The Port Officer, Gujarat Maritime ... vs Raghubhai Jivabhai Rathod

Gujarat High Court

The Port Officer, Gujarat Maritime ... vs Raghubhai Jivabhai Rathod on 9 April, 2025

                                                                                                          NEUTRAL CITATION




                             C/SCA/204/2025                             JUDGMENT DATED: 09/04/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/SPECIAL CIVIL APPLICATION NO. 204 of 2025

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MRS. JUSTICE M. K. THAKKER

                       ==========================================================

                                    Approved for Reporting              Yes           No
                                                                        YES
                       ==========================================================
                                  THE PORT OFFICER, GUJARAT MARITIME BOARD & ANR.
                                                       Versus
                                            RAGHUBHAI JIVABHAI RATHOD
                       ==========================================================
                       Appearance:
                       MS SEJAL K MANDAVIA(436) for the Petitioner(s) No. 1,2
                       MR CHINTAN N DESAI(9940) for the Respondent(s) No. 1
                       ==========================================================

                          CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                    Date : 09/04/2025

                                                    ORAL JUDGMENT

1. Rule, returnable forthwith. Learned advocate Mr.Desai waives service of notice of Rule on behalf of the respondent No.1.

2. Present petition is filed under Articles 226 and 227 of the Constitution of India challenging the order passed by the learned Presiding Officer, learned labour Court, Jamnagar in Recovery Application No.13 of 2021 dated 14.11.2024, whereby the petitioners are directed to pay the amount of Rs.30,29,574/- to the respondent.

3. The gist of case is that the respondent was appointed as a plumber on 27.06.1983 with the petitioner Board, and Page 1 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined his services were terminated on 01.09.1984 which was challenged before the learned Reference Court by filing the Reference being Reference (IT) No.2082 of 1984 (renumbdered as Reference No.248 of 1990) wherein the learned labour Court has awarded the reinstatement without back wages vide order dated 21.09.2000. Pursuant to the said award, the respondent was reinstated in service on 29.07.2001 and was granted the benefit of Government Resolution dated 17.10.1988 on completion of 10 years of service, with effect from 20.03.2012. Subsequently, the respondent raised a claim for regularization of service by filing Reference (IT) No.118 of 2012 before the learned Labour Court, which culminated in an award dated 09.10.2015, directing the petitioner to regularize the services of the respondent on completion of 240 days. The learned Labour Court further observed that the period from 21.07.1983 to 09.10.2015 shall be treated notionally, and no recovery shall be made for the benefits granted under the Government Resolution dated 17.10.1988.

3.1. Challenging the above order, the petition was filed before this Court being Special Civil Application No.941 of 2016 by the workman to the extent of denial of back wages, which came to be rejected by this Court vide order dated 25.06.2018.Thereafter, the employer also filed a petition being Special Civil Application No.13300 of 2020, after dismissal of the workman's petition, which too came to be rejected by this Court Page 2 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined vide order dated 28.10.2020 with costs of Rs.10,000/-.

3.2. Challenging the order passed in writ petition, the employer-petitioner has filed an intra-court appeal being Letters Patent Appeal No.211 of 2021, which also came to be rejected by this Court on 14.07.2022. Thereafter, the petitioner has approached to the Apex Court by filing the Special Leave Petition being No.7685 of 2023, which too was rejected on 27.03.2023. Despite the conclusion of the aforementioned litigation, the benefits awarded in favour of the respondent-workman were not released. Consequently, Criminal Case No.137 of 2020 was filed for breach of the order, wherein the Criminal Court held the petitioner guilty and imposed punishment of imprisonment till the rising of the Court along with a fine of Rs.20,000/- on 13.09.2024. Despite the same, the benefits arising out of the award dated 09.10.2015 have not been released in favour of the respondent. Hence, an application under Section 33C(2) of the Industrial Disputes Act, 1948 ('the I.D. Act' hereinafter) came to be filed before the learned Labour Court, which was allowed in favour of the respondent on 14.11.2024, which is subject matter of challenge before this Court.

4. Heard the learned advocate Ms.Mandavia for the petitioner and learned advocate Mr.Desai for the respondent-workman.

NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined

5. Learned advocate Ms.Mandavia submits that the learned Labour Court has committed an error in allowing the application filed under Section 33C(2) of the I.D. Act without ascertaining the existence of a pre-existing right in favour of the workman. Learned advocate Ms.Mandavia submits that unless the award has been passed and the amount claimed by the employee, as per the schedule, is admitted by the employer, the recovery application cannot be said to be maintainable, nor can it be said that there exists a pre-existing right in favour of the workman.

