Gujarat High Court
Chairman Shri/Manager Shri, Pragati ... vs Ashvinbhai Chhotabhai Patel on 28 January, 2025
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12916 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12983 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
No
==========================================================
CHAIRMAN SHRI/MANAGER SHRI, PRAGATI COOPERATIVE BANK
LIMITED
Versus
ASHVINBHAI CHHOTABHAI PATEL
==========================================================
Appearance:
MEHUL C MEHTA(9386) for the Petitioner(s) No. 1
MR RAJESH P MANKAD(2637) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 28/01/2025
ORAL JUDGMENT
1. This petition is filed under Article 226 and 227 of the
Constitution of India challenging the award passed by
the learned labour court, Vadodara in Recovery
Application (C-2) No.136 of 2010 dated 30.04.2022
whereby, the petitioner was directed to pay the benefit
as claimed by the respondent along with 6% interest
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
from the date of filing of the application.
2. The gist of the case is that the petitioner bank is covered
under the provisions pf the Bombay Industrial Relations
Act, 1946 (hereinafter referred to as the "BIR Act") and
to maintain cordial relations with the employees of the
bank the settlement/agreement was entered into as per
section 2(35) of the BIR Act. It is provided under the
said settlement that salary, bonus, leave encashment is
to be revised after every two years and for that, claim is
made before the learned labour court by way of recovery
application under section 33(C)(2) of the ID Act. The
terms of the settlement was from 01.01.2000 to
31.12.2003. It is claimed by the respondent employee
that being an ex-employee he would be entitled for the
certain benefits in view of the settlement dated
01.01.2000, he would be entitled for difference of salary,
difference of salary of over time, difference of salary of
bonus, difference of salary of leave encashment,
difference of salary of provident fund, difference of
salary of C.L.
3. The petitioner bank appeared and filed written
statement contending that amount has already been paid
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
as per the settlement as he would be entitled for above
benefit after completion of three years and learned
labour court would not have jurisdiction to entertain
such recovery applications straightaway by passing
adjudication as per the provisions of section 78 read
with item no.5 of schedule 3 pertaining to the
interpretation of construction and terms of agreement/
settlement as per section 42 of the BIR Act. Learned
labour court after considering the evidence adduced by
both the parties has allowed the application filed by the
respondent which is the subject matter of consideration
before this Court.
4. Heard learned advocate Mr.Vasavada with learned
advocate Mr.Mehta for the petitioner and learned
advocate Mr.Mankad for the respondent.
4.1. Learned advocate Mr.Vasavada submits that learned
labour court has committed error in usurping the
jurisdiction under the ID Act, as it is well settled that
under section 78, the adjudication of the claim is
required to be done first and thereafter, only for
execution of the said adjudication the application filed
under section 33(C)(2) of the ID Act. Learned labour
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
court has adjudicated the dispute by exercising the
power under section 33(C)(2) and thereafter, directed
the petitioner to pay the same, without jurisdiction as
the settlement which was relied was interpreted in
different manner. Learned advocate Mr.Vasavada
submits that claim is delayed by seven years as receipt
of all benefits as per the settlement was issued as per
the admission made by the respondent during his
evidence however, learned labour court without
assigning the reasons for the delay has passed an order
in favour of the respondent. Learned advocate
Mr.Vasavada submits that the settlement was arrived
between the parties for the year 2000 to 2003 and
therefore, also the claim of the respondent was stale and
not accepted however, learned labour court has awarded
reference in favour of the respondent.
4.2. Learned advocate Mr.Vasavada relies on the
judgment in the case of Bombay Chemical Industries
Vs Deputy Labour Commissioner reported in 2022
5 SCC 629 and submitted that labour court has no
jurisdiction to adjudicate dispute of entitlement or basis
of claim of workman however, can only interpret the
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
award or settlement on which the claim is made. The
reliance was also placed on the judgment in the case of
State of Karnataka Vs Ravi Kumar reported in 2019
13 SCC 746 and submitted that stale claim which was
sought to be referred after 14 years could have been
rejected only on the ground of delay.
4.3. Learned advocate Mr.Vasavada has further submitted
that the settlement under the BIR Act and settlement
under the ID Act stands under different footing and no
adjudication was made on the basis of long term
settlement which arrived between the Union of workers
of the Cooperative Bank and with the petitioner Bank
and as there was no right crystalised in favour of the
respondent learned court would have not adjudicated
the dispute by exercising the power under section 33(C)
(2) of the I.D.Act. Learned advocate Mr.Vasavada
submits that as the settlement was arrived under section
2(35) of the BIR Act not under section 2(3) of the Act
instead of granting the relief straightaway which was
sought learned court would have considered the scheme
of settlement which was arrived under the BIR Act.
