Gujarat High Court
District Health Officer vs Hanifkhan Manubha Malek on 20 January, 2020
Equivalent citations: AIRONLINE 2020 GUJ 452
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/1094/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1094 of 2020
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DISTRICT HEALTH OFFICER
Versus
HANIFKHAN MANUBHA MALEK
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1,2,3
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CORAM:HONOURABLE MS JUSTICE SONIA GOKANI
Date : 20/01/2020
ORAL ORDER
1. This is a petition under Article 226/227 of the Constitution of India challenging the Judgement and Award passed by the Labour Court, Surendranagar in Reference (LCS) Case No.36 of 2012 dated 31/8/2019, whereby the Court the Labour Court allowed the Reference directing the petitioners to reinstate the respondent No.1 workman in service on his original post with 25% back-wages.
2. The respondent No.1 served as a driver since 1/7/1998 in a fixed pay of Rs.5000/- and his services came to be terminated on 10/6/2012 allegedly in breach of provisions of the Industrial Disputes Act. Therefore, the respondent No.1 raised a dispute before the Assistant Labour Commissioner and the same was referred to the Labour Court. Statement of Claim had been filed by the respondent No.1 which had been thereafter revised.
Page 1 of 5 Downloaded on : Thu Jan 23 01:01:45 IST 2020 C/SCA/1094/2020 ORDER3. The petitioners opposed the said Claim on the ground that the respondent No.1 - workman stopped coming to work and reporting for the duty and voluntarily left the services. The petitioners also raised a contention that the respondent No.1 herein has not worked for more than 240 days in each year.
4. According to the petitioners, earlier also the workman had raised a dispute challenging his termination by way of Reference (LCS) No.138 of 2001 which was partly allowed by the Labour Court, Surendranagar without back-wages on 16/5/2007. The said Judgement and Award was challenged by the petitioners through special Civil Application No.24528 of 2007, however, the same came to be dismissed by the learned Single Judge vide order dated 24/9/2007, against which Letters Patent Appeal No.84 of 2008 was preferred by the petitioners, which also came to be dismissed by the Division Bench of this Court vide order dated 21/8/2008 confirming the order of the learned Single Judge.
5. It appears that in earlier Reference, the Labour Court granted reinstatement without back-wages, where also the Labour court has noticed that the working days had not been in dispute before the Court and even non-compliance of Section 25F was also not in dispute. The Division Bench relied on the decision of the Division Bench in the case of M.P.Ramanandi v. Gujarat State Warehousing Corporation, reported in 1985(2) GLR 1040 where a view has been taken that the order of retrenchment, without complying with the pre-conditions of Section 25F of the Act, would be void ab-initio. The Division Bench also relied on the Page 2 of 5 Downloaded on : Thu Jan 23 01:01:45 IST 2020 C/SCA/1094/2020 ORDER decision of the Apex Court in the case of Management of Karnataka State Road Transport Corporation, Bangalore v. M.Boraiah and another, reported in AIR 1983 SC 1320, holding that even discharge of a probationer amounts to retrenchment and requirements of Section 25F have to be complied with.
6. Thereafter, the petitioner was reinstated. The present Reference (LCA) No.36 of 2012 by the respondent No.1 for the illegal termination w.e.f. 10/6/2012. The Labour court, Surendranagar while allowing the reference and directing the petitioners to reinstate the respondent No.1 on his original post with 25% back-wages. In the present case, the dispute is not of 240 days. However, admittedly there had been no compliance of section 25F of the I.D. Act. Even this Court notices that the Labour Court has clearly and unequivocally held breach of section 25F of the I.D. Act. Section 25F is reproduced as under :-
"25F. Conditions precedent to retrenchment of workman.-
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a). the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice.
(b). the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every Page 3 of 5 Downloaded on : Thu Jan 23 01:01:45 IST 2020 C/SCA/1094/2020 ORDER completed year of continuous service or any part thereof in excess of six months; and
(c). notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."
7. A year before termination on 10/6/2012 the Court indicated that the respondent No.1 has completed 240 days as a driver. Considering the overall view of the matter and on detailed consideration, the Labour Court has correctly and specifically held that there is a clear breach of section 25F of the I.D. Act.
8. Ms.Pandya, the learned advocate for the petitioners also on the ground of non-compliance of Section 25F of the I.D. Act, has been unable to point out any illegality and has fairly submitted that no document could be made available regarding due compliance. However, she has urged that the vehicle has already been condemned and therefore, the service of the respondent No.1 will not be required. She has also further urged that the court below has not considered all the factual matrix in a proper perspective.
9. Bearing in mind, the material, the pleadings and the materials on the record, this Court deems it fit not to entertain this petition and dismiss in limine. There is a clear breach of section 25F of the I.D. Act. That itself is a good reason for the trial court to have held in favour of the respondent No.1 workman.
10. Another contention raised by Ms.Pandya, learned Page 4 of 5 Downloaded on : Thu Jan 23 01:01:45 IST 2020 C/SCA/1094/2020 ORDER advocate for the petitioners is that the Labour Court has granted 25% back-wages without pleadings or evidence.
11. The law on the subject is quite clear. In the event of the court holding the action of the employer in breach of any of the provisions of the I.D. Act and grants reinstatement, 100% back-wages would be required to be directed, unless, of- course, the Court finds some other material, finds gainful employment and reduces the back-wages.
12. Here in the present case, as can be noticed from the impugned Judgement and award which is impugned in the present petition, the Labour Court has granted 25% back- wages only, at the time of granting reinstatement, although it held a clear breach of section 25F of the I.D. Act. There, of- course, is no discussion with regard to non-grant of remaining 75% back-wages but admittedly, the respondent No.1 workman is also not before this Court challenging non-grant of 75% back-wages. Under the circumstances, this Court does not find any requirement for interference.
12. In the result, present petition stands dismissed in limine. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(SONIA GOKANI, J) RAFIK..
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