IMPORTANT POINT
The main legal point established in the judgment is that the Labour Court has the jurisdiction to entertain a recovery application under Section 33(C)(2) of the Industrial Disputes Act when the claim is based on a pre-existing right, such as the non-payment of salary, and is not in the form of allowances or overtime.

JUDGMENT :

1. This petition is filed under Article 226 of the Constitution of India and under the provisions of Industrial Disputes Act and Rules made thereunder and also challenging the order passed below application u/s.33(C)(2) of the Industrial Disputes Act by the Labour Court, Amreli in Recovery Application no.111 of 1999 inter alia praying as under:

“A. … … ...

B. Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction holding and declaring that the impugned order dated 17th March, 2009 is violative of Articles 14 and 19(i)(g), without jurisdiction and authority in law, arbitrary, irrational, discriminatory, illegal and unreasonable;

C. Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside impugned order dated 17th March, 2009 and further be pleased to hold that the respondent cannot file Recovery Application straight way under Section 33(C)(2) of ID Act without crystallizing his right either by award under Section 78 of BIR Act from Labour Court or by way of any settlement with the petitioner employer.

D. … … …

E. … … …

F. … … ...”

2. The case of the petitioner is that the petitioner is a cooperative bank doing banking business on small scale and has been established and running under the provisions of the Bombay Industrial Relations Act, 1946.

2.1 As per the case of the petitioner, the respondent – employee was initially appointed on 29th July, 1966 as a Stenocum- Junior Officer in the petitioner bank. From time to time, he was given promotion and also given hike in salary as well as transfer in the branches of the petitioner bank. In the year 1980, the respondent challenged the transfer order by way of filing civil suit being Civil Suit no.106 of 1980, which was subsequently rejected on 23rd June, 1980 as the transfer was found as per the administrative policy of the petitioner bank and the respondent getting all the benefits as per the policy and his entitlement. Since, the dismissal of the suit, the respondent became non-cooperative to the customers of the bank and also to the staff members, as a result, the bank received numerous complaints against the respondent from time to time regarding behaviour of the respondent with the customers, as well as with the other staff members and the respondent was also become irregular in service and used to remain absent.

2.2 On 25th March, 1998, the respondent was transferred from Amreli Branch to Dungar Branch and was relieved from the Amreli Branch and was directed to join Dungar Branch with immediate effect. The respondent, instead of joining duty at Dungar Branch, has challenged the said order dated 25th March, 1998 before the Labour Court by way of filing BIR Application no.2 of 1998. On 30th March, 1998, the Labour Court directed the petitioner bank not to change the condition of service of present respondent. Despite the order of the Labour Court, the respondent did not come to petitioner bank and did not join the services either at Amreli Branch or at Dungar Branch. During the interregnum period, the petitioner challenged the interim order of the Labour Court by way of writ petition being Special Civil Application no.2804 of 1998, which was subsequently withdrawn as the order was interim order. At the same time, the interim application was also decided to be heard along with the main petition by the Labour Court by the order dated 11th August, 1999. Against that order dated 11th August, 1999 the petitioner had preferred Revision Application no.1 of 2000 which was dismissed by the Industrial Tribunal as no final order was passed in BIR Application n.2 of 1998.

2.3 On 23rd March, 2009, the Labour Court finally adjudicated the dispute and also passed the award u/s.78 allowing the BIR Application no.2 of 1998 filed by the respondent. Thereafter, the petitioner has prefe