*1*

925wp5035o19

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.5035 OF 2019

Dhannu Bhagu Rathod,

Age : 52 years, Occupation : Nil,

R/o At Rahuwadi, Post : Chinchkheda,

Taluka Ambad, Dist. Jalna.

...PETITIONER

-VERSUS-

1.

Sarpanch,

Grampanchayat Office,

Rahuwadi, Tq.Ambad,

Dist.Jalna.

2.

Gramsevak,

Grampanchayat Office,

Rahuwadi, Tq.Ambad,

Dist.Jalna.

...RESPONDENTS

...

Advocate for the Petitioner : Shri Shelke Avishkar S.

Advocate for the Respondents : Shri Lukhe Arjun R.

...

CORAM: RAVINDRA V. GHUGE, J.

DATE :- 09^th March, 2022

ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2.

By this Writ Petition, the petitioner seeks to challenge the

*2*

925wp5035o19

judgment and order dated 09.10.2018 delivered by the Industrial Court,

Jalna, vide which, Complaint (ULP) No.298/2016 filed by the petitioner

under Item 9 of the Schedule IV of the MRTU & PULP Act, 1971, seeking

implementation of the award delivered by the Labour Court in the

reference case has been held to be untenable on the ground of bar of

Section 59.

3.

The petitioner had approached the Labour Court in Reference

(IDA) No.2/2015 for challenging his termination. By the judgment and

award dated 11.02.2016, the reference was answered in the affirmative

and the petitioner was granted reinstatement with continuity and 50%

back wages. As the award was not implemented, the petitioner

approached the Industrial Court under Item 9 of the Schedule IV of the

MRTU & PULP Act, 1971 alleging that failure on the part of the employer

in implementing the settlement, agreement or award, would amount to

unfair labour practice. The Industrial Court has concluded that as the

petitioner had initially approached the Labour Court for challenging his

termination, he could invoke the jurisdiction under Section 11(9) and

(10) or under Section 29 of the I.D.Act, 1957.

4.

No doubt, sub-section (9) of Section 11 does render a remedy

available to the employee to seek execution of the award by treating the

same as a decree delivered by the Civil Court under Order 21 of the Code

of Civil Procedure. However, Section 29 is not a remedy. Section 29 is only

*3*

925wp5035o19

as regards penalty, which is prescribed for breach of settlement or award.

Be that as it may, Item 9 of the Schedule IV is also an effective remedy

available to the employee to seek implementation of the award or

settlement or agreement and such award can be got executed by

preferring a ULP complaint. The doctrine of election can, therefore, be

made applicable permitting the employee to choose one of the two

remedies when both are available to him.

5.

On the Doctrine of Election, the Hon’ble Supreme Court of

India has held in A.P. State Financial Corporation Vs. M/s GAR Re-Rolling

Mills and another, [AIR 1994 SC 2151 = 1994 AIR SCW 1953], in

paragraph Nos.13, 15 and 16 as under :-

“13. On a conjoint reading of Sections 29 and 31 of the Act, it

appears to us that in case of default in repayment of loan

or any instalment or any advance or breach of an

agreement, the Corporation has two remedies available

to it against the defaulting industrial concern, one under

Section 29 and another under Section 31 of the Act. The

choice for availing the remedy under Section 29 or

Section 31 of the Act is that of the Financial Corporation

alone and the defaulting concern has no say whatsoever

in the matter, as to which remedy should be taken

recourse to by the Corporation against it for effecting the

recovery. The expression "without prejudice to the

provisions of Section 29 of this Act” as appearing in

Section 31 of the Act clearly demonstrates that the

Legislature did not intend to confine the Corporation to

take recourse to only a particular remedy against the

defaulting industrial concern for recovery of the amount

due to it. It left the choice to the Corporation to act in

the first instance under Section 31 of the Act and save its

rights and remedies u