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LPA/369/2011 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 369 of 2011
In
SPECIAL
CIVIL APPLICATION No. 7359 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MAHENDRABHAI
BHAILALBHAI SHAH - Appellant(s)
Versus
BARODA
TRADERS CO.OP.BANK LTD. - Respondent(s)
=========================================================
Appearance
:
MR
NILESH M SHAH for
Appellant(s) : 1,MR MAYANK DESAI for Appellant(s) : 1,
MR SJ SHAH
for Respondent(s) : 1,
MR ND SONGARA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 28/02/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard Mr Mayank Desai holding brief of Mr Nilesh M Shah, learned
counsel for the appellant.
2. The
appellant was working with the respondent Bank till he superannuated
on 1st May, 1998 after a tenure of more than two decades. However,
his retiral dues were withheld by the respondent Bank. Since the
leave encashment for 279 days was not granted to the appellant, he
had preferred Recovery Application before the Labour Court, Vadodara
under section 33(c)(2) of the Industrial Disputes Act (hereinafter
referred to as “the Act”). The Labour Court, by order dated
16.3.2009 passed in Recovery Application No.458 of 1999, rejected the
application of the appellant on the ground that it had no
jurisdiction to declare that the appellant was a ‘workman’ and he was
entitled for the amount as claimed by him for his pre-existing right
of leave encashment. The appellant challenged the order of the
Labour Court before the learned Single Judge by means of Special
Civil Application No.7359 of 2009. The learned Single Judge affirmed
the findings of the Labour Court on the application filed by the
appellant under section 33(c)(2) of
the Industrial Disputes Act as not maintainable before it.
3. It
is well settled that it is not open to the Labour Court to decide the
question as to whether an employee is a ‘workman’ or not in a
proceeding under section 33(c)(2) of the Act and such an adjudication
can only be made in a proceeding under section 10 of the Act.
4. In
view of the aforesaid reasons, we are in complete agreement with the
view taken by the learned Single Judge. The Appeal is devoid of merit
and is accordingly dismissed.
[V
M SAHAI, J.]
[G
B SHAH, J.]
msp
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