Gujarat High Court
Gujarat State Co-Operative ... vs Labour Court on 22 March, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/12515/2018 ORDER DATED: 22/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12515 of 2018
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GUJARAT STATE CO-OPERATIVE AGRICULTURE AND RURAL
DEVELOPMENT BANK LIMITED & 1 other(s)
Versus
LABOUR COURT & 1 other(s)
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Appearance:
MR.AMIT R JOSHI(6682) for the Petitioner(s) No. 1,2
HARSH V GAJJAR(7828) for the Respondent(s) No. 2
MR ROHAN SHAH, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 22/03/2022
ORAL ORDER
1. RULE. Learned A.G.P. Mr.Rohan Shah for the respondent - State waives service of notice of Rule.
2. In the present writ petition, the petitioners have, inter alia, prayed for quashing and setting aside the award dated 28.02.2018 passed by the respondent in Recovery Application No.35 of 2016.
3. The deceased respondent No.2-Chaitanyabhai Hargovindbhai Trivedi was appointed by the petitioner-Bank on 07.04.1972 and thereafter, he confirmed on 01.10.1975. He worked for the petitioner- Bank for more than 31 years. The respondent no.2 retired as an 'In- Charge District Manager' in the petitioner no.2 bank's Surat Branch on 31.10.2013.
4. The respondent no.2 was served with a show-cause notice as well as charge-sheet on 21.10.2013 for misappropriating money of the petitioner-Bank at Shihor Branch, Bhavnagar for a sum of Rs.10,51,130/-. Such amount has been forfeited under Section 4 (6) of the Payment of Gratuity Act, 1972 by the petitioner-Bank.
5. The respondent no.2 filed a recovery application after a period of more than three years of his retirement before the Labour Court, which Page 1 of 6 Downloaded on : Tue Mar 29 20:09:44 IST 2022 C/SCA/12515/2018 ORDER DATED: 22/03/2022 is allowed by the award dated 28.02.2018. Learned advocate Mr.A.R.Joshi appearing for the petitioners has submitted that the impugned award is without jurisdiction since the Labour Court has jurisdiction to proceed with the matters covered under the Industrial Disputes Act, 1947 (I.D.Act) and the present petitioner-Bank is covered by the Bombay Industrial Relations Act, 1946 being a co-operative society.
6. Learned advocate Mr.A.R.Joshi appearing for the petitioner has submitted that the petitioners had objected to the filing of the application under the provision of Section 33C (2) of the I.D.Act on the ground of jurisdiction before the Labour Court. However, despite their objection, the application was allowed. He has submitted that the entire claim has been disputed by the respondent no.4 and it was specifically contended that the respondent no. does not fall within the definition of "workman" under Section 2(s) of the I.D.Act and alternative remedy is available.
6.1 It is submitted that the respondent was subjected to the departmental proceedings with regard to misappropriation of money of the petitioner-Bank and charge-sheet dated 21.10.2013 was accordingly issued to him.
6.2 It is submitted that the petitioners are covered under the Bombay Industrial Relations Act, 1946 being a "Cooperative Society" and hence, the provisions of the I.D.Act would not apply. It is further submitted that the respondent no.2 should have approached the concerned authorities under the Payment of Gratuity Act, 1972. He has submitted that thus, the application filed under Section 33C (2) of the I.D.Act for recovery of the amount is not maintainable and the Labour Court has fallen in error for allowing the same.
Page 2 of 6 Downloaded on : Tue Mar 29 20:09:44 IST 2022C/SCA/12515/2018 ORDER DATED: 22/03/2022 6.3 In support of his submissions, he has placed reliance on the
judgment of the Supreme Court in the case of Punjab Beverages Pvt. Ltd. Vs. Suresh Chand & Ors., (1978) 2 S.C.C. 144. Reliance is also placed on the recent decision of the Supreme Court in the case of M/s. Bombay Chemical Industries Vs. Deputy Labour Commissioner and Ors., JT 2022 (2) SC 14. Thus, he has submitted that the impugned order is required to be quashed and set aside.
7. In response to the aforesaid submissions, learned advocate Mr.Harsh Gajjar for the respondent no.2-workman has submitted that the order of the Labour Court does not require interference as the respondent was entitled to the aforesaid amount after his retirement and the same could not have been forfeited. In support of his aforesaid submission, he has placed reliance on the judgment of the Supreme Court in the case of Sohansinh and others Vs. General Manager, Ordance Factory, Khamaria, Jabalpur & Ors., 1984 (Supp), S.C.C. 661. Thus, he has submitted that the petitioners cannot challenge the order of the Labour Court.
