Gujarat High Court
Deputy Executive Engineer G.W.S And S. ... vs Natwarlal Motibhai Prajapati on 6 August, 2018
Bench: Harsha Devani, A.S. Supehia
C/LPA/994/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO.994 of 2018
In SPECIAL CIVIL APPLICATION NO.17924 of 2006
With
CIVIL APPLICATION NO. 2 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI Sd/
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/
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1 Whether Reporters of Local Papers may
be allowed to see the judgment ? NO
2 To be referred to the Reporter or not
? NO
3 Whether their Lordships wish to see
the fair copy of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of NO
India or any order made thereunder ?
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DEPUTY EXECUTIVE ENGINEER G.W.S AND S. BOARD
Versus
NATWARLAL MOTIBHAI PRAJAPATI
===================================================
Appearance:
MR MEHUL H RATHOD(701) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2
MR NIRAV R MISHRA(6140) for the RESPONDENT(s) No. 1
MR RK MISHRA(482) for the RESPONDENT(s) No. 1
===================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 06/08/2018
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA) Page 1 of 21 C/LPA/994/2018 JUDGMENT (1) ADMIT. With the consent of the parties, the matter has been heard and disposed of by this judgement.
(2) The appellant Gujarat Water Supply and Sewerage Board in the present appeal has challenged the judgment and order dated 31.03.2017 passed by the learned Single Judge in the captioned writ petition, wherein the petition challenging the award and order dated 17.10.2005 passed by the Labour Court, Himmatnagar in Reference (L.C.H.) No.44 of 1999 has been dismissed. Further direction to reinstate the respondent workman with continuity of service with effect from the date of reference i.e. 16.04.1999 has also been issued.
(3) The brief facts of the case are that the respondent was engaged as a casual labourer on daily wage basis by the appellant Board as there was requirement of manpower. He was assigned the work of chawkidar on 08.2.1991 to guard the store of the appellant Board. Since there was no requirement of the work as the store was closed down, the appellant Board terminated the services of the Page 2 of 21 C/LPA/994/2018 JUDGMENT respondent workman on 04.10.1994. The said termination culminated into the reference being Reference (L.C.H.) No.44 of 1999. The Labour Court, Himmatnagar passed an award and order on 17.10.2005, directing the appellant to reinstate the workman on his original post with continuity of service and also awarded Rs.500/ towards the cost of reference. The same was the subject matter of the captioned writ petition.
(4) The learned Single Judge by the impugned judgment and order dated 31.03.2017 dismissed the writ petition and confirmed the award passed by the Labour Court by observing that the respondent workman shall be entitled to continuity of service with effect from the date of reference i.e. 16.04.1999.
(5) Learned advocate Mr. Mehul Rathod appearing for the appellant Board has submitted that the judgment passed by the learned Single Judge in confirming the award of the Labour Court and thereafter conferring the continuity of service from the date of reference is unwarranted and unjust. He has submitted that since the store in which the Page 3 of 21 C/LPA/994/2018 JUDGMENT respondent was employed has been closed down and his service was no longer required, he was terminated from service.
(6) Learned advocate Mr. Rathod has invited the attention of this court to the cross examination of the respondent workman, wherein he has admitted that he was terminated from service as the store was closed down. He has submitted that initially the work was carried out by the appellant Board at Palla Village, Taluka Bhiloda and thereafter the same was shifted as the concerned work at that site was completed. He has submitted that the Head work of the present appellant Board is at Shamlaji.
(7) The learned advocate for the appellant has very fairly admitted that the termination of the respondent workman was in violation of section 25F of the Industrial Disputes Act, 1947 (the Act) and the only issue which requires to be considered is whether the respondentworkman is required to be granted compensation in lieu of reinstatement.
