Gujarat High Court
Sardarsinh Sabursinh Bariya vs State Of Gujarat on 14 March, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/61/2022 JUDGMENT DATED: 14/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 61 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 7162 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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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 or
any order made thereunder ?
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SARDARSINH SABURSINH BARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PH PATHAK(665) for the Appellant(s) No. 1
MS REENA M KAMANI(6007) for the Appellant(s) No. 1
MS. SHRUTI DHRUVE, AGP, ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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NEUTRAL CITATION
C/LPA/61/2022 JUDGMENT DATED: 14/03/2024
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Date : 14/03/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI) [1] The present Letters Patent Appeal is filed under clause 15 of the Letters Patent by the appellant - original respondent assailing the correctness of order dated 09.07.2021 passed in Special Civil Application No. 7162 of 2009 as well as the order dated 22.10.2021 passed in Misc. Civil Application (for review) No. 1 of 2021 in Special Civil Application No. 7162 of 2009.
[2] The prayers made in the writ petition before the learned Single Judge was to set aside the award passed by the learned Judge of Labour Court, Dahod in Reference (L.C.D.) No. 59 of 2008 dated 06.11.2008 wherein it was awarded to reinstate the workman with 40% backwages. The learned Single Judge after hearing both the parties observed that the workman has not led any evidence regarding non-employment, therefore, granting backwages was not in consonance with the law. It was further observed that regularization of the service of workman cannot be ipso facto and almost 24 years has passed from the date of Page 2 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined retrenchment of the workman, and in that view of the matter and considering the age of the workman, the possibility of his reaching superannuation cannot be ruled out, therefore, learned Single Judge deemed it fit to grant compensation of Rs. 50,000/-
as full and final settlement in lieu of reinstatement. Pursuant to passing of the order of the learned Single Judge, a review application was preferred, wherein the learned Single Judge has enhanced the compensation to Rs. 50,000/- to Rs. 1,00,000/-. It is this direction granting compensation in lieu of reinstatement, which has been challenged in the present Appeal.
[3] The factual matrix which led to the filing of the present Appeal is that the appellant - original respondent was engaged in Forest Department from 01.12.1988. It is alleged that on 17.07.1997, his services were terminated without following due procedure of law and in violation of provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act, 1947'). The workman therefore raised an issue which resulted into Labour Court Reference No. 59 of 2008. By way of an award dated 06.11.2008, the Labour Court had granted Page 3 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined reinstatement with 40% backwages and continuity of service.
[4] The award passed by the Labour Court came to be challenged by the State Government by filing writ petition being Special Civil Application No. 7162 of 2009. After hearing arguments of both the sides, the learned Single Judge observed that there was a delay in filing Reference, and therefore, instead of granting reinstatement, lump-sum compensation should be awarded. Pursuant to passing of this order, the learned Single Judge, a Review Application came to be preferred. It was pointed out that originally the workman had filed Reference in the year 1998 and it was registered as Reference (L.C.G.) No. 507 of 2008. Thereafter it was transferred to Labour Court, which was set up at District Dahod and therefore a new number being Reference (L.C.D.) No. 59 of 2008 was registered.
Thereafter, the learned Labour Court had passed an award in the year 2008, therefore, there was no delay in filing the Reference.
[5] After hearing both the sides, the learned Single Judge Page 4 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined observed that it was almost 24 years and workman was on the verge of superannuation. On that ground, the lump-sum compensation was enhanced from Rs. 50,000/- to Rs. 1,00,000/-.
Therefore, the order of the learned Single Judge in the writ petition as well as in the review application are challenged before us in the present Appeal.
[6] We have heard Ms. Reena Kamani, learned advocate for Mr. P.H. Pathak, learned advocate for the appellant and Ms. Shruti Dhruve, learned AGP for the respondent - State.
[7] Learned advocate Ms. Kamani appearing for the appellant contended that there is a clear cut finding that the appellant has worked for 240 days. There was breach of Section 25F of the Act, 1947, which has been observed by the learned Labour Court as well as confirmed by the learned Single Judge. It was further contended that there was no delay in filing the Reference, merely because of a typographical error in the copy of the award, there was wrong finding of fact that Reference was filed with the delay of 11 years. It was further contended Page 5 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined that other workmen junior to the appellant are already reinstated. In that scenario, Ms. Kamani has urged to allow this Appeal and grant reinstatement to the appellant with backwages.
[8] Per contra, learned AGP Ms. Shruti Dhruve appearing for the Respondent - State has vehemently opposed the Appeal. She has submitted that the order passed by the learned Single Judge is just and proper. The workman has not worked for 240 days.
