Gujarat High Court
For Approval And Signature vs Shashikant Ramdas Patel on 13 February, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/7253/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7253 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
BANCO PRODUCTS(P) LTD....Petitioner(s)
Versus
SHASHIKANT RAMDAS PATEL....Respondent(s)
Appearance:
MR VARUN K.PATEL, ADVOCATE for the Petitioner(s) No. 1
MR NILESH A PANDYA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 13/02/2017
ORAL JUDGMENT
Heard Mr. Patel, learned advocate for the petitioner, and Mr. Pandya, learned advocate for the respondent.
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2. In present petition, the petitioner company has placed under challenge award dated 30.9.2006 passed by learned Labour Court at Vadodara in Reference No.61 of 1994 whereby the learned Labour Court partly allowed the reference and directed the petitioner company to reinstate the claimant on his original post with continuity of service and 65% backwages.
3. So far as factual background is concerned, the original claimant before the learned Labour Court i.e. present respondent raised dispute with the allegation that the company illegally terminated his service. With said allegation, he claimed that he should be reinstated in service. Appropriate government referred the dispute for adjudication to learned Labour Court. Before the learned Labour Court, the claimant alleged, inter alia, that he worked with the company as permanent employee for 5 years and he was paid Rs.30 daily wage. He alleged that his service was illegally terminated in November 1993 without Page 2 HC-NIC Page 2 of 11 Created On Sun Aug 13 14:29:54 IST 2017 C/SCA/7253/2007 JUDGMENT following procedure prescribed by law and therefore, he should be reinstated in service. 3.1 The opponent employer opposed the reference and contended that the claimant was engaged as apprentice / trainee. It was also claimed that he was engaged on daily wage basis and that he had not worked for 240 days. The employer also contended that he was not engaged on any permanent post.
3.2 After receiving evidence and recording evidence on record from both sides, the learned Labour Court considered rival submissions and reached to the conclusion that the claimant had worked for more than 12 months with the company and that he was not an apprentice appointed under the provisions of Apprenticeship Act and that therefore, he was workman and employee of the company and that he had worked for more than 240 days, however, the company discontinued his service without following procedure prescribed by Page 3 HC-NIC Page 3 of 11 Created On Sun Aug 13 14:29:54 IST 2017 C/SCA/7253/2007 JUDGMENT law. The learned Labour Court also reached to the conclusion that the company committed breach of Section 25F of the Act. Having reached such conclusion, the learned Labour Court passed impugned award with above mentioned directions.
4. Mr. Patel, learned advocate for the petitioner company, assailed the award on the ground that the learned Labour Court failed to appreciate that the claimant was engaged only as an apprentice/trainee and therefore, he cannot be termed as Workman and consequently, such directions could not have been passed. He also submitted that the learned Labour Court failed to appreciate that the claimant was engaged for fixed period and that therefore, Section 25F would not be applicable. To support his submission, learned advocate for the petitioner relied on the appointment order and submitted that the learned Labour Court failed to appreciate that in present case, Section 25F would not be applicable and consequently, it Page 4 HC-NIC Page 4 of 11 Created On Sun Aug 13 14:29:54 IST 2017 C/SCA/7253/2007 JUDGMENT cannot be held that the company committed breach of Section 25F.
5. Mr. Pandya, learned advocate for the respondent workman, opposed the submissions by learned advocate for the petitioner company. He submitted that the claimant worked for 5 years with the company and even if the case of the company, though not supported by evidence, is to be accepted, then also, it can not be ignored that even according to the employer's contention, the claimant had worked for more than 3 years as held by the learned Labour Court. He submitted that the claimant worked regularly and continuously and that his service was terminated without complying principles of natural justice and without complying conditions under Section 25F though the claimant had worked for 240 days in each year. According to learned counsel for the claimant, the award does not suffer from any infirmity.
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6. I have considered rival submissions and
material available on record as well as the
impugned award.