However, without doing the same the impugned order is
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
passed. Learned advocate Mr.Vasavada at the end
submitted that by misreading the settlement which was
arrived on 01.01.2000 the impugned order is passed
therefore, same is required to be set aside and the
petition is required to be allowed.
5. Per contra, learned advocate Mr.Rajesh Mankad
appearing for the respondent has submitted that action
of the petitioner Bank of not granting the benefits
available under the settlement is discriminatory,
arbitrary and unjust. It is further submitted that under
the settlement, the respondent was entitled to get the
benefit of increment and accordingly consequential
amount in Over time, bonus, leave salary etc and despite
the obligations under the settlement, petitioner failed to
pay the said benefits in compliance of the settlement and
therefore, the respondent was constrained to file
recovery application which was ordered in favour of the
respondent. Learned advocate Mr.Rajesh Mankad
submits that as the right was claimed on the basis of
settlement dated 08.05.2000 the recovery application
was filed under section 33(C)(2) claiming the pre
existing right arising from the settlement. Learned
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
advocate Mr.Rajesh Mankad has relied on the decision
rendered by this Court in the case of Kantilal
Chhotalal Patel Versus Chairman/Manager, The
Baroda Central Co-Operative Bank Ltd. in SCA
No.539/2020 and submitted that any proceedings
which are held under the BIR Act cannot eclipse the
provisions of ID Act, and section 120A of the BIR Act
clarifies that no proceedings shall be held under the BIR
Act relating to any other dispute which has been
referred and is pending before any forum under the ID
Act.
5.1. Learned advocate Mr.Rajesh Mankad submits that so
far as the contention with regard to the delay, which was
raised by the petitioner by not complying with the terms
of the settlement the petitioner bank has committed
continuous wrong and therefore, it cannot be said that
the stale claim became revive by the impugned award.
Learned advocate Mr.Rajesh Mankad submits that as
per the admission made by the witness of the petitioner
they paid the benefits after three years however, the
settlement dated 08.05.2000 provides that the same
should be paid on completion of two years. Learned
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
advocate Mr.Rajesh Mankad submits that there was no
disputed fact as stated by the learned advocate for the
petitioner and therefore, no interference is required and
the petition requires to be dismissed.
6. Considering the submissions made by the learned
advocates and considering the settlement dated
08.05.2000 as well as the settlement dated 09.08.1996
which was reproduced by the learned labour court in the
impugned award, it emerges that the respondent herein
was serving as Clerk-cum-Cashier with the petitioner
bank since 01.07.1978 and retired on 30.01.2010 on
attaining the age of superannuation. On 08.05.2000
there was a settlement arrived between the Union of the
employees of the bank as well as the bank wherein,
stagnation increment was provided on completion of the
two years as per condition no.2(D). For better
understanding the said condition is reproduced
hereinbelow:
"2(D):- Stagnation Increment
Where an employee who has reached the last level of the pay
structure ceases to be entitled for the annual increment, his pay
shall be given a Stagnation Increment equivalent to the last
increment received by him and his pay shall continue to be
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
increased in this manner. This increment shall be given every
two years and it shall be as per the last increment received by
him."
7. It is undisputed fact that prior to the settlement dated
08.05.2000 there was settlement dated 09.08.1996
wherein, the said increment was provided on completion
of three years. The condition no.2(D) of the settlement
dated 09.08.1996 is also reproduced hereinbelow:
"2(D):- Stagnation Increment
Where an employee, who has reached the last level of pay-
structure, ceased to be entitled for annual increment, he shall be
given Stagnation Increment equivalent to his last increment and in
this manner, his pay shall continue to increase. There shall be
maximum three (3) such increments and first such increment shall
be given three (3) years after the last annual increment."
8. It is undisputed that after 1997 as per the settlement
dated 1996, the first increment was granted in the year
2000 i.e on completion of three years as per condition
2(D) of the settlement dated 09.08.1996. Thereafter, the
settlement dated 08.05.2000 came into force wherein,
the stagnation increment was provided on completion of
two years however, instead of granting the same in the
year 2000 the same was granted in the year 2003, 2006
and 2009. According to the said increment the payment
of consequential wages was also paid application under
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
section 33(C)(2) is filed by the respondent employee
claiming that though the stagnation increment was
required to be paid in July 2002, July 2004, July 2006
and July 2008 as per the settlement dated 08.05.2000
the same was paid according to the earlier settlement
dated 09.08.1996. It is also claimed that other increment
like bonus, over time, PF, CL, leave encashment and
leave salary is also required to be recalculated on the
basis of the stagnation increment as per the settlement
dated 08.05.2000 and the for the difference amount the
table is stated at page 29 is also required to be paid.
