Gujarat High Court
W H Brady And Company Ltd vs Vyas Vikrambhai Chimanlal on 8 January, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/584/2021 ORDER DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 584 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 27311 of 2007
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W H BRADY AND COMPANY LTD.
Versus
VYAS VIKRAMBHAI CHIMANLAL
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Appearance:
MR DG SHUKLA(1998) for the Appellant(s) No. 1
MR HARSHEEL D SHUKLA(6158) for the Appellant(s) No. 1
MR.PRASHANT B SHARMA(7028) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/01/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Pursuant to the order dated 02.01.2025 passed by this Court in the captioned appeal, learned advocate Mr. Prashant B.Sharma appearing for the respondent employee/workman has submitted that he is ready and willing to accept the compensation in lieu of reinstatement. He has submitted that at the time of termination of the respondent employee/workman, he was getting Rs.4,500/- and has rendered almost five and half years of service.
2. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865 is directed against the judgment and order dated 25.06.2019 passed by the learned Single Judge in the captioned writ petition, whereby the learned Single Judge has modified the award dated 22.05.2007 passed Page 1 of 7 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 17 2025 Downloaded on : Fri Jan 17 22:46:29 IST 2025 NEUTRAL CITATION C/LPA/584/2021 ORDER DATED: 08/01/2025 undefined by the Labour Court, Ahmedabad in Reference (LCA) No.475 of 2000, wherein by the said award, the Labour Court has rejected the reference proceedings, which arose from the dispute raised by the respondent employee/workman relating to his illegal termination.
3. The learned Single Judge has modified the award to the extent of directing the appellant-Company to pay 50% back- wages in lieu of reinstatement. Further direction was also issued that the consequential benefit of full wages, which may be available to the employee in accordance with law/rules/regulation/service conditions governing the workman.
4. Learned advocate Mr. D.G. Shukla appearing for the appellant-Company at the outset, has submitted that the award passed by the Labour Court rejecting the reference proceedings is not required to be interfered with. He has submitted that at the most, the learned Single Judge may have remanded the matter to the Labour Court so that the actual date of termination, as alleged by the respondent employee/workman could have been verified. It is submitted that there is a discrepancy in the date of termination of the respondent employee/workman, as he had stated before the Labour Court that he was orally terminated with effect from 13.10.1999, while raising the dispute in his complaint, he has mentioned that he was terminated on 12.10.1999 and the same is admitted in his cross-examination.
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5. Learned advocate Mr. Shukla has submitted that the respondent employee/workman was terminated vide Office Order dated 28.10.1999 on the closer of business on 30.10.1999. In support of his submission, he has referred to the order dated 28.09.1999, wherein it is recorded that he shall proceed on privilege leave with effect from 08.10.1999. Thus, it is submitted that the learned Single Judge has totally ignored the findings of the Labour Court and the matter ought to have remanded to the Labour Court to decide the reference on merits.
6. Per contra, learned advocate Mr. Prashant B.Sharma appearing for the respondent employee/workman has submitted that the impugned judgment and order may not be interfered with, as the learned Single Judge has precisely set aside the reference proceedings. It is submitted that the respondent employee/workman was terminated on 30.10.1999 and the Labour Court was supposed to examine the validity of termination. However, the reference has been rejected only for the reason that the date of termination was not determined as to whether the respondent employee/workman was terminated on 12.10.1999 or subsequent thereto and in fact, the respondent employee/workman had worked till 30.10.1999 even as per the order of termination dated 28.09.1999, hence it is urged that looking to the service of the employee appropriate compensation may be awarded.
7. We have examined the findings of the Labour Court as well as the observations recorded by the learned Single Judge by which the award of the Labour Court rejecting the Page 3 of 7 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 17 2025 Downloaded on : Fri Jan 17 22:46:29 IST 2025 NEUTRAL CITATION C/LPA/584/2021 ORDER DATED: 08/01/2025 undefined reference, has been passed. A bare perusal of the award by which the reference proceeding has been rejected, clarifies that there is no whisper worth the name with regard to findings recorded in relation to the provisions of Industrial Disputes Act, 1947. The Labour Court has rejected the reference proceeding only on one count i.e. failure of the respondent employee/workman in pointing out the exact date of his termination. The Labour Court has in fact, held that the respondent employee/workman was working as a Sales Officer and would fall within the definition of workman. However, the reference proceedings are rejected on the ground that the respondent employee/workman was unable to prove that he was terminated on 12.10.1999.
8. The learned Single Judge after examination of the documentary evidence in paragraph No.6 onward, has observed thus:
6. The Labour Court also failed to notice and appreciate the so-called letter of termination. Pertinently, the notice Exh. 17 was unreplied and it was followed by the letter dated 28.10.1999, the contents of which are as under:
"This is to inform you that your services as Sales Officer of the Company are terminated on the close of business on 30.10.1999.
You will proceed on Privilege Leave with effect from 8-10-99. You will hand over charge of all papers and documents lying with you to Mr. G.R. Kaundinya, Regional Manager or to the person designated by him."
(Emphasis supplied) 6.1. The above contents would show that the workman was in service upto 30.10.1999. He was advised to proceed on privilege leave with effect from 08.10.1999. Needless to say that the leave can be enjoyed while in service; however he was paid salary admittedly only for eight days of October. Thus the management failed to explain why no salary for 23 days privilege leave was paid to the workman. Therefore the letter Exh. 54 cannot be construed as the one terminating the services of the workman; more particularly if the conduct of the workman approaching Page 4 of 7 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 17 2025 Downloaded on : Fri Jan 17 22:46:29 IST 2025 NEUTRAL CITATION C/LPA/584/2021 ORDER DATED: 08/01/2025 undefined the Union and immediately giving the notice to the management is taken into account, the notice Exh. 54 seems to be an after thought with an attempt to come out of the legal clutch i.e. breach of Section 25F of the Industrial Disputes Act, 1947 ( for short 'I.D. Act') or the requirement of the notice or pay in lieu of the notice. No such procedure seems to have been followed by the employer.
7. Learned counsel for the respondent employer contended that the Labour Court did not go into all the issues but has dismissed the case only on the ground of the workman's failure to prove the date of termination. While that submission may not be accurate in view of the findings rendered by the Labour Court, while resolving the issue as to whether the petitioner is a workman or not. It did hold that in absence of the evidence by the management that he was not the workman, the issue raised by the management was not proved. Even otherwise the management has not challenged the award on the aforesaid ground. The workman now is likely to superannuate in this month itself as consensually agreed, and much water has flown from the date of termination till date i.e. about 20 years. There is no use directing the Labour Court to reconsider the issues after such a long period.
8. Last question is as to what should be the relief now when the workman is likely to superannuate in this year. Considering the fact that the workman has not worked with the respondent employer for a long period of 20 years as also in absence of his say that he was not employed elsewhere for his sustenance for such a long period of 20 years, in the opinion of this court, 50% back wages with consequential benefits on full wages would serve the purpose. Accordingly it is directed that in lieu of reinstatement, the workman would be paid 50% back wages; as revised from time to time. He shall also be paid consequential benefits on full wages as may be available to him in accordance with law/rules/regulation /service conditions of the workman. The aforesaid exercise shall be done within a period of eight weeks from the date of receipt of writ of this Court."
9. Thus, the learned Single Judge has recorded that there was a consensus between the appellant and employee that the matter may not be remanded after a period of 20 years. The learned Single Judge has also recorded that the letter at Exh.54 i.e. 28.09.1999, cannot be said to be an order terminating the services and the same has been issued as an afterthought in order to come out from the legal clutch of breach of section 25F of the Industrial Disputes Act, 1947 or the requirement of the notice or pay in lieu of the notice, and no such procedure has been followed by the appellant- Company. Thus, even if the finding recorded by the learned Page 5 of 7 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 17 2025 Downloaded on : Fri Jan 17 22:46:29 IST 2025 NEUTRAL CITATION C/LPA/584/2021 ORDER DATED: 08/01/2025 undefined Single Judge is treated as such, the termination can be said to be in violation of Section 25F of the Industrial Disputes Act, 1947 and as per the settled legal precedent, the appropriate remedy would be grant of suitable compensation to the respondent employee/workman.
10. It is also not coming on record that the appellant- Company had closed down on 30.11.1999 and there was no question of reinstating the respondent employee/workman. However, we find merit in the submission advanced on behalf of the appellant-Company that in lieu of reinstatement, the learned Single Judge fell in error in paying 50% of back-wages along with consequential benefits of full back-wages for the intervening period.
11. Since, it was noticed by us that the respondent employee/workman was a Sales Officer and was being paid an amount of Rs.4,500/- as a salary last drawn and he was ready and willing to settle the matter and accept the compensation in lieu of reinstatement, we have also taken sense from the learned advocate appearing for the appellant-Company so that the dispute can be laid quietus.
12. Thus, in view of the willingness shown by the respondent employee/workman and looking to the salary, which the appellant-Company was paying to the respondent employee/workman i.e. an amount of Rs.4,500/- and he has worked for five and half years, in our considered opinion the compensation of Rs.4,50,000/- would be just and proper. It is clarified that the respondent employee/workman shall not Page 6 of 7 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 17 2025 Downloaded on : Fri Jan 17 22:46:29 IST 2025 NEUTRAL CITATION C/LPA/584/2021 ORDER DATED: 08/01/2025 undefined claim any further benefit. The amount of Rs.4,50,000/- shall be paid within a period of four weeks from the date of receipt of this order of this Court. If the said amount is not within a period of four weeks, it will be open for the present respondent employee/workman to file a note for revival of the present Letters Patent Appeal before the Registry of the Court.
13. In view of the aforesaid observations, the present Letters Patent Appeal stands disposed of.
(A. S. SUPEHIA, J) (GITA GOPI,J) Pankaj /32 Page 7 of 7 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 17 2025 Downloaded on : Fri Jan 17 22:46:29 IST 2025