5.1. Learned advocate Ms.Mandavia submits that the benefits of regularization had already been granted by the petitioner Board while providing the benefits of G.R. dated 17.10.1988. However, the respondent attached a calculation in the application filed under Section 33C(2) of the I.D. Act, and the learned Court, relying on this calculation, directed the present petitioner to pay the amount of Rs.30,29,574/-. Learned advocate Ms.Mandavia submits that learned labour Court has not considered the deposition of the officer of the Board, who stated that all amounts entitled to the unskilled labour had been paid. Despite two affidavits are filed on behalf of the employer, without considering the same, the impugned order is passed.

5.2. Learned advocate Ms.Mandavia submits that the calculation was prepared relying on the Government Page 4 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined Resolution for Plumbers; however, no such Resolution for Plumbers exists,. Therefore, also impugned order deserves to be set aside. Learned advocate Ms.Mandavia submits that there is no sanctioned set up for the post of Plumber and therefore, naturally the respondent cannot be regularized on the post of Plumber. Additionally, the recruitment rules for the post of Plumber require an ITI certificate, which the respondent does not possess. Since the respondent has also not passed the selection process, he cannot claim the benefits of permanancy completing 240 days of service. Learned advocate Ms.Mandavia emphasizes that according to the G.R. dated 17.10.1988,, two categories of workers are specified: (1) skilled and (2) unskilled. Learned advocate Ms.Mandavia submits that workers are entitled to the benefits of the G.R. dated 17.10.1988 based on their educational qualifications and as the respondent does not possess the required qualification, in that background also the impugned award deserves to be interfered with.

5.3. Learned advocate Ms.Mandavia submits that earlier, the pay scale of ₹3050-₹4590 applicable to skilled labourers was mistakenly granted to the respondent. However, since the respondent does not possess the requisite qualifications, the said pay scale was withdrawn and the revised pay scale of ₹2550-₹3200, which is applicable to unskilled labourers, was granted. Learned advocate Ms.Mandavia submits that the Page 5 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined excess amount that was erroneously paid earlier was treated as part of the benefits under the G.R. dated 17.10.1988. It was only thereafter that the learned Labour Court awarded the Reference in favour of the respondent.

5.4. Learned advocate Ms. Mandavia submits that the earlier Reference, which was filed for reinstatement, was made after a delay of six years from the date of termination. However, since the Labour Court ordered reinstatement of the respondent-workman without granting the benefits of continuity of service and back wages, the said award was implemented, and a fresh appointment was given from the year 2001. Learned advocate Ms. Mandavia further submits that the Labour Court directed to grant the benefit of regularization from the date of completion of 240 days. However, the respondent did not work from 1984 to 2000, and therefore, there was no question of completing 240 days during that period. It is submitted by the learned advocate Ms.Mandavia that from 2001 onwards, on completion of 240 days, the benefits of the Government Resolution dated 17.10.1988 applicable to unskilled labourers were granted.

5.5. Learned advocate Ms. Mandavia submits that the Government clarified the aspect of permanency in the subsequent Government Resolution dated 30.05.1989, and accordingly, the benefit of permanency was Page 6 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined granted to the respondent upon completion of 10 years of service. Learned advocate Ms.Mandavia submits that , in accordance with the said G.R., an amount of Rs.20,84,791/- was paid to the respondent. However, the learned Reference Court, in addition to the said amount, has directed the petitioner to pay a sum of Rs.30,29,574/-, which is erroneous. Therefore, in this background, the petition filed by the petitioner deserves to be allowed by setting aside the impugned order passed under Section 33C(2) of the I.D.Act.

6. Per contra, learned advocate Mr. Desai, appearing for the respondent, submits that upon reinstatement, the benefit of the Government Resolution dated 17.10.1988 was granted to the respondent on 20.03.2012. Being aggrieved by the same, the respondent filed a Reference, wherein the learned Reference Court passed an award directing to grant the benefit of permanency on completion of 240 days of service, i.e., from 1984, considering the initial date of joining of the workman as 27.06.1983. The said award passed by the learned Reference Court in Reference (IT) No.118 of 2012 is confirmed upto the Hon'ble Supreme Court. Therefore, it is now not open for the petitioner to contend that, instead of granting the benefit of regularization, the benefit of the Government Resolution dated 17.10.1988 was granted, and hence, the workman is not entitled to any further relief.

NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined 6.1. Learned advocate Mr.Desai submits that the contention regarding a delay of six years in filing the initial Reference is absolutely incorrect, as the record reveals that the Reference, though filed in the year 1984, was subsequently renumbered in the year 1990. Learned advocate Mr.Desai further submits that the pre-existing rights flow from the award dated 09.10.2014 passed in Reference (IT) No.118 of 2012, and as the said award admittedly has not been implemented, the respondent-workman has rightly initiated proceedings under Section 33C(2) of the I.D. Act.

