Jetpur Navagadh Municipality vs Gitaben Kantilal Bagda

                                                                                  NEUTRAL CITATION




     C/LPA/1090/2023                              ORDER DATED: 31/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 1090 of 2023

           In R/SPECIAL CIVIL APPLICATION NO. 18336 of 2021

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                       JETPUR NAVAGADH MUNICIPALITY
                                   Versus
                          GITABEN KANTILAL BAGDA
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Appearance:
MR BHAVESH P TRIVEDI(2731) for the Appellant(s) No. 1
MR RR TRIVEDI(941) for the Appellant(s) No. 1
MS R.V.ACHARYA for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE DEVAN M. DESAI

                              Date : 31/08/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr.Bhavesh Trivedi for the appellant- Municipality.

2. The present Letters Patent Appeal under Clause 15 of the Letters Patent is directed against common judgment and order of learned single Judge dated 2.3.2023, insofar it relates to Special Civil Application No.18336 of 2021. By the said judgment and order, learned single Judge held that the Municipality shall pay lump-sum compensation to the respondent

- workman to the extent of Rs.4,25,000/-, modifying the judgment and award of the labour court accordingly.

NEUTRAL CITATION C/LPA/1090/2023 ORDER DATED: 31/08/2023 undefined

3. The facts in the background inter alia are that the workman Gitaben Kantilal Bagda had invoked the jurisdiction of labour court, Rajkot by Reference (LCR) No.162 of 2015. The judgment and award dated 4.12.2019 was delivered by the labour court holding that the action of termination of the workman on part of the first party employer was illegal. The workman was directed to be reinstated with continuity of service on her original post with 20% backwages.

3.1 The labour court on the basis of the evidence before it recorded a finding that there was a breach of Section 25F, 25G and 25H of the Industrial Disputes Act, 1947 in terminating the services of the workman.

3.2 It was the Municipality which filed Special Civil Application challenging the said judgment and award. It culminated into order of learned single Judge, whereby learned single Judge found it fit to modify the award to award the lump-sum compensation of Rs.4,25,000/- in lieu of relief of reinstatement.

3.3 Over the passage of time, the law has developed to lay down the proposition that even in cases where the labour court or Industrial Tribunal comes to conclusion that there was breach of Section 25F of the Act, it may not necessarily and automatically entail relief of reinstatement for the workman.

3.4 The shift in law on this count was highlighted by the Supreme Court in Bhopal Vs. Santosh Kumar Seal [(2010) 6 SCC 773]. Relying on its own another decision in Jagbir Singh Vs. Haryana State Agriculture Marketing Board [(2009) 15 Page 2 of 6 Downloaded on : Sun Sep 17 03:00:55 IST 2023 NEUTRAL CITATION C/LPA/1090/2023 ORDER DATED: 31/08/2023 undefined SCC 327], observing that the relief of payment of lump-sum compensation could be a proper relief in a given set of facts and circumstances.

"In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [2006 (1) SCC 479], Uttaranchal Forest Development Corpn. v. M.C. Joshi [2007 (9) SCC 353], State of M.P. v. Lalit Kumar Verma [2007 (1) SCC 575], M.P. Admn. v. Tribhuban [2007 (9) SCC 748], Sita Ram v. Moti Lal Nehru Farmers Training Institute [2008 (5) SCC 75], Jaipur Development Authority v. Ramsahai [2006 (11) SCC 684], GDA v. Ashok Kumar [2008 (4) SCC 261] and Mahboob Deepak v. Nagar Panchayat, Gajraula [2008 (1) SCC 575].)"

3.5 In subsequent decision in Rajasthan Development Corporation Vs.Gitam Singh [(2013) 5 SCC 136], the Supreme Court stated, "From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that the dismissed employee is entitled to reinstatement in cases of wrongful Page 3 of 6 Downloaded on : Sun Sep 17 03:00:55 IST 2023 NEUTRAL CITATION C/LPA/1090/2023 ORDER DATED: 31/08/2023 undefined dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief."

3.6 In Uttaranchal Forest Development Corporation Vs. M.C.Joshi [(2007) 9 SCC 353], the Supreme Court held that the question of grant of compensation in place of relief of reinstatement could be guided by relevant factors to be that whether the appointment was made in accordance with the statutory Rules or not.

3.7 It is to be observed that the decisions of the Supreme Court have carved out the circumstances and aspects which may guide the discretion of the court in awarding lump-sum compensation instead of granting relief of reinstatement even if there is a breach of Section 25F, 25G and 25H of the Industrial Disputes Act.

3.8 These factors were highlighted in Bantva Municipality Vs. Amritlal Harji Chauhan being Special Civil Application No.9135 of 2013 decided on 31.3.2014 are, "(i) The fact that the workman is daily-rated workmen, not permanently employed; (ii) He is Page 4 of 6 Downloaded on : Sun Sep 17 03:00:55 IST 2023 NEUTRAL CITATION C/LPA/1090/2023 ORDER DATED: 31/08/2023 undefined not holding a permanent post; (iii) Nature of his employment; (iv) Span of service, viz. The period during which he worked upto the date of termination of services; (v) Manner and method of appointment. Whether it was a backdoor entry; (vi) The time gap from the date of termination; (vii) Delay in raising the Reference is also considered to be a germane factor; (viii) Any special feature peculiar to the facts of the particular case. For instance, in Bhurumal (supra), the Supreme Court noticed that post which the workman held was of Lineman in the Telephone Department, and that the work of Lineman was drastically reduced in view of advancement of the technology. "

4. Although learned advocate for the appellant wanted to submit that learned single Judge has not given any reasons in modifying the award by granting lump-sum compensation and that the lump-sum compensation is on higher side since the workman was daily rated workman and was getting only Rs.286/- per day as wages, this court has considered the controversy applying the above aspects.

5. It is not in dispute that the workman was appointed in the year 1998, she served as Labourer in the PWD Department of the Municipality throughout. Her termination was on 1.8.2015. In other words, she worked long 15 years with the Municipality.

5.1 Looking to the time gap which has intervened between the date of termination and the date of granting relief of reinstatement, when learned single Judge has thought it fit to award lump-sum compensation, the approach on part of learned single Judge could not be faulted.

NEUTRAL CITATION C/LPA/1090/2023 ORDER DATED: 31/08/2023 undefined 5.2 Looking to the various aspects and factors considered above, including the length of service, nature of employment, the time gap intervening, etc., in overall view, the compensation awarded to the tune of Rs.4,25,000/- could not be said to unreasonable.

6. In exercise of Letters Patent jurisdiction, no ground could be made out to interfere with the judgment and award of learned single Judge.

7. Accordingly, this Letters Patent Appeal is dismissed.

(N.V.ANJARIA, J) (D. M. DESAI,J) Manshi Page 6 of 6 Downloaded on : Sun Sep 17 03:00:55 IST 2023