Gujarat High Court
Deesa Nagarpalika vs Hiralal Girdharilal Khatri on 24 February, 2015
Author: Jayant Patel
Bench: Jayant Patel
C/SCA/7593/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7593 of 2004
With
SPECIAL CIVIL APPLICATION NO. 11589 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
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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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DEESA NAGARPALIKA....Petitioner(s)
Versus
HIRALAL GIRDHARILAL KHATRI....Respondent(s)
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Appearance:
MR MEHUL H RATHOD, ADVOCATE for the Petitioner(s) No. 1
MR ND SONGARA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 24/02/2015
COMMON ORAL JUDGMENT
1 Since both the petitions arise from common judgment and Page 1 of 10 C/SCA/7593/2004 JUDGMENT award dated 08.12.2003 passed by the Labour Court in Reference No.1945 of 1991 (old), 225 of 1996(new), they are being considered simultaneously.
2 It may be recorded that Special Civil Application No.7593 of 2004 has been preferred by the petitioner - Municipality (hereinafter referred to as 'the employer') against the judgment and award passed by the Labour Court dated 08.12.2013 in reference No.1945 of 1991 (old), 225 of 1996(new), whereby the Labour Court has directed for reinstatement without backwages so far as it relates to the award passed for reinstatement. Further Special Civil Application No.11589 of 2004 has been preferred by the workman against the very award as it relates not awarding of backwages from the date of termination till award.
3 The short facts appear to be that as per the employer, the workman was engaged as casual labourer on daily wages. Whereas as per the workman, he was engaged on temporary basis. Thereafter, on 04.10.1986, the workman was assigned the duty of work of the Peon. It appears that thereafter, vide order dated 04.10.1986, when the workman was posted as Peon on fixed pay Page 2 of 10 C/SCA/7593/2004 JUDGMENT together with him other 11 persons were also posted by the employer as Peon. It appears that thereafter, he was continued, and on 31.01.1989, without giving any notice or any retrenchment compensation, his services came to be terminated. The dispute was raised under the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The dispute was raised before the Labour Court for adjudication. The Labour Court at the conclusion of the reference passed the above referred judgment and award. Under the circumstances, the employer and the workman have preferred the present petitions being Special Civil Applications Nos.7593 of 2004 and 11589 of 2004 respectively.
4 I have heard Mr. Mehul Rathod, learned counsel appearing for the employer and Mr. N.D. Songara, learned counsel appearing for the workman.
5 It is an admitted position that no written statement whatsoever was filed on behalf of the employer nor the employer had entered into the witness box leading any evidence. The documentary evidence which was produced by the workman before the Labour court, more particularly, the order dated 04.10.1986 for posting of the workman as Peon clearly shows that the workman Page 3 of 10 C/SCA/7593/2004 JUDGMENT was taken together with others on temporary basis in fixed salary. Therefore, it is not a case where the workman was engaged as daily wager, but the appointment was on temporary basis and the salary payable was monthly salary. It is also undisputed position that no prior notice of termination nor any compensation, as required under Section 25F of the Act, was paid. It is also undisputed fact that the workman continued in service for about five years from 05.08.1984 to 31.01.1989. Under these circumstances, if the Labour Court has found that the termination was illegal and reinstatement has been ordered, the same cannot be said to be erroneous approach on the part of the Labour Court. 6 However, on the aspect of backwages, it appears that in the cross examination of the workman, it has transpired that the workman did not apply to the Lions Club for service since he was desirous to continue with the Municipality. No evidence was produced by the workman that he made sincere attempt to get another employment after termination, but failed. Under these circumstances, if the Labour Court has declined awarding of backwages, such an approach on the part of the Labour Court cannot be said to be erroneous.
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C/SCA/7593/2004 JUDGMENT 7 Mr. Rathod, learned counsel appearing for the employer
relied upon the decision of the Apex Court in the case of Senior Superintendent, Telegraph (Traffic), Bhopal v. Santosh Kumar reported in AIR 2010 SC 2140 and contended that as per the view taken by the Apex Court in the case of daily wager workmen, the matter may be considered for lumpsum compensation in lieu of compensation. He also attempted to contend that the distribution of milk which was being done by the workman is no more with the Municipality and it has been assigned to the Lions Club and therefore this Court may consider for lumpsum compensation in lieu of reinstatement since the work is not available. 8 Whereas Mr. Songara, learned counsel appearing for the workman relied upon another decision of the Apex Court in the case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Limited reported in AIR 2014 SC 2258 and contended that the Apex Court had taken the view that once the termination is found to be illegal due to any breach of the provisions of the Act, backwages would be available to the workmen and therefore, he contended that not only the reinstatement but backwages also should have been awarded Page 5 of 10 C/SCA/7593/2004 JUDGMENT by the Labour Court which have not been awarded to the workman and the petition be allowed.