(8) The learned advocate for the appellant has placed reliance on the decisions of the Apex Page 4 of 21 C/LPA/994/2018 JUDGMENT Court reported in the cases of - (i) Senior Superintendent Telegraph (Traffic), Bhopal vs. Santosh Kumar Seal & Ors., (2010) 6 S.C.C. 773; (ii) General Secretary, Coal Washeries Workers Union, Dhanbad vs. Employers in Relation to the Management of Dugda Coal Washery of M/s. BCCL, (2016) 16 S.C.C. 148; (iii) Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr., AIR 2009 S.C. 3004; and (iv) Vashrambhai Dhanabhai Vegad vs. State of Gujarat & Ors., (2017) 2 S.C.C. 508. The aforesaid judgements have been relied upon by the learned advocate for the appellant - Board for the proposition of law that if the workman has been retrenched and it is found that the termination is in violation of section 25F of the Act then instead of reinstatement the appropriate relief would be grant of compensation. In this view of the matter, he has submitted that the learned Single Judge should have granted the compensation instead of reinstatement with continuity of service.
(9) Opposing the aforesaid submissions advanced by the learned advocate of the appellant Board, learned advocate Mr.R.K.Mishra Page 5 of 21 C/LPA/994/2018 JUDGMENT appearing on behalf of the respondent workman has submitted that the judgement and order passed by the learned Single Judge does not require any interference in the present letters patent appeal since the learned Single Judge in a comprehensive judgment, after considering various judgements of the Supreme Court, has rightly concluded that the award of the Labour Court does not require inference and the respondent - workman is required to be reinstated with continuity of service.
(10) Learned advocate Mr.Mishra has placed reliance on the affidavitinreply filed by the respondent - workman and has submitted that work at Bhiloda SubDivision in the appellant - Board is still available and the store, which was at village Palla was shifted and the same was not closed down. He has submitted that he had worked at the store at village Palla from February 1991 to October 1994 and the same being the office of Bhiloda SubDivision of the appellant - Board at Shamlaji, which is still functioning, the respondent is required to be reinstated at that place.
Page 6 of 21C/LPA/994/2018 JUDGMENT (11) In response to the contentions of the learned advocate for the appellant - Board on the issue of grant of compensation learned advocate Mr.Mishra has placed reliance upon the judgements in the cases reported in - (i) Mohd. Yunus, vs. Mohd. Mustaqim, AIR 1984 S.C. 38; (ii) Khalil Ahmed Bashir Ahmed vs. Tufelhussein Samashbhai Sarangpurwala, AIR 1988 S.C. 184;
(iii) Collector of Customs, Bombay vs. Swastic Woolen (P) Limited & Ors., AIR 1988 S.C. 2176; and (iv) State Bank of India vs. N.Sundara Money, AIR 1976 S.C. 1111. Placing reliance upon the aforesaid judgements, he has submitted that this court has very limited jurisdiction as regards interference in the award of the Labour Court is concerned under Article 227 of the Constitution of India. He has submitted that the Labour Court has not committed any error or the award cannot be termed as perverse, hence, the judgment of the learned Single Judge and the award deserves to be sustained.
(12) Learned advocate Mr. Mishra while inviting the attention of this court to the deposition made by the respondent - workman Page 7 of 21 C/LPA/994/2018 JUDGMENT has stated that the workman had never admitted that the work at the place from where he was terminated is not available and the same is shifted to other place where he can be reinstated. In view of the aforesaid submissions the learned advocate for the respondent workman has requested that the directions given by the learned Single Judge are just and proper and the respondent workman is entitled to be reinstated with continuity of service.
(13) In rejoinder to the aforesaid submissions, the learned advocate for the appellant- Board has contended that at present as per his information, the age of the respondent workman is 55 years and he would retire shortly if he is reinstated in service. He has submitted that the respondent has worked only for three years and seven months and the said finding has not challenged by the respondent. He has asserted that since the dispute is raised after five years and no work is available under the store where the respondent - workman was working and the store has been closed down, he is not entitled to reinstatement. He has submitted that no other person is appointed in place Page 8 of 21 C/LPA/994/2018 JUDGMENT of the respondent and, therefore, the compensation would be just and proper.
(14) Learned advocate Mr.Mishra has lastly submitted that looking to the present family situation and the age of the respondent- workman, he is required to be reinstated in service instead of compensation.
(15) We have heard the learned advocates for the respective parties at length. The impugned judgement and order as well as the award of the Labour Court and the documents annexed with the letters patent appeal have been perused by us. This court has also examined the depositions recorded by the Labour Court.
(16) Since the learned advocate for the appellant Board has acknowledged that the termination of the respondent - workman was in violation of section 25 of the Act, and the termination is precisely set aside the only issue which requires to be addressed is whether he would be entitled to the compensation in lieu of reinstatement.
