pertaining to the dues by the petitioners to the respondent.r.m.s. khandeparkar, j.1. heard the learned advocate for the petitioners and the respondent in-person. perused the records. the petitioners challenge the judgment and order dated 3-12-2001 passed by the labour court, mumbai on an application filed by the respondent under section 33-c(2) of the industrial disputes act, 1947, hereinafter called as 'the said act'.2. few facts relevant for the decision are that the respondent was employed with the petitioners since december, 1986. in february 1991 the services of the respondent came to be terminated and being aggrieved, the respondent raised dispute which was referred to the labour court for necessary adjudication and by award dated 8-7-1997 the respondent was directed to be reinstated with full back wages and with continuity of service. the respondent was accordingly reinstated in service by the petitioners. while the dispute between the petitioners and the respondent was pending for adjudication, a settlement was arrived at between the petitioners and its employees on 25-7-1996. pursuant to the reinstatement of the respondent, and in june 1998 the respondent while contending that he was not paid with all the dues which the respondent was entitled to, filed an application under section 33-c of the said act. it was the case of the respondent that in terms of the award dated 8-7-1997 directing reinstatement of the respondent with full backwages and continuity in service, and considering the payment already made by the petitioners to the respondent, a sum of rs. 1,23,001/- was still due and payable for the period from 2-1-1991 to 27-8-1997 being the difference in the amount of wages and the interest thereon and that which the petitioners were required to pay. the claim of the respondent was denied by the petitioners on the ground that the settlement dated 25-7-1996 was not applicable to the respondent as his name was not listed in the schedule-a to the said settlement and the respondent had not executed the declaration in accordance with the said settlement and that in the absence of compliance of both these requirements the respondent was not entitled to claim benefit under the said settlement. in the course of hearing of the matter, the respondent filed affidavit in support of his claim and therein quantified the amount payable by the petitioners to the tune of rs. 1,95,174/- being the dues for the period from 1-7-1990 to 31-7-1999. the labour court on analysis of the materials placed before it held that the petitioners were liable to pay a sum of rs. 1,95,174/- to the respondent in terms of the settlement dated 25-7-1996 on or before 30-1-2002 failing which the amount would carry interest at the rate of 9% per annum from the date of the judgment i.e., 13-12-2001 till the date of the payment.3. the impugned judgment is sought to be challenged on four grounds. firstly, that the respondent was not entitled to claim benefit under the settlement dated 25-7-1996 as neither his name was figuring in the schedule annexed to the settlement nor he had submitted the declaration duly executed in accordance with the procedure prescribed under the said settlement, in spite of repeated requests in that regard by the petitioners. in that respect, attention is drawn to three letters written by the petitioners to the respondent, namely, letters dated 27-9-1997, 18-10-1997 and 28-10-1997. reliance is placed in the decisions in the matter of dilip p. mehta v. mercury paints and varnishes ltd, and ors., reported in 2003 2 clr 888 and pal vrs employees welfare association v. premier automobiles ltd. and anr., reported in 2002 2 clr 645 in support of the contention that in the absence of- compliance with the requirement of the settlement, no benefit can be claimed thereunder by the respondent and hence the claim based upon the settlement could not have been stated to be a subsisting right within the meaning of the said expression under section 33-c(2) of the said act. secondly, it is sought to be challenged on the ground that the claim of the respondent in the application under section 33-c of the said act was to the tune of rs. 1,23,001/- and therefore no evidence beyond the scope of the pleadings could have been made the ground for grant of relief in excess of what was prayed for in the original application and hence the impugned judgment directing payment of rs. 1,95,174/- is contrary to the pleadings of the respondent and therefore is bad in law. reliance is sought to be placed in that regard in the decisions of the apex court in shankar chakravarti v. britannia biscuit co. and anr., reported in : (1979)iillj194sc and in j.k. iron and steel co. ltd., kanpur v. the iron and steel mazdoor union, kanpur, reported in : (1956)illj227sc . thirdly, the impugned judgment is sought to be challenged on the ground that the labour court did not apply its mind to the issue as to whether the respondent had established his claim by producing necessary evidence in support thereto inasmuch as that the labour court even did not bother to ascertain whether there had been proper calculation done by the respondent to arrive at the figure of rs. 1,95,174/-. according to the learned advocate for the petitioner, it was obligatory upon the labour court to apply its mind to this issue and to arrive at the finding as to whether the figure arrived at in relation to the claim pertaining to the dues was correctly arrived at or not and having not done so, the impugned