Gujarat High Court
Heirs Of Decd. Dhirubhai Lavabhai ... vs Range Forest Officer on 23 November, 2021
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/LPA/1132/2018 ORDER DATED: 23/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1132 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 8714 of 2008
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HEIRS OF DECD. DHIRUBHAI LAVABHAI SUVAGIYA & 2 other(s)
Versus
RANGE FOREST OFFICER
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Appearance:
KRISHNAN M GHAVARIYA(8133) for the Appellant(s) No. 1,1.1,1.2,1.3,2,3
MR SAHIL TRIVEDI, AGP
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/11/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr.Krishnan Ghavariya for the appellants and learned Assistant Government Pleader Mr.Sahil Trivedi for the respondent.
2. The present Letters Patent Appeal preferred by the original petitioners is directed against judgment and order dated 29th September, 2017 of learned Single Judge, whereby he partially allowed the Special Civil Application.
2.1 The Special Civil Application was filed by the Range Forest Officer, in which he called in question the judgment and award of the Labour Court, Bhavnagar delivered in Reference (LCB) No.623 of 1997. It was a Reference by workmen - the appellants herein. Allowing the Reference partially, the Labour Court directed reinstatement of two of the workmen Page 1 of 6 Downloaded on : Wed Jan 12 03:40:32 IST 2022 C/LPA/1132/2018 ORDER DATED: 23/11/2021 with continuity of service and 50% back wages, whereas one of the workman Fajalbhai Sultanbhai Chauhan was directed to be reinstated with continuity of service but without back wages.
3. The facts briefly stated, the workmen were Chokidars. Appellant No.1 Dhirubhai Lavabhai Suvagiya, now deceased, worked from 09th October, 1982 to 03rd February, 1986 on monthly salary of Rs.360/-. Appellant No.2 Vitthal Arjan Makwana worked for eight years, whereas appellant No.3 Fajalbhai Sultanbhai Chauhan discharged duties from 01st January, 1981 to 12th July, 1985, whose monthly salary was Rs.200/-.
3.1 When their services came to be terminated, they invoked jurisdiction of Labour Court seeking relief of reinstatement in service on the ground that termination of their service was in violation of provisions of Sections 25F, 25G and 25H of the Industrial Disputes Act. The Labour Court granted relief as above considering the facts of the case and the evidence before it led by the first party employer as well as on behalf of the workmen.
3.2 At this stage it is to be mentioned that appellant Dhirubhai Suvagiya died and his heirs are on record as the appellants. The workman having died, the question of reinstatement would not arise but the cause for benefit of back wages etc. would survive for the heirs. Appellant No.2 superannuated on 15th February, 2008. He was thus not in service when the award was passed. His claim would also stand confined Page 2 of 6 Downloaded on : Wed Jan 12 03:40:32 IST 2022 C/LPA/1132/2018 ORDER DATED: 23/11/2021 to the benefits flowing from the judgment and award of the Labour Court. Similar is the case of appellant No.3, who having already retired, could stake claim for the monetary benefits and the question of reinstatement does not arise.
3.3 While dealing with the challenge to the judgment and award of the Labour Court as above, learned Single Judge found that the direction in the judgment and award to reinstate the workmen was justified on facts and in law. About the workman Dhirubhai Suvagiya - appellant No.1 herein, learned Single Judge noted that since the said workman died in January, 2015, question of his reinstatement would not arise. Also noted the fact about superannuation of appellant No.2 - Vitthal Makwana. Learned Single Judge further noticed that appellant No.3 Fajalbhai Chauhan was already reinstated by order dated 15th September, 2008 when the petition was dealt with. Therefore, the direction in respect of reinstatement was not required to be dealt with in respect of any of the three workmen.
3.4 About the back wages part, learned Single Judge was of the view that grant of 50% back wages was excessive and deserves to be modified. Learned Single Judge substituted the direction to pay 50% back wages with direction to 20% back wages and modified the judgment and award of the Labour Court in that way.
4. In course of hearing, learned advocate for Page 3 of 6 Downloaded on : Wed Jan 12 03:40:32 IST 2022 C/LPA/1132/2018 ORDER DATED: 23/11/2021 the appellants submitted that he would not press challenge in respect of reduction of back wages. Even otherwise, learned Single Judge reduced the back wages to modify the award applying the facts and exercising his discretion in that respect. The grant of back wages is discretionary which exercise has undertaken by learned Single Judge and we, in Letters Patent Appeal, would not, in any case, substitute our view. Therefore, when part of the direction of learned Single Judge modifying the award of the Labour Court in respect of grant of back wages is not interfered with.
4.1 The third aspect which was really interjected by learned Single Judge was about grant of continuity. The Labour Court in its judgment and award granted continuity of service to all the workmen. The direction to grant continuity of service came to be set aside by learned Single Judge. He reasoned in paragraph No.18 that, "In view of the persons who were engaged without following procedure prescribed by law and who had not completed service of more than 4 to 5 years before they were relieved and that the persons who were engaged on adhoc and daily wage basis, the order directing the employer to treat their service continues for entire duration cannot be sustained.".
5. The direction of reinstatement of the workmen issued by the Labour Court and confirmed by the learned Single Judge was confined on the finding that there was a breach of Sections 25F, 25G and 25H Page 4 of 6 Downloaded on : Wed Jan 12 03:40:32 IST 2022 C/LPA/1132/2018 ORDER DATED: 23/11/2021 of the Industrial Disputes Act. It is trite principle that reinstatement when granted, in all ordinary circumstances, would accompany with grant of continuity of service. The reasoning that services of the workmen were only of four to five years or that they were the persons engaged in the ad hoc capacity, were not the valid or germane reasons in eye of law to set aside the benefit of continuity of service granted to them by the Labour Court.
6. In Gurpreet Singh v. State of Punjab and Haryana [(2002) 9 SCC 492], while the appellate court had directed reinstatement of the employee, the claim for arrears of salary was denied and it was further provided that the plaintiff would not be entitled to get the benefit of continuity of his service. The Supreme Court stated that once the plaintiff was directed to be reinstated in service upon setting aside the order of termination, continuity of service could not have been denied. The Supreme Court proceeded to observe, " ... ... ... It is not a case of fresh appointment, but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside the part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity with the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above." (Para 3) 6.1 Also in Nandkishore Shravan Ahirrao v. Kosan Industries (P) Ltd. [AIR 2020 SC 1776], the Page 5 of 6 Downloaded on : Wed Jan 12 03:40:32 IST 2022 C/LPA/1132/2018 ORDER DATED: 23/11/2021 proposition of law was reiterated. In that case, the Labour Court had not specifically denied the continuity of service. The Supreme Court observed that the appellant would be entitled to continuity of service. It was stated in paragraph No.7 "Ex facie, the Labour Court having awarded reinstatement to the appellant, continuity of service would follow as a matter of law.".
7. In view of above, the direction of the learned Single Judge in impugned order setting aside the benefit of continuity granted to the appellants- workmen is not sustained. The benefit of continuity accorded by the Labour Court would hold to the benefit of the appellants and all the consequential benefits to the appellants which may become payable by virtue of the judgment and award of the Labour Court would be together with continuity of service.
The Letters Patent Appeal is allowed in part to the aforesaid extent.
(N.V.ANJARIA, J) (SANDEEP N. BHATT,J) ANUP Page 6 of 6 Downloaded on : Wed Jan 12 03:40:32 IST 2022