HIGH COURT TO BE APPROCH OR NOT ?
NAVIN SURTI
(Querist) 04 August 2011
This query is : Resolved
Sir,
I m the permanent employee of MODI RUBBER LTD., MUMBAI. In 1993 MODI RUBBER LTD., MUMBAI have illegaly terminate my service alongwith other employee. I have approched 11th Labour court by filing complaint No.ULP 289/93 wherein Court passed following order on 26th November 1999 :-
. THE COMPLAINT STANDS ALLOWED WITH NO ORDER AS TO COST.
IT IS DECLARED THAT THE RESPONDENTS CO.,HAS COMMITED UNFAIR LABOUR PRACTICES AS PER ITEM 1(b) AND (f) TO SCH. iv OF THE ACT,1971
THE RESPONDENT CO., IS HEREBY DIRECTED TO REINSTATE COMPLAINANT-WORKMAN ALONGWITH BENIFITS OF CONTINUITY OF SERVICE AND PAY HIM 50% OF BACK WAGES WITHIN A MONTH FROM TODAY.
SIR,MY QUESTION( 1)-Dose the above order speak about CONSEQUENTIAL BENIFITS ?
Company have reinstae me on 05th Octoberr,2000(As Lc order was challenged in Industrial Court & High Court) as company"s challenge rejected by HC and paid me 50% backwages as per their calculation.Company have not counted the amount of prior to termnation and after the 11th Labout Court Order(26/11/99) till actul reinstatement and also NOT CONSIDER other benifits for which i am eligible.Hence I again approched 11th LC by filing Misc.application ULP 06/2001 where in court have passed following order on 15th June,2002 :-
THE APPLICATION OF THE APPLICANT IS PARTLY ALLOWED.
THE CLAIM OF THE APPLICANT AS REGARDS BACKWAGES IS ONLY PARTLY ALLOWED COMPUTING THE BENIFITS FROM 13.9.1993 TO 30.11.1999(FROM THE DATE OF TERMINATION TO 11TH LABOUR COURT ORDER).THE APPLICANT IS ENTITLED TO RECEIVE FROM HIS EMPLOYER DIFFERENCE IN 50% OF BACK WAGES AMOUNTING TO Rs.35,345/- AGAINST THE CLAIM OF Rs.2,47,230/-
From non operative part-IT IS AT LIBERTY TO THE APPLICANT TO FILE APPROPRIATE CLAIM FOR CLAIMING WITHHELD WAGES UNDER THE APPROPRIATE LAW INVOKING APPROPRIATE PROVISON OF LAW. On baisis of this I again approched 11th LC by filing Application (IDA)No.357/2002. By amendment i add Salary amount as per Industrial Court order 1095/2001 and HIgh Court Order which you are handling.11th LC have rejected both claim by saying : On perusal of the order of 11th LC in Misc.application ULP 06/2001 it is crystal clear that the relief granted to the applicant was only of 50% back wages and the amount of back wages was also computed for specific period from 13.9.93 to 30.11.99 by the court it self.There is no order passed by the court granting any relief of continuity of service or attendant benifits to the applicant.Therefore to my mind , as per the order passed in this proceeding which was based onorder passed in 289/93 matter.The applicant is entitled only to get 50% back wages.Therefore to my mind , the other claims made by the applicant in this present application on basis of order passed in mattr 289/93,can not be granted to the applicant , as those claims made by himnot on any adjudication of any court .The Ld.advocate for applicant argued that,the judgment passed in 6/2001 has granted relief to him regarding his other claims,though such reliefs were not granted by operative part of the judgement.However I am unable to accept this contention , as the operativ order is very specific and is made in details..To my mind ,the applicant shoud have taken proper steps for review the application before that court for mentioned all other amounts which are mentioning in the body of the judgement ,in the operative order if such claime were really granted to him by the court.IT IS CARDINAL PRINCIPLE OF LAW THAT,RELIEFS WHICH ARE NOT GRANTED IN OPERATIVE PART, ARE TO BE REGARDING AS REJECTED.Hence as the operative order mentioned that applicant is entitled on for 35,345/-the applicant can claim only that relief in the present application.THERE IS NO SCOPE UNDER Sec.33C(2) of I. D. Act TO INTERPRET THE JUDGMENT PASSED BY A COMPETENT COURT, AND GRANT ANY RELIEF AS PER DIFFERENT INTERPRETATION.
The another part of the claim of the applicant is based on order passed in ulp 1095/01.However from the evidence on record as wellas from the arguments from both sides it appear that , a WP against the order 1095/01 and thereagter the order passed in WP is CHALLENGED before the DIVISION BENCH OF HC IS STILL PENDING. When order passed in 1095/01 has yet not reached to the finality and when matter is subjudice before HC ,NO RELIEF REGARDING THIS CLAIM CANBE GRANTED AT THIS STAGE.
THE APPLICATION STANDS REJECTED.
Sir,
NOW FOLLOWING QUESTION ARE ARISE FROM MY SIDE :-
1)Dose the order dtd. 26/11/99 in 289/93 speak about CONSEQUENTIAL BENIFITS ?
2)Approching of Courts against Order dtd.26/11/99 like Misc App.06/2001 and specially 357/2002 are in APPROPRIATE PROVISON OF LAW ?.
3) Can I challenge the order dtd.09/02/2011 of 11th LC in HC & GET ORDER IN MY FAVOUR FROM HC? or wait till the FINAL JUDGEMENT OF HIGH COURT IN LPA/127/08 AGAINST WP 3505/06-B.joseph and ors(I M AT Sr.04) v/s.MODI RUBBER LTD-.
4) From the date (9/2/2011) of Order passed by LC TILL what date I can approch High Court?
5)Is it adviseable to approch HC?
Thanks & regards,
NAVIN SURTI
naveensurti@gmail.com
Advocate Rajkumarlaxman
(Expert) 05 August 2011
YOu can aproach the Highcourt still and try it but matter being subjudice we have to look into the orders and its clearity first.Please feel free to call if you need exact clarification when you come to HIghcourt Mumbai next time along with your papers. we can speak to our senior . My no is 9167004496/9323690563