6.2. Learned advocate Mr. Desai submits that the Resolution dated 03.07.2009, which determines the pay scale of a Plumber, formed the basis for the calculation made in the recovery application. Learned advocate Mr. Desai submits that the said calculation was not denied by the petitioner during the course of hearing before the learned Labour Court.

6.3. Learned advocate Mr. Desai submits that, although the aspect of continuity of service was not clarified by the learned Reference Court at the time of awarding reinstatement, it was subsequently clarified while granting the benefit of regularization. Learned advocate Mr. Desai submits that the said award has been confirmed up to the Hon'ble Apex Court, and therefore, no error has been committed by the learned Page 8 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined Labour Court in directing payment of Rs.30,29,574/- to the respondent.

6.4. Learned advocate Mr.Desai submits that so far as granting the benefit of G.R. dated 17.10.1988 is concerned, the amount received under the said G.R. has already been deducted while preparing the calculation sheet before the learned Reference Court. Therefore, it is not open for the petitioner to raise the contention that, since the said amount was already received, the respondent is not entitled to any further amount.

6.5. Relying upon the decision rendered by the Apex Court in the case of K.Jayaram vs. Bangalore Development Authority, reported in 2021 SCC OnLine SC 1194 learned advocate Mr.Desai submits that admittedly, the benefits flowing from the award passed by the learned Reference Court in Reference (IT) No.118 of 2012 has not been granted. Therefore, the learned Labour Court has rightly exercised its power under Section 33(C)(2) of the I.D. Act while directing payment of an amount of Rs.30,29,574/-.

7. Having considered the arguments advanced by the learned advocates for the respective parties and the evidence adduced before the learned Reference Court, it emerges from the record that the respondent had filed Reference (LCR) No. 2082 of 1984 challenging his Page 9 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined termination. The said Reference was allowed in favour of the respondent. It further appears from the record that the respondent was reinstated pursuant to the award passed by the learned Reference Court on 29.07.2001. Thereafter, the petitioner Board passed an order dated 23.03.2012 granting the benefits of the Government Resolution dated 17.10.1988 upon completion of 10 years of service, with effect from 01.10.2011. Since the order of regularization was not passed after reinstatement, another Reference came to be filed by the respondent before the learned Industrial Court, being Reference (IT) No. 118 of 2012, seeking the benefit of regularization on completion of 240 days from the date of appointment, which was allowed in favour of the respondent on 09.10.2015.

7.1. It is also not disputed that the petition filed by the employee was rejected, and the petition filed by the employer, being Special Civil Application No. 13300 of 2020, was also rejected. The order granting the benefit of regularization was upheld. This order was challenged in an intra-Court appeal, which was also dismissed, and the Apex Court subsequently dismissed the Special Leave Petition filed by the employer, thereby upholding the order of regularization. As a result, the said order has attained finality.

7.2. Since the petitioner failed to implement the award and grant the benefit of regularization, a criminal case Page 10 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined was filed for breach of the award, which was decided in favor of the respondent. The petitioner authorities were found guilty of breach of awarded, with a punishment of imprisonment till the rise of the Court, along with a fine of Rs. 20,000/- imposed. Despite the same, the petitioner authority continued with their submissions that, since the benefit of the G.R. dated 17.10.1988 had been granted, no further relief was required to be granted to the respondent. Being aggrieved by not granting the benefit as awarded by the Court in Reference (IT) No.118 of 2012, the recovery application was filed under Section 33C(2) of the I.D. Act, providing the calculation for the non- payment of the benefit of regularization, including the benefits of the 5th, 6th, and 7th Pay Commissions, according to the G.R. dated 03.07.2009.

7.3. Before the learned Labour Court, in the recovery proceedings initiated under Section 33C(2) of the I.D. Act, the admission made by the present petitioner is required to be referred, which is reproduced hereinbelow:

It is true that as per the award passed in Reference (IT) No.118 of 2012 no order is passed regularizing the workman and no any pay fixation was done and nor it is paid. In the petitioner institute there are two types of employees one is regular employee and another is the beneficiary of G.R. dated 17.10.1988. It is admitted that Page 11 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined till the retirement of the workman the higher pay scale is not given. It is also admitted that according to mark 4/1 which is the communication of the petitioner institute, 240 days of the workman has completed in the month of August 1984. As per mark 4/27 which is the guidelines issued by the government wherein the pay-scale of Plumber is figured at serial no.88 which suggests that the pay scale is 4000-6000 and after 6 th pay commission 5200-23200. It is admitted that till the retirement of the employee the pay scale of 5200-23200 is not paid by the petitioner neither any benefits of the regular employee was given however, the benefits of G.R. dated 17.10.1988 has been released in favour of the respondent.

