Gujarat High Court
Rajkot Irrigation Department vs Vijanand Naaran Kesur on 21 March, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1204/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1204 of 2017
In SPECIAL CIVIL APPLICATION NO. 18627 of 2013
With
R/LETTERS PATENT APPEAL NO. 1205 of 2017
In
SPECIAL CIVIL APPLICATION NO. 18628 of 2013
With
R/LETTERS PATENT APPEAL NO. 1206 of 2017
In
SPECIAL CIVIL APPLICATION NO. 18629 of 2013
With
R/LETTERS PATENT APPEAL NO. 1207 of 2017
In
SPECIAL CIVIL APPLICATION NO. 18630 of 2013
With
R/LETTERS PATENT APPEAL NO. 1208 of 2017
In
SPECIAL CIVIL APPLICATION NO. 18631 of 2013
With
R/LETTERS PATENT APPEAL NO. 1209 of 2017
In
SPECIAL CIVIL APPLICATION NO. 18632 of 2013
With
R/LETTERS PATENT APPEAL NO. 1210 of 2017
In
SPECIAL CIVIL APPLICATION NO. 18633 of 2013
With
R/LETTERS PATENT APPEAL NO. 1211 of 2017
In
SPECIAL CIVIL APPLICATION NO. 18634 of 2013
With
R/LETTERS PATENT APPEAL NO. 1212 of 2017
In
SPECIAL CIVIL APPLICATION NO. 18635 of 2013
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RAJKOT IRRIGATION DEPARTMENT
Versus
VIJANAND NAARAN KESUR
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Appearance:
MR DHAWAN JAYSWAL, ASST GOVERNMENT PLEADER(1) for the
PETITIONER(s) No. 1,2
Page 1 of 8
C/LPA/1204/2017 ORDER
MR. KALRAV R PATEL(7041) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 21/03/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. The challenge in this group of appeals, under Clause 15 of the Letters Patent, is to the oral judgement dated 29.08.2016 passed in a group of writ petitions namely Special Civil Application No. 18627 to 18635 of 2013 whereby the petitioners therein - workmen challenged the award dated 29.06.2013 passed in Reference (LCJ) Case No. 134 of 2005 and allied references by the learned Presiding Officer, Labour Court at Jamnagar whereby the references came to be partly allowed in favour of the workmen and instead of reinstatement, lumpsum payment ranging upto Rs.21,000/- came to be awarded. No order was passed for conferring any other benefit.
2. Before the learned Single Judge, the claimants contended that after their initial appointment in 1996, they continuously worked until 1999 when their services came to be terminated in breach of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 and that in each year they had worked for 240 days. During the proceedings before the Labour Court, an application was submitted that while they were in service no documents like identity card, pay slip, attendance card and other such documents were given to them and prayer was made to direct the employer to produce relevant documents namely attendance register, wage Page 2 of 8 C/LPA/1204/2017 ORDER register etc. The employer failed to place on record such documents. Based on the evidence available which included categorical averments on oath by the workmen, the Labour Court believed that the action of employer - appellant herein was in breach of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 and even in regard to 11 persons who were engaged after the claimants were discontinued, no specific denial came from the employer.
2.1 Before the learned Single Judge, arguments were canvassed by learned advocate for the petitioners - respondents herein as well as learned Assistant Government Pleader but the fact remains that the award passed in Reference (LCJ) No. 134 of 2005 and other references was not challenged by the employer and thus findings and conclusion based on reasonings of the Labour Court in the award impugned remain conclusive.
3. Before this Court, learned Assistant Government Pleader would vehemently contend that record was not available when the reference proceeded before the Labour Court but documentary evidence reveal that concerned workmen had not completed 240 days in a given year and were not entitled for the relief of even lumpsum amount. No doubt, the award passed by the Labour Court was not challenged by the employer in view of grant of lumpsum payment and no order was passed for reinstatement of the workmen, it was thought fit not to challenge such an award. However, it is submitted that the concerned authority has communicated a proposal where each of the workmen can be considered for higher amount of lumpsum payment instead of what is awarded by Page 3 of 8 C/LPA/1204/2017 ORDER the Labour Court and such proposal is pending before the Department of Finance of the State Government and likelihood of receiving Rs.2,50,000/- by each of the workmen is not ruled out. Learned Assistant Government Pleader has placed reliance on the decision reported in AIR 2016 SC 4441 in case of General Secretary, Coal Washeries Workers Union, Dhanbad vs. Employers in relation to the Management of Dugda Washery of M/s. BCCL and submitted that after lapse of more than 20 years from stoppage of work of subject workmen order of reinstatement would create inequitable situation and lumpsum compensation from Rs.50,000/- in lieu of reinstatement was increased to Rs.1,50,000/- to each of the workmen. It is submitted that like wise in many other decisions, the Apex Court awarded lumpsum amount for compensation in cases of breach of provisions of labour law legislation and particularly of Sections 25G and 25H as the case may be of the Industrial Disputes Act, 1947. It is, accordingly, submitted that even at this stage, a fair proposal is forwarded so that no injustice can be done to the workmen and they may receive fair compensation at least to the tune of Rs.2,50,000/-. The order under challenge passed by the learned Single Judge of modifying the award of Labour Court of payment of lumpsum compensation and ordering reinstatement of workmen without backwages and treat the services of each of the workmen as notional from the date of removal/termination of service till the reinstatement deserves to be quashed and set aside.
