Point of Law: The limitation provided for in it is for requesting appropriate government for issuance of recovery certificate, as provided in sub-section (1) of Section 33C of ‘the Act’ and present proceeding is not being under sub-section (1) of Section 33C of ‘the Act’, the said limitation would not apply to it.

ORDER :

1.0. By way of this petition, under Articles 226 and 227 of the Constitution of India, the petitioner challenges the order dated 18.06.2016 passed by the Presiding Officer (J.D.), Labour Court No.3, Vadodara, in Recovery (C- 2) Application No.320 of 2009, whereby the petitioner was ordered to pay salary from 01.05.2005 to 14.10.2009 as also other admissible benefits with interest from the date of application i.e. 14.10.2009 till its realization at the rate of 9% simple interest.

2.0. The respondent – workman, by filing aforesaid application before the Labour Court, contended that earlier also the petitioner was not paid his due salary from July 2003 to April 2006 as also the payment of bonus. However, he had preferred a reference before the Labour Court under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’), wherein the Labour Court directed the payment thereof with 12% compound interest, which was challenged before this Court by way of Special Civil Application No.12424 of 2009, which came to be allowed to an extent the Labour Court awarded interest which is not provided under ‘the Act’. Therefore, again for non-payment of salary from 01.05.2005 to 14.10.2009, he has preferred a reference under Section 33C(2) of ‘the Act’.

3.0. Though petitioner, pursuant to a service of notice, filed reply vide Exhibit-6 to the reference contending that after office hours on 31.03.2004, the service of the respondent – workman was terminated and therefore, he is not entitled for such salary for which recovery application is filed. Neither on behalf of petitioner anyone entered the witness box nor any documents produced in support of such assertion / claim made in the written reply. Therefore, after recording the evidence on behalf of the respondent – workman and considering the documents produced and proved by him and when the evidence produced by the respondent – workman has gone unchallenged, on appreciation of it, the Labour Court has passed the impugned judgment and award, which is under challenge before this Court by way of present petition.

4.0. Mr. Chirag Patel, learned advocate for the petitioner submitted that it is undisputed fact that the services of the respondent – workman came to be terminated on 31.03.2004 and, therefore, he is not entitled for the wages, as claimed in the present petition, which is claimed from 01.05.2005 to 14.10.2009, in absence of challenge to his termination order before the competent forum. Therefore, according to his submission, the Labour Court has erred in passing the impugned judgment and award, which is required to be set aside.

4.1. It is further submitted that though the petitioner was transferred, he did not join his service at the transferred place and having secured order in earlier proceedings, he has sought for such recovery even without serving anywhere. Therefore, according to submission of Mr. Patel, learned advocate for the petitioner, the respondent – workman is not entitled to the wages for the period, which is asked for and granted under impugned judgment and award. He has further submitted that in view of decision in the case of State of U.P. and Anr. Vs. Brijpalsingh reported in (2005) 8 SCC 58, more particularly, relying on para Nos.11 and 12, it is submitted that there has to be per-existing right or benefit determined and then only any proceedings under Section 33C(2) of ‘the Act’ can be filed. In absence thereof, no application for recovery of the same can be entertained.

4.2. Drawing attention of the Court to first proviso under Section 33C(1) of ‘the Act’, it is submitted that the application under Section 33C(2) of ‘the Act’ be made within one year from the date on which the money become due to the workman from the employer and therefore, according to his submission, the reference filed before the Labour Court was barred by delay and, therefore, it should have been rejected.

4.3. Mr. Patel, learned advocate for the petitioner, relying