9 In the decision of the Apex in the case of Senior Superintendent Telegraph (supra), the workman was engaged as casual labourer in the Central Telegraph Office, Bhopal in 1985 and he was continued upto February 10, 1987, and thereafter, was discontinued. In the present case, the workman worked for about three years. It was not a case where no defence whatsoever was raised by the employer nor it was a case where the employer had not entered into the witness box. Further, as observed earlier, after joining the Municipality from 1984 and after worked for two years, there was posting of the workman as Peon from 1986 and thereafter he worked for about three years. Hence, the fact situation of the present case cannot be equated with the case which came to be considered by the Apex Court in the case of Senior Superintendent, Telegraph (supra), more particularly, because there was no contention whatsoever was raised nor any evidence was led by the employer. Similarly, in the case of Bhuvnesh Kumar Dwivedi (supra), the Apex Court had no occasion to consider the aspect as to whether preliminary burden by the workman for Page 6 of 10 C/SCA/7593/2004 JUDGMENT getting other employment was discharged or not. As observed earlier in the present case, such burden has not been discharged by the workman and therefore such decision would also be of no help to the workman for getting backwages.
10 In view of the above, I find that the award passed by the Labour Court for reinstatement without backwages would not call for any interference in exercise of powers under Article 227 of the Constitution of India.
11 However, Mr. Songara, learned counsel appearing for the workman has brought to my notice of the order dated 21.09.2004 passed by this Court whereby the award was stayed on condition to comply with the provisions of Section 17B of the Act and he submitted that wages under Section 17B of the Act has been paid since the reinstatement was stayed and if this Court find the case for no interference with the petition preferred by the employer, in any case, the workman would be entitled to wages as if he is reinstated after expiry of the period of one month from the date of the award till today minus the amount already paid by way of compliance of the provisions under Section 17B of the Act. Page 7 of 10
C/SCA/7593/2004 JUDGMENT 12 Whereas Mr. Rathod, learned counsel appearing for the
employer contended that it may be a huge amount in a case the workman is not interested in employment or reinstatment and therefore, the workman would not be entitled for any wages even if this Court finds the case for no interference to the award passed by the Labour Court.
13 It is hardly required to be stated that if the award is interfered with and the same is modified it would stand on different footing and on different consideration, but if the award for reinstatement is not interfered with, the consequence of law would be that the workman would be entitled to wages after expiry of period of one month from the date of the award until the workman actually reinstated minus the amount already paid to him by way of compliance to the provisions under Section 17B of the Act and the reason being that if this Court had not stayed the award vide interim order dated 21.09.2004, the workman would be entitled to reinstatement and regular wages. But by the interim order, the reinstatement is stayed on condition to comply with the provisions under Section 17B of the Act. If the ultimate outcome is that the workman is entitled for reinstatement, he Page 8 of 10 C/SCA/7593/2004 JUDGMENT would be entitled to the wages after expiry of period of one month from the date of the award until actual reinstatement minus the amount paid to him by the employer by way of compliance to the provisions of Section 17B of the Act. Under these circumstances, as observed hereinabove, the workman would be entitled to the wages after 08.01.2004 onwards until he is actually reinstated minus the amount already paid to him by the employer by way of compliance to the provisions under Section 17B of the Act as per the interim order dated 21.09.2004.
14 In view of the aforesaid observations and discussions, the judgment and award passed by the Labour Court dated 08.12.2003 for reinstatement of the workman without backwages is not interfered with, however, after the date of the award, the workman would be entitled to the amount as wages, as aforesaid, minus the amount already paid to him by way of compliance to the provisions under Section 17B of the Act as per interim order dated 21.09.2004.
15 Both the petitions are dismissed. Rule discharged with no order as to costs.
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C/SCA/7593/2004 JUDGMENT
(JAYANT PATEL, J.)
chandresh
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