PAREKH AND CO Vs. S M VALVI

JUDGEMENT

(1.) HEARD learned Advocates for the parties. Perused the records. The petitioner challenges the order passed under section 33 (1) of the industrial Disputes Act, 1947 (hereinafter called as "the said Act") and the certificate of recovery issued pursuant thereto on 16-11-2002. The first ground of challenge relates to non-consideration of the issue of non-maintainability of the application under section 33 (1) as the application was filed on 4-7-2001 in relation to the execution of the award passed in 1993 and clarified in 1996. Second ground of challenge relates to failure of the authority to consider the objection to the maintainability of the proceedings under section 33 (1) of the said Act in view of the bona fide dispute as regards the entitlement of the workmen to the amount claimed as due and payable to them under the said application. The third ground of challenge relates to the absence of power to the concerned officer to pass the impugned order on the day on which it was passed. Reliance is sought to be placed in the decision of the Division Bench of the Delhi High Court in the matter of (Colcom Plastic Ltd. and others v. Union of India and others), reported in 1997 (1) C. L. R. 744. On the other hand, the impugned order is sought to be justified on the ground that the same is passed after considering all the objections which were sought to be raised and that the same has been clarified by the Assistant Labour Commissioner in his affidavit filed on 20-1-2003. Reliance is placed in the decision of the Apex court in the matter of (Fabril Gasosa and another v. Labour Commissioner and another), reported in 1997 (1) C. L. R. 589, ccntending that the objections which were sought to be raised were merely in relation to the calculations in respect of amount due and payable under the award and that therefore, Assistant labour Commissioner had jurisdiction under section 33 (1) of the said Act to deal with the same and that there were no other objections raised by the petitioner. The respondents further contention is that the provisions of law contained in section 33 (1) of the said Act nowhere prohibit the authority to ascertain as to whether the objections are bonafide or not and also to deal with the same if the same relate merely to calculations of the amount due in terms of an award or other instrument. Attention is also drawn to the order passed by the learned Single Judge of this Court in Writ Petition No. 796 of 2003 on 17-4-2003 wherein certain observations were made against the same Assistant Labour Commissioner in relation to another order passed by the same officer.

(2.) AS regards the first ground of challenge that the authorities could not have entertained the application, the same having been filed beyond the period of one year as prescribed under first proviso to section 33-C (l), it is the contention of the learned Advocate for the petitioner that admittedly, the amount due is from 1985 and in terms of the award it could be said that the amount became due within a period of one year from the date of award and admittedly the award was passed in 1993 and further clarified in 1996 and therefore, the application, if any, could have been filed latest by 1998 and having not done so, it was clearly barred under the proviso to section 33-C (l)of the said Act. On the other hand it was sought to be contended that the award once passed will remain in force till it is set aside and since the award was not executed till April 2002 it cannot be said that the application was beyond the period of limitation prescribed under the first proviso.

(3.) THE first proviso to section 33-C (l) read thus: