Gujarat High Court
Paschim Gujarat Vij Co Ltd vs B M Joshi on 9 August, 2023
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
NEUTRAL CITATION
C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12782 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PASCHIM GUJARAT VIJ CO LTD
Versus
B M JOSHI & 1 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 1
MS.FALGUNI D.TRIVEDI(3912) for the Respondent(s) No. 1.1
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 09/08/2023
ORAL JUDGMENT
1. By way of present petition under Articles 226 and 227 of the Constitution of India, the petitioner - employer - Paschim Gujarat Vij Company Limited, Bhavnagar has challenged the judgement and award passed by the Labour Page 1 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined Court, Bhavnagar in Reference (LCB) No.296 of 2000 dated 11/5/2010, by which, the Labour Court directed the petitioner to reinstate the original respondent workman on his original post with continuity of service and other consequential benefits with 20% back wages.
It is pertinent to note that during the pendency of the present petition, the original workman died and hence his widow being heir has been joined as party respondent No.1.1 pursuant to the order passed in Civil Application No.1 of 2020 dated 23/12/2020.
It is relevant to note that the Coordinate Bench of this Court vide order dated 30/09/2020, issued Rule and granted ad-interim stay of the impugned judgement and award passed by the Labour Court subject to compliance of section 17B of the Industrial Disputes Act.
2. FACTS :
2.1. It is the case of the petitioner that the original workman was serving purely on temporary and ad-hoc basis for the purpose of taking meter reading of seasonal consumers and his service was taken as and when permanent meter reader was absent. The original workman was engaged by the Deputy Engineer for temporary work. It is the case of the petitioner that at the time of appointment of the original workman, no procedure for appointment of a Page 2 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined regular meter reader was followed since the respondent was purely temporary and ad-hoc meter reader and he was not appointed in regular establishment.
2.2. It is the case of the petitioner that for the purpose of regular meter reader, the petitioner shall have to give advertisement or to call name from Employment Exchange and after interview, qualified candidate is required to be given appointment. Even training under Apprentice Act is required to be passed after passing the said examination, seniority list was required to be prepared and from the said list only, regular meter reader can be appointed.
2.3. The respondent workman was engaged by the Deputy Engineer for temporary work and he was paid from the temporary imprest. After the work of the workman was over, he was not required to be engaged with effect from 4/1/1999. Since the workman was purely temporary and ad-hoc and was not in regular establishment, there is no question of termination.
2.4. Since the workman was terminated orally on 4/1/1999, he raised a dispute which was referred to the Labour Court, Bhavnagar and same was registered as Reference (LCB) No.296 of 2000.
2.5. After considering the evidence on record, the Labour Page 3 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined Court passed the impugned judgement and award directing the petitioner to reinstate the workman on his original post with continuity of service and with 20% back wages.
3. Submission of petitioner employer :
3.1. Mr.Dipak R. Dave, learned advocate for the petitioner has submitted that the original workman was serving purely on temporary and ad-hoc basis for the purpose of taking meter reading of seasonal consumers and his service was taken as and when permanent meter reader was absent. It is submitted that the original workman was engaged by the Deputy Engineer for temporary work and at the time of appointment of the original workman, no procedure for appointment of a regular meter reader was followed and he was not appointed in regular establishment.
3.2. Mr.Dipak R. Dave, learned advocate for the petitioner has submitted that for the purpose of regular meter reader, the petitioner shall have to give advertisement or to call name from Employment Exchange and after interview, qualified candidate is required to be given appointment. Even training under Apprentice Act is required to be passed after passing the said examination, seniority list was required to be prepared and from the said list only, regular meter reader can be appointed.
3.3. Mr.Dipak R. Dave, learned advocate for the petitioner Page 4 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined has submitted that the workman was engaged by the Deputy Engineer for temporary work and he was paid from the temporary imprest. It is submitted that after the work of the workman was over, he was not required to be engaged with effect from 4/1/1999. Since the workman was purely temporary and ad-hoc and was not in regular establishment, there is no question of termination. He has submitted that the termination of the workman is not in violation of any of the provisions of the Industrial Disputes Act, however, the Labour Court erred in directing the petitioner to reinstate the workman on his original post with continuity and 20% back-wages.
He has prayed to allow the present petition.
4. Submission of the respondent workman :
Mr.Falguni D. Trivedi, learned advocate for the original workman has submitted that the original respondent workman was working as meter reader under the petitioner since 25/10/1995 as daily wager and his daily wage was Rs.60/-. It is submitted that the services of the respondent workman was terminated on 5/1/1999 orally without issuing notice, notice pay or retrenchment allowance. It is submitted that while terminating services of the workman, juniors to the workman were retained in the employment. It is submitted that after termination of the services of the workman, other employees were employed. It is submitted that the workman has worked for more than 240 days in all Page 5 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined the years. It is submitted that the workman has worked from 1995 to 1999 continuously, however, his services came to be terminated illegally and arbitrarily. It is submitted that the termination of the respondent workman is in breach of provisions of section 25(F), 25(G) and 25(H) of the Industrial Disputes Act and Rules, 80, 81 and 82 of the Industrial Disputes Rules. It is submitted that the Labour Court considering the evidence on record has rightly directed the petitioner to reinstate the workman on his original post. It is submitted that instead of granting 100% back-wages, the Labour Court has awarded only 20% back- wages and therefore, the award is not required to be interfered. It is submitted that the findings recorded by the Labour Court are on appreciation of evidence on record and the same are not perverse and hence the judgement and award of the Labour Court is not required to be interfered with.
