Gujarat High Court
State Of Gujarat vs Dhirubha Kathubha Vaghela on 19 March, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/813/2019 JUDGMENT DATED: 19/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 813 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 7231 of 2017
With
R/LETTERS PATENT APPEAL NO. 814 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 2900 of 2017
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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STATE OF GUJARAT
Versus
DHIRUBHA KATHUBHA VAGHELA & ANR.
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Appearance:
MR ROHAN SHAH, ASST GOVERNMENT PLEADER for the Appellant(s)
No. 1
for the Respondent(s) No. 1
MR CHINTAN N DESAI(9940) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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NEUTRAL CITATION
C/LPA/813/2019 JUDGMENT DATED: 19/03/2024
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 19/03/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. Heard learned advocates for the respective parties.
2. Challenge in these appeals at the hands of the State is to the oral order dated 16.03.2018 passed by the learned Single Judge in Special Civil Applications No. 2900 and 7231 of 2017. Aggrieved by the award of the Labour Court dated 06.04.2016 passed in Reference T No. 15 of 2010 which denied full backwages to the workman, Special Civil Application No. 29700 of 2017 whereas aggrieved by the award qua reinstatement and backwages the State has preferred Special Civil Application No. 7231 of 2017. Both these petitions were heard and disposed of by the order under challenge.
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3. So far as these petitions are concerned i.e. qua Special Civil Application No. 29700 of 2017, the same was partly allowed granting 35% backwages and the employer - State's petition granting reinstatement was dismissed.
4. Facts in brief indicate that it was the case of the respondent that he was engaged with the respondents with effect from 01.05.1990 as a Chowkidar and his services were terminated with effect from 31.07.2006. A statement of claim was filed in the year 2010 and in a response filed by the State, the Labour Court after examining the evidence in question found that the workman was examined at Ex.19. It was his case that he had been engaged on a monthly salary of Rs.1800 with effect from 01.05.1990 and his services were terminated on 21.07.2006.
4.1 The State examined one Harjibhai Nathabhai at Ex.
22. It was the case of the employer that he was working Page 3 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024 NEUTRAL CITATION C/LPA/813/2019 JUDGMENT DATED: 19/03/2024 undefined as a Range Forest Officer for the past 5 years prior to the date of termination. It was the case of the department that since the activity had closed down with effect from 01.04.2003, it was not necessary for the forest department to continue with the services of the respondent herein.
4.2 Perusal of the award of the Labour Court would indicate that it is undisputed that the case of the employer that the work was not available with effect from the year 2003 was not proved. In fact when an application was made vide Ex. 16 for production of evidence such as wage registers and attendance registers, the Labour court found that such records were not produced by the employer. The Labour court therefore came to the conclusion that since it was the burden of the employer, on its assertion that the workman had not completed 240 days to prove the case on hand, which it did not in light of the production of documents not being made even on an application made Page 4 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024 NEUTRAL CITATION C/LPA/813/2019 JUDGMENT DATED: 19/03/2024 undefined at Ex. 16.
4.3 Having found that there was breach of provisions of Section 25F of the Industrial Disputes Act, on the question of backwages, it is admitted fact on the basis of the oral evidence and the statement of workman himself that after being terminated he was earning about Rs.1100 to 1200 per month. Based on this, the Labour Court passed an award of reinstatement with backwages.
5. Mr. Chintan Desai, learned advocate appearing for the respondent would submit that the respondent workman has rightly been granted reinstatement and that the amount of backwages to the extent of 35% is reasonable and there is no reason why this court should disturb the award of the Labour Court.
6. On the petition being heard together and having perused the order of the learned Single Judge, we found that the learned Single Judge on analysing the evidence Page 5 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024 NEUTRAL CITATION C/LPA/813/2019 JUDGMENT DATED: 19/03/2024 undefined found that though the appellants tried to make out a case that the respondent workman was engaged on a project work, it was found that the services that were undertaken were continued and in absence of any evidence by the employer to dislodge the case of the workman that he had not completed 240 days, the learned Single Judge found that the requisite condition prior to the termination under Section 25F was not followed. This was particularly in view of the fact that the learned Single Judge had held that Section 25B of the Industrial Disputes Act was satisfied inasmuch as it was proved that the respondent workman had worked for more than 10 years. It shall be in the fitness of things to relevant reproduce paragraphs of the order of the learned Single Judge which are as under.