Page 9 of 21C/LPA/994/2018 JUDGMENT (17) The undisputed fact is that the respondent workman was engaged as a chawkidar on daily wages to guard the store of the appellant Board. Since the work at the site where the store was located was completed, the workman was terminated. A close scrutiny of the deposition of the respondent workman reveals his admission where he has deposed that since the store of the appellantBoard was closed down, his services were terminated. His deposition also further reveals that no daily wage chawkidar has been appointed at his place after he was terminated from service. It is also admitted by him that he had worked from 08.02.1991 to 15.03.1994 intermittently on daily wage as a rojamdar chawkidar.
(18) Thus, the established fact is that the respondent workman worked from 08.02.1991 to 15.03.1994 i.e. for three years and seven months only. Since the violation of section 25F of the Act has not been controverted; the findings recorded by the Labour Court apropos illegal termination and confirmed by the learned Single Judge does not require any further deliberation. However, the core issue arises whether in light of the afore noted established facts the respondent-
Page 10 of 21C/LPA/994/2018 JUDGMENT workman is entitled to reinstatement or compensation.
(19) It would be apposite to refer to the decision of the Apex Court in the case of District Development Officer vs. Satish Kantilal Amrelia, 2017 (13) Scale 700. The Apex Court in the aforesaid judgement has placed reliance on the decision rendered in the case of Bharat Sanchar Nigam Limited vs. Bhurumal, (2014) 7 S.C.C. 177. After quoting the observations of the case of Bhuramal case, the Apex Court (in Paragraphs No.15, 16 and 17) has observed thus:
"15. We have taken note of one fact here that the Labour Court has also found that the termination is bad due to violation of Section 25G of the Act. In our opinion, taking note of overall factual scenario emerging from the record of the case and having regard to the nature of the findings rendered and further the averments made in the SLP justifying the need to pass the termination order, this case does not fall in exceptional cases as observed by this Court in Para 35 of Bharat Sanchar Nigam Limited case (supra) due to finding of section 25G of the Act recorded against the appellant. In Page 11 of 21 C/LPA/994/2018 JUDGMENT other words, there are reasons to take out the case from exceptional cases contained in Para 35 because we find that the appellant did not resort to any kind of unfair practice while terminating the services of the respondent.
16. In view of forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of reinstatement and other consequential benefits by taking recourse to the powers under Section 11A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited case (supra).
17. Having regard to the totality of the facts taken note of supra, we consider it just and reasonable to award a total sum of Rs.2,50,000/ (Rs.Two Lakhs Fifty Thousand) to the respondent in lieu of his right to claim reinstatement and back wages in full and final satisfaction of this dispute."
(20) In the case of Vashrambhai Dhanabhai Vegad (supra) the Apex Court while examining a Page 12 of 21 C/LPA/994/2018 JUDGMENT similar issue has observed (in Paragraphs No.2 and 3) thus:
"2. Having heard the learned counsel for both the sides and having gone through the materials on record and taking note of the fact that for twenty years, though intermittently, the appellant had been working, the compensation awarded by the High Court is too meager.
3. Therefore, though we agree with the High Court that the reinstatement is not the proper relief that should have been granted to the appellant, a compensation to the tune of Rs.5,00,000 (Rupees five lakhs) would be just and proper in the peculiar facts of the case without being treated as a precedent. Ordered accordingly."
(21) In the case of Jagbir Singh (supra), the Apex Court has observed (in Paragraphs No.1516) thus:
"15. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section Page 13 of 21 C/LPA/994/2018 JUDGMENT 25F 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. Therefore, the view of the High Court that the Labour Court erred in granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages. As a matter of fact, in all the judgments of this Court referred to and relied upon by the High Court while upsetting the award of reinstatement and back wages, this Court has awarded compensation.
16. While awarding compensation, the host of factors, interalia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case Page 14 of 21 C/LPA/994/2018 JUDGMENT will depend upon its own facts and circumstances. In a case such as this where the total length of service rendered by the appellant was short and intermittent from September 1, 1995 to July 18, 1996 and that he was engaged as a daily wager, in our considered view, a compensation of Rs.50,000/ to the Appellant by Respondent No. 1
shall meet the ends of justice. We order accordingly. Such payment should be made within six weeks from today failing which the same will carry interest @ 9% per annum."
