Gujarat High Court
Navnit K Waghela vs Gujarat Maritime Board on 12 July, 2017
Author: M.R. Shah
Bench: M.R. Shah
C/LPA/1416/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
LETTERS PATENT APPEAL No. 1416 of 2016
In
SPECIAL CIVIL APPLICATION No. 85 of 2011
With
CIVIL APPLICATION No. 12827 of 2016
In
LETTERS PATENT APPEAL No. 1416 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE Mr. JUSTICE M.R. SHAH
and
HONOURABLE Mr. JUSTICE B.N. KARIA
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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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NAVNIT K WAGHELA....Appellant(s)
Versus
GUJARAT MARITIME BOARD....Respondent(s)
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Appearance :
Mr YOGEN N PANDYA, ADVOCATE for the Appellant(s) No. 1
Ms SEJAL K MANDAVIA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
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and
HONOURABLE MR.JUSTICE B.N. KARIA
12th July 2017
ORAL JUDGMENT (PER : HONOURABLE Mr. JUSTICE M.R. SHAH)
ADMIT. Ms. Sejal K Mandavia, learned advocate appears and waives service of notice of admission on behalf of the respondent.
2. In the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of the respective parties, the present Letters Patent Appeal is taken up for final hearing today.
3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge in Special Civil Application No. 85 of 2011, by which the learned Single Judge has partly allowed the said petition filed by the respondent no. 2 and has modified the judgment and award passed by the Labour Court, Bhavnagar quashing and setting aside the order of continuity in service and granting of 20% backwages, the original respondent-workman has preferred the present Appeal.
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4. The issue involved in the present Appeal is in fact within a narrow compass ie., with respect to the impugned judgment and order passed by the learned Single Judge by which the learned Single Judge has quashed and set-aside the judgment and award passed by the Labour Court, Bhavnagar granting continuity in service and 20% backwages, while quashing and setting aside the order of termination vide ordering reinstatement.
5. It is not in dispute that immediately after termination in the year 1993, the workman raised an industrial dispute which was referred to the Labour Court at Bhavnagar in the year 1995 itself. It is not in dispute that the workman submitted the statement of claim in the year 1995. It is also not in dispute that the respondent Management filed reply to the statement of claim after a period of approximately nine years ie., in the year 2004. That thereafter, by judgment and award dated 2nd October 2010, the Labour Court, Bhavnagar partly allowed the said Reference [LCB] No. 414 of 1995 Page 3 of 15 HC-NIC Page 3 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT whereby the Labour Court held termination illegal and in breach of provisions of the Industrial Disputes Act, 1947 and passed and order of reinstatement with continuity of service and 20% backwages.
6. Feeling aggrieved and dissatisfied with the judgment and award passed by the Labour Court, Bhavnagar dated 2nd October 2010 passed in Reference [LCB] No. 414 of 1995, the management preferred Special Civil Application No. 85 of 2011 before this Court. That the learned Single Judge, after a period of five years, by the impugned judgment and order dated 11th April 2016 partly allowed the said writ petition and has though confirmed the order of reinstatement, has set-aside the judgment and award passed by the Labour Court of continuity and grant of 20% backwages.
7. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 11th April 2016 passed by the learned Single Judge modifying judgment and award passed by the Labour Court, Bhavnagar Page 4 of 15 HC-NIC Page 4 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT dated 2nd October 2010 of continuity in service and 20% backwages, the workman has preferred the present Letters Patent Appeal .
8. Shri Yogen N Pandya, learned advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in interfering with the judgment and award passed by the Labour Court and has materially erred in quashing and setting aside the judgment and award passed by the Labour Court granting continuity and 20% backwages. It is submitted that as such, the Labour Court found termination illegal and in breach of provisions of the Industrial Disputes Act, and therefore, passed an order of reinstatement which has been confirmed by the learned Single Judge. It is submitted that, however, solely on the ground that initially the workman worked for 21 months and by now 22 years have passed, the learned Single Judge has denied continuity and 20% backwages. It is submitted that as such, as per catena Page 5 of 15 HC-NIC Page 5 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT of decisions of Hon'ble Supreme Court and this Court, once termination is held to be illegal and bad in law, necessary consequences of continuity and backwages shall follow. It is submitted that as such the Labour Court has in fact granted 20% backwages only. It is submitted that merely because 22 years have passed, the petitioner could not have denied 20% backwages awarded by the Labour Court. It is submitted that at no point of time, the workman was responsible for delay in not deciding the reference at the earliest. It is submitted that as such, the petitioner workman raised an industrial dispute immediately before the appropriate Labour Court and even filed statement of claim in the year 1996. It is submitted that as such, reply to the statement of claim was filed by the management after a period of 7 years ie., in the year 2004. It is submitted that thereafter delay has been taken in deciding the reference by the Court for number of reasons. However, for any delay which is not attributable to the workman, the workman cannot be Page 6 of 15 HC-NIC Page 6 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT denied the backwages and continuity in service. It is submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in quashing the judgment and award passed by the Labour Court, Bhavnagar granting continuity and 20% backwages.
