H. S. PATEL & 26 v. GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION – & Anr.

===================================================================== H. S. PATEL & 26 - Appellant(s) Versus GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION & ANR. – Respondent(s) ===================================================================== Appearance : MR. R.V. DESAI for Appellants. MR. M.B. GANDHI for Respondents. ================================================================= CORAM : HONOURABLE MR.JUSTICE R.S.GARG HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 04/08/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.S.GARG) LPA/2646/2004 Common Oral Judgement dated 04/08/2005 2

Heard the learned Counsel for the parties.

It appears that the present appellants filed an application under Section-33(C)(2) of the Industrial Disputes Act, 1947 for recovery of certain amount on the foundation that though they were addressed as `work-charge' employees, but, in fact, they were required to work as `Pump Operators' and as they were discharging particular duties, they were entitled to particular payment on the principle of `equal work equal pay'. The application was opposed by the employer, but, after recording the evidence, the Labour Court recorded a finding of fact that the appellants before this Court though were termed as `work-charge' employees, but, in fact, were asked to work as `Pump Operators' and in view of the said fact, they were entitled to particular emoluments. The Establishment viz. Gujarat Industrial Development Corporation, being aggrieved by the legality of the Order dated 30th April, 1999 passed by the Labour Court, Ahmedabad, in Recovery Application No.960 of 1987, filed Special Civil Application No.8422 of 1999. The learned single Judge allowed the Writ Application on the ground that the application was not for enforcement of a preexisting right, it quashed the order passed by the Labour Court. Being dissatisfied with the said judgement, the workmen are before this Court. LPA/2646/2004 Common Oral Judgement dated 04/08/2005 3

Mr.Desai, learned Counsel for the appellants, raised number of questions, including the question that no useful purpose would be served by asking the appellants to go to the Labour Court in a duly constituted reference because on the basis of the admitted facts, the appellants are entitled to particular benefits. His submission is that in a given case where the equities are in favour of a particular party, the High Court must refuse to interfere in the matter.

The appeal is opposed by the other side.

The application under Section-33(C)(2) of the Industrial Disputes Act, 1947 is maintainable for enforcing a preexisting right or the right flowing from a preexisting right. When a right, which is considered to be just and fair, then, on the basis of such a right, the application under Section-33(C)(2) of the Act cannot be allowed. The Supreme Court, in the matter of State Bank of India vs. Ram Chandra Dubey [AIR 2000 SC 3734], in paragraph-8 of the judgement, has very categorically carved out the distinction between the two situations.

So far as the findings recorded by the Labour Court are concerned, the same cannot be taken to be final or binding or legal because those are the findings recorded by a Court, which LPA/2646/2004 Common Oral Judgement dated 04/08/2005 4 was coram non-judice.

In our considered opinion, the learned single Judge was absolutely justified in dislodging the order passed by the Labour Court. The appellants are certainly free to take recourse to law. The appeal is accordingly dismissed. Notice is discharged. Taking into consideration that the matter is pending consideration since 1987, we hereby observe that if within a period of two months, the appellants' make an application to the appropriate Government for making a reference, then, the appropriate Government shall make necessary orders on the application within a period of two months next, to avoid unnecessary delay.

In view of the final disposal of the appeal, Civil Application No.761 of 2005 stands disposed of. Rule is discharged. kamlesh* [R.S.Garg, J.] [Ravi R.Tripathi, J.]