4. As against above, Mr. Kalrav Patel, learned advocate for the respondents - original writ petitioners - workmen would contend that in absence of any error on the part of the learned Page 4 of 8 C/LPA/1204/2017 ORDER Single Judge and the fact about breach of statutory provisions namely Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 was established, believed and upheld by the Labour Court and remained unchallenged by the employer, awarding lumpsum compensation by the Labour Court was found to be contrary to law by the learned Single Judge, order of reinstatement without backwages and to treat the service notionally of each of the workmen from the date of retrenchment to the date of reinstatement do not deserve any interference by this Court in all these appeals.
4.1 Reliance is placed on another decision of the Apex Court reported in AIR 2015 SC 357 in case of Tapash Kumar Paul vs. Bharat Sanchar Nigam Limited and Another whereby compensation in lieu of reinstatement was considered and justifiable grounds were delineated namely where industry is closed, where employee has superannuated or is going to retire shortly and no period of service is left to his credit and where workman has been rendered incapacitated to discharge duties and cannot be reinstated and when he has lost confidence of Management to discharge duties. The Apex Court found none of the above factors available and award of compensation in lieu of reinstatement was found to be unsustainable. It was held that workman was entitled to reinstatement with full backwages. Learned counsel for the respondents - workmen also relied on other such decisions referred to in the above decision where view is taken by the Bench of the Apex Court consisting of two or three judges and circumstances justifying or otherwise for order of reinstatement and backwages with or without continuity of service and reasonable and fair amount of Page 5 of 8 C/LPA/1204/2017 ORDER compensation to be awarded in a given case. It is, therefore, submitted that all appeals, in absence of merit, deserve to be dismissed.
5. In the backdrop of rival submissions as above and facts so emerging on record and particularly evidence that was led before the Labour Court by the parties and again re- appreciated by learned Single Judge, the fact remains that Labour Court has found breach of provisions of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 in no uncertain terms. At the same time, reference was made after a period of about 6 years. The Labour Court refused to award any backwages and even no order was passed for reinstatement but lumpsum amount ranging upto Rs.21,000/- was awarded in case of each of the workmen. That learned Single Judge in detail referred to findings and conclusions recorded by the Labour Court which remain unchallenged by the employer in paras 14.1 and 14.2 as under:
"14.1 As mentioned earlier findings and conclusions recorded by the learned labour Court are not challenged by the respondent employer. Even the observation and decision by the learned Labaour Court that reference cases do not deserve to be rejected on ground of delay is not challenged by the employer. Thus, when the said decision is not under challenge the said observation and conclusion by the learned Labour Court have attained finality. This Court, even otherwise, does not find any justification to interfere with the said conclusion and decision of the learned Labour Court and that too in the petitions filed by the claimants.
14.2 Likewise, employer has also not challenged the observations and findings of fact recorded by the learned labour Court that:Page 6 of 8 C/LPA/1204/2017 ORDER
(i) the claimants had worked for more than 12 months
(ii) the claimants had worked for more than 240 days
(iii) at the time of termination the employer did not pay retrenchment compensation
(iv) the opponent employer also did not follow principle of seniority i.e. last come first go and retained service of juniors while the employer terminated claimants
(v) employer also committed breach of Rule 21 and Section 25G of the Act and that the employer also committed breach of Section 25F of the I.D. Act."
5.1 The record for our perusal made available by Mr. Jayswal, learned Assistant Government Pleader at this stage of appeal about workmen not completing 240 days in a given year for which no opportunity will be available to the workmen to refute or to dispute that the above record is authentic is about irrigation scheme where the workmen have worked at different places for different period. Besides, finding of fact recorded by the Labour Court, particularly, about employer employing 11 daily wagers and need of employees even after retrenchment of the present group of workmen resulting into termination of their service and considering law laid down in the case of Dipali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324 by quoting para 38.1, modification of order of Labour Court to the extent of direction to reinstate workmen without backwages but to treat the period from the date of termination till reinstatement as notional for other benefits cannot be said to be contrary to law warranting interference by this Court.
5.2 The case of General Secretary, Coal Washeries Workers Union, Dhanbad (supra) cited by learned Page 7 of 8 C/LPA/1204/2017 ORDER Assistant Government Pleader was the case in which the Management had paid wages to the workmen in terms of the order passed on an application under Section 17B of the Industrial Disputes Act, 1947 during pendency of the proceedings before the High Court and thereafter considering the period of about 20 years from stoppage of work, the compensation was enhanced from Rs.50,000/- to Rs.1,50,000/- in lieu of reinstatement.
6. In our considered view, the award passed by the Labour Court remained unchallenged by the employer and in a writ petition filed by the workmen, learned Single Judge found an error of law committed by the Labour Court and directed the employer to reinstate the workmen. In facts and circumstances of this case, we find no case is made out by the appellant herein. However, the proposal made by the concerned department of the State Government for payment of lumpsum compensation of Rs.2,50,000/- to each of the workmen, if found acceptable to the workmen, discount can be exercised if deemed proper and that observations, findings and confirmation of the order of learned Single Judge will not come in the way of workmen, particularly, when some of the workmen are on the verge of attaining the age of superannuation.
7. In view of the above, present appeals being devoid of merit are dismissed. No costs.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) DIVYA Page 8 of 8