8.1 Making above submissions and relying upon a decision of the Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya [D.ED] & Ors., reported in [2013] 10 SCC 324; more particularly paragraphs 38.6 and 38.7, it is requested to allow the present Letters Patent Appeal.
9. Ms. Sejal Mandavia, learned advocate has appeared on behalf of the respondent-management. She has tried to oppose the present Appeal, but unsuccessful. However, it is submitted that as the appellant-workman worked only for 21 months and thereafter, 22 years have elapsed, the learned Single Judge is justified in denying 20% backwages. So far as granting continuity by the Labour Court is concerned, Page 7 of 15 HC-NIC Page 7 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT ultimately she has left it to the Court.
10. We have heard Shri Yogen N Pandya, learned advocate appearing on behalf of the appellant and Ms. Sejal Mandavia, learned advocate appearing on behalf of the respondent at length.
11. We have also considered the impugned judgment and order passed by the learned Single Judge by which as such, the learned Single Judge has confirmed the order of reinstatement, however, has set-aside that part of direction issued by the Labour Court granting continuity and 20% backwages. Thus, the judgment and award passed by the Labour Court, Bhavnagar of reinstatement which has been confirmed by the learned Single Judge has attained finality. After having held that the termination was in breach of provisions of the Industrial Disputes Act and was illegal and bad in law, the Labour Court passed an order of reinstatement, which has been confirmed by the learned Single Judge. Under the circumstances, as such, necessary consequences shall follow; more particularly, with Page 8 of 15 HC-NIC Page 8 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT respect to continuity and backwages. However, while exercising discretion, the Labour Court granted only 20% backwages and also continuity in service which has been set-aside by the learned Single Judge on the ground that initially the workman worked for only 21 months and that in the meantime thereafter, 22 years have passed. The aforesaid can hardly be a ground to set-aside the order once the termination is held to be illegal, necessary consequences of awarding backwages may be followed. However, delay in disposal of the reference cannot be a ground to deny backwages to the work; if otherwise the termination is held to be illegal and bad in law and unless the delay is attributable to the workman. In the present case, nothing has been alleged against the workman. Though the delay in disposal of the Reference was attributable to the workman, however, the facts as such are on the contrary. The workman came to be terminated in the year 1993. Immediately, the workman raised an industrial dispute by filing a reference in the year 1995 Page 9 of 15 HC-NIC Page 9 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT itself. However, the respondent-Management filed reply to the statement of claim after a period of approximately 9 years ie., in the year 2004. Thereafter, for whatever reason, the Reference could not be decided and disposed of by the Labour Court, Bhavnagar. Under the circumstances,. When the delay in disposing of the reference was not at all attributable to the workman, the workman could not have been denied backwages and that too 20% of the backwages awarded by the Labour Court.
12. Identical question came to be considered by the Hon'ble Supreme Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidhyalaya [D.ED] & Ors. [Supra] wherein, in paragraphs 38.1 to 38.7, the Apex Court has observed and held as under :-
"38. The propositions which can be culled out from the aforementioned judgments are :
38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.Page 10 of 15
HC-NIC Page 10 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Page 11 of 15 HC-NIC Page 11 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/ Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrong doings by relieving him of the burden to pay to the employee/workman his dues in the form of Page 12 of 15 HC-NIC Page 12 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT full back wages.
38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalized. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame.
Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an Page 13 of 15 HC-NIC Page 13 of 15 Created On Sat Aug 12 06:27:08 IST 2017 C/LPA/1416/2016 JUDGMENT employee/workman."
13. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decision to the facts of the case on hand, the impugned judgment and order passed by the learned Single Judge denying 20% backwages and continuity of service, while upholding the order of reinstatement cannot be sustained, and therefore, the deserves to be quashed and set-aside.
14. In view of the above and for the reasons stated above, the present Appeal succeeds. Impugned judgment and order dated 11th April 2016 passed by the learned Single Judge in SCA No. 85 of 2011 denying backwages and continuity of service is hereby quashed and set-aside. The judgment and award dated 2nd October 2010 passed by the Labour Court, Bhavnagar in Reference [LCB] No. 414 of 1995 is hereby restored.
15. In view of disposal of the LPA, Civil Application No. 12827 of 2016 stands disposed of.
[M.R Shah, J.]
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[B.N Karia, J.]
Prakash
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