Gujarat High Court
Executive Engineer vs Sunil S Mandaliya on 4 February, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/195/2025 ORDER DATED: 04/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 195 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6936 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 195 of 2025
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EXECUTIVE ENGINEER
Versus
SUNIL S MANDALIYA
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Appearance:
MS RV ACHARYA(1124) for the Appellant(s) No. 1
MR DG SHUKLA(1998) for the Respondent(s) No. 1
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/02/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. ADMIT. Learned advocate Mr. Shukla waives service of notice of admission on behalf of the respondent. With consent of the learned advocates appearing for the respective parties, the present appeal is taken up for final hearing today.
2. The present appeal emanates from the judgment and order passed by the learned Single Judge dated 26.07.2023 passed in the captioned Writ Petition, wherein and whereby the learned Single Judge has partly allowed the Writ Petition challenging the judgment and award passed by the Labour Court, Bhavnagar in Reference (LCB) No.10 of 1992 dated 16.12.2009, by which, the Labour Court, after the remand, has confirmed the earlier award dated 16.04.2005 and directed the present appellant-employer to Page 1 of 6 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:04:14 IST 2025 NEUTRAL CITATION C/LPA/195/2025 ORDER DATED: 04/02/2025 undefined reinstate the workman on his original post with continuity of service and with 30% back-wages. However, the learned Single Judge has altered the award and instead of reinstatement with 30% back- wages, has granted compensation of Rs.3 lacs in lieu of reinstatement and back-wages. The workman has accepted the judgment of the learned Single Judge and is ready and willing to accept an amount of Rs.3 lacs.
3. Learned advocate Ms. R.V. Acharya has submitted that the impugned judgment and order passed by the learned Single Judge is required to be quashed and set aside since the learned Single Judge has fell in error in confirming the award to the extent of the finding of the Labour Court in favour of the respondent-workman. She has submitted that the learned Single Judge has failed to take into consideration the fact that the respondent was a daily-wager and appointed on fixed pay and there was no issue of conducting the departmental inquiry as held by the Labour Court. It is further submitted that the Labour Court has also fell in error in setting aside the order of termination as the respondent-workman remained absent for a period of two years without any reason. It is also submitted that the Reference was filed in the year 1991 after lapse of almost four years. She has submitted that the award as well as the judgement passed by the learned Single Judge are required to be quashed and set aside.
4. Per contra, learned advocate Mr. Shukla appearing for the respondent-workman has urged that the present appeal may not be entertained and the appellant may be directed to pay an amount of Rs.3 lacs as directed by the learned Single Judge to the respondent-workman. It is submitted that the impugned award as Page 2 of 6 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:04:14 IST 2025 NEUTRAL CITATION C/LPA/195/2025 ORDER DATED: 04/02/2025 undefined confirmed by the learned Single Judge is not required to be quashed and set aside, as the same is appropriately passed.
5. We have considered the rival submissions advanced by the respective parties. The facts, as recorded by the learned Single Judge, are not in dispute.
"2.1. The respondent workman was serving with the petitioner since last 5 years as daily wager and the petitioner without issuing notice, notice pay or without issuing retrenchment allowance, terminated the services of the respondent orally on 1/2/1988.
2.2. The respondent workman thereafter filed Reference (LCB) No.10 of 1992 before the Labour Court, Bhavnagar. Considering the oral as well as documentary evidence and hearing the parties, the Labour Court, Bhavnagar passed Judgement and Award dated 16/4/2005 directing the petitioner to reinstate the respondent on his original post with continuity of service and with 30% back wages.
2.3. Against the aforesaid Judgement and Award, the petitioner challenged the said Award by preferring Special Civil Application No.14766 of 2005 and the co-ordinate Bench of this Court, vide order dated 28/9/2005 set aside the Award dated 16/4/2005 and remanded the proceedings for fresh consideration after giving both the sides an opportunity to lead further evidence.
2.4. On remand, the Labour Court, Bhavnagar passed Judgement and Award dated 16/12/2009 confirming the earlier Award dated 16/4/2005 and directing the petitioner employer to reinstate the respondent workman on his original post with continuity of service and with 30% back wages. Hence this petition."
