B. P. Dharmadhikari, J. - (1.) In this writ petition under Articles 226 and 227 of Constitution of India challenge is to the order dated 26-2-1991 passed by respondent No. 2 deputy Commissioner of Labour in application (IDA) No. 3 of 1988 under Section 33-C (1) of Industrial Disputes Act. Said application was filed by present petitioners claiming salary for the period from 1-91987 to 31-8-1988.
(2.) Respondent No. 1 is an engineering industry covered by provisions of Bombay Industrial Relations Act, 1946. It manufactures steel bars and a unit manufacturing bigger bars is known as Bada Mill while the unit manufacturing steel bars with less gauge is known as Choti Mill. The petitioners are employees engaged in Choti Mill. The number of employees is above 100 and the respondent No. 1 was not extending same service conditions to his employees working in both Mills. It appears that petitioners were getting 8. 33% bonus while the employees of Bada Mill were being paid 20% bonus. Petitioner state that grievance in this respect and was made by them with respondent no. 2 and on 20-11-1985 and understanding was arrived at between parties. However, this was to the annoyance of respondent No. 1 and hence on 21-11-1985, the respondent No. 1 displayed a notice in Hindi that because of shortage of raw material Choti Mill would be kept closed with effect from 21-11-1985 for indefinite period for which layoff would be given. Workers were advised to mark their attendance at 9 AM everyday. As this was in violation of Section 25m of Industrial disputes Act, 1947, the petitioners filed on 12-2-1986 Application (BIR) 36 of 1986 before First Labour Court, Nagpur seeking declaration of illegal change. On 5-8-1987, the Labour Court declared lay-off to be illegal and void but held that it did not amount to illegal change. It further directed said respondent to withdraw offer of alternate work given by it by giving individual notices or by displaying a notice to that effect on factory premises within two days. In above proceedings, the petitioners also moved application for interim relief and on 12-5-1986 the Labour Court directed employer to pay wages to the petitioners for the period from 22-11-1985 till date of its order. Employer challenged this interim direction before Industrial Court and Industrial Court directed him to pay wages for the period from 22-11-1985 to 10-11986. On 10-9-1987, the petitioners filed application under Section 33c (1) for recovery of salary between 11-1-1986 to 31-8-1987. A certificate was accordingly issued by respondent No. 2 but inadvertently period mentioned therein was from 25-11-1985 to 1011-1986. The said certificate was challenged by respondent No. 1 in writ petition and on 26-4-1988, the Division Bench was pleased to set aside that certificate. Thereafter on 1-8-1988 the respondent No. 2 issued recovery certificate for Rs. 234090/-only in favour of petitioners for period 11-1-1986 to 31-8-1987. This certificate was challenged by employer in writ petition 56 of 1989 but on 14-2-1989 said writ petition was rejected in motion hearing. The employer/present respondent No. 1 thereafter approached Hon'ble apex Court in Special Leave to Appeal (Civil) No. 4282 of 1989 and on 26-9-1989 said S. L. P. was allowed to be withdrawn. It appears that thereafter respondent No. 1 challenged said certificate again in Writ petition 2327 of 1990 and on 13-3-1991 this Court issued "rule" in it and made it returnable early. The petitioners received this payment on 16-5-1990.
(3.) In the meanwhile on 26-8-1988 petitioners filed another application under Section 33-C (1) for recovery of salary amount of Rs. 143667/only for the period from 1-9-1987 to 31-8-1988. This application was heard by respondent No. 2 on 24-1-1991 and he rejected it on 26-21991. Said respondent accepted the story of respondent No. 1 that on 7-8-1987 it displayed a notice as per orders of Labour Court dated 58-1987 and in spite of said notice, petitioners did not report for duty. It held that there was no lay-off after 7-8-1987 and as workers did not join duty, they did not earn salary. He also observed that learned counsel for employees Shri Thakur did not dispute the fact of displaying notice dated 7-8-1987. He rejected the argument based upon "res judicata" advanced by employees. He also considered limited scope of jurisdiction available to him in the matter and found that there is fundamental dispute as to the existence of layoff itself. He found that there is bona fide dispute about entitlement of petitioners to the wages and such dispute cannot be decided under limited jurisdiction under Section 33-C (1) of Industrial Disputes Act. It is this order which is challenged in present writ petition.;