7. It is noticed from the material available on record and from the discussion in the award that the findings of fact recorded by the learned Labour Court are based on evidence which was placed before the learned Labour Court and the said findings of fact cannot be termed arbitrary or perverse or contrary to evidence on record. Reliance placed on the appointment order by learned advocate for the petitioner does not render any assistance to the petitioner, inasmuch as in the appointment order, the period of respondent's engagement is not mentioned. There is no provision or clause in the appointment letter which would even suggest that the claimant was engaged for fixed and limited period and that he was informed that his appointment is only for fixed period and for specified work and upon completion of the period and/or the work, his Page 6 HC-NIC Page 6 of 11 Created On Sun Aug 13 14:29:54 IST 2017 C/SCA/7253/2007 JUDGMENT service/appointment would come to end. The clause No.3 of the appointment order clearly mentions that initial period for "training" is one year and it would be extended by 3 months or 6 months. There is nothing on record to suggest that the claimant was imparted any training in any trade. The claimant, for all practical purpose, worked as employee/workman. The appointment order also contains provision about transfer of the respondent to any other branch of the company or other sister concern. On overall construction of the appointment order, it becomes clear that it was only nomenclature which described the claimant as "trainee" while he was actually engaged as employee of the company. Undisputedly, the claimant was not an apprentice under the Apprenticeship Act and therefore, the claimant would, undisputedly, fall within purview of Section 2(s) of the Act.
8. Even according to the case of the company, the claimant worked with the company from Page 7 HC-NIC Page 7 of 11 Created On Sun Aug 13 14:29:54 IST 2017 C/SCA/7253/2007 JUDGMENT 1.4.1992 to 3.11.1993 i.e. for more than 12 months. Actually, the learned Labour Court has, after examining the evidence available on record, reached to the conclusion that the claimant had worked for 5 years with the company i.e. from 5.8.1988 to 4.11.1993. As mentioned above, even according to the case of the company, the claimant had worked for more than 12 months. In that view of the matter, when the company discontinued the claimant from service, the procedure under Section 25F of the Act should have been followed. Undisputedly, the said procedure was not followed.
9. Having regard to the said fact, it cannot be said that the learned Labour Court's conclusion that the service was terminated illegally or arbitrarily is not incorrect or arbitrary or unjustified. The said conclusion and findings by learned Labour Court cannot be faulted.
10. In this background, the only question which Page 8 HC-NIC Page 8 of 11 Created On Sun Aug 13 14:29:54 IST 2017 C/SCA/7253/2007 JUDGMENT survives for consideration by this Court is about appropriate relief.
11. So far as the direction to reinstate the claimant is concerned, this Court is informed that the claimant is already reinstated and is working with the company. Therefore, any other or further direction with regard to the said direction is not required to be passed.
12. In that view of the matter as well as in view of the fact that it is established that the claimant's service was terminated in breach of statutory provision, the said direction cannot be faulted.
13. This leaves behind the direction to pay backwages. The learned Labour Court has awarded 65% backwages. In light of the facts of the case, the direction to pay 65% backwages is not justified.
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14. Having regard to the facts and circumstances of the case, particularly the fact that the total tenure of service of the claimant was hardly about 4 years with the company, this Court is of the view that if the claimant is awarded 40% of backwages then equity would be balanced and interest of justice would be met. Therefore, the impugned award is required to be partly modified. Consequently, following order is passed:-
[a] The direction to reinstate the claimant is not disturbed.
[b] So far as the direction to pay 65% backwages is concerned, the said direction is partly set aside and modified and the petitioner company is directed to pay 40% backwages instead of 65% backwages.
The amount shall be paid to the claimant as expeditiously as possible and preferably within 8 weeks.
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With aforesaid observations and directions, present petition stands disposed of. Rule is made absolute to the aforesaid extent.
Sd/-
(K.M.THAKER, J.) kdc Page 11 HC-NIC Page 11 of 11 Created On Sun Aug 13 14:29:54 IST 2017