Even though there may be a finding that the workman may have worked for 240 days and there may be violation of Section 25F of the Act, 1947, the appellant would be on the verge of superannuation in the year 2025, and therefore, the order of giving lump-sum compensation instead of granting reinstatement was just and proper. She has relied on following judgments to substantiate her arguments :
(i) Ranbir Singh versus Executive Eng. P.W.D. reported in 2021 (14) SCC 815;
(ii) Dharamsinh Desai University versus Nathubhai Kantibhai Raval reported in 2023 (3) GLR 1783;Page 6 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024
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(iii) Port Officer versus Raghubhai Govindbhai C/o Nayanbhai K. Joshi reported in 2018 (3) GLR 494.
[9] Having heard learned advocates for both the parties, the small point of consideration before us in the facts of the present case is as to whether in the scenario of clear cut violation of Section 25F of the Act, 1947, reinstatement would be automatic or lump-sum compensation would meet the end of justice. If we perused the facts of the present case, it is not in dispute that there is a breach of Section 25F of the Act, 1947. It is also not in dispute that the appellant workman would be on the verge of superannuation in a short span of time. Therefore, in the total facts of the case, instead of the relief of reinstatement and 40% backwage as awarded, the alternative relief of compensation would meet the ends of justice.
[9.1] In shift of paradigm, this Court has consistently taken a view that relief by way of reinstatement with backwages would not be automatic and may be wholly inappropriate in a given facts situation, even though the termination of an employee is in Page 7 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined contravention of the prescribed procedure. Furthermore, in given circumstances, it would always be opened to be management to terminate the service of the employee by paying him retrenchment compensation since the workman was working on a daily wages and even after he is reinstated he would have no right to seek regularization. Further, the workman is always on the verge of superannuation, therefore, in such a situation, giving the relief of reinstatement, that to after long gap, would not serve to any purpose. Therefore, we are inclined to given appropriate monetary compensation to the workman which would meet the ends of justice.
[9.2] The law as envisaged in catena of decisions is that even if finding of the breach of Section 25F of the Act is recorded, it would not automatically entail relief of reinstatement for the workman. The relief of reinstatement and grant of backwages may not follow as a matter of rule. This principle is especially applicable when it comes to the grant of relief of reinstatement and award of backwages to the daily rated workmen, who by virtue of their status cannot claim the reinstatement as a matter Page 8 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined of course, nor can claim the right to be reinstated.
[9.3] In Jagbir Singh Vs. Haryana State Agriculture Mktg.
Board [(2009) 15 SCC 327], the Supreme Court held, "It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
(para 7)
[9.3.1] It was further observed,
"It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
(para 14) [9.4] In Bhopal Vs. Santosh Kumar Seal [(2010) 6 Page 9 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined SCC 773], relying on Jagbir Singh (supra) the Supreme Court observed about the shift in the approach of the court in granting the relief of payment of lump-sum compensation.
"In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [2006 (1) SCC 479], Uttaranchal Forest Development Corpn. v. M.C. Joshi [2007 (9) SCC 353], State of M.P. v. Lalit Kumar Verma [2007 (1) SCC 575], M.P. Admn. v. Tribhuban [2007 (9) SCC 748], Sita Ram v. Moti Lal Nehru Farmers Training Institute [2008 (5) SCC 75], Jaipur Development Authority v. Ramsahai [2006 (11) SCC 684], GDA v. Ashok Kumar [2008 (4) SCC 261] and Mahboob Deepak v. Nagar Panchayat, Gajraula [2008 (1) SCC 575].)"
(para 9) [9.5] In subsequent decision in Rajasthan Development Corpn. v. Gitam Singh [(2013) 5 SCC 136], the above position was highlighted with elaboration, and it was held, "From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that the dismissed employee is entitled to reinstatement in cases of wrongful dismissal Page 10 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief."
(Para 22) [9.6] In Uttaranchal Forest Development Corporation Vs. M.C. Joshi [(2007)9 SCC 353], the Supreme Court inter alia stated that on the question of grant of compensation instead of reinstatement, one of the relevant factor was whether appointment in question was made in terms of statutory rules.
Again decision in Ghaziabad Development Authority Vs. Ashok Kumar [(2008)4 SCC 261] deserves a reference.
"The first respondent was admittedly appointed on a daily wage of Rs 17 per day. He worked for a bit more than two years. It has not been disputed before us that sanction of the State of U.P. was necessary for creation of posts. The contention of the appellant before the Labour Court that the post was not sanctioned after 31- 3-1990 by the State was not denied or disputed. If there did not exist any post, in our opinion, the Labour Court should not have directed reinstatement of the first respondent in service."