7.4. On considering the cross examination of the witness of the petitioner and in absence of any contrary evidence adduced to establish the calculation placed by the respondent is erroneous, the learned Reference Court has directed the petitioner to pay the amount of Rs.30,29,574/-. On refering the calculation, which is the part of the reply, it reveals that total entitlement of respondent was Rs.49,64,287/- however, by granting the benefit of G.R. dated 17.10.1988 the payment of Rs.19,29,713/- was done and therefore, difference amount of Rs.30,29,574/- was ordered to pay to the respondent.

NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined 7.5. The petitioner raised a contention before this Court that, in the absence of any direction granting continuity of service while ordering reinstatement vide award dated 21.09.2000, the learned Labour Court has committed an error in granting the benefit of regularization from the date of initial appointment. It was submitted that the respondent did not render service with the petitioner establishment during the period from 1984 to 2000 and, therefore, continuity of service could only be considered from the date of resumption of duty in the year 2001.

7.6. To test the above submission, this Court has examined the reasoning assigned by the learned Labour Court in Reference (IT) No.118 of 2000, wherein it was specifically observed that the respondent is entitled to the benefit of regularization upon completion of 240 days from the date of initial appointment, and that he is required to be paid the benefits accordingly. It is observed by the learned Reference Court that when the termination was held illegal, unless continuity of service had been specifically denied, the benefit of continuity of service is required to be granted in favour of the respondent as if the same is not granted and workman would be relegated to the same position as was held by him at the time of termination of service. Learned labour Court while observing the above, has relied on the decision rendered by this Court in the case of Page 13 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined Vasantika R. Dalia vs. Baroda Municipal Corporation, reported in CLR 1998 32.

7.7. As the above order passed by the learned labour Court dated 09.10.2015 is affirmed upto Hon'ble Supreme Court,it is not open for the petitioner at this stage to contend before this Court that the benefit of regularization is not required to be granted from the completion of 240 days from the initial date of appointment, and that the same ought to be granted only from the date of reinstatement. Even if, the argument made by the petitioner is accepting then also it is not the case of the petitioner that benefits were released in favour of the respondent on completion of 240 days from 2001. The only contention is that as they had been given the benefit of G.R. dated 17.10.1988, no other claim can be made. This is nothing but flouting the order passed by this Court, affirmed by the Apex Court and this Court is of the view that no one can be permitted to take proceedings of the Court as a leisure-rich.

7.8. Thus, the next contention raised before this Court by the learned advocate for the petitioner is that no pre-existing right flows from any order, and therefore, the learned Labour Court has committed an error in exercising powers under Section 33C(2) of the I.D.Act.

8. This Court has referred the decision rendered by the Page 14 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined Apex Court in the case of Board of Directors of the South Arcot Electricity Distribution Co. Ltd. Vs.N.K.Mohammed Khan, etc., reported in (1969) 1 SCC 192 and M.Selvaraj Daniel Versus Management Of State Bank Of India, reported in (1964) 3 SCR 275 wherein it is held that the learned labour Court has jurisdiction to determine the question, whether the right existed and if existence of the right is established then to compute the benefit flowing there from into money and on its decision the recovery proceedings can start.

9. This Court is of the opinion that the liability arises from an award and a mere denial of the right by the employer may not be sufficient to negative the claim made under section 33C(2) of the I.D.Act before the learned labour Court and same could not take away the jurisdiction of the learned labour Court. Jurisdiction of the learned labour Court is not confined to the admitted claims and existing right does not mean an admitted right. It only means that the right to claim exists and vest in the workman.

10. This Court is of the view that the present petition has been filed without any valid reasons, merely to avoid the liability arising from the award of the learned Labour Court in Reference (IT) No. 118 of 2012, which was subsequently upheld by the Apex Court. In that background, this Court finds that no error has been committed by the learned Labour Court in directing the Page 15 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025 NEUTRAL CITATION C/SCA/204/2025 JUDGMENT DATED: 09/04/2025 undefined petitioner to pay the amount of Rs. 30,29,574/-.

11. While dismissing the petition directions are required to be issued that if the amount of Rs. 30,29,574/- is not paid within a period of 45 days from the date of receipt of a copy of this judgment, the same shall be paid along with interest at the rate of 6%, and the interest amount shall be recovered from the salary of the erring officer, on whose part delay caused.

12. Resultantly, this petition is dismissed. The order passed by the learned Presiding Officer, learned Labour Court, Jamnagar, in Recovery Application No.13 of 2021, dated 14.11.2024, is hereby confirmed. Rule is discharged.

(M. K. THAKKER,J) M.M.MIRZA Page 16 of 16 Uploaded by M.M.MIRZA(HC01407) on Tue Apr 22 2025 Downloaded on : Sat May 03 02:32:43 IST 2025