C/SCA/16712/2019 ORDER DATED: 16/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16712 of 2019
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BIPINKUMAR BHIKHABHAI SOLANKI
Versus
EXECUTIVE ENGINEER
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Appearance:
MR MUKESH H RATHOD(2432) for the Petitioner(s) No. 1
MR NIRAJ SHARMA, AGP GOVERNMENT PLEADER for the Respondent(s)
No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 16/03/2023
ORAL ORDER
1. This petition is filed against the judgment and award dated 08.05.2018 passed by the Labour Court, Mehsana in Reference (LCM) No.09 of 2013 wherein the Labour Court has partly allowed the reference and directed the respondent to pay Rs.25,000/- as lump sum compensation in lieu of reinstatement with continuity of service and back wages of interim period and to pay Rs.5,000/- as cost of reference.
2. The facts of petition are mentioned as under: Page 1 of 9 Downloaded on : Mon Mar 20 20:37:07 IST 2023
C/SCA/16712/2019 ORDER DATED: 16/03/2023 2.1 The petitioner herein was appointed as Daily Wager Labourer with the respondents w.e.f. 21.01.1986 at Sankheshwar - Becharaji Road Site and he was getting salary of Rs.21.45/- per day on monthly basis. The petitioner has worked continuously with respondent for almost two years. His services were terminated on 30.10.1988 after about serving for two years. His last drawn wages were Rs.21.45/- per day. On his termination, a Reference was made to the Labour Court, Mehsana which was numbered as Reference (LCM) No.09 of 2013, in which the impugned order dated 08.05.2018 was passed granting reinstatement with continuity of service, but without back wages, which gave rise to this petition.
3. Heard learned advocates for the respective parties.
4. Learned advocate for the petitioner submitted that the Labour Court has erred in passing the impugned award/s on the basis of the finding of violation of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 ('the I.D. Act' for Page 2 of 9 Downloaded on : Mon Mar 20 20:37:07 IST 2023 C/SCA/16712/2019 ORDER DATED: 16/03/2023 short). He submitted that since the work was taken by outsourcing, there is no work at present in the municipality which can be offered to the petitioner herein [respondent - workman]. Therefore, there is no violation of Section 25G of the I.D. Act.
5. He submitted that there is no post of labourer in the regular set-up of the municipality and therefore the respondents cannot be reinstated in service.
6. He further submitted that the petitioner herein has not proved that they completed 240 days of continuous service in a year and therefore, there is no violation of Section 25F of the I.D.Act.
7. He further submitted that there is no fresh appointment made in the municipality for the said post on which the respondents were working and therefore there is no violation of Section 25H of the I.D.Act.
8. Learned advocate for the petitioner thus submitted that Page 3 of 9 Downloaded on : Mon Mar 20 20:37:07 IST 2023 C/SCA/16712/2019 ORDER DATED: 16/03/2023 when there is no violation of any provisions of the I.D.Act, the impugned award is not tenable and therefore needs to be quashed.
9. He fairly submitted that in the alternatively, lump-sum compensation can be awarded to the petitioner herein [respondent workman] in lieu of the reinstatement, backwages and continuity of service.
10. In support of his submissions, he relied on the following decisions:
1) 2021 Scale 10 page 271 - Ranbir Singh V/s Executive Eng.P.W.D.
2) 2022-JX(Guj)-0-27 - Mansukhbhai Popatlal Vaghela V/s General Manager - State Bank of India.
11. Per contra, learned AGP appearing for the respondent submitted that the Labour Court has categorically come to the conclusion that there is a violation of the provisions of Sections 25(F), 25(G) and 25(H) of the I.D. Act and therefore, has granted reinstatement with continuity of service. This finding, arrived at by the Labour Court, was after considering Page 4 of 9 Downloaded on : Mon Mar 20 20:37:07 IST 2023 C/SCA/16712/2019 ORDER DATED: 16/03/2023 the fact that the petitioner was working for more than 240 days continuously and that too, for a period from 21.01.1986 to 30.10.1988 with the respondent authority. Learned AGP further submitted that the petitioner herein has raised an industrial dispute after 24 years means the date when he was terminated from service i.e. 30.10.1988. It is, therefore, submitted that the impugned award/s of the Labour Court are just and proper and interference need not be made in the impugned awards.