(para 18) [9.6.1] The Court proceeded to state, Page 11 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined "A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said constitutional scheme as also the statutory recruitment rules, if any, would be void. These facts were required to be kept in mind by the Labour Court before passing an award of reinstatement."
(para 19)
[9.6.2] It was thus stated also,
"Furthermore, public interest would not be subserved if after such a long lapse of time, the first respondent is directed to be reinstated in service."
(para 20) [9.6.3] The Supreme Court finally expressed, "We are, therefore, of the opinion that the appellant should be directed to pay compensation to the first respondent in stead and in place of the relief of reinstatement in service."
(para 21) [9.7] B.S.N.L. Vs Bhurumal being Civil Appeal No.10957 of 2013 decided on 11th December, 2013, is a more recent decision, in which the Supreme Court surveyed the various decisions and enunciated to re emphasise the principles in the following words.
Page 12 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined "It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious."
(para 23) [9.7.1] Reiterating that a daily-waged workman cannot claim reinstatement as of right, the Court said, "Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose."
(para 24) Page 13 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined [9.7.2] There was, however a rider mentioned, "We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. While retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."
(para 25) "It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious."
(para 33) The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by Page 14 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose."
(para 34) [9.8] In Shankar Shetty (supra), the Supreme Court referred to Jagbir Singh (supra) and other judgments on the aspect. In that case the respondent was engaged in dailywager in 1978 and worked intermittently for seven years till his retrenchment which was about twenty-five years back. It was held that the relief of reinstatement was not justified. In the present case, the termination which was almost 25 years back and therefore, the ratio laid down in Shankar Shetty (supra), would directly the effected of this case. Awarding compensation of Rs.1 lac, the Apex Court observed, "If the principles stated in Jagbir Singh(supra) and the decisions of this Court referred to therein are kept in mind, it will be found that the High Court erred in granting relief of reinstatement to the respondent. The Page 15 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined respondent was engaged as daily wager in 1978 and his engagement continued for about 7 years intermittently upto September 6, 1985 i.e. about 25 years back. In a case such as the present one, it appears to us that relief of reinstatement cannot be justified and instead monetary compensation would meet the ends of justice." (para 7) [9.9] Similarly in Bhavnagar Municipal Corporation (supra), the Supreme Court while holding the termination to be illegal on account of non payment of retrenchment compensation, it was held that it would not automatically result into reinstatement of the workmen. Looking to the age of the workmen and the fact that the termination was three decades back, the Supreme Court awarded lump-sum Rs.2,50,000/- as compensation. Following was observed by the Supreme Court.
"The case at hand, in our opinion, is one such case where reinstatement must give way to award of compensation. We say so because looking to the totality of the circumstances, the reinstatement of the respondent in service does not appear to be an acceptable option. Monetary compensation, keeping in view the length of service rendered by the respondent, the wages that he was receiving during that period which according to the evidence was around Rs.24.75 per day should sufficiently meet the ends of justice. Keeping in view all the facts and circumstances, we are of the view that award of a sum of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand only) should meet the ends of justice."
(para 16) Page 16 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024 NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined [9.10] Same principle was laid down by the Supreme Court in the State of Madhya Pradesh (supra) and in Vice Chancellor Lucknow University, Lucknow, Uttar Pradesh Vs. Akhileshkumar Khare [(2016) 1 SCC 521]. Several judgments including to referred to above were considered by single Judge of this court in Bantva Municipality Vs. Amritlal Darji Chauhan being Special Civil Application No.9135 of 2013 decided on 31.3.2014.
[10] The second limb of discussion would be whether the learned Single Judge was justified in awarding compensation to the tune of Rs. 1,00,000/-. It is not in dispute that the appellant workman has put almost 9 years of service. Therefore, we deem it fit to enhance compensation from Rs. 1,00,000/- to Rs.
3,00,000/-. It has been submitted that amount of Rs. 1,00,000/-
compensation has already been given to the appellant. It is directed to the State authorities to give additional amount Rs.
2,00,000/- as lump-sum compensation within 12 weeks from the date of passing of this order, failing which, there would be interest @ 9% till the date of payment.
Page 17 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024NEUTRAL CITATION C/LPA/61/2022 JUDGMENT DATED: 14/03/2024 undefined [11] With the aforesaid observation, the Letters Patent Appeal is partly allowed and is disposed of, accordingly. Pending civil application(s), if any, shall also stand disposed of. No order as to costs.
(BIREN VAISHNAV, J) (PRANAV TRIVEDI,J) AMAR SINGH Page 18 of 18 Downloaded on : Fri Apr 05 20:55:51 IST 2024