Gujarat High Court
Dhirubhai Maganbhai Miyatra vs Deputy Executive Engineer on 29 April, 2024
NEUTRAL CITATION
C/SCA/2356/2024 ORDER DATED: 29/04/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2356 of 2024
==========================================================
DHIRUBHAI MAGANBHAI MIYATRA
Versus
DEPUTY EXECUTIVE ENGINEER
==========================================================
Appearance:
MR DHRUVRAJ R BHAVSAR(9415) for the Petitioner(s) No. 1
MS SURBHI BHATI AGP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date: 29/04/2024
ORAL ORDER
1. Workman has filed this petition challenging the award of Labour Court, Morbi dated 23.11.2023 in Reference (LCR) No.48 of 2013, wherein the respondent-employer was directed to pay to the workman lumpsum compensation of Rs.60,001/-. Cost of Rs.5,001/- was also awarded. The lumpsum compensation was awarded in lieu of reinstatement with continuity of service and back-wages.
2. Facts in brief as referred in the petition are as under:
2.1 The petitioner was appointed as a daily wager at Macchu Dam-2 site, Morbi in the year 1991. It is case of the petitioner that he had completed 240 days in preceding 12 months and was terminated illegally on 30.04.1993, without any reason and without following due procedure of law and, Page 1 of 8 Downloaded on : Tue Apr 30 20:49:19 IST 2024 NEUTRAL CITATION C/SCA/2356/2024 ORDER DATED: 29/04/2024 undefined therefore, he raised dispute before the appropriate forum.
Upon conciliation being filed, the dispute was referred to Labour Court, Morbi registered as Reference (LCR) No.48 of 2013. Upon adjudication, the Labour Court awarded lumpsum compensation of Rs.60,001/- in lieu of reinstatement with continuity and backwages. A cost of Rs.5,001/- was also awarded. Aggrieved by the award dated 23.11.2023, present petition is filed.
3. Heard Mr. Dhruvraj Bhavsar, learned advocate for the petitioner-workman. He submitted that the award of the Labour Court is erroneous because the termination is held to be illegal by the Labour Court, and therefore the workman would be entitled for reinstatement with continuity and backwages. Further completion of 240 days in a year is not in dispute and, therefore, once the workman had completed 240 days in a year, before termination provisions of Industrial Act would be applicable and termination without due procedure of Law would not be permitted. Further, without seniority being followed the workman was terminated and the workmen junior to the petitioner have been continued in service. Before termination the procedure was not followed and the petitioner was not put to any notice or paid retrenchment compensation, therefore Labour Court rightly held the termination as illegal. The Labour Court has erred in not appreciating that provisions Page 2 of 8 Downloaded on : Tue Apr 30 20:49:19 IST 2024 NEUTRAL CITATION C/SCA/2356/2024 ORDER DATED: 29/04/2024 undefined of Act does not prescribe limitation within which reference is required to be preferred. Therefore, non-consideration of reinstatement with continuity and back-wages is erroneous. Therefore, the award of the Labour Court being erroneous deserves to be considered.
3.1. In support of his submissions, he relied upon the following decisions:
(i) U P State Electricity Board vs. Rajesh Kumar reported in 2003 (12) SCC 548
(ii) Danjibhai Bhanabhai alias Bhanjibhai Maru vs. State of Gujarat reported in 2018 Law Suit (Guj.) 357
(iii) Special Civil Application No.20706 of 2018 and allied matters dated 24.10.2019.
4. On the other hand, Ms.Bhati, learned Asst. Government pleader for the respondent -State submitted that the award of Labour Court is appropriate and no interference is called for. She submitted that the workman was working as a daily wager and called for doing seasonal work as and when the work was available and therefore, there it was not a case of illegal termination. Further the dispute was raised before the Labour Page 3 of 8 Downloaded on : Tue Apr 30 20:49:19 IST 2024 NEUTRAL CITATION C/SCA/2356/2024 ORDER DATED: 29/04/2024 undefined Court after delay of 20 years. The workman was terminated in the year 1993 and, thereafter the dispute was raised in the year 2013. The same being belatedly raised, being a stale claim may not be entertained. The workman had worked only for 2 ½ years. With regard to comparison made by the petitioner in his petition, learned AGP submitted that in other cases, the Labour Court had considered that the other workman had completed more than 13 years of service and the dispute was raised within a period of 05 years and, therefore, the facts being different cannot be equated with. In support she relied upon following decisions:
(i) Krishi Utpadan Mandi Samity vs. Pahal Singh reported in (2007) 12 SCC 193.
(ii) Assistant Engineer, CAD, Kota vs. Dhan Kunwar reported in (2006) 5 SCC 481.
