Gujarat High Court
Executive Engineer vs Jorubhai Bhanabhai on 9 May, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11765 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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EXECUTIVE ENGINEER & ANR.
Versus
JORUBHAI BHANABHAI
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Appearance:
MR RITURAJ M MEENA(3224) for the Petitioner(s) No. 1,2
MR RAJESH P MANKAD(2637) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/05/2025
ORAL JUDGMENT
1. Challenge is given to the judgment and award passed by the Labour Court, Bhavnagar on 20.10.2008 in Reference LCB no.381 of 1991, whereby the Labour Court, while partly allowing the Reference of the respondent - workman, had ordered the present petitioners to reinstate the respondent - workman with 20% of the backwages along with the consequential benefits.
2. The petitioners state that the respondent - workman was employed by the petitioner-Board on the post of Chowkidar for drainage project at Palitana. The respondent-workman stopped coming on duty from 31.5.1991. Since the workman was no longer coming on duty, his name was Page 1 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined removed from the list of employees engaged in the project. The respondent-workman raised an industrial dispute and the same came to be referred before the Labour Court being Reference LCB no.381 of 1991, Bhavnagar.
3. Before the Labour Court, the respondent-workman claimed for reinstatement on the ground that his removal was illegal.
4. The petitioners state that after filing of the reply, advocate of the Board did not remain present and therefore, the petition of the respondent came to be allowed ex-parte. The said ex-parte award was challenged before this Court by filing Special Civil Application no.7143 of 2001, which was allowed on 26.12.2005 remanding the matter back to the Labour Court for decision on giving opportunity of hearing to both the parties.
5. In 2005, it was argued before the Labour Court that the drainage project in which the respondent was employed was in fact transferred to Palitana Nagarpalika and that the post on which the reinstatement was sought for was no longer in existence. Palitana Nagarpalika filed a reply on 6.3.2009. It was brought to the notice of the Labour Court that all the workmen employed in the said project had been transferred to Paliatana Nagarpalika and such a communication dated 29.8.1997 of the project being handed over to the Nagarpalika, was brought to the notice of the Court.
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6. It was contended before the Labour Court that the respondent - workman had never completed 240 days preceding the date 31.5.1991 and therefore, there was no question of violation of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as "the ID Act") .
7. Learned advocate Mr. Rituraj Meena for the petitioners has submitted that the Labour Court has failed to appreciate the fact that the project in which the respondent- workman was engaged was for a limited period and as the project stood closed, the relief sought by the workman could not be granted. Mr. Meena further stated that if at all any relief was to be granted, it could be against Palitana Nagarpalika and not against the present petitioners - Board. Mr. Meena further stated that the learned Judge was required to appreciate the fact that the workman had not completed 240 days, as required under the ID Act and has failed to appreciate that for more than 19 years, the respondent - workman had stopped coming to service. Thus, under such circumstances, even if the Labour Court has come to the conclusion that there was violation of Sections 25F, 25G and 25H of the ID Act, at best, the Labour Court could have granted, compensation and not reinstatement. Mr. Meena further stated that the Labour Court was required to appreciate the fact that the record of attendance of the year 1990 was destroyed in the flood of 1990 and therefore, under such circumstances, certain documents as were not available could not be produced, but that fact itself could Page 3 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined not entitle the respondent - workman for an automatic gain of right of reinstatement.
8. Per contra, learned advocate Mr Rajesh P. Mankad for the respondent, referring to the facts as had been noticed in the impugned judgment of Reference LCB no.381 of 1991, submitted that the respondent-workman was working with the petitioners since last 4 years as Chowkidar as well as Helper till 2.8.1991. He was in continuous service and his last monthly salary was Rs.512/-. The respondent - workman was attending the job for more than 12 hours. He had no benefit of weekly leave or other leave and when he had made demand for overtime benefit, weekly leave from the Board, on 2.8.1991, without any notice, notice pay or compensation was dismissed from the office on oral order. Mr. Mankad submitted that on and often he requested to take him back in the job and on 18.9.1991, by Registered Post AD, he made his claim to the petitioner for reinstatement. Mr. Mankad contended that the present petitioners failed to give any reply and the respondent - workman, on 7.10.1991, had filed a complaint before the Assistant Labour Commissioner, Bhavnagar for reinstatement, where both the parties were called. However, as the petitioner denied to take the respondent- workman back on job, a Reference was made.
