Gujarat High Court
Essar Project Ltd vs N.D.Jagdishwara on 12 October, 2015
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/6290/2005 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6290 of 2005
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ESSAR PROJECT LTD ....Petitioner
Versus
N.D.JAGDISHWARA ....Respondent
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Appearance:
MR KEYUR GANDHI, ADVOCATE for
NANAVATI ASSOCIATES, for the Petitioner
MS G R VIJAYALAKSHMI, ADVOCATE for the Respondent
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 12/10/2015
ORAL ORDER
1. Challenge in this petition is made to the award passed by the Labour Court, Jamnagar dated 09.03.2005 in Reference (LCJ) No.404 of 2001, whereby the respondent is ordered to be reinstated in service with continuity of service and with full back wages.
2. Heard learned advocates for the respective parties.
3. Mr.Nisarg Desai and Mr.Keyur Gandhi, learned advocates for the petitioner has submitted that the respondent was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and therefore the reference itself was not maintainable. It is submitted that, this point was specifically raised before the Court below and issue was also framed in that regard. It is submitted that the Labour Court has committed error in holding that the respondent was a Page 1 of 4 HC-NIC Page 1 of 4 Created On Tue Oct 13 02:47:26 IST 2015 C/SCA/6290/2005 ORDER workman. Additionally, it is submitted that the Company had not committed any illegality while discontinuing the service and therefore the impugned award be interfered with. Learned advocate for the petitioner Company has further submitted that for this period of more than a decade the respondent had not vacated the accommodation which was provided to him while he was in employment, which has landed the Company in separate litigation with the landlord, which is not the subject matter of this petition. It is further submitted that the respondent has already attained the age of superannuation in the year of 2011 and by this time, the company has already made payment of more than 10 lakhs of rupees to the respondent towards wages under Section 17B of the Industrial Disputes Act. It is submitted that considering the totality, the impugned award be quashed and set aside.
4. On the other hand, learned advocate for the respondent has submitted that the respondent was initially appointed as a typist and work of typist was taken from him and therefore the Labour Court has decided the said issue against the petitioner Company. It is further submitted that no interference be made by this Court in the final award of the Labour Court whereby the reinstatement with full back wages was granted to the respondent. Reliance is also placed on the decision of Hon'ble the Supreme Court of India in the case of Devinder Singh Vs. Municipal Council, Sanaur reported in (2011) 6 SCC 584.
5. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.
Page 2 of 4HC-NIC Page 2 of 4 Created On Tue Oct 13 02:47:26 IST 2015 C/SCA/6290/2005 ORDER 5.1 It was not only the case of the petitioner Company but the case of the respondent himself before the Labour Court that he was initially appointed as Senior Typist but thereafter, he was promoted as Junior Officer and lastly, he was promoted as an Officer by the Company. Reference in this regard can be made to the very opening paragraph of the statement of Claim of the respondent before the Labour Court. Additionally, the Company has also placed on record the promotion order of the respondent including the last promotion in the year 1997 whereby he is stated to have been promoted as an Officer level (M-10) with a basic salary of Rs.2565/- with effect from 1st April, 1997. It is not in dispute that the wages of the respondent was much more than what is prescribed for this purpose under the Industrial Disputes Act for the exclusion of the concerned person from the definition of a workman. Further the nature of work as pleaded by the respondent himself also excluded him from the category of the workman. This specific point was taken by the petitioner Company before the Labour Court in the pleadings and precisely this was the first issue framed by the Labour Court, as evident from the impugned award itself. In the facts noted above, this Court finds that the Labour Court has committed error while coming to the conclusion that the respondent was a workman within the meaning of Section 2(s) of the Industrial Disputes Act. The said error needs to be corrected and the same is corrected by this Court. By doing so, it is found that the respondent was not the workman and therefore the reference before the Labour Court was rightly objected by the petitioner company as not maintainable. It is further noted that, the Labour Court has committed error in shifting the burden in that regard on the Company. This petition is therefore needs to be allowed on this Page 3 of 4 HC-NIC Page 3 of 4 Created On Tue Oct 13 02:47:26 IST 2015 C/SCA/6290/2005 ORDER count alone.
5.2 While interfering in the award passed by the Labour Court, this Court is conscious of two additional factors. Firstly, the respondent has already attained the age of superannuation in the year 2011. Learned advocate for the respondent has confirmed this to be May, 2011. Secondly, by this time an amount of more than Rs.10 lakhs is already paid to him by the Company.
5.3 So far reliance placed by learned advocate for the respondent on the decision of Hon'ble the Supreme Court of India, as noted above, is concerned, there cannot be any dispute with regard to the proposition of law enunciated therein, however in the facts noted above, the same would not take the case of the respondent any further.
5.4 Considering the totality, this petition needs to be allowed.
6. For the reasons recorded above, this petition is allowed. The impugned award passed by the Labour Court, Jamnagar dated 09.03.2005 in Reference (LCJ) No.404 of 2001 is quashed and set aside. Rule is made absolute.
(PARESH UPADHYAY, J.) M O Bhati Page 4 of 4 HC-NIC Page 4 of 4 Created On Tue Oct 13 02:47:26 IST 2015