Gujarat High Court
Kalola Gokaldas Thobhanbhai vs Gujarat Ambuja Cement Company on 1 May, 2014
Author: K.J.Thaker
Bench: K.J.Thaker
C/SCA/21711/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21711 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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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 ?
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KALOLA GOKALDAS THOBHANBHAI....Petitioner(s)
Versus
GUJARAT AMBUJA CEMENT COMPANY,....Respondent(s)
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Appearance:
MR DM THAKKAR, ADVOCATE for the Petitioner(s) No. 1
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 01/05/2014
ORAL JUDGMENT
1. By way of this petition, the petitioner- workman has challenged the judgment and order of the Labour Court, Junagadh, rendered in Reference Case No. 225 of 2001, whereby, the Labour Court directed the Respondent-Company to pay an amount of Rs.1,00,000/- towards compensation in lieu of Page 1 of 7 C/SCA/21711/2006 JUDGMENT reinstatement and back-wages.
2. The brief facts of the case are that the petitioner was working with the Respondent as Electrician for about three years prior to his alleged termination and was getting a salary of Rs.2500/- per month. The services of the petitioner, then, came to be abruptly terminated by the Respondent, without following the procedure prescribed under the law. The petitioner, hence, first send a Demand Notice and despite that, as he was not reinstated, raised a dispute by filing the aforesaid reference, wherein, the Labour Court passed the impugned judgment and order. Hence, the present petition.
3. Mr. Thakkar, learned Advocate for the petitioner-workman, submitted that the Labour Court committed an error apparent on the face of the record, inasmuch as it failed to appreciate the material on record in its proper perspective. He, further, submitted that the conclusion arrived at by the Labour Court that, since, the petitioner has attained 56 years of age, he cannot be granted reinstatement is erroneous, unjust and arbitrary, and hence, this petition be allowed.
4. On the other hand, Mr. Joshi, learned Page 2 of 7 C/SCA/21711/2006 JUDGMENT Advocate for the Respondent, supported the order of the Tribunal and submitted that in view of the fact that the petitioner had almost reached the age of superannuation, the Labour Court rightly directed the Respondent to pay some lump-sum compensation in lieu of reinstatement and back- wages. In support of his submissions, Mr. Joshi placed reliance on the following decisions of the Apex Court;
1. "JAGBIR SINGH VS. HARYANA STATE AGRICULTURAL MARKETING BOARD AND ANR.", (2009) 15 SCC 327;
2. "SR. SUPERINTENDENT, TELEGRAPH (TRAFFIC), BHOPAL, VS. SANTOSH KUMAR SEAL AND ORS.", (2010) 6 SCC 773;
3. "IN-CHARGE OFFICER AND ANR. VS.
SHANKER SHETTY", (2010) 9 SCC 126;
4. "RAJKUMAR S/O. ROHITLAL MISHRA VS. JALAGAON MUNICIPAL CORPORATION", (2013) 2 SCC 751;
5. "ASST. ENGINEER, RAJASTHAN DEVELOPMENT CORPORATION AND ANR. VS. GITAM SINGH", (2013) 5 SCC 136.