9. Mr. Mankad submitted that illegally, the respondent-
workman has been dismissed from the service in violation of Sections 25F, 25G and 25H of the ID Act and therefore, Page 4 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined a claim was made before the Labour Court to consider his service continued and praying for all consequential benefits with his salary and reinstatement.
10. The petitioners had filed reply at Exh.10 and had denied the status of the petitioners as Chowkidar and Helper and had also denied the fact that he had continued in service till 2.8.1991. According to the present petitioners, the respondent-workman had lastly attended the duty on 31.5.1991 and since for a long time, had failed to remain present as a daily-wager and thus, they were forced to delete his name from daily-wager muster. It was also contended before the Labour Court that since the respondent-workman had stopped coming to his duty as a Chowkidar, there was no need to issue any notice, nor he was entitled for notice pay or compensation.
11. The Labour Court has noted in the judgment about the ex-
parte award and thereafter, proceeded, on remand by order passed in Special Civil Application no.7143 of 2001 dated 26.12.2005.
12. The evidence of the respondent - workman was recorded at Exh.16, while from the side of the present petitioners at Exh.48, Bharatsinh Jilubha Gohil - Additional Assistant Engineer and at Exh.57, witness - Pandya Milanbhai Himmatlal were examined. The Labour Court, on examination of the evidence on record, noted the document Page 5 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined at Exh.80 for the years 1986 to 1991 reflecting total days of the presence of the respondent - workman, which is as under:-
Year Days of presence
1986 ---
1987 ---
1988 238
1989 86
1990 81
1991 60 1/2
13. The observation of the above schedule at Exh.80 by the Labour Court was to the effect that inspite of the respondent - workman having worked in the years, 1988, 1989, 1990 and 1991, by Exhs.49 to 63, the attendance- sheets of different periods from 10.6.1987 to 5.8.1989 were produced, where it was argued that the respondent - workman had worked upto 31.5.1991 and thus, the Labour Court observed that in the exhibited documents 65 to 70, from 1.3.1991 to 30.4.1991 for different time period in different attendant-sheets, there was no mention of the name of the respondent - workman. In the cross- examination if the witness admits of details in regard to the days as shown in Exh.80, the witness could not produce the documents in connection to it. The Labour Court observed that Bhavnagar Division-2, after the order Exh.33, if at all had any communication, such documents have not been produced as evidence and therefore, found Page 6 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined that there was no consistency between the documents produced and submission by the present petitioners.
14. The Labour Court has referred to various case laws in the judgment to observe about the burden to produce the documents. The petitioners, before the Labour Court, had argued that without following the regular procedure, only as a daily-wager, the respondent was employed and therefore, was not entitled for any status. The petitioners also argued that for the drainage project, Palitana from January, 1988, he was kept in service and after the closure of that office, the charge of the office was handed over to Public Health Office of Palitana on 28.2.1997 and the underground drainage project was closed, and as the project was handed over to Nagarpalika in 1997, the claim of the workman cannot be considered.
15. Vide Exh.48, Bharatsinh Jilubha Gohil, Additional Assistant Engineer of Palitana Public Health and Welfare Sub-Division was examined on 22.8.2008 before the Labour Court. The Labour Court, therefore, observed that though the witness was aware of the facts on 22.8.2008, the Department even after the order of the High Court on 26.12.2005, had failed to bring any amendment in the reply to raise such defence. Inspite of that, the learned Judge observed that if the deposition of the witness on that issue is believed, then, the underground drainage project was handed over to the Nagarpalika in 1997 becomes obvious. Thus, it was observed that the project was not Page 7 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined closed by the petitioner-Board. Rather, as per the cross- examination in 1997, the project was handed over to the Nagarpalika. It was observed by the Labour Court that no document had come on record to show that the project had been closed.