"7.3 On the basis of aforesaid analysis of evidence, the learned Presiding Officer of the Labour Court found that the workman did perform his duty from 01.05.1990 to 31.07.2006 as Chowkidar in Balachhadi Range. A case is tried to be made out that on a project work, the workman was discharging service with effect from 01.09.1992 and not from 01.05.1990, but for that it has been noticed by the Court below that no documentary Page 6 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024 NEUTRAL CITATION C/LPA/813/2019 JUDGMENT DATED: 19/03/2024 undefined evidence is adduced. Considering this set of circumstance, upon examination, it was found that no adequate documentary evidence of the relevant period is produced by the department. Whatever is produced is not a complete document as is found by the learned Presiding Officer. It has been noticed that since undisputedly it was admitted by the department that workman was discharging the services, production of identity card is of no significance but it has been categorically found that as against the clear assertion on the part of the workman that he has completed 240 days to dislodge that no documentary evidence is produced by the department and, therefore, in such a situation, it was found that it cannot be said that workman has not completed 240 days in the previous years.
7.4 Additionally, the stand of the department that on his own, with effect from 01.04.2003, the workman has stopped coming. Now that issue has also been examined and it has been found categorically that for some extraneous reasons though best evidence was available possessed by the department has not been produced and, therefore, it was found clearly that in view of Section 25B of the Industrial Disputes Act, 1947, the workman has continued to serve for a period for which he has stated in the pleading. Additionally, it has not been denied specifically by the department that on 31.07.2006, the workman was not discontinued orally by 'Mehta Saheb', an officer of the department. Therefore, it was difficult for the learned Presiding Officer on the basis of such material to accept the stand that workman has stopped coming on his own. Had there been so, it has also been observed by learned Presiding Officer that if that be so, then there was no letter Page 7 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024 NEUTRAL CITATION C/LPA/813/2019 JUDGMENT DATED: 19/03/2024 undefined written by the department to the workman to resume, nor held any departmental inquiry as a result of that the stand taken by the department is not believed by the learned Presiding Officer and ultimately on the basis of overall analysis of material on record, it was noticed by the learned Presiding Officer that there appears to be a clear violation of Section 25F of the I.D.Act.
7.5 Considering this circumstance, the learned Presiding Officer has also travelled further to examine the case in which it was believed that department falls within the purview of Section 2(J) of the Act and that appears to not have been seriously protested even by the department. Resultantly, it was noticed that is an 'industry' as found by learned Presiding Officer. Further, the date of birth of the workman is 26.09.1959 and, therefore, the same has not attained the superannuation age, either at 58 or at 60 years of age. Considering this set of circumstance and in view of various decisions relied upon by the respective sides, it was ultimately concluded specifically that since there is clear violation of Section 25F of the I.D. Act, the reinstatement deserves to be effected. Accordingly by award dated 06.04.2016, the workman is ordered to be reinstated to original post with continuity of service. Now, this entire conclusion has been arrived at on the basis of specific assertion of both the sides supported by the deposition and the documentary evidence and it is not the case that any material document is not observed or dealt with by learned Presiding Officer and it is also not the case of the department that any perversity is reflecting. As a result of this, the reinstatement is ordered to be effected. Of course, backwages has not been awarded which has generated further Page 8 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024 NEUTRAL CITATION C/LPA/813/2019 JUDGMENT DATED: 19/03/2024 undefined controversy in the present proceedings.