9. The contention raised by the present petitioner that
there is disputed fact that whether the respondent would
be entitled on completion of three years or on
completion of two years appears to be unfounded as on
referring the settlement, more particularly condition
no.2d wherein it is clearly stated that on completion of
two years the stagnation requirement is required to be
paid to the employees. During the cross examination of
the witness of petitioner it was admitted that stagnant
increment was paid in July 2000, second increment paid
in July 2003, in July 2006 was the third increment and
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
fourth increment was paid in July 2009. Therefore, it
appears that petitioner by interpreting the settlement in
convenient manner has paid stagnant increment on
completion of three years instead of completion of two
years. Reliance which was placed by the learned
advocate Mr.Mankad on the decision rendered by this
Court in the case of Bombay Chemical Industries Vs
Deputy Labour Commissioner (supra) wherein also
the Apex Court has held that labour court by exercising
the power under section 33(C)(2) can interpret the
award for settlement for which the claim is made.
10. As in the instant case, claim is on the basis of
settlement, this Court is of the view that no prior
adjudication or recognition of the claim is required. This
court has also referred the decision which was relied by
the learned advocate for the petitioner in the case of
State of Karnataka and Ors Vs Ravi Kumar (supra)
wherein, the case before the Apex Court was that after
14 years the writ petition was filed before the High
Court seeking declaration that his termination of the
service was in violation of section 25 of the ID Act and
relief of reinstatement was sought on the post of cleaner
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
with back wages from the date of termination till the
date of reinstatement with continuity of service. The
High Court by order dated 16.03.1998 dismissed the
writ petition as same was not maintainable however,
observation was made that a representation be given to
the State Government and State Government may
consider whether dispute should be referred under
section 10(1)(C) of the Act or not. In that background,
the Apex Court has held that as respondent did not
choose to challenge termination of 14 years and merely
because some other daily wagers got the relief he is not
entitled for the relief which was sought.
11. In the instant case, relief which was sought was
espoused form the settlement dated 08.05.2000 and it
was bounding duty of the petitioner employer to
interpret the settlement in true manner however, with a
view to deprive the respondent employee to get the
benefit out of settlement it was interpreted in the
manner which is beneficial to the employer. In that view,
this Court is of the view that the ground of delay which
was raised by the learned advocate for the petitioner is
unbounded to the petitioner as this would be continuous
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
wrong which was committed by the petitioner employer
and therefore, merely claim was made after seven years
would not disentitle the respondent from getting the
benefit which he has claimed.
12. The other ground that settlement under the BIR Act as
well as the settlement under the ID Act are on different
footing and unless and until the claim is adjudicated
under section 78A of the BIR Act the labour court would
not have the jurisdiction to decide the same by
exercising the power under section 33(C)(2). This court
has referred the decision relied by the learned advocate
for the respondent in the case of Kantilal Chhotalal
Patel Versus Chairman/Manager, The Baroda
Central Co-Operative Bank Ltd. (supra) wherein, this
Court has observed as under:
"6. The facts, which are established from the record, are that all
the petitioners have retired from the respondent-Bank and after
their retirement, the respondent-Bank has calculated their Leave
Encashment as per 300 days, though each of the petitioners are
having more than 500 days leaves in their credit. The petitioners
filed recovery applications for claiming the Leave Encashment as
per the settlement dated 01.10.2002. The provisions of settlement,
more particularly 8-h(i), (iii) and (iv) were relied upon by the
petitioners for claiming the amount of Leave Encashment. The
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
respondents had contended that such applications were not
maintainable on the ground of delay and also the same would not
be maintainable under the provisions of the I.D. Act as the
respondent-Bank is governed by the provision of the BIR Act. So
far as the ground of delay is concerned, the same has been held
in favour of the petitioners by observing that no limitation is
provided for filing an application under the provisions of Section
33C(2) of the I.D.Act. The Labour Court, thereafter, has also
examined the provisions of settlement and has concluded that all
the petitioners are entitled to more amounts over and above,
which are paid to them of 300 days with regard to the Leave
Encashment. Thus, there is a definite finding in favour of the
petitioners that they are entitled to the Leave Encashment as per
the settlement. However, the recovery applications have been
rejected by placing reliance on the order dated 19.07.2010 passed
in Special Civil Application No.7359 of 2009 by holding that the
recovery applications are not maintainable since the respondent-
Bank is governed under the provision of the BIR Act.