5. Considered the submissions and the decisions relied on. From the award of the Labour Court and the documents on record, it is noticed that the workman was appointed as a daily wager in the year 1991 and thereafter, was discontinued w.e.f 30.04.1993. Thus, the workman had worked only for 2 ½ years. So far as completion of 240 days in a year and the procedure to be followed prior to termination, the Labour Page 4 of 8 Downloaded on : Tue Apr 30 20:49:19 IST 2024 NEUTRAL CITATION C/SCA/2356/2024 ORDER DATED: 29/04/2024 undefined Court held that the same was not followed and the termination held to be illegal. Since no challenge is made by the respondent - State against the award, the contention of learned AGP that the workman was called for seasonal work as and when the work was available and it is not a case of illegal termination, in the opinion of this Court is not required to be considered. Admittedly, for the termination of year 1993, the dispute was raised in the year 2013, after delay of 20 years, therefore, Labour Court on this aspect has held that after having completed 2 ½ years of service, the workman was terminated on 30.04.1993 and the dispute was raised after 20 years. Further it is true that the workman was not working on a permanent post. Moreover, casual approach of the workman, has been correctly considered by the Labour Court that after raising the dispute in 2013, the respondent - State filed its reply in the year 2014 and after having examination- in-chief and cross-examination in the year 2016 and 2017, the case for leading the evidence was requested to be closed by workman in the year 2022. Further, the decision on which the petitioner had relied upon, in the opinion of this Court would not be applicable in the facts of this case since decision in the case of U P State Electricity Board vs. Rajesh Kumar (supra), the Court considered the delay of 19 years on the ground that before the Labour Court, no ground of delay was taken and for the first time it was taken before the High Page 5 of 8 Downloaded on : Tue Apr 30 20:49:19 IST 2024 NEUTRAL CITATION C/SCA/2356/2024 ORDER DATED: 29/04/2024 undefined Court. On this ground, the Hon'ble Supreme Court held that when the appellant did not challenge the order of reference made in the year 1997 and when the first time the same was sought to be urged before the High Court, the same cannot be entertained. Similarly, in the case of Danjibhai Bhanabhai alias Bhanjibhai Maru vs. State of Gujarat (supra), the ground of delay in raising the dispute of 14 years was not considered because the said ground was taken for the first time before the High Court. Moreover, in the decision of the coordinate Bench of this Court, the Court took into consideration the service of 11 years and 9 months rendered by the workman. In the opinion of this Court, all these decisions relied upon by learned advocate for the petitioner will not be applicable in the facts of this case because in this case, the workman only worked for 2 ½ years and the dispute was raised after a delay of 20 years. Moreover, it cannot be presumed that for these many years, the post has been kept vacant. Moreover, in the written statement before the Labour Court, the State has placed reliance on the Government Resolution stating that the appointment of the casual worker has been abolished by Government Resolution and the same is not in operation.
5.1. In the decision of the Hon'ble Supreme Court in the case of Krishi Utpadan Mandi Samity vs. Pahal Singh (supra), it is held as under:
Page 6 of 8 Downloaded on : Tue Apr 30 20:49:19 IST 2024NEUTRAL CITATION C/SCA/2356/2024 ORDER DATED: 29/04/2024 undefined "11. It is now well-settled principle of law that "delay defeats equity.
12. The Labour Court exercise its wide jurisdiction under Section 11A of the Industrial Disputes Act, but such jurisdiction must be exercised judiciously. A relief of re-
instatement with all back wages is not to be given without considering the relevant factors therefore, only because it would be lawful to do so. As noticed hereinabove, in this case, even the basic requirements for grant of any relief had not been found by the Labour Court."
5.2 In one more decision in the case of Prabhakar Vs. Joint Director, Sericulture Department and another reported in (2015)15 SCC 1, the Hon'ble Supreme Court has held as under:
"37. Let us examine the matter from another aspect, viz. laches and delays and acquiescence.
38. It is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".Page 7 of 8 Downloaded on : Tue Apr 30 20:49:19 IST 2024
NEUTRAL CITATION C/SCA/2356/2024 ORDER DATED: 29/04/2024 undefined
6. Considering the fact of this case that for the termination in the year 1993, the dispute was raised in the year 2013 and the fact that workman had worked only for 2 ½ years as a casual worker, this Court deems it appropriate not to interfere with the award of the Labour Court granting lumpsum compensation of Rs.60,001/-.
7. In view of the above, the award of the Labour Court, Morbi dated 23.11.2023 in Reference (LCR) No.48 of 2013 is hereby confirmed and the petition is accordingly rejected. No costs.
(MAUNA M. BHATT,J) NAIR SMITA V..
Page 8 of 8 Downloaded on : Tue Apr 30 20:49:19 IST 2024