6. We have also perused the findings of the award. The Labour Court, in the award dated 16.12.2009, has categorically recorded that the termination of the workman was illegal and de hors the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"). It is recorded that the appellant-employer has violated the provisions of Section 25F of the Act before terminating the services and after such categorical recording, termination is set aside and the appellant is directed to reinstate him with 30% back-
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wages. The learned Single Judge is pleased to alter the award to that of amount of compensation of Rs.3 lacs by recording thus:-
"6.1 Having heard the learned advocates for the respective parties and considering the material on record, it is clear that the workman was working as daily wager w.e.f. 14/3/1979 and he was absorbed as work-charged on completion of 5 years service on 14/3/1984 vide Office Order dated 26/4/1984 issued by the Executive Engineer, Rural, Road and Panchayat Department, Bhavnagar and he was placed in the pay scale of Rs.196-232. It is clear that while the respondent was working as work-charged, his service was orally terminated w.e.f. 1/2/1988. It is pertinent to note that the services of the workman were terminated without any notice, notice pay, or retrenchment compensation etc. Considering the material on record, it is clear that the workman has continuously worked from 14/3/1979 to 1/2/1988 i.e. for 9 years. It has also come on record that the petitioner neither reinstated the workman nor gave reply to the workman and hence the workman approached the Labour Court. It has also come on record that the letters written by the petitioner were not received by the workman but the same were received by the mother of the workman and the relation of the workman and his mother was not good and the workman was residing separately. The Labour Court, Bhavnagar, considering the evidence on record, oral as well as documentary and hearing the advocates for both the parties, passed Award dated 16/4/2005 partly allowing the reference and directing the petitioner to reinstate the respondent workman on his original post with continuity of service with 30% back wages. However, the petitioner challenged the said Award by preferring Special Civil Application No.14766 of 2005 and the co-ordinate Bench of this Court, vide order dated 28/9/2005 set aside the Award dated 16/4/2005 and remanded the proceedings for fresh consideration. It is pertinent to note that on remand, the Labour Court confirmed the earlier dated 16/4/2005 and directed the petitioner to reinstate the workman on his original post with continuity in service with 30% back wages. The said award is under challenge in this petition.
6.3 It is relevant to note that the workman was working as daily wager w.e.f. 14/3/1979 and he was absorbed as work-charged on completion of 5 years service on 14/3/1984 vide Office Order dated 26/4/1984 issued by the Executive Engineer, Rural, Road and Panchayat Department, Bhavnagar and he was placed in the pay scale of Rs.196-232 and while in service as work-charged, his service was orally terminated w.e.f. 1/2/1988, without any notice, notice pay, retrenchment compensation etc. while he was work-charge employee, keeping the juniors to the workman in the employment and therefore, the termination of the workman is in breach of the provisions of section 25(F)(G) and (H) of the I.D. Act. It is pertinent to note that the workman has continuously worked from 14/3/1979 to 1/2/1988 i.e. for 9 years. It has also come on record that the letters written by the petitioner were not received by the workman but were received by the mother of the workman and the workman was not residing with his mother and the relation of the workman Page 4 of 6 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:04:14 IST 2025 NEUTRAL CITATION C/LPA/195/2025 ORDER DATED: 04/02/2025 undefined and his mother were not goodand admittedly the said letters were received by the mother of the workman, therefore, it cannot be said that though the workman received letters, he did not come for work. The workman was residing separately and admittedly he had not received the letters written by the petitioner. Considering the overall aspects of the matter and violation of the mandatory provisions of Section 25(F), 25(G) and 25(H) of the Industrial Disputes Act and, this Court is of the opinion that the Award passed by the Labour Court is just, legal and proper and no interference is called for. However, since the workman has retired on reaching at the age of superannuation, there is no question of reinstatement. Even otherwise, no reinstatement can be awarded after 30 years.
6.6. In the present case also the workman has worked for 9 years and the Labour Court has awarded reinstatement with 30% back wages. The workman has received benefits of section 17(B) of the Act i.e. Rs.528/- per month. The respondent workman is prosecuting the proceedings since 1991-1992 i.e. since more than 30 years. In the facts and circumstances of the case, this Court is of the considered opinion that if the workman is ordered to be paid lump sum amount of Rs.3,00,000/- in lieu of the reinstatement and 30% back-wages, then, the ends of justice would be met appropriately. This Court deems fit to order grant of compensation of Rs.3,00,000/- as full and final settlement of the claim in lieu of the reinstatement and back-wages. Such amount, along with the cost awarded by the Labour Court is needed to be paid to the respondent workman by the petitioner employer after proper verification of the identity by an account payee cheque / pay order within a period of two months from the date of receipt of this order, failing which the respondent workman will be entitled to claim interest at the rate of 9% from today till the date of actual realization."
7. In fact, the learned Single Judge has recorded that the termination was in violation of Sections 25F, 25G and 25H of the Act and thereafter, has awarded the compensation since he has reached the age of superannuation. Since the workman has not assailed the order passed by the learned Single Judge and accepted the same, we are not commenting upon the observations made by the learned Single Judge in this regard.
8. It is also not in dispute and established fact from the proceedings that the workman had worked from 1979 to 1988 for almost 8 years as a work charge employee. Thus, we do not find Page 5 of 6 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:04:14 IST 2025 NEUTRAL CITATION C/LPA/195/2025 ORDER DATED: 04/02/2025 undefined any convincing reason to interfere with the judgment and order passed by the learned Single Judge. Accordingly, we direct the appellant to pay the amount of Rs.3 lacs to the respondent- workman, as directed by the learned Single Judge. The period of two months of payment of Rs.3 lacs, as directed by the learned Single Judge, is extended till further period of 08 (eight) weeks from today and in case, such amount is not paid within such period, the respondent-workman would be entitled to claim interest at the rate of 9% per annum from today till the date of actual realization.
9. With these observations, the appeal is dismissed. As a sequel, Civil Application does not survive and is disposed of accordingly.
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