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2017 DIGILAW 1213 (GUJ)

Prime Co-Operative Bank Ltd. v. Labour Court

2017-07-04

K.M.THAKER

body2017
JUDGMENT : K.M THAKER, J. 1. Heard Ms. Shah, learned advocate for the petitioner and Mr. Mishra, learned advocate for the respondent. 2. The petitioner bank is aggrieved by order dated 4.12.2013 passed by the learned Labour Court in Recovery Application No. 22 of 2009 whereby the learned Labour Court allowed the said application and directed the petitioner bank to pay Rs. 2,14,142.00 with 6% interest towards difference of salary, i.e salary which was short paid (on account of 20% deduction from salary) during the period in question. 3. So far as factual background is concerned, it has emerged from the record that the respondent herein (i.e the claimant before the learned Labour Court) was employee of United Mercantile Co-operative Bank. The said bank merged with present petitioner, i.e Prime Co-operative Bank Ltd. in June 2008. It appears that on the day preceding the day on which the merger was to become effective, i.e on 13.6.2008, the claimant was retrenched and accordingly, the claimant's service came to an end. 4. Subsequently, somewhere in 2009, the claimant filed recovery application under Section 33(C-2) of the Industrial Disputes Act, 1947 and claimed that in view of the understanding/agreement with the union representing the workmen of United Mercantile Co-operative Bank, the said bank, (which was passing through financial crisis) had been effecting deduction @ 20% from the salary of each employee with the understanding that as and when financial position of the bank improves, the amount so deducted or short paid to the employees will be repaid. The claimant also alleged in the recovery application that though with passage of time the bank's financial position improved, the bank failed to make good the deductions from the salary which was effected during the period from September 2002 to 13.6.2008 and that, therefore, the claimant is entitled to receive the amount which was deducted/short paid from his salary. With the said allegation and claim, the claimant filed above mentioned recovery application. 5. The petitioner bank opposed the application on several grounds, including the contention that the claimant was never employed by it and that, therefore, the claimant had no locus to file recovery application against the bank or to demand any amount from the bank. It was also contended that if at all the claimant has any right to demand any payment, then it would be against the erstwhile employer, i.e United Mercantile Co-operative Bank. It was also contended that if at all the claimant has any right to demand any payment, then it would be against the erstwhile employer, i.e United Mercantile Co-operative Bank. It was further contended that the bank, i.e Prime Co-operative Bank Ltd. had not deducted any amount from the salary of the claimant or had not or short paid any amount to the claimant and in fact, any occasion to pay any salary to the claimant did not arise so far as the bank (i.e the petitioner) is concerned because the service of the claimant was terminated before the date on which the merger became effective and therefore, the bank has no obligation to make any payment to the claimant. 6. The learned Labour Court considered rival contentions and the material available on record and the learned Labour Court rejected the contention raised by the petitioner and reached to the conclusion that the claimant is entitled to receive the amount claimed by him in the application, along with interest at 6%. Having reached the said conclusion the learned Labour Court passed order dated 4.12.2013 with above mentioned directions. 7. Feeling aggrieved by the said order, the petitioner bank, i.e Prime Co-operative Bank Ltd. has taken out present petition. 8. Ms. Shah, learned advocate for the petitioner bank reiterated the contention and objection against the allegations which were raised before the learned Labour Court. 9. Of course, Mr. Mishra, learned advocate for the respondent initially opposed the contention raised by the petitioner bank. However, subsequently, in view of the fact that it was not claimed even by the claimant that the petitioner bank, i.e Prime Co-operative Bank Ltd. had paid any amount towards difference of salary, i.e repaid the amount short paid to the claimant during the period between September 2002 to 13.6.2008 and also having regard to the fact that the service of the claimant has been terminated by way of retrenchment, Mr. Mishra, learned advocate for the respondent submitted that the claimant will pursue appropriate remedy before appropriate Forum in appropriate proceeding to enforce the claim payment of amount deducted from the salary i.e the salary which is short paid to the claimant. 10. Mishra, learned advocate for the respondent submitted that the claimant will pursue appropriate remedy before appropriate Forum in appropriate proceeding to enforce the claim payment of amount deducted from the salary i.e the salary which is short paid to the claimant. 10. In light of the factual background discussed above and in view of the fact that the agreement/understanding on which the claimant relied to justify its claim and to contend that the erstwhile employer, i.e United Mercantile Co-operative Bank had agreed to repay the amount deducted @ 20% from the salary of the employees, during the period from September 2002 to 13.6.2008 when its financial position would improve, was not placed on record before the learned Labour Court and is also not placed on record of this petition and in light of the fact that the said agreement/understanding will have to be established by leading appropriate evidence and also having regard to the fact that the learned Labour Court proceeded and decided the subject recovery application in absence of the understanding/agreement on record before it and without any evidence about alleged agreement/understanding, the order impugned in present petition cannot be sustained, Mr. Mishra, learned advocate for the respondent, upon realizing the position, submitted that the claimant will take out appropriate proceeding before appropriate Forum. 11. Therefore, following order is passed: For the reasons mentioned above and in light of above discussed factual background, more particularly in light of the fact that the understanding/agreement on which the claim was based, was neither available on record before the learned Labour Court nor proved any other manner and in absence of any evidence that the petitioner repaid alleged deducted amount to any other employee, the learned Labour Court passed impugned order, the said order is not sustainable and deserves to be set aside. Consequently, the impugned order dated 4.12.2013 in Recovery Application No. 22 of 2009 is set aside with the clarification that present judgment or the order dated 4.12.2013 passed by the learned Labour Court will not stand in way of the respondent-claimant if and when the claimant takes out appropriate proceeding for recovery of the amount allegedly short paid/deducted from the salary during the period between September 2002 to 13.6.2008 and the petition is allowed. Rule is made absolute to the aforesaid extent.