ORAL JUDGMENT

RULE

1. returnable forthwith. Mr.H.S.Munshaw learned advocate waives service of notice of Rule on behalf of the respondent Nos.1 and 2.

2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.

3. Challenge in this petition under Article 226 of the Constitution of India is to the order of the Labour Court, Godhara, in Recovery Application No.66 of 2013. Further prayer under Article 226 of the Constitution of India sought by the petitioner is to fix the pension and other retirement benefits of the husband of the petitioner by taking into consideration his entire length of service right from the date of appeal till the date of his death on 25.07.2003.

4. Facts in brief would indicate that the petitioner’s husband was engaged as a daily wager from 21.11.1972 and died on 25.07.2003 after completing 30 years of service. The wife – the petitioner herein, approached the Labour Court by filing application under Section 33(C)(2) of the Industrial Disputes Act claiming for pensionary benefits. The recovery application was rejected on the ground that there is no preexisting right so as to entitle the petitioner for benefits that accrued to her husband.

5. An affidavit in reply filed indicates that the petitioner’s husband at the relevant time since 1973 for several years had not completed 240 days in each year of service. An additional affidavit in reply was filed by the Executive Engineer, R & B Division, District Panchayat, Panchmahals, wherein, according to Mr.Munshaw learned counsel for the respondent, the deceased husband of the petitioner was engaged as a daily wager and he cannot be granted benefits of pension as he has hardly worked for six years which was not satisfying the minimum stipulated period of 10 years of service. Gratuity amount of Rs.43,000/- has already been paid.

6. Reliance was placed on the decision in case of EXECUTIVE ENGINEER PANCHAYAT (MAA & M) DEPARTMENT and Another Versus SAMUDABHAI JYOTIBHAI BHEDI & other reported in 2017 (4) GLR 2952.

7. On the issue of the legality of the order under Section 33(C)(2) of the Industrial Disputes Act, reliance was placed by Mr.Dave on an order passed by this Court in Special Civil Application No.12350 of 2016 dated 22.12.2016. The Court therein was considering the rejection of the applications under Section 33(C)(2) of the I.D. Act, wherein, an identical prayer for pensionary benefits was made.

8. The Court in para 8 of the decision did consider the settled legal position under Section 33(C)(2) of the I.D. Act and after considering the decisions of this Court as well as the Supreme Court, held as under:

“8. True that the settled legal position as regards Section 33C(2) of the Act is, as canvassed by learned AGP. Section 33C(2) of the Act cannot be applied for adjudicating the facts in dispute but the facts in dispute must be genuinely disputed and not for the sake of disputing them. The crucial expression used in Section 33C(2) of the Act is thus:

“Where any workman is entitled to receive from the employer …. “The expression “entitlement” will have to be given its due and appropriate meaning. “Entitlement” may flow from statutorily recognised rights or recognised policy as may have been interpreted by the High Court or the Supreme Court or from some other legal source. If the legal position concerning the statute or the policy is made clear by interpretation by High Court or the Supreme Court, and if by virtue of such interpretation, the beneficiary is found to be entitled to certain benefits contemplated in the statute or the policy, such entitlement, in the opinion of this Court, would be the entitlement within the meaning of subsec.2 of Section 33(C) of the Act. If there are genuine reasons for disputing the entitlement, as contemplated in Section 33(C)(2) of the Act, of course, the court or the judicial authority exercising the power under Section 33(C)(2) of the Act would not have a jurisdiction to adjudicate