8. At this stage, it would be apposite to refer to Section 120A of
the BIR Act, which reads as under:-
"120A. Provisions of Act XIV of 1947 not to be affected.-
[Nothing in this Act shall affect any of the provisions of
the Industrial Disputes Act, 1947, (XIV of 1947.) and no
proceeding shall be held under this Act relating to any
matter or dispute which has been referred to and is
pending before a Board, a Court for inquiry, a Labour
Court or a Tribunal under the said Act."
Section 120A was introduced after the promulgation of the
I.D.Act. A plain and simple reading of the provisions will suggest
that the provisions of the BIR Act will not affect any of the
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
provisions of the I.D. Act. The Division Bench in the case of
D.S.Vasavada (supra) has held thus:-
7. We are aware that the case being one of employment in Textile
Mills, the Bombay Industrial Relations Act, 1946, applies S. 35 of
that Act provides for Standing Orders in regard to matters
mentioned in Schedule I. Entry 4 in Schedule I relates to closure
or re-opening of a department or a section of a department or the
whole of the undertaking. We are also aware that Standing Orders
as finally settled for operatives in cotton textile mills at
Ahmedabad are in force and Standing Order No. 9 A specifically
deals with the closure of any department after giving two months'
notice to the operative concerned. We have noticed that S. 120A
of the Bombay Industrial Relations Act, 1946 provides that
nothing in that Act shall affect any of the provisions of the
Industrial Disputes Act, 1947. The Standing Orders prescribe only
the procedure for closure and the consequence by way of
termination of services by reason of the closure is to be found in
the provisions of S. 25FFA read with S. 25FFF of the Industrial
Disputes Act, 1947. In other words, there would be termination of
the services by reason of closure only if there is compliance with
Ss. 25FFA and 25FFF. That there is no such compliance is a
matter beyond controversy.
The Division bench has noticed the provision of section 120A of
the BIR Act and has held that the same stipulates that nothing in
that Act shall affect any of the provisions of the I.D. Act. Thus,
any proceedings which are held under the BIR Act cannot eclipse
the provisions of the I.D.Act. The section further clarifies that no
proceedings shall be held under the BIR Act relating to any matter
or dispute which has been referred and is pending before any
forum under the I.D.Act.
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
10. It is no more res integra that a workman/employee can
approach the Labour Court or Tribunal by resorting to the
provision of section 33C(2) of the I.D. Act for claiming any benefit
capable of being computed in terms of money, which is due to
him from the employer under any settlement or award. The
intention behind the introduction of Section 33C(2) of the I.D.Act
was to provide a short and immediate remedy to an employee for
realization of the amount. The explanation to the section clarifies
the expression "Labour Court" used in section 33C of the I.D.Act.
It is acknowledged that the "Labour Court" includes any Court
constituted under any law relating to investigation and settlement
of industrial disputes in force in any State. The petitioner is
claiming the benefit of Leave Encashment as per the settlement
arrived at between the Union and the respondent-Bank which was
made effective from 01.10.2002 to 31.10.2002 and confirmed by
the Industrial Court, Baroda in Refence (I.C) N0.3 of 1998. Thus,
the Explanation to section 33C(2) of the I.D.Act will encompass
the award passed by the Labour Court under the provision of the
BIR Act. Any benefit arising of the same can be claimed by an
employee by resorting to the proceedings under section 33C(2) of
the I.D.Act. The proceedings under section 33C(2) of the I.D.Act
cannot be restricted to the award passed under the said Act.
Hence, the Labour Court has fell in error in rejecting the
application of the petitioner filed under section 33C(2) of the
I.D.Act claiming differential amount of leave encashment as per
the settlement."
13. As the aforesaid contention has already been decided by
this Court in the case referred herein-above this Court
would not discuss further as the same is not more res
NEUTRAL CITATION
C/SCA/12916/2022 JUDGMENT DATED: 28/01/2025
undefined
integra.
14. Considering the overall circumstances this Court is of
the view that no error has been committed by the
learned labour court in granting the benefit which was
claimed arising from the settlement dated 08.05.2000
regarding stagnation of increment and other
consequential wages. Hence, this petition being devoid
of merits is required to be rejected.
15. Resultantly, this petition is rejected.
(M. K. THAKKER,J)
NIVYA A. NAIR