She has prayed to dismiss the petition.
5. Heard Mr.Dipak R. Dave, learned advocate for the petitioner employer and Mr.Falguni D. Trivedi, learned advocate for the respondent - original workman and perused and considered the Award and material on record.
6. FINDINGS:
6.1. Having heard the learned advocates for the respective parties and considering the material on record, it appears Page 6 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined that the original workman was working as meter reader under the petitioner on temporary and ad-hoc basis and his daily wage was Rs.60/-. It has come on record that the original workman was working as such days the workman has worked continuously from 25/11/1996 to 31/10/1998 and his services were terminated orally on 5/1/1999. On considering the material on record and the award, it is clear that the original respondent workman has worked for 240 in all the years. On appreciation of evidence on record, the Labour Court has held that before terminating the services of the workman, no notice was issued and no notice pay or retrenchment allowance was paid to the workman. Even no seniority list was produced before the Labour Court and even no workman was cross examined and therefore, the Labour Court held that after termination of the services of the workman, the petitioner had retained juniors to the petitioner and even employed other employees after termination of the workman. Considering the material on record and award passed by the Labour Court, this Court is of the opinion that the Labour Court has rightly observed and held that there is breach of section 25(F), 25(G) and 25(H) of the Industrial Act.
6.2. On perusal of the award and the material placed on record, it is clear that the petitioner has worked from 1995 to 1999 as daily wager and his termination is in breach of the mandatory provisions of the Industrial Disputes Act, as Page 7 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined stated hereinabove. The services of the respondent workman were terminated on 5/1/1999 and the Labour Court passed the Award on 11/5/2010. Present petition has been filed challenging the Award and this Court vide order dated 30/9/2010 issued Rule and granted ad-interim stay of the impugned judgement and award passed by the Labour Court subject to compliance of section 17B of the Industrial Disputes Act. Thus, the petitioner is getting last drawn wages from 2010. Considering the fact that the workman has worked for about three and half years and the fact that the services of the respondent workman were terminated in the year 1999 and now in the year 2023 i.e. after 24 years, in view of the settled legal position, reinstatement cannot be granted.
6.3. It is pertinent to note that the Hon'ble Apex Court in the case of Senior Superintendent Telegraph (Traffic) Bhopal vs. Santosh Kumar Seal and Ors., reported in (2010) 2 SCC 309 has observed and held as under :-
6. In last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate,.... (See U.P. State Brassware Corpn. Ltd. & Anr. v.
Uday Narain Pandey1; Uttaranchal Forest Development Corpn. v. M.C. Joshi2; State of M.P. & Ors. v. Lalit Kumar Verma3; Madhya Page 8 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined Pradesh Administration v. Tribhuban4; Sita Ram & Ors. v. Moti Lal Nehru Farmers Training Institute5; Jaipur Development Authority v. Ramsahai & Anr.6; Ghaziabad Development Authority & Anr. v. (2006) 1 SCC 479 (2007) 9 SCC 353 (2007) 1 SCC 575 (2007) 9 SCC 748 (2008) 5 SCC 75 (2006) 11 SCC 684 Ashok Kumar & Anr.7 and Mahboob Deepak v.
Nagar Panchayat, Gajraula & Anr.8).
7. In a recent judgment authored by one of us (R.M. Lodha, J.) in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr.9, the aforesaid decisions were noticed and it was stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an Page 9 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee".
6.4. The Hon'ble Apex Court in the Case of Tapash Paul Vs. BSNL and Another reported in 2016 (1) Scale 92 has observed and held as under :-
"5. It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz. (I) where the industry is closed;
(ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and / or (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable Page 10 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation.
6.5. The Hon'ble Apex Court in the case of BSNL Vs. Bhurumal, reported in 2014 (7) SCC 177 has observed and held as under:-
"Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay.
In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose."
6.6. In view of the aforesaid and considering the decisions Page 11 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined of the Hon'ble Apex Court in the case of Senior Superintendent Telegraph (Traffic) Bhopal (supra), decision in the case of Bhurumal (supra) and considering the decision in the case of Tapash Paul (supra) and considering the fact that in the present case, the workman has worked for less than 4 years and 24 years have been passed from the date of termination, this Court is of the considered view that in the facts of this case granting of relief of reinstatement after a gap of more than 24 years from the date of termination, no useful purpose will be served in granting reinstatement. This Court is of the considered opinion that if the workman is ordered to be paid lump sum amount of Rs.5,00,000/- in lieu of the reinstatement, back-wages and other consequential benefits, then, the ends of justice would be met appropriately. This Court deems fit to order grant of compensation of Rs.5,00,000/- as full and final settlement of the claim of the original respondent workman in lieu of the reinstatement, back-wages and other consequential benefits, if any. Such amount is needed to be paid by the petitioner to the respondent No.1.1 - widow of the original workman named Anitaben widow of Balkrushna Joshi after proper verification of the identity by an account payee cheque / pay order within a period of six weeks from the date of receipt of this order, failing which the workman will be entitled to claim interest at the rate of 9% from today till the date of actual realization.
7. With the aforesaid observation, the award passed by the Labour Court stands modified accordingly. The petition Page 12 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023 NEUTRAL CITATION C/SCA/12782/2010 JUDGMENT DATED: 09/08/2023 undefined is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 13 of 13 Downloaded on : Sun Sep 17 00:49:32 IST 2023