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SCA/7359/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7359 of 2009
=========================================================
MAHENDRABHAI
BHAILALBHAI SHAH - Petitioner(s)
Versus
BARODA
TRADERS CO.OP.BANK LTD. - Respondent(s)
=========================================================
Appearance
:
MR
NILESH M SHAH for
Petitioner(s) : 1,
MR SJ SHAH for Respondent(s) : 1,
MR ND
SONGARA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 19/07/2010
ORAL
ORDER
By
way of present petition, the petitioner has inter alia prayed for
quashing and setting aside the judgment and order dated 16th
March 2009 passed by the Labour Court at Vadodara in Recovery
Application No.458 of 1999.
It
is the case of the petitioner that the
petitioner was working with the respondent-Bank till he
superannuated on 01st
May 1998 after a tenure of more than two decades. However, his
retiral dues were withheld for the reasons best known to the
respondent-Bank. Since the leave encashment for 279 balance leaves
to his credit at the time of his superannuation was not granted to
the petitioner, he had preferred Recovery Application before the
Labour Court, Vadodara. The Labour Court rejected the said
application on the ground that the petitioner is not a workman
and he did not have pre-existing right for his leave eacashment.
Mr.Nilesh
Shah, learned advocate for the petitioner, has submitted that though
an amicable settlement had arrived at between the parties regarding
the leave encashment, the Labour
Court has not appreciated the said aspect. It is submitted
that it is not proper to deny the claim of the petitioner for want
of pre-existing right. It is submitted that the claim of a
statutory bonus is in accordance with law and the same ought not to
have been denied on the ground that it would require analysis or
interpretation for determination of the claim of the petitioner.
Mr.Shah has also relied upon the decision of this Court in the case
of Natvarlal U. Modi v. Ahmedabad Dist. Co-op Milk Producers
Union Ltd., reported in 2005(1) GLH 33 and has prayed that
the present petition may be allowed. Hence, the present petition.
Having
considered the contentions raised by the learned advocate for the
petitioner and the averments made in the petition as well as
documentary evidence produced on record, it transpires that the
Labour Court after taking into consideration the pros and cons of
the matter has come to the conclusion that as the petitioner was
working with the Cooperative Bank, the provisions of BIR Act are
applicable and not the provisions of Industrial Disputes Act, 1947
(hereinafter referred to as ‘the Act’). It is pertinent to note that
the petitioner had filed the Recovery Application under Section
33(c)(2) of the Act and, therefore, as the Labour Court does not
have jurisdiction to decide such application, the same is rejected
by the Labour Court. It is required to be noted that even the
decision relied upon by the petitioner in the case of Natvarlal
(supra) will not help the petitioner since the facts and
circumstances of the present case and the issue raised in the
present petition are different from the above cited decision.
In
view of aforesaid facts and circumstances of the case as well as the
reasons assigned by the Labour Court, I am of the opinion that the
view taken by the Labour Court is just and proper. The Labour Court
has assigned cogent and convincing reasons for arriving at the
conclusion. I do not find any illegality much less any perversity in
the findings recorded by the Labour Court. No case is made out to
interfere with the findings recorded by the Labour Court. Hence, the
present petition deserves to be dismissed.
For
the foregoing reasons, the present petition fails and is,
accordingly, dismissed. Notice is discharged with no order as to
costs.
It
is, however, clarified that if the petitioner approaches the
respondent-Bank for settlement, the respondent-Bank will consider
the same sympathetically.
(K.S.
Jhaveri, J)
Aakar
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