Gujarat High Court
State Of Gujarat - Deleted & vs Presiding Officer & on 6 April, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/312/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 312 of 2016
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STATE OF GUJARAT - DELETED & 1....Petitioner(s)
Versus
PRESIDING OFFICER & 1....Respondent(s)
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Appearance:
DELETED for the Petitioner(s) No. 1
MR. BIPIN BHATT, ASSISTANT GOVERNMENT PLEADER for the
Petitioner(s) No. 2
DIPESH D CHHAYA, ADVOCATE for the Respondent(s) No. 2
KHUSHBU D CHHAYA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 06/04/2017
ORAL ORDER
Rule. Learned counsel for the respondent workman waives service of notice of rule.
2. Considering the short dispute involved in this matter, the petition is heard and being finally disposed of by this order.
3. The order dated 25.7.2014 passed by the Labour Court, Rajkot, awarding reinstatement with continuity of service but without back wages to respondent No. 2 in Reference (LCR) No. 20 of 2009 is challenged in this petition.
4. Having considered the rival contentions, it appears that respondent No. 2 claimed to have been employed with the Page 1 of 4 HC-NIC Page 1 of 4 Created On Tue Aug 15 18:25:04 IST 2017 C/SCA/312/2016 ORDER petitioner between 1994 and 31.12.1997 as labourer and he challenged the termination dated 31.12.1997 only by reference in 2009. Harping on this fact, the learned Assistant Government Pleader submitted that the Labour Court ought not to have entertained the reference in absence of explanation of delay by the workman as indicated in Prabhakar v. Joint Director, Sericulture Department & Another (2015) 15 SCC 1.
5. The learned counsel for the second respondent pointed out that the findings of the Labour Court as regards appointment of one Vashram for the similar work which the second respondent was doing in the year 2005 and contended that the cause for the workman to move the reference arose on and after such appointment which was in breach of section 25H of the Industrial Disputes Act ("the Act" for short). The learned counsel contended that nothing was produced on record establishing the offer having been made to the workman in terms of section 25H of the Act before appointment of said Vashram and thus, in fact, in absence of immediate knowledge with the respondent workman about such appointment, it cannot be said that the action of the respondent workman was delayed. The learned counsel invited attention of this court to paragraph No. 41 of the pronouncement in Prabhakar (supra) and submitted that in the above circumstances, there was no delay and even if this court was to consider the delay in the action of the respondent workman, the Labour Court while denying the back wages to the workman has properly moulded the relief as indicated in paragraph No. 41 in Prabhakar (supra).
6. As against that, the learned Assistant Government Pleader invited attention of this court to paragraph No. 42 in Page 2 of 4 HC-NIC Page 2 of 4 Created On Tue Aug 15 18:25:04 IST 2017 C/SCA/312/2016 ORDER Prabhakar (supra) and contended that reference was hopelessly barred without any explanation for the delay and therefore, the relief granted by the Labour Court is required to be reversed.
7. There does not seem to be a dispute as regards appointment of similarly situated person: Vashram subsequent to the termination of service of the workman. Such an appointment was made in 2005 and the factual finding relying upon evidence of the witness examined by the employer has been rendered by the Labour Court. There is also nothing on record indicating the offer having been made to the workman before appointment of Vashram in the year 2005. There is also nothing on record to show that the workman was put to the knowledge of the fact that the said Vashram was appointed in the year 2005. The burden under section 25H of the Act to offer appointment to the retrenched workman is on the employer and the employer having not discharged the said burden, in the opinion of this court, the case filed by the second respondent workman in the year 2009 cannot be said to be barred by delay, laches and waiver in absence of the knowledge with the workman about such appointment. Therefore, the argument to the contrary advanced by the learned Assistant Government Pleader cannot be sustained.
8. It is, however, noticed from the impugned judgement and award that the respondent workman has been granted continuity of service from the date of his appointment i.e. in the year 1994. When his services were terminated in the year 1997, no immediate action was taken by the workman raising industrial dispute in or around 1997 and thus, in absence of the workman establishing the live industrial dispute vis-a-vis his termination, during the period between 1997 and Page 3 of 4 HC-NIC Page 3 of 4 Created On Tue Aug 15 18:25:04 IST 2017 C/SCA/312/2016 ORDER 2005, in the opinion of this court, the ratio laid down in Prabhakar (supra) was applicable to the case and the Labour Court seems to have fell in error in ignoring the said aspect while granting continuity of service to the workman. In the opinion of this court, right to claim reinstatement for the workman arose only in the year 2005 from the date Vashram was appointed as labourer as indicated above and therefore, the continuity of service could not have been granted since 1994 i.e. the date of appointment of the workman.
9. In case where breach of section 25H of the Act is complained of and established, relief can be effected only from the date the said provision is breached and not from any date prior thereto. Further the relief in such case would be confined to the rights as contemplated in section 25H of the Act alone and the workman would not be entitled to any wider relief. In the instant case, the Labour Court does not appear to have properly appreciated the scope of section 25H of the Act. Under the circumstances to that extent the award cannot be sustained and is required to be modified.
10. Accordingly, while allowing this petition partly, the impugned judgement and award shall stand modified to the effect that the respondent workman shall be reinstated in service with effect from the date Vashram was appointed and continuity of service shall accrue to the respondent workman from the said date only. It is clarified that the workman would not be entitled to get back wages as ordered by the Labour Court. The petition is thus allowed to the above extent. Rule is made absolute accordingly with no order as to costs.
(G.R.UDHWANI, J.) (pkn) Page 4 of 4 HC-NIC Page 4 of 4 Created On Tue Aug 15 18:25:04 IST 2017