Gujarat High Court
Executive Engineer (O & M) vs Kiritbhai N. Dave & on 20 November, 2014
Author: R.D.Kothari
Bench: R.D.Kothari
C/SCA/23049/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 23049 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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EXECUTIVE ENGINEER (O & M), GUJARAT VIDYUT
BOARD....Petitioner(s)
Versus
KIRITBHAI N. DAVE & 1....Respondent(s)
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Petitioner(s) No. 1
MR HARSHAD K PATEL, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 20/11/2014
Page 1 of 7
C/SCA/23049/2005 JUDGMENT
ORAL JUDGMENT
1. At the time of hearing, learned advocate Shri Dipak Dave for the petitioner has raised the following three submissions :
(i) The respondent herein was appointed as a Helper in nominal muster roll. It is in the nature of daily wager. Further the respondent has only worked for few days in the year 198283 and thereafter in the year 1986, but in none of the year, the respondent has worked for 240 days.
(ii) Though the respondent's services were terminated in the year 1987 he has raised dispute as late as in the year 1993. On this ground alone the petition should be allowed.
(iii) Drawing attention to the deposition of respondent (AnnexureD) it was pointed out that at the relevant time i.e. in the year 2003, the respondent was aged 49 years. If that being so, it implies that the respondent has attained the age of superannuation. Therefore, instead of grating relief of reinstatement, suitable order of compensation should be passed.
2. Learned advocate Shri Patel appearing for the respondent opposes the submissions advanced by Shri Dave, learned advocate for the petitioner. Drawing attention to the order of the learned Labour Court (paragraph 10), it was submitted that the said Court had recorded clear finding that the respondent has served the petitioner institution at the relevant time and his presence was over 80%. Shri Page 2 of 7 C/SCA/23049/2005 JUDGMENT Patel has also submitted that the respondent has tried to join the services, however, the conduct of the petitioner was not cooperative and he was not allowed to join. It was submitted that in the circumstances, the petition should be dismissed and this Court should not interfered with the order passed by the learned Labour Court.
3. In the order under challenge i.e. order dated 30.05.2005, the learned Labour Court has directed the petitioner - institution to reinstate the respondent along with 20% back wages with effect from 28.06.2005.
4. For appreciating the rival submission as to the presence of the respondent, the learned Labour Court refers the Attendance Register produced at Exhibit35. It has recorded that the Attendance Register produced is of the year 198385. However, complete Register of the said period is not produced. It is not possible to agree with the submissions of Shri Dave that the presence of respondent in none of the relevant year was for 240 days, because the learned Labour Court has recorded a finding of 80% presence on the basis of the certificate issued by the petitionerinstitution. First submission, therefore, fails.
5. In support of the submission of delayed filing of the Reference by the respondent, attention was drawn in the case of Assistant Engineer, C.A.D., Kota v. Dhan Kunwar reported in AIR 2006 SC 2670. Head note reads as under : "Service and Labour - Industrial Disputes Act, 1947 - S. 10, 25F(a) - Rajasthan Public Works Department (Building Page 3 of 7 C/SCA/23049/2005 JUDGMENT and Roads) including Gardens, Irrigation, Waterworks and Ayurvedic Departments. Workcharged Employees Service Rules, 1964 - R.26 - respondent employed as work charged employee on temporary basis - subsequently, declared quasipermanent in service - the section of the department had been closed - termination on payment of one month's salary in terms of R. 26 of Rules - respondent raised dispute after 8 years - Labour Court was of the view that as there was no compliance with requirement of S.25F (b), therefore, reference was maintainable and directed reinstatement with 30% back wages - writ petition dismissed by Learned Single Judge holding that merely because the claim was raised after eight years, did not dis entitle the workman to get relief - appeal dismissed by Division Bench - validity of - held, there is no universal application can be laid regarding the delay in seeking reference is concerned - on facts, Labour Court should not have granted the relief - High Court did not consider the issues in their proper perspective - impugned judgment set aside - appeal allowed."
5.1. Attention was also drawn to paragraph 7 of the aforesaid decision.
5.2. In the case of Dhan Kunwar (supra), dispute was raised after 8 years. However, in the said case, the Court has stated that ".......there is no universal application can be laid regarding the delay in seeking reference .......".
6. In the present case, parties have contested before the learned Labour Court. The learned Labour Court after considering the rival submissions has passed the award.
7. This plea was raised before the learned Labour Court. The Page 4 of 7 C/SCA/23049/2005 JUDGMENT learned Labour Court has considered the same and has rejected the same.
8. There is some substance in the submissions advanced by Shri Dave, learned advocate for the petitioner that the learned Labour Court's discussion in this regard is not satisfactory. I do not find it would be just and proper and in the interest of justice to interfere at this stage on this ground particularly, when as per the say of the petitioner institution itself, the respondent has served at the relevant time for over 80% and his termination is found to be bad and illegal by the learned Labour Court. The respondent had filed Reference in the year 1993, which came to be decided in the year 2005. The learned Labour Court has exercised the discretion in favour of the respondent. No factual circumstance is pointed out for inference with the said discretion. In the circumstances, it would not be just to reject Reference on this ground. Further in the case of Dhan Kunwar (supra), the Court has stated that no universal application can be laid regarding the delay in seeking reference.
9. In support of the last submission, learned advocate Shri Dave has drawn attention to the decision of Apex Court in the case of Assistant Engineer, Rajasthan Dev Corporation & Anr. v. Gitam Singh reported in 2013(2) SCALE 126, more particularly paragraph 31, wherein it was held as under : "31. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in Page 5 of 7 C/SCA/23049/2005 JUDGMENT our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs.50,000/ by the appellant to the respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the respondent within six weeks from today failing which the same will carry interest @ 9% per cent per annum."
10. This submission requires to be accepted. At this stage and at this distance of time and in facts of the present case the order of reinstatement would not be proper and legal. It would be just and proper to pass suitable order of compensation. Upon hearing the learned advocates for the respective parties and considering the facts and circumstances of the case, ends of justice would be served if the petitioner is directed to pay Rs.75,000/ (Rupees Seventy Five Thousand only) to the respondent as compensation. The petitioner shall pay the said amount within a period of six weeks from today failing which the amount will carry 9% per annum interest. It is clarified that the compensation is awarded in lieu of the order of reinstatement and back wages.
11. In view of the above, the petition is partly allowed. The impugned award passed by the learned Labour Court is modified accordingly. Rule is made absolute to the above extent with no order as to costs. Page 6 of 7
C/SCA/23049/2005 JUDGMENT
(R.D.KOTHARI, J.)
/phalguni/
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