16. The present petitioners had, by way of the documents, had brought it before the Labour Court that the respondent - workman was working as the daily-wager, but it was not the case of the petitioners as shown in Exh.80 that he was first discharged from the service and then again, he was taken back in the job. Thus, the Labour Court concluded relying on Exh.80 that it is not the case that he had been discharged from the work during that period, wherein the gap becomes obvious.
17. The Labour Court, thus, came to the conclusion that as per Section 25B of the ID Act also, the job of the respondent-workman could be considered as continuous and uninterrupted. So the contention raised that the appointment of the respondent-workman was only for the underground drainage project and his appointment was only for that purpose and on closure, his appointment gets terminated, was not believed by the Labour Court observing that there is no evidence on record to show that the respondent-workman was appointed as a daily-wager on underground drainage project and appreciated the undisputed fact that the project in 1997 was handed over to the Nagarpalika. The learned Judge observed that the Page 8 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined underground drainage project is not a seasonal work and undisputedly, there is no appointment letter to show that he was appointed as a daily-wager for a particular time and for the period of underground drainage project, nor any document was produced to show that the respondent - workman was put to any such condition and it was not the case that the respondent - workman had the knowledge that after the conclusion of the underground drainage project, he would be terminated from the service.
18. To the argument raised by the respondent-workman that on 2.8.1991, he was released from the job the petitioners stated that he had come on duty till 31.5.1991 and for long period, had not attended the job, inspite of that fact, his name continued in the muster, however, since the respondent - workman, as a daily-wager, failed to attend the duty, they were constrained to stop his name in the daily-wager muster. The case as was projected before the Labour Court by the petitioners was that in the fresh list, the name of the respondent - workman was not included. It was also argued that his name was appearing in daily- wager's muster but because of his continuous absence, his name came to be deleted from the muster of the daily- wager. Such contention raised was not believed by the Labour Court.
19. The observation of the Labour Court is right since there was no such appointment letter issued to the respondent - workman as a daily-wager and as per the evidence at Page 9 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined Exh.48 of Bharatsinh Jilubha Gohil, the respondent - workman was not employed through Employment Exchange Office. There was no interview taken of the respondent - workman, nor any written order issued. It was stated in the evidence that as per the necessity of the project, the labourers were called and if there was need of further labourers, they were contacted through the present one. In the cross-examination, the witness has accepted that there is no such rule for employing the daily-wagers and accepted the fact that no written order was given to the daily-wagers and that no salary slip was issued to the daily-wagers.
20. The fact becomes noticeable that it was not the case of the petitioners that only for a limited period, the respondent - workman was appointed as a daily-wager and that after the closure of the project, the appointment of the respondent - workman automatically comes to an end. The project was handed over to the Nagarpalika in 1997 and the witness - Bharatsinh Jilubha Gohil had accepted in the cross- examination that as underground drainage project was handed over to the Nagarpalika, all the employees were absorbed in their institution and in 1997, the said project was handed over to the Nagarpalika and has admitted the fact that there are no evidence that daily-wagers were handed over to the Nagarpalika. This evidence proves that the underground drainage project was in force when the respondent-workman was taken in service. The same continued as was handed over to the Nagarpalika and as Page 10 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined per the deposition of the witness, thereafter too, it continued. Therefore, the observation as made by the Labour Court is required to be accepted that the respondent-workman's appointment cannot be considered as of daily-wager only for the purpose of underground drainage project and the learned Judge, therefore, has rightly rejected the contention raised by the petitioners about respondent - workman's appointment as a daily- wager on the project itself.
