Gujarat High Court
Sardar Gunj Mercantile Co Op Bank Ltd vs Jagdishbhai Ranchhodbhai on 22 January, 2013
Author: K.S.Jhaveri
Bench: Ks Jhaveri
SARDAR GUNJ MERCANTILE CO OP BANK LTD....Petitioner(s)V/SJAGDISHBHAI RANCHHODBHAI PATEL....Respondent(s) C/SCA/3720/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 3720 of 2004 With SPECIAL CIVIL APPLICATION NO. 16355 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI ================================================================ 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 ? ================================================================ SARDAR GUNJ MERCANTILE CO OP BANK LTD....Petitioner(s) Versus JAGDISHBHAI RANCHHODBHAI PATEL....Respondent(s) ================================================================ Appearance: MR KETAN D SHAH, ADVOCATE for the Petitioner(s) No. 1 MR PS GOGIA, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/01/2013 ORAL JUDGMENT
1. Since, the issue involved in both the petitions is common, they are heard together and disposed of by this common judgment, today.
2. Special Civil Application No. 3720 of 2004 is preferred by the Bank, praying to quash and set aside the judgment and order passed in T. A. No. 31 of 1996, Dated : 14.11.2002, as well as order passed in Appeal (IC) No. 2 of 2003 and Appeal (IC) 145 of 2002, Dated : 04.02.2004.
3. Special Civil Application No. 16355 of 2004 is preferred by the workman praying to modify the judgment and order, Dated : 14.11.2002, rendered by the Labour Court in T. A. No. 31 of 1996, to the extent that it does not grant full backwages to the workman and has prayed to quash and set aside the order of the Labour Court, Dated : 04.02.2004, rendered in IC 145 of 2002.
4. The brief common facts leading to the filing of the present petitions are that the workman joined the services with the bank on 13.07.1993. The services of the workman were came to be terminated vide order dated 01.07.1996, and hence, the workman preferred T. A. No. 31 of 1996, wherein the Labour Court passed the order, Dated : 14.11.2002, ordering the Bank to reinstate the workman with 55 per cent backwages. The Bank challenged the aforesaid order by filing Appeal (I.C.) No. 2 of 2003, whereas, the workman also filed Appeal (I.C.) No. 145/ 2002, since, he was not granted the full backwages. The Industrial Court, after hearing the parties, rejected both the appeals. Hence, the present petitions.
5. Mr. Shah, learned Counsel for the Bank, has submitted that, since, the workman was appointed as Apprentice , he is not entitled to claim reinstatement, backwages etc.. In support of his submissions, Mr. Shah has placed reliance on a decision of the Hon ble Apex Court in the case of DHAMPUR SUGAR MILLS LTD. VS. BHOLA SINGH , reported in 2005 LLR 320, and, more particularly, the observations made by the Apex Court in Paras- 14 and 15, which reads as under;
14. If the Respondent was appointed in terms of the Apprentices Act, 1961, he will not be a workman, as has been held by this Court in Mukesh K. Tripathi v. Senior Divisional Managaer, LIC and Others, (2004) 8 SCC 387 : 2004 LLR 993 (SC) and UP State Electricity Board v. Shiv Mohan Singh and Another, (2004) 8 SCC 402.
15. In terms of the provisions of the Apprentices Act, 19611, a trainee or an apprentice has no right to be absorbed in services. It is trite that if the provisions of the Apprentices Act applies, the provisions of the Labour Laws would have no application.
6. On the other hand, learned Counsel for the workman, Mr. Gogia, has contended that the workman was continued in service, even after the expiry of the period of apprenticeship, and hence, he is entitled to claim the benefits as prayed for. In support of his submissions, Mr. Gogia has placed reliance on a decision of the Apex Court in the case of MUKESH K. TRIPATHI VS. SENIOR DIVISIONAL MANAGER, LIC AND ORS. , reported in 2004 SCC (L & S) 1128, and more particularly, the observations made by the Apex Court in Para-36, thereof, which reads as under;
36. A workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, must not only establish that he is not covered by the provisions of the Apprentices Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. Even in a case, where a period of apprenticeship is extended, a further written contract carrying out such intention need not be executed. But, in a case, where a person is allowed to continue without extending the period of apprenticeship, either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute.
7. Heard learned Counsel for the parties and perused the material on record. It is not in dispute that the appointment of the workman with the Bank was on apprenticeship basis, for a period of one year, commencing from 13.07.1993, whereas the services of the workman were came to be terminated on 01.07.1996, i.e. after a period of about two years from the date of termination of the contract of apprenticeship. In other words, though, as per the condition of the agreement of apprenticeship, the tenure of apprenticeship of the workman came to an end in the year 1994, he was continued in service for two more years and the Bank took the work from him during the said period. Hence, the Labour Court rightly come to the conclusion that in the case on hand the provisions of the Industrial Disputes Act would apply and not of the Apprenticeship Act, since, the workman had worked for more than 240 days. I am, therefore, in complete agreement with the view taken by the Industrial Court that the workman is entitled for reinstatement.
8. As regards the aspect of backwages is concerned, here, it would be relevant to refer to a decision of the Apex Court in the case of RAM ASHREY SINGH V. RAM BUX SINGH , (2003) II L.L.J. Pg.176, wherein the Apex Court has held that a workman has no automatic entitlement to back wages since it is discretionary and has to be dealt with in accordance with the facts and circumstances of each case. Similar, view has been taken by the Apex Court in the case of GENERAL MANAGER, HARYANA ROADWAYS V. RUDHAN SINGH , J.T. 2005 (6) S.C.,pg. 137, [2005 /(5) S.C.C.,pg.591], wherein, it has been held that an order for payment of back wages should not be passed in a mechanical manner but, a host of factors are to be taken into consideration before passing any such order.
9. In the result, Special Civil Application No. 3720 of 2004 filed by the Bank is PARTLY ALLOWED. The workman will be granted REINSTATEMENT, without BACKWAGES. The judgment and order passed in T. A. No. 31 of 1996, Dated : 14.11.2002, stands MODIFIED to the aforesaid extent, whereas, order passed in Appeal (IC) No. 2 of 2003 and Appeal (IC) 145 of 2002, Dated : 04.02.2004, stands CONFIRMED. Rule is made absolute to the aforesaid extent in Special Civil Application No. 3720 of 2004.
10. Special Civil Application No. 16355 of 2004 preferred by the workman stands DISMISSED. Rule is discharged. No order as to costs.
(K.S.JHAVERI, J.) UMESH Page 7 of 7