order is to be held as bad in law. fourthly, it is sought to be contended that the labour court failed to take note of the admission on the part of the respondent that he was already paid with the sum of rs. 92,205/- at the time of reinstatement in relation to the arrears and while granting the relief, if any, the labour court ought to have given credit in favour of the petitioner to the said amount and having not done so, the direction to pay the sum of rs. 1,95,174/- discloses arbitrary exercise of jurisdiction on the part of the labour court while allowing the application under section 33-c(2) of the said act. on the other hand, the respondent, appearing in-person, while drawing attention to the original application has submitted that though the claim therein was quantified at rs. 1,23,001/-, it was specified that the same was in relation to the period upto 27-8-1997 and the prayer was made for direction for payment of the dues till the date of final disposal of the application and as evidence in the form of an affidavit was produced during the pendency of the proceedings and in the month of june, 2001, the amount was quantified at rs. 1,95,174/- being the amount payable till july, 1999 which was the last month till which the amount was due and payable. he has further submitted that the amount of rs. 92,205/-, which was paid, was in relation to the difference in the amount payable and actually paid to the respondent. further, drawing attention to the original application, the respondent has submitted that the application under section 33-c(2) of the said act was essentially in relation to the amount due and payable towards the difference in wages i.e., the difference between the amount which ought to have been paid to the respondent in terms of the settlement dated 25-7-1996 and the amount which was actually paid, and being so, the amount or rs. 92,205/- which did not form part of such difference in the amount could not have been deducted from the amount of rs. 1,95,174/- and hence no fault can be found with the order of the labour court in that regard. he has also drawn attention to the fact that the respondent had already signed the declaration in terms of the settlement dated 30-9-1997 when the said settlement and the declaration form was brought to the notice of the respondent.4. as regards the first ground of challenge, the objection on the part of the petitioners for allowing the respondent to claim benefit under the settlement dated 25-7-1996 is squarely on two counts: firstly, his name did not figure in the schedule-a to the said settlement and the respondent had not executed the declaration in the manner it was required to execute. as regards the absence of name of the respondent in the schedule-a to the settlement, it is pertinent to note that the said settlement was arrived at between the parties at the time when there was a dispute pending between the petitioners and the respondent on account of termination of the services of the respondent by the petitioners with effect from 1-2-1991. admittedly, the order of reinstatement of the respondent in the services of the petitioners was passed on 8-7-1997 i.e. much after the execution of the settlement dated 25-7-1996. being so, there was no occasion for the respondent's name to figure in the schedule annexed to the settlement. however, it is also pertinent to note that though in the written statement filed by the petitioners in the labour court the claim of the respondent for the benefits under the settlement dated 25-7-1996 was sought to be disputed and denied, yet in the course of recording of the evidence, the said defence was totally given a go-by. in fact, what was sought to be contended in the course of the hearing of the matter before the labour court was that the petitioners were prepared to pay the dues to the respondent in accordance with the settlement dated 25-7-1996 provided 'the respondent executes the declaration in accordance with the said settlement. in other words, it was not the case of the petitioners that the respondent was not entitled to claim benefit under the settlement dated 25-7-1996 but what was required of the respondent was that he was required to complete certain formalities to claim the benefit under the said settlement. at this stage, it is also necessary to take note of one of the letters which is sought to be relied upon by the petitioners, namely, the letter dated 28-10-1997, addressed to the respondent by the petitioners, wherein the petitioners themselves had stated that they had taken note of the respondent's consent to accept the terms of the settlement dated 25-7-1996. the question of accepting the terms of the settlement dated 25-7-1996 by the respondent could have arisen only when the said offer was made by the petitioners to the respondents. once it is the case of the petitioners themselves in their letter dated 28-10-1997 that they had noted the consent of the respondent for acceptance of the term of the settlement dated 25-7-1996, it is abundantly clear that the petitioner themselves had volunteered to offer the benefit under the settlement, dated 25-7-1996 to the respondent and the said offer was accepted by the respondent. undoubtedly, the letter also required execution of a declaration. however, the fact remains that the right to claim benefit under the settlement dated 25-7-1996 in favour of the respondent was never sought to be disputed or denied by the petitioners even before the respondent had approached the labour