Page 3 of 7C/SCA/21711/2006 JUDGMENT
5. Heard learned Counsels for the parties and perused the material on record including the order of the Labour Court with their assistance. From a perusal of the cross-examination of the Petitioner-Workman recorded before the Labour Court, it appears that he had applied for the post in question in writing and pursuant thereto, he came to be interviewed and selected on the post of Electrician. Thus, there is no dispute about the appointment of the Petitioner-Workman on the post in question. Even otherwise, it is not the case of the Respondent that the entry of the Petitioner-Workman in service was a back-door one. The case of the Respondent before the Labour Court was that the Petitioner-Workman was mentally ill and the reason for the same was that the Petitioner-Workman, on three different occasions, had refused to do the work assigned to him, which, according to him, were not part of his duties. It appears that the Petitioner- Workman was issued a show-cause notice to which he filed his reply and it is after receiving his reply, the Factory Manager came to the conclusion that the Petitioner-Workman was suffering from mental disorder and he referred him to the Medical Officer of the Respondent-Company, who, in turn, referred the case of the Petitioner- Workman to Civil Surgeon, Amreli. The Petitioner- Workman was then directed to appear before Dr. Page 4 of 7 C/SCA/21711/2006 JUDGMENT Gandhi of Civil Hospital, Ahmedabad, who vide certificate dated 20.04.1989 certified that the Petitioner-Workman was fit to continue his job. Thus, it becomes clear that the Petitioner- Workman had cooperated all throughout with the Respondent and had also obtained fitness certificate from Dr. Gandhi. It is pertinent to note that none of the Medical Officers, who had examined the Petitioner-Workman, ever concluded that the Petitioner-Workman was continuously suffering from mental illness. However, even after obtaining fitness certificate from Dr. Gandhi, the Petitioner-Workman was not allowed to do his job and instead he was asked to appear before Dr. Mrugesh Vaishnav, which he refused. Pursuant thereto, he was discharged from service. Here, it may also be noted that for the charges levelled against the Petitioner-Workman no departmental proceedings were ever undertaken. Under the circumstances, the Labour Court committed no error in coming to the conclusion that the Respondent failed to prove that the Petitioner-workman was suffering from mental illness and that his services were illegally terminated by the Respondent.
6. So far as the aspect of reinstatement and the decisions relied on by the learned Advocate for the Respondent, Mr. Joshi, is Page 5 of 7 C/SCA/21711/2006 JUDGMENT concerned, this Court accepts the principles laid down by the Apex Court in the aforesaid judgments, but, at the same time, same would not apply to the facts of the case on hand. The reason for the same is before the Apex Court, the workmen were casual or work-charge employees, whereas, in the instant case, the Petitioner- Workman was a regular employee. Further, the services of the Petitioner-workman came to be terminated only on the ground that he refused to do certain work and for which, as stated above, no departmental proceedings were ever conducted against the Petitioner-Workman in connection with the alleged misconducts done by him and straightaway he was asked to go before different Medical Officers, treating him to be mentally ill. Not only that when the petitioner-workman succeeded in obtaining fitness certificate from one Dr. Gandhi, instead of permitting him to continue his job, the Respondent asked him to go before one Dr. Vaishnav, which he refused and pursuant thereto services of the Petitioner- workman came to be terminated, which in the opinion of this Court is highly arbitrary and unjust. The Labour Court, therefore, ought to have, in the peculiar facts and circumstances of the case, directed the Respondents to reinstate the Petitioner with full back-wages, irrespective of the fact that he had attained 56 years of age.
Page 6 of 7C/SCA/21711/2006 JUDGMENT Further, the compensation awarded by the Labour Court of Rs.1,00,000/- is also very meagre in view of the fact that the Petitioner-Workman was getting Rs.2,500/- per month towards salary and he had stated before the Labour Court that, after his termination, despite sincere efforts he could not get any job due to overage. The services of the Petitioner-Workman were terminated in the year 1989 and we are, at present, in the year 2014. In other words, the petitioner had to undergo ordeal of litigation for more than two decades. The Petitioner-Workman is stated to be 56 years of age in the year 2006, and therefore, at present, he must be of 64 years of age. Hence, the question of reinstatement does not arise, but, the ends of justice would be met, if, the Petitioner-Workman is granted an additional compensation of Rs.2,00,000/-(TWO LACS) along with 7.5 per cent interest in lieu of reinstatement, back-wages etc., over and above the amount of Rs.1,00,000/- (ONE LAC) awarded by the Labour Court. Ordered, accordingly. Order of the Labour Court stands MODIFIED to the aforesaid extent. Rule is made absolute, accordingly. No order as to costs.
(K.J.THAKER, J) UMESH Page 7 of 7