8. The facts, as narrated hereinabove, are not disputed. The respondent no.2 retired from the petitioner Bank on 31.10.2013. He was served with charge-sheet on 21.10.2013 for misappropriating money of the petitioner-Bank at Shihor Branch, Bhavnagar for the amount of Rs.10,51,130/-, which was forfeited under Section 4(6) of the Payment of Gratuity Act. The respondent no.2 filed recovery application under the provision 33 C (2) of the I.D.Act after three years of retirement before the Labour Court claiming the retirement benefits, including the gratuity amount. The same was contested and disputed by the petitioner-Bank. A specific contention was raised that the respondent no.2 does not fall within the definition of "workman" and as such the application is not maintainable. It was also contended by the petitioner that the respondent no.2 has an alternative remedy under the Payment of Page 3 of 6 Downloaded on : Tue Mar 29 20:09:44 IST 2022 C/SCA/12515/2018 ORDER DATED: 22/03/2022 Gratuity Act and the provisions of the I.D.Act will not apply since the petitioner falls under the Bombay Industrial Relations Act, 1946.
9. The Court has to examine the sole issue whether the application under the provision of Section 33C(2) of the I.D.Act claiming gratuity was maintainable or not.
10. In a recent decision of the Apex Court in the case of Bombay Chemical Industries (supra), the Apex Court has held in paragraph nos.6 and 7 as under.
"6. At the outset it is required to be noted that respondent No.2 herein filed an application before the Labour Court under Section 33(C)(2) of the Industrial Disputes Act, demanding difference of wages from 01.04.2006 to 31.03.2012. It was thus the case on behalf of respondent No.2 that he was working with the appellant as a salesman. However, the appellant had taken a categorical stand that respondent No.2 was never engaged by the appellant. It was specifically the case on behalf of the appellant that respondent No.2 had never worked in the establishment in the post of salesman. Therefore, once there was a serious dispute that respondent No.2 had worked as an employee of the appellant and there was a very serious dispute raised by the appellant that respondent No.2 was not in employment as a salesman as claimed by respondent No.2, thereafter, it was not open for the Labour Court to entertain disputed questions and adjudicate upon the employeremployee relationship between the appellant and respondent No.2. As per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. (supra), the labour court's jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See Municipal Corporation of Delhi Vs. Ganesh Razak and Anr. (1995) 1 SCC 235).
In the case of Kankuben (supra), it is observed and held that whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C (2) of the ID Act. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital.
Page 4 of 6 Downloaded on : Tue Mar 29 20:09:44 IST 2022C/SCA/12515/2018 ORDER DATED: 22/03/2022 The former falls within jurisdiction of Labour Court exercising powers under Section 33C (2) of the ID Act while the latter does not.
7. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalized and/or adjudicate upon. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section 33(C)(2) of the Industrial Disputes Act."
11. Thus, in view of the judgment of the Supreme Court, the judgment supplied by learned advocate Mr.H.V.Gajjar appearing for the respondent no.2 will not apply in the facts of the present case, as it is concluded that the Labour Court has no jurisdiction in entertaining the application under Section 33C (2) of the I.D.Act. In the present case, the issue with regard to the applicability of the provisions of the I.D.Act was disputed. It was also disputed that the respondent does not fall within the definition of "workman". The gratuity amount has been forfeited by invoking the provision of Section 4(6) of the Payment of Gratuity Act, 1972. Thus, the application under Section 33C (2) was itself not maintainable.
12. Accordingly, the writ petition succeeds. The impugned order dated 28.02.2018 passed by respondent no.1 in Recovery Application No.35 of 2016 is hereby quashed and set aside. However, it will be open for the respondent no.2 to file appropriate proceedings claiming his amount before the appropriate forum. It is further clarified that time consumed by the respondent no.2 before the Labour Court and this Page 5 of 6 Downloaded on : Tue Mar 29 20:09:44 IST 2022 C/SCA/12515/2018 ORDER DATED: 22/03/2022 Court shall be adjusted towards limitation, if any, provided in any proceedings, which the respondent no.2 would resort. Rule is made absolute.
(A. S. SUPEHIA, J) MOHMMEDSHAHID Page 6 of 6 Downloaded on : Tue Mar 29 20:09:44 IST 2022