(22) Thus, the judgement relied upon by the learned Single Judge in the case of Gauri Shanker vs. State of Rajasthan, (2015) 12 S.C.C. 754 in granting the relief of reinstatement would not apply to the facts of the present case since in that case there were violation of sections 25F, 25G and 25H of the Act. Moreover, in the case of Bharat Sanchar Nigam Limited vs. Bhurumal (supra) rendered by a three judge Bench, the Apex Court has observed thus:
"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full Page 15 of 21 C/LPA/994/2018 JUDGMENT 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 25F 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.
34. 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 nonpayment of retrenchment compensation and notice pay as mandatorily required under Section 25F 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 Page 16 of 21 C/LPA/994/2018 JUDGMENT on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka V/s. 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.
35. 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 Page 17 of 21 C/LPA/994/2018 JUDGMENT 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."
(23) In the present case, as referred to hereinabove, the Labour Court has set aside the termination of the respondent as the same was in violation of section 25F of the Act. The termination of the respondent - workman was necessitated in view of the closure of the store. He has raised the industrial dispute after a period of five years. It is also not denied that he had worked only for three years and five months and by now 24 years have passed. Hence, the respondent workman can be suitably compensated in view of the aforesaid factors. The judgments quoted by the learned advocate for the respondent - workman do not answer the issue involved in the present case hence, the same are not dealt with.
(24) The learned Single Judge while finally dismissing the writ petition has issued directions as follows:
Page 18 of 21C/LPA/994/2018 JUDGMENT "32. In that view of the matter no order of back wages is necessary while directing the petitioner to reinstate the respondent in the service. Since he is of a young in age, the reinstatement and thereafter with continuity of service will have to be from the date of the Reference i.e. 16.04.1999."
(25) The learned Single Judge has granted the reinstatement with continuity of service from the date of reference i.e. 16.04.1999. With thoughtful consideration, this court does not subscribe the observations made by the learned Single Judge granting continuity of service from the date of reference since the continuity of service will always relate back to the date of appointment in case the termination is set aside and the workman is reinstated. The interregnum period from the date of termination and reinstatement is treated as continuous and the same is added to the period prior to the termination so that the continuity in service is maintained. In absence of the date of reinstatement, the grant of continuity of service from the date of reference will render the period prior to reinstatement as otiose. Thus, while setting aside the Page 19 of 21 C/LPA/994/2018 JUDGMENT termination of a daily wager, the court can either refuse continuity of service or grant the same, but if the same is granted then it cannot be from any posterior date in absence of any justification of such date.
(26) It is also an undisputed fact that the respondent - workman was paid wages under section 17B of the Act during the pendency of the captioned writ petition. Having regard to the totality of the facts and considering the fact that by now 24 years have passed and the respondent workman has worked only for three years and seven months coupled with the fact that dispute has been raised after five years, in light of the law enunciated by the Apex Court in the aforesaid judgements, it would be appropriate to award lumpsum amount of Rs.3,50,000/ to the respondent workman. The same will be over and above the amount received under section 17B of the Act. The same shall be paid to the respondent- workman within a period of 02 (two) months from the date of receipt of this order, failing which the amount shall carry interest @ 9%.
Page 20 of 21C/LPA/994/2018 JUDGMENT (27) For the foregoing reasons, the letters patent appeal partly succeeds and is accordingly allowed to the following extent. The impugned judgment and order dated 31.03.2017 passed by the learned Single Judge is hereby set aside to the extent the same directs reinstatement and continuity of service from the date of the reference i.e. 16.04.1999. Instead, over and above the amount paid to the respondent under section 17B of the Act, the appellant is directed to pay a lumpsum amount of Rs.3,50,000/ (rupees three lakh and fifty thousand only) to the respondent workman. Such amount shall be paid within a period of two months from the date of receipt of a copy of this order failing which the amounts shall carry interest at the rate of 9% per annum.
(28) In view of the order passed in the main letters patent appeal, the application for stay does not survive and is disposed of accordingly.
Sd/ [HARSHA DEVANI, J] Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 21 of 21