NEUTRAL CITATION
C/LPA/807/2019 ORDER DATED: 24/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 807 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 9195 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/LETTERS PATENT APPEAL NO. 807 of 2019
With
R/LETTERS PATENT APPEAL NO. 1052 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9190 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2018
In R/LETTERS PATENT APPEAL NO. 1052 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9190 of 2016
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KISHORBHAI ARMJIBHAI SAKARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ANAND B GOGIA(5849) for the Appellant(s) No. 1
MR BB GOGIA(5851) for the Appellant(s) No. 1
MS MUSKAN A GOGIA(6624) for the Appellant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 24/08/2023
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Since these two Letters Patent Appeals arise from common judgment and order of learned single Judge and involve similar facts and identical issues, they both were heard together to be simultaneously treated by this order.
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2. Heard learned advocate Ms. Kajal Kalwani for learned advocate Mr. A. B. Gogia for the appellants and learned Assistant Government Pleader Mr. Sanjay Udhwani for the respondent State.
2.1 The challenge in this Letters Patent Appeal preferred under Clause 15 of the Letters Patent, is addressed to judgment and order of learned single Judge dated 14.6.2018, whereby the Special Civil Applications filed by the State Government was partly allowed. Instead of reinstating the appellants herein, it was directed that a lumpsum compensation should be paid to the appellants-workmen equivalent to 25% of the wages payable from 1.2.2010 to 3.11.2015, that is from the date of reference till the date of award.
3. In the background, there stands passed the judgment and award of the Labour Court, Rajkot dated 3.11.2015 in Reference (LCR) No. 11 of 2010. The jurisdiction of the Labour Court was invoked by the appellants-workmen for the relief of reinstatement stating in their statement of claim inter alia that they were daily rated labourers working at Aji-3 Canal under the respondent department from 1.1.1995 and their services came to be terminated with effect from 31.3.1999. The Labour Court considered the rival case of the workmen and the first party employer, further appreciated the evidence and material before it and recorded findings inter alia that in terminating the services of the workmen, there was breach of provisions of sections 25F, 25G and 25H of the Industrial Disputes Act, 1947. The award was passed setting aside the termination of the workmen directing their reinstatement with continuity benefit and to pay 25% of the back wages.
Page 2 of 6 Downloaded on : Sun Sep 17 02:19:53 IST 2023 NEUTRAL CITATION C/LPA/807/2019 ORDER DATED: 24/08/2023 undefined 3.1 When the said judgment and award came to be challenged by the
State before learned single Judge, learned single Judge took the view that in light of the facts and circumstances and the aspects emerging in the case, the proper relief would be to grant lumpsum compensation in lieu of reinstatement. Accordingly, the petition was partly allowed in terms of the above directions.
4. Assailing the judgment and order of learned single Judge, it was vehemently submitted by learned advocate for the appellants that once the Labour Court has found and recorded the breach of mandatory provisions under sections 25F, 25G and 25H of the Industrial Disputes Act leading to termination of services of the workmen, the relief of reinstatement was to follow as a matter of course. It was submitted that the award was passed in the year 2015 and in light of findings of breach as above, the workmen was entitled to be reinstated. It was submitted that learned single Judge committed an error in substituting the relief of reinstatement with the payment of lumpsum compensation.
4.1 Learned advocate for the appellants in order to buttress her submissions on the above counts sought to place reliance on the decision of the Supreme Court in Bharat Sanchar Nigam Limited vs. Bhurumal [(2014) 7 SCC 177], to submit that breach of section 25F will entail for the workman the relief of reinstatement. She further relied on the decisions of this court in Danjibhai Bhanabhai Alias Bhanjibhai Maru vs. State of Gujarat, which was Misc. Civil Application No.1 of 2017 in Letters Patent Appeal No. 906 of 2016 decided on 1.5.2018. Yet Page 3 of 6 Downloaded on : Sun Sep 17 02:19:53 IST 2023 NEUTRAL CITATION C/LPA/807/2019 ORDER DATED: 24/08/2023 undefined another decision of the Division Bench in Brambhatt Jayesh Bhupatray vs. State of Gujarat, which was Letters Patent Appeal No. 1554 of 2018 decided on 13.3.2019 pressed into service. Also pressed into service were the judgments of the other High Courts that if there was breach of section 25F in terminating the services of the workman, the only relief which the workman would be earning was reinstatement.
4.2 Dealing at the outset with the decision in Bharat Sanchar Nigam Limited (supra), in the said decision on the contrary the principle is reiterated that when it comes to the case of termination of the daily wage worker and where termination is found to be illegal because of procedural defect, namely violation of section 25F of the Industrial Disputes Act, the Supreme Court is consistent in taking view that in such cases, reinstatement with back wages is not automatic and instead the workman should be given monetary compensation, which will meet the ends of justice. This proposition is well settled by several judgments of the Apex Court and this Court.
4.3 The other decisions relied on of this court in Danjibhai Bhanabhai Alias Bhanjibhai Maru (supra) and Brambhatt Jayesh Bhupatray stand on their own facts. In any view, the said judgments does not displace the position of law that in a given case the relief of reinstatement may not be automatic even if there is finding in the background about violation of section 25F of the Act and that monetary compensation in lieu of the reinstatement could be a proper relief.
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5. The courts have also laid down as to what could be the relevant considerations in switching over to the relief of payment of monetary compensation instead of granting reinstatement. The relevant considerations to be applied inter alia are - the length of service which the daily wager may have put in, the very status that the workman as daily wager, the date of termination, time and gap which may have occurred from the date of termination till the juncture when the actual relief of reinstatement is granted and the mode and nature of wages paid. One of the aspects is also delay in raising the reference, which would persuade the court to grant the monetary compensation instead of reinstatement.
5.1 Learned single Judge has considered all the aforesaid factors in para 25 of its judgment, namely that the tenure of the service of the petitioner was only four years, that he was serving as daily wager and also that there was long delay of 11 years in raising the industrial dispute by the workman. These aspects are the relevant factual aspects, for which there is no dispute or rebuttal possible.
5.2 In light of the above aspects operating in the case of the appellants- petitioners, the discretion exercised by learned single Judge in modifying the relief holding and taking in view that payment of lumpsum compensation would secure the ends of justice, could be said to be eminently proper and legal requiring no interference in principle in the exercise of Letters Patent jurisdiction.
6. However, at the same time, this court notices that lumpsum compensation is awarded by learned single Judge to be 25% of the wages Page 5 of 6 Downloaded on : Sun Sep 17 02:19:53 IST 2023 NEUTRAL CITATION C/LPA/807/2019 ORDER DATED: 24/08/2023 undefined which would have been paid to the workman from the date of reference to the date of award. The criteria adopted by learned single Judge to adjudge the quantum of monetary compensation could be said to be vague.
6.1 Instead, this court is of the view that appellant workman shall be entitled to a lumpsum monetary compensation of Rs. 1,75,000/- in lieu of reinstatement.
6.2 Learned Assistant Government Pleader upon being asked, makes a statement that an amount of rupees one lakh has already been paid to the workman and that the remaining amount payable, shall be paid to the workman within a period of eight weeks from the date of service of the order in both the cases.
7. With the modification to the extent above, the judgment and order of learned single Judge is upheld. The Letters Patent Appeal is meritless. The same is dismissed. Direct service is permitted.
Civil Applications also stand disposed of requiring no further orders therein.
(N.V.ANJARIA, J) (D. M. DESAI,J) C.M. JOSHI Page 6 of 6 Downloaded on : Sun Sep 17 02:19:53 IST 2023