21. The Labour Court has taken judicial note of Reference LCB nos.28 of 1989 and 29 of 1989 since the dispute of the parties was noted to be similar, more so, the respondent- workman in his examination-in-chief at Exh.16, had referred the name of Rajubhai, Milanbhai and Shaileshbhai. All the 3 employees were senior to the respondent - workman. The seniority list was produced in the matter at Exh.32, where Milan Himmatlal Pandya's appointment was shown as of 5.3.1981 in underground drainage sub-division, Bhavnagar and Rajul Batukray's appoitnment was dated 21.11.1986 and Shailesh Popatlal's appointment on 5.12.1986. These employees were performing their duties in underground drainage sub- division, Palitana. The Labour Court, taking these documents in consideration, observed that the fact gets corroboration that the daily-wagers of the petitioner-Board were absorbed in Bhavnagar Nagarpalika. The further fact, which came to the notice of the Labour Court was that the petitioner - Board had handed over the muster to the Page 11 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined Bhavnagar Nagarpalika. The admission of the petitioners in their reply at Exh.5 declared that the respondent-workman lastly on 31.5.1991 had come on duty and vide amendment by Exh.10, the reply was amended to declare the date as 31.3.1991. So according to the petitioners, after 31.3.1991, the respondent - workman had stopped coming on duty.
22. The Labour Court, in Reference LCB nos.28 of 1989 and 29 of 1989 vide Exh.122, observed the status as on 28.2.2007, which is as under:-
Sr. Particulars Date of Post
No. appointment
1 Shri P.B. Rathod 7.1.1993 Chitra Store
Chowkidar
2 Shri G.B. Gohil 1.8.1995 Chitra Store
Chowkidar
23. It was observed by the Labour Court that out of 234 daily-
wagers, the referred daily-wagers were the junior employees and they were still continued in the duty, which stands proved.
24. The respondent - workman, in his deposition at Exh.16 before the Labour Court, stated that when he was removed from the job on 2.8.1991, there was no seniority list prepared, while when he was lastly on his job, Rajubhai and Milanbhai with a lesser service period, were still Page 12 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined working there and were continued in the job and even Shaileshbhai was also in job. In the cross-examination, the respondent-workman accepted that Rajubhai was taken on job in 1986, while denied the suggestion that Shaileshbhai was taken in job prior to him. He denied the suggestion that Rajubhai, Milanbhai and Shaileshbhai were not Chowkidars, while stated that Rajubhai, Milanbhai and Shaileshbhai were Helpers as well as Chowkidars in service. He also admitted the fact that while he was in service, along with him, Rajul Batukray, Rajendrasinh Vajubhai, Kiritsinh Manubhai, Ashok Samant and Kishorsinh Thakersinh too were working .
25. On that issue, witness - Bharatsinh Jilubha Gohil examined at Exh.42 from the side of the present petitioners, stated that they were not maintaining any seniority list for the daily-wagers. The seniority list of fixed daily-wagers was shown. Rajulbhai, Milanbhai and Shaileshbhai, according to the witness, are senior labourers than the respondent - workman. In Exh.80, attendant-sheet, the particulars regarding the attendance of Rajul Batukray and Shailesh Popatlal Vaghela were presented with the forwarding letter.
26. On analysis of the evidence on record, the Labour Court, thus, found discrepancy in the evidence to note that the petitioners' officer on one hand would say that there would not be any seniority list of the daily-wagers and on the other side, at the same breath, would say that the seniority Page 13 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined list of fixed daily-wagers were maintained and on the third count, from the petitioners' side, Exhs.80 to 85 were produced. So the Labour Court commented that if Rajul Batukray and Shailesh Popatlal Vaghela were not on fixed wages, then their names would not be there in the seniority list, as contended by the workman, but Exh.80 is the attendant-sheet reflecting the name of Rajul Batukray and Shailesh Popatlal Vaghela. In the same way in Exh.84, vide letter 28.8.1991, the name of Milanbhai Himmatlal had been referred, while Milanbhai's name does not transpire in Exh.80, the attendant-sheet.
27. The respondent - workman had contended that from the beginning itself, the daily-wagers would not be given any written appointment orders and the Labour Court noted that if Milan Himmatlal Pandya was senior daily-wager to the respondent - workman and Rajul Batukray and Shailesh Popatlal Vaghela, then, names would reflect in Exh.80, while no name is shown of Milanbhai in Exh.80.
