1. Heard learned counsels for the petitioner and respondents.

2. Admit.

3. With the consent of learned counsel for both the parties, the petition is taken up for final hearing at the stage of admission itself.

4. This Writ Petition takes an exception to the order dated 27th November, 2017, passed by the Regional labour Commissioner (Central) Mumbai, thereby dismissing the Claim Application filed by the petitioner under Section 33-C(1) of the Industrial Disputes Act, 1947. (for short called as, “I.D. Act”).

5. This Application under Section 33-C(1) of the I.D. Act, was preferred by the petitioner against respondent No.2, challenging the deduction of an amount of Rs.2,91,312.87, from his leave encashment proceeds, on account of alleged wrong fixation of pay at the time of his promotion from the Feeder post Master II Class to Master I Class, on 16.2.1998. It was submitted by the petitioner that this deduction from his entitlement towards leave encashment proceeds is totally illegal, unjustified and erroneous, considering that the amount was payable as per service conditions/settlements arrived at between him and the respondent No.2, under Mumbai Board Trust Employees Leave Regulations, as modified from time to time. Moreover, such recovery was impermissible in view of the law laid down by the Apex Court, in the case of Chandi Prasad Uniyal and others -vs- State of Uttarakhand and ors [AIR SCW 4742], as the alleged excess payment has been made for a period in excess of five years, before the order of recovery was issued and it would be iniquitous, harsh and arbitrary to allow such recovery of the amount.

6. Respondent No.2 has resisted this application contending inter alia that the petitioner is no more in service of the respondent, No.2, the application itself is not maintainable and as the recovery of the amount is not due under a settlement or award or under the provisions of Chapter V-A and V-B, the application under Section 33- C(1) of I.D. Act, was not maintainable. Secondly, it was submitted that the pay of the petitioner was erroneously fixed on his promotion on 16.2.1998 at Rs.7810/- instead of Rs.7565/-. This irregularity in pay fixation of the petitioner was detected during the course of verification of service record of the petitioner, on his retirement. Thereafter the petitioner was given an opportunity of being heard in the matter on 2.2.2017 by the Financial Adviser and Chief Accounts Officer, wherein the entire procedure followed in the rectification of his pay was explained to the petitioner. It was also informed to the petitioner that as per his letter dated 30.12.2015, he had undertaken that he would refund or authorize the respondent No.2, to recover any excess amount paid to him. Accordingly, this amount of Rs.2,91,312.87, was found to be due to the respondent from the petitioner on account of payment of salary made to him, due to erroneous fixation of the pay scale and hence his application for recovery of the said amount is not at all maintainable and deserved to be dismissed.

7. The Regional Labour Commissioner, while considering the objection raised by the petitioner framed following two issues :-

(i) Whether any inference could be drawn to the wage settlement dated 19/01/2010 to consider the application of the applicant under Section 33-C(1) of the Industrial Disputes Act, 1947? Whether the amount is pre-determined/decided in the wage settlement and whether the recovery application is sustainable in the eyes of law?

(ii) Whether the applicant can recourse to the remedy as provided in the Industrial Disputes Act, 1947 and is there any relationship of employer and workman so as to avail the provisions of the Industrial Disputes Act, 1947?

8. While answering these two issues, it was held by the Regional Labour Commissioner that in view of Section 33-C(1) of I.D. Act, only where the amount is due to a workman or his legal heirs, from an employer under a settlement or an award or under the provisi