12. In support of the submissions, the following decisions are relied upon:
1) 2021(1) CLR 325 - Junagadh Municipal Corporation V/s Dipakbhai Pratapbhai Karmata
2) 2020 JX (Guj) 644 - State of Gujarat V/s Manharbhai Hemabhai Bariya
3) 2022 JX (Guj) 804 - State of Gujarat V/s Ashokbhai Kanabhai Parmar
4) 2022 JX (Guj) 677 - Rameshbhai Bhatibhai Pagi V/s Deputy Executive Engineer Page 5 of 9 Downloaded on : Mon Mar 20 20:37:07 IST 2023 C/SCA/16712/2019 ORDER DATED: 16/03/2023
5) 2016(1) LLH 93 - Executive Engineer, Gujarat Water Supply and Sewerage V/s Keyur Shankarlal Vyas
6) 2016(1) CLR 188 - Gujarat State Civil Supplies Corporation Limited V/s Nazirbhai S/o Dhanabhai Mir
13. However, learned advocate for the petitioner herein has also fairly submitted for alternative submission made by the learned advocate for the petitioner municipality that in lieu of the award/s of the Labour Court, if appropriate lump-sum compensation is awarded, that would suffice the purpose in facts of the present case.
14. I have considered the rival submissions and perused the material on record. It transpires from the record that on one hand, there is a fact that the petitioner herein worked for more than 240 days continuous service and that too, for two years with the respondent authority and suddenly, they have been terminated and on the other hand, there is another fact that there is no post of labourer in the regular set-up of the respondent department where the petitioner herein [respondent workman] can be reinstated/accommodated. Page 6 of 9 Downloaded on : Mon Mar 20 20:37:07 IST 2023
C/SCA/16712/2019 ORDER DATED: 16/03/2023 Thus, this Court is of the view that in view of the above fact situation, without entering into the further merits of the matter, if lump-sum compensation is awarded to the petitioner herein [respondent workman] in lieu of the award passed by the Labour Court, then the ends of justice would be met.
15. At this juncture, a reference deserves to be made to the recent decision of the Apex Court in the case of Pravinbhai Nanjibhai Bharadava V/s The State of Gujarat, in Civil Appeal No.221 of 2023 dated 9.1.2023 relied on by the learned advocate appearing for petitioner, wherein the Apex Court was considering similar fact situation and came to the conclusion that interest of justice would be met if the lump- sum amount of compensation is awarded.
16. It is also relevant to reproduce relevant paragraphs of order passed in Special Civil Application No.2711 of 2023 and allied matters on 23.2.2023, which read as under:
"3. Considering the submissions made by learned Advocate Mr.Joshi, it would appear that in case of similarly situated persons, whose reference had been Page 7 of 9 Downloaded on : Mon Mar 20 20:37:07 IST 2023 C/SCA/16712/2019 ORDER DATED: 16/03/2023 rejected by the learned Labour Court on the ground of delay and which decision had been upheld by learned Single Judge, the learned Division Bench relying upon decision of the Hon'ble Apex Court in case of B.S.N.L. vs Bhurumal reported in 2014(7) SCC page No.177 had directed grant of compensation at the rate of Rs.50,000/- to the appellants therein.
3.1 It also appears that relying upon the law laid down by the Hon'ble Division Bench, a learned Co- ordinate Bench of this Court in Special Civil Application No.4630 of 2022 and allied matters had directed grant of compensation at the rate of Rs.25,000/- per year of service. It would also appear that while the petitioners of Special Civil Application No.2711 of 2023 and Special Civil Application No.2712 of 2023 have put in 4 years of service, petitioner of SCA No.2776 of 2023 has put in 5 years of service."
17. In view of the above and considering the nature of work done by petitioner-workman, the petition is partly allowed.
18. The impugned awards stand modified to the extent the respondent authority shall pay an amount of Rs.75,000/- [Rupees Seventy Five Thousand Only] a lump-sum compensation in lieu of the award passed by learned trial Page 8 of 9 Downloaded on : Mon Mar 20 20:37:07 IST 2023 C/SCA/16712/2019 ORDER DATED: 16/03/2023 Court to the petitioner herein [respondent workman] i.e. Bipinkumar Bhikhabhai Solanki.
19. This petition is disposed of accordingly.
(SANDEEP N. BHATT,J) A. B. VAGHELA Page 9 of 9 Downloaded on : Mon Mar 20 20:37:07 IST 2023