28. In the matter, the evidence of Milan Himmatlal Pandya was recorded and he stated that since 1981, he entered in underground gutter management board, Palitana to the post of Chowkidar and he had to perform duty at different places. The respondent - workman also entered the department 7 to 8 years later. The Labour Court also took into consideration the period of joining the service by Rajubhai and Shaileshbhai in comparison to the respondent - workman. On analysis of the evidence, the Page 14 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined Labour Court preferred to differ from the contention that the respondent - workman and Rajul Batukbhai as well as Shailesh Popatlal Vaghela were junior daily-wagers to Milanbhai. Since that fact does not get corroborated from the record, Exh.80 disclosed information of 5 years from 1986 to 1991, wherein there were names of Rajul Batukray, Shailesh Popatlal and the respondent-workman, while Exh.80 do not reflect Milanbhai Himmatlal Pandya though it was stated that all the others were junior to Milanbhai. On total analysis of the service book of 4 daily- wagers as well as other documents and the deposition of Bharatsinh Jilubha Gohil, the Labour Court concluded that it does not transpire that Milan Himmatlal, Rajul Batukray and Shailesh Popatlal were appointed as daily- wagers only for underground drainage scheme. The learned Judge had also noted that since underground drainage scheme was handed over in 1997 to the Nagarpalika, that itself would not relieve the Board from their liability, since the employees who were kept as daily-wagers, out of them Milankumar, on 5.3.1981, Rajul Batukray on 28.2.1992 and Shailesh Popatlal on 26.2.1992, were given the appointment as Chowkidar on fixed pay and as discussed in the judgment, the learned Judge came to the conclusion that they were accordingly performing their duties.
29. The Labour Court undisputedly found the fact that the underground drainage scheme was handed over to Bhavnagar Nagarpalika in 1997 does not get supported by documentary evidence since such kind of documents had Page 15 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined not been produced by the petitioners. However, the present petitioners' documents so produced could clarify that the daily-wager employees were performing their duties and that it was proved that initially, they were appointed as daily-wagers. Thus, merely because underground drainage scheme in 1997 was handed over to Bhavnagar Nagarpalika, it cannot be considered that the office of the petitioner-Board had a closure, nor was such the case of the petitioner-Board before the Labour Court.
30. The conclusion so observed will get support from the law as laid by the supreme Court, in the case of S.M. Nilajkar v. Telecom District Manager, (2003) 4 SCC 27,wherein it was observed as under:
"12. "Retrenchment" in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued. It is well settled by a catena of decisions that labour laws being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries in case of doubt or where it is possible to take two views of a provision. It is also well settled that Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever" while defining the term "retrenchment", which is suggestive of the legislative intent to assign the term "retrenchment" a meaning wider than what it is understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term "retrenchment", and therefore, termination of service of a Page 16 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined workman so long as it is attributable to the act of the employer would fall within the meaning of "retrenchment" dehors the reason for termination. To be excepted from within the meaning of "retrenchment" the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within categories
(a), (b), (bb) and (c) would fall within the meaning of "retrenchment".
13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of sub-clause (bb) subject to the following conditions being satisfied:
(i) that the workman was employed in a project or scheme of temporary duration;
(ii) the employment was on a contract, and not as a daily-wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project;
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract; and
(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment.
14. The engagement of a workman as a daily- wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or up to the occurrence of some event, and Page 17 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined therefore, the workman ought to know that his employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short-lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complain that by the act of the employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of sub-clause (bb) abovesaid. In the case at hand, the respondent employer has failed in alleging and proving the ingredients of sub- clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. For want of proof attracting applicability of sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."
31. Considering all the aspects, the Labour Court held that the case of the respondent - workman was not under Section 11A of the ID Act and that it was not the case of the petitioner-Board of any case of misconduct of the respondent - workman. The matter was referred under Section 10 of the ID Act by the Assistant Labour Commissioner and as per the evidence of the respondent- workman, after the termination, he had gone in search for work, but had not received any job and thus, is Page 18 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined unemployed and thus, under the ID Act, the Labour Court came to the conclusion that the respondent - workman is entitled for reinstatement. Considering the facts of the case from 2.8.1991, the respondent - workman was made entitled to receive 20% of the salary and other consequential benefits with reinstatement.