7.6 Now, so far violation of Section 25F of the I.D.Act is concerned, learned Presiding Officer has specifically concluded and arrived at satisfaction that there is violation which deserves consequential order. Normally, when there is a violation of mandatory provisions of Section 25F of the I.D.Act, as a natural consequence along with reinstatement, the back wages are also required to be awarded. Now to pass an award with respect to back-wages, certain circumstances are required to be examined by the Court whether the workman was gainfully employed or not and that gainful employment is whether adequate or not. It is further settled position of law that the gainful employment cannot be equated with a forced employment and, therefore, simply because as an alternative measure to sustain his family if workman is getting employment that cannot be strictly treated as gainful employment particularly when the employer, despite the request of the employee, has not allowed him to resume duty. Now, to determine the backwages, few circumstances are required to be considered by the Court below about alternate employment and the income. Here, on case on hand, it is clearly emerging from the record that workman was doing some monthly labour work and has admitted that around Rs.1100/- to Rs.1200/- per month, the workman was getting some amount. This amount may not be equal to what was being earned by him from the department but then this figure also cannot be overlooked by the Court while awarding backwages. It has also been asserted in the deposition that workman is having some 10-12 bighas of agricultural land. Now, this land is whether of joint or of exclusive ownership of Page 9 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024 NEUTRAL CITATION C/LPA/813/2019 JUDGMENT DATED: 19/03/2024 undefined workman is not clearly emerging from the record and, therefore, taking into consideration this vital circumstance, this Court is of the opinion that normally rule of granting full backwages and reinstatement upon violation of Section 25F of the I.D. Act cannot be applied as straight jacket formula especially when aforesaid circumstance of earning are very much reflecting from the record and as against this to deny completely the back- wages is also not appearing to be just and proper especially when there is a clear violation of Section 25F of the I.D.Act which has been clearly concluded and found by the learned Presiding Officer. Considering aforesaid situation, it appears to this Court that to strike balance between the two, if 35% back-wages allowed to be awarded, the same would meet the ends of justice. This 35% back-wages is on consideration of the fact that undisputedly, the respondent was working at monthly salary at Rs.1800/- per month may be on daily rated employment but nonetheless it was visible that he was being paid monthly by way of salary of Rs.1800/- per month and as against this after discontinuance even on the basis of admitted position the workman was earning Rs.1100/ to Rs.1200/-. As such considering this set of circumstance, to grant 35% backwages would be equitable as found by this Court. As a result of this, this Court is of the opinion that along with an order of reinstatement with continuity of service, if 35% backwages are awarded, the same would be just and proper. The Court, while granting back-wages to the extent of 35%, is considering the testimony of workman that he is earning roughly Rs.1100/- to Rs.1200/- per month and is also having approximately 10 to 12 bighas of agricultural land. So, there is some alternate avenue of income available to him throughout the adjudication of Page 10 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024 NEUTRAL CITATION C/LPA/813/2019 JUDGMENT DATED: 19/03/2024 undefined Reference and, therefore, Court deems it proper to grant backwages to the extent of 35% not from the date of the Reference but from the date of the award passed by the Labour Court i.e. from 06.04.2016, which according to this Court would like to strike the equity between both the sides. Accordingly, the impugned award deserves to be modified to the aforesaid extent."
7. Having held that the Labour court was right in its analysis of holding that the respondent workman deserved reinstatement, the learned Single Judge in para 7.6 held that the respondent workman was entitled to 35% of backwages in light of the clear violation of the provisions of Section 25F of the Industrial Disputes Act.
As far as the finding of the learned Single Judge in respect of the awarding of backwages to the extent of 35%, in light of the clear assertion and admission made by the respondent workman that he was earning Rs. 1100 to Rs.1200 per month, we tend to disagree with the award granting backwages to the extent of 35%.
8. For the aforesaid reasons, while confirming the award of the Labour Court and the order of the learned Page 11 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024 NEUTRAL CITATION C/LPA/813/2019 JUDGMENT DATED: 19/03/2024 undefined Single Judge to the extent of granting reinstatement, the order of the learned Single Judge granting 35% backwages is quashed and set aside. Appeals are allowed to the aforesaid extent.
(BIREN VAISHNAV, J) (PRANAV TRIVEDI,J) DIVYA Page 12 of 12 Downloaded on : Wed Mar 20 20:43:11 IST 2024