State Of Gujarat vs Samsubhai Surtanbhai Ninama

Gujarat High Court

State Of Gujarat vs Samsubhai Surtanbhai Ninama on 2 December, 2025

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

                                                                                                                NEUTRAL CITATION




                            C/LPA/1226/2025                                     ORDER DATED: 02/12/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/LETTERS PATENT APPEAL NO. 1226 of 2025

                                   In R/SPECIAL CIVIL APPLICATION NO. 1945 of 2023
                                                         With
                                      CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                    In R/LETTERS PATENT APPEAL NO. 1226 of 2025
                     ==========================================================
                                              STATE OF GUJARAT & ANR.
                                                       Versus
                                         SAMSUBHAI SURTANBHAI NINAMA & ANR.
                     ==========================================================
                     Appearance:
                     MS VAISHNAVI VERMA AGP for the Appellant(s) No. 1,2
                     KRISHNAN M GHAVARIYA(8133) for the Respondent(s) No. 1
                     ==========================================================

                      CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
                              and
                              HONOURABLE MR.JUSTICE L. S. PIRZADA
                                            Date : 02/12/2025
                                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. Heard learned Assistant Government Pleader Ms.Vaishnavi Verma for the appellants - original petitioners and learned advocate Mr.Krishnan M. Ghavariya for the respondent No.1.

2. Admit. Learned advocate Mr.Krishnan M. Ghavariya waives service of notice of admission of appeal for and on behalf of the respondent No.1.

3. Having regard to the controversy raised in this appeal which is in narrow compass, with the consent of the learned advocates for the respective parties, the same is taken up for hearing.

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4. The short point raised in this appeal is whether the learned Single Judge was required to examine the judgment and award passed by the Labour Court in Reference (L.C.D.) No.03 of 2020 whereby, the respondent No.1 was ordered to be reinstated at his original place with continuity of service with 50% back wages.

5. Learned Assistant Government Pleader Ms.Vaishnavi Verma submitted that the appellants - original petitioners reinstated the respondent No.1 on preferring the application under Section 17B of the Industrial Disputes Act, 1947 (for short, the "Act") during the pendency of the Special Civil Application filed by the appellants, challenging the award passed by the Labour Court.

6. It was submitted that the learned Single Judge however, did not examine the award qua granting the relief of reinstatement and confined the examination of the award passed by the Labour Court qua 50% back wages only. It was submitted that the learned Single Judge ought to have considered the challenge made to the entire award and reinstatement of the respondent No.1 during the pendency of the petition and could not have resulted into not examining the award of the Labour Court regarding the order of reinstatement with continuity of service on merits.

7. Learned advocate Mr.Krishnan M. Ghavariya could not controvert the fact that the judgment and award passed by the Labour Court was under challenge in the writ petition and merely because the respondent No.1 was reinstated during Page 2 of 6 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Wed Dec 10 2025 Downloaded on : Fri Dec 12 23:04:25 IST 2025 NEUTRAL CITATION C/LPA/1226/2025 ORDER DATED: 02/12/2025 undefined the pendency of the writ petition, the challenge to the award of reinstatement with continuity of service on merits was required to be considered by the learned Single Judge.

8. In view of the above submissions, without adverting to the facts of the case, as the learned Single Judge has refrained from examining the award qua granting the relief of reinstatement of the workman under Section 17B of the Act is concerned, is contrary to the prayer made in the petition, which reads as under:-

"8(B). YOUR LORDSHIPS may be pleased to quash and set aside the order passed in Reference (LCD) No.03 of 2020 dated 26.04.2022: As Annex."A"."

9. The appellants - original petitioners had challenged the entire award and merely because the respondent No.1 was reinstated as per the provisions of Section 17B of the Act, so as to either pay him the last drawn wages or to reinstate the workman during the pendency of the petition before this Court, it cannot be considered as giving up the challenge to the order judgment and award passed by the Labour Court, directing the appellants - original petitioners to reinstate the respondent No.1 - workman with continuity of service. Section 17B reads as under:-

"17B. Payment of full wages to workman pending proceedings in higher courts.--Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such Page 3 of 6 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Wed Dec 10 2025 Downloaded on : Fri Dec 12 23:04:25 IST 2025 NEUTRAL CITATION C/LPA/1226/2025 ORDER DATED: 02/12/2025 undefined proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:

Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be."

10. On perusal of Section 17B of the Act, it only provides that where any Labour Court, by its award, directs the reinstatement of any workman and the employer prefers any proceedings against such award in the High Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period.

11. In the facts of the case, instead of payment of wages by the appellants - employer to the respondent No.1, he has been reinstated in the service subject to the outcome of the challenge to the award during the pendency of the petition.

12. With regard to the award of 50% of back wages awarded by the Labour Court, the learned Single Judge has observed Page 4 of 6 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Wed Dec 10 2025 Downloaded on : Fri Dec 12 23:04:25 IST 2025 NEUTRAL CITATION C/LPA/1226/2025 ORDER DATED: 02/12/2025 undefined as under:-

"9. Considering the submissions made by the learned advocates for the respective parties and considering the reasons assigned by the learned labour Court, it transpires from the record that the respondent has declared on oath that after the termination of service, he could not procure another job despite making sincere efforts. When the question of determining the entitlement of the person to back wages is arise, the employee has to show that he was not employed gainfully. The initial burden lies on the employee and after declaration on oath or the material placed in that regard, the employer can bring on record the material to rebut the claim. The allegation that the concerned employee was employed elsewhere and was earning during the period of his unemployment has to be proved by the employer by leading evidence or cross examination of the workman before the learned Court. In the instant case, the declaration made on oath during his chief examination has not been challenged, during the cross examination of the workman by the present petitioner and there was no any other evidence pleaded or has proved to the satisfaction of the Court that the employer had refused to seek or accept alternative job and therefore, the learned labour Court has rightly awarded the 50% back wages and continuity of service.

10. In absence of any evidence adduced or challenging the declaration made on oath, no error committed by the learned labour Court while granting 50% back wages and therefore, no interference is required, this Court does not find any merit in the petition."

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13. It appears that the learned Single Judge has held that the respondent No.1 is entitled to back wages however, with regard to the quantum of back wages, there is no finding as to whether, 50% back wages awarded by the Labour Court is just and proper.

14. In view of the above foregoing reasons, we quash and set aside the impugned judgment and order passed by the learned Single Judge and remand the matter to the learned Single Judge to decide the same on merits.

15. The appeal stands allowed accordingly. No order as to costs.

16. In view of the above, Civil Application would not survive and the same also stands disposed of.

(BHARGAV D. KARIA, J) (L. S. PIRZADA, J) Hitesh Page 6 of 6 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Wed Dec 10 2025 Downloaded on : Fri Dec 12 23:04:25 IST 2025