32. The present petitioners as well as the Commissioner, Bhavnagar Nagarpalika were ordered within 30 days of the award to reinstate the respondent-workman with 20% of salary and other consequential benefits.
33. Mr. Mankad, referring to an Office Order no.3/2014, submitted that during pendency of the present case, under Section 17B of the ID Act, he was monthly paid the wages and considering his birth date, he was found to be retired on 31.7.2014 and therefore, was considered to be released from the office considering it as superannuation and hence, from 1.8.2014, no payment was ordered to be made.
34. Mr. Mankad has submitted that since the petitioners have stopped payment from 1.8.2014, he would be entitled for the salary allowance and gratuity amount to the tune of Rs.14,65,918/-. The amount paid to him is Rs.69,089/- and therefore, now deducting that amount, as a remaining part of the salary and gratuity, his entitlement would be Rs.13,96,829/-. The calculation, which has been made by the learned advocate Mr. Mankad, is for a period from 2.8.1991 to the publication of the award dated 31.10.2008, 20% of the wages is considered as Rs.1,78,612/- as per the Page 19 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined 4th Pay Commission and from 1.11.2008 till superannuation on 31.7.2014 at the rate of 100%, the wages has been calculated as Rs.9,90,659/- and considering the total service period of 27 years, the gratuity amount is calculated as Rs.2,96,647/- and deducting the amount received, the claim of Rs.13,96,829/- has been put forward.
35. The observation and analysis of the Labour Court to the facts of the matter is consistent with the evidence on record. The petitioners failed to prove that the appointment of the respondent - workman was only on the underground drainage project and that he had abandoned the service. The respondent - workman had worked till 2.8.1991 as Chowkidar and Helper, and without any notice or notice pay, orally, he has been terminated from the job stands proved. Immediately, on 18.9.1991, he had made a claim to reinstate him by communicating by way of RPAD. The said communication was never replied and on 7.10.1991, the respondent - workman appeared with his complaint before the Assistant Labour Commissioner, Bhavnagar making a prayer for reinstatement, but the respondent - workman was denied reinstatement. The respondent - workman could prove that he was illegally retrenched and that there was a breach of Sections 25F, 25G and 25H of the ID Act.
36. In the case of General Manager, Haryana Roadways v.
Rudan Singh, (2005) 5 SCC 591, Three-Judge Bench has observed as under:-
Page 20 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined "A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."
In A.P. State Road Transport Corporation & Ors. v. Abdul Kareem, (2005) 6 SCC 36, while the Labour Court directed reinstatement with continuity of service of the Respondent but without back wages, this Court denied even the continuity of service.Page 21 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025
NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined A Division Bench of this Court in M.L. Binjolkar v. State of Madhya Pradesh, JT 2005 (6) SC 461 : (2005) 6 SCC 224, referring to a large number of decisions, held:
"7 The earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view."
37. The Labour Court has, therefore, in totality of the evidence on record, has granted 20% backwages, which this Court considers as appropriate and since the order of reinstatement had been passed, the respondent - workman would be entitled to the retirement benefits which, in this case, would be the gratuity amount and the salary from the date of publication of the award till the date of retirement. The respondent - workman, in his evidence, has stated that he was getting monthly salary of Rs.512/-. His entitlement to the salary would be equivalent to other equally placed employees who have been referred in the evidence of the Labour Court.
38. In the result, the present petition fails. There is no merit and hence, the same stands rejected. The petitioner-Board as well as the Commissioner, Bhavnagar Nagarpalika are ordered to pay the wages as per the 4 th Pay Commission from 2.8.1991 till the date of publication of award dated Page 22 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025 NEUTRAL CITATION C/SCA/11765/2009 JUDGMENT DATED: 09/05/2025 undefined 31.10.2008, 20% as ordered and from 1.11.2008 till the date of retirement i.e. 31.7.2014, 100% of his entitlement of the salary along with the gratuity amount within 8 weeks of this order.
(GITA GOPI,J) Maulik Page 23 of 23 Uploaded by MAULIK R. PANDYA(HC00205) on Fri May 09 2025 Downloaded on : Sat May 10 22:27:49 IST 2025