court under section 33-c(2) of the said act. being so, it is too late in the day for the petitioners to dispute the right of the respondent to claim benefits under the said settlement.5. as regards the declaration which was required to be executed by the respondent under the said settlement, it is a matter of record that the respondent did sign the declaration on 30-9-1997. undoubtedly, it is the case of the petitioners that the said execution of the declaration was not in accordance with the requirement of the procedure under the settlement. though it is sought to be contended that the said execution of the declaration was not in accordance with the requirement of the procedure under the settlement, neither the pleadings nor the arguments advanced across the bar* could reveal in what way the procedure was not followed by the respondent in executing the said declaration. what is also pertinent to note is that the letter dated 28-10-1997 nowhere refers to any defect in execution of the said declaration by the respondent on 30-9-1997. on the contrary, the letter in that regard reads thus :--'it appears that by oversight your signature on the declaration has been deleted.'in other words, there is a clear admission on the part of the petitioners themselves in the letter dated 28-10-1997 that the respondent did execute the declaration prior to 28-10-1997 and by oversight his signature was deleted and it is also a matter of record that the said deletion was caused by the officer of the petitioners themselves. what was the occasion for deletion of the said signature and what was the justification for such deletion is neither disclosed nor revealed from the records, apart from mere claim that the execution of the declaration was not in accordance with the procedure under the settlement. what was the defect in the execution of the declaration and how the procedure in that regard was required to be complied with has not been disclosed by the petitioners. being so, it is apparent that the petitioners for their own fault of deletion of the signature of the respondent, which is admitted by them in the letter dated 28-10-1997 as having been done by oversight, seek to deny the claim of the respondent without any lawful basis and justification. as rightly observed by the labour court, the said execution of the declaration is to be construed as proper execution of the declaration by the respondent.6. the decision in premier automobiles' case (supra) has no application to the matter in issue. in the said case, the settlement dated 8-9-1994 on the basis of which claim has been preferred specifically and unambiguously provided that the benefits arising out of the settlement dated 8-9-1994 were to be available to the workmen who were on the roll of the company as on 1-7-1994 and since the members of the appellant who were seeking to claim benefit under the said settlement dated 8-9-1994 were not on the roll of the company on 1-7-1994, could not have claimed any right under the said settlement and therefore it was held that they had no subsisting right on the basis of the said settlement.7. in mercury paints (supra), it was a case where the applicant dilip mehta had not accepted the settlement in accordance with the provisions contained in the settlement and therefore it was held that no right had accrued in favour of the applicant under the said settlement. in the case in hand, as already pointed out above, the letter dated 28-10-1997 by the petitioners themselves disclose that the settlement dated 25-7-1996 was accepted by the respondent and the said fact was duly noted by the petitioners,8. as regards the second ground of challenge pertaining to the evidence being beyond the scope of the pleadings in the original application and the relief being based on such evidence and therefore the impugned order being bad in law, it is to be noted that the application under section 33-c(2) of the said act by the respondent was specifically in relation to the difference in wages paid and payable to the respondent, that is to say, it was in relation to the amount of difference between the amount of wages which ought to have been paid to the respondent in terms of the settlement dated 25-7-1996 and the amount of wages which were actually paid. secondly, the application was not only restricted to the period from july, 1990 to august, 1997 but it was also for the period from july, 1990 till the date of disposal of the application. undisputedly, the claim which has been granted is in relation to the period from july, 1990 to july, 1999 and the judgment has been passed in december, 2001. being so, it is clear that the pleadings in the application under section 33-c(2) of the said act were pertaining to the difference in wages for the period starting from july, 1990 till the disposal of the application, and the application was disposed of in december, 2001 while ordering the payment of wages till july, 1999. being so, by no stretch of imagination it can be said that the evidence was beyond the scope of the pleadings or that the relief granted is based on the evidence beyond the scope of the pleadings.9. the decision of the apex court in britannia biscuit company's case (supra) is to the effect that a contention to substantiate which evidence is necessary has to be pleaded. it has also been ruled therein that when there is no pleading raising a contention, there cannot be any occasion for substantiating such non-existing contention by evidence and the allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side gets no notice of it and if entertained, it can tantamount to granting an unfair advantage to the beneficiary of such order. it was ruled that :--'the rules of fairplay demand where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. but if there is no pleading there is no question of proving something which is not pleaded. this is very elementary.'applying this rule to the facts of the case, it is apparent that the respondent in his application under section 33-c(2) of the said act had clearly pleaded that the claim of the respondent was in relation to the difference in wage amount and secondly it was in relation to the period from july, 1990 onwards till the disposal of the application. the quantification of the amount is merely a proof in support of the said contention. it is elementary that no pleading need to include the evidence in support of the contention. the proof is to be produced in the course of the evidence. the basic case in the form of pleadings is to be disclosed in the application. the case of the respondent in the matter in hand was clearly disclosed in the application and the respondent only quantified the amount which was due till the date of filing of the affidavit to be rs. 1,95,174/-. being so, it cannot be said to be in any manner contrary to the law laid down by the apex court in britannia biscuit company's case.10. the apex court in j.k. iron and steel company's case (supra) has held that it was not open to the tribunals to fly off at a tangent and to disregard the pleadings to reach any conclusion that they thought were just and proper. reliance in this decision, is thoroughly misplaced in the facts of the case in hand. the petitioners have not been able to point out any finding or conclusion having been arrived at by the labour court contrary to the materials on record, or contrary to the pleadings by the respondent. as already held above, the evidence led by the respondent is in consonance with the pleadings in the application under section 33-c(2) of the said act and hence the ruling relied upon can be of no help to the petitioners.11. as regards the third ground of challenge, bare regarding of the written statement as well as the evidence which was led by the petitioners before the labour court would disclose that at no point of time the petitioners sought to dispute the calculation for arriving at the figure pertaining to the dues by the petitioners to the respondent. on the contrary, in the course of recording of the evidence it was sought to be contended that the respondent having received the sum of rs. 92,205/-, a credit of the said amount ought to be given to the petitioners and having done so and deducting the said amount from the amount of rs. 1,23,001/-, the amount due and payable would be rs. 30,796/- which itself disclose that the calculations by the respondent for the period upto the date of filing of the application to the tune of rs. 1,23,001/- was not disputed. it is also not the case of the petitioners that as regards the further calculation i.e. upto the period of july, 1999 was not correctly done by the respondent. once the petitioners did not raise any dispute regarding the calculation done by the respondent in relation to the amount of difference in wages payable by the petitioners to the respondent, there was no occasion for the labour court to deal with the said issue. the courts are expected to deal with an issue only when the same is either raised by the parties or arises on account of the materials placed before the court or the statutory provisions mandates such consideration. undisputedly, the issue regarding the calculation cannot be said to be an issue of law. it was essentially an issue of fact and therefore it was necessary for the petitioners to raise the said issue if the petitioners wanted to dispute, the calculation done by the respondent. having not done so, it is not permissible for the petitioners to raise the issue in that regard for the first time in the writ petition against the order of the labour court.12. as regards the fourth ground of challenge, it is apparent from the records that the sum of rs. 92,205/- was in relation to the arrears payable to the respondent and were accordingly paid. the claim in the application under section 33-c(2) of the said act was in relation to the difference of amount actually paid and which ought to have been paid in terms of the settlement dated 25-7-1996. being so, there was no justification for deduction of the amount of rs. 92,205/-from the said amount of difference which is quantified at rs. 1,95,174/-. it is not the case of the petitioners that the said amount of rs. 92,205/- formed part of the difference in the amount of wages paid and those payable as claimed by the respondent. there is no substance in the fourth ground of challenge.13. for the reasons stated above, therefore, there is no justification for interference in the impugned award. the petition, therefore, fails and is hereby dismissed with costs.14. at this stage, the learned advocate for the petitioners prays for continuation of the interim order and stay of the judgment passed today to enable the petitioners to have another opinion in the matter. considering that there is absolutely no justification for challenge to the impugned judgment and order, i do not find any reason for continuation of the interim order or stay of the judgment passed today. the request for the stay is, therefore, rejected.