Chief Officer vs Parbatbhai Karabhai
2021 Latest Caselaw 10704 Guj

     C/LPA/327/2021                           ORDER DATED: 05/08/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/LETTERS PATENT APPEAL NO. 327 of 2021
                                In
         R/SPECIAL CIVIL APPLICATION NO. 10109 of 2012
                               With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
          In R/LETTERS PATENT APPEAL NO. 327 of 2021
=====================================================
                          CHIEF OFFICER
                              Versus
                      PARBATBHAI KARABHAI
=====================================================
Appearance:
MR MURALI N DEVNANI(1863) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
=====================================================

 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                         Date : 05/08/2021
                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)

1. By way of the present Letters Patent Appeal, the appellant - Chief Officer, Porbandar Nagarpalika has challenged the judgment dated 01.02.2021 passed by the learned Single Judge, whereby, the learned Single Judge enhanced the amount of lumpsum compensation awarded by the Presiding Officer, Labour Court, Junagadh, camp at Porbandar in Reference (L.C.J.) No. 53 of 1991 from Rs.60,000/- to Rs.1,25,000/- awarded to the present respondent no.1 (original petitioner) in lieu of the reinstatement of workman.

C/LPA/327/2021 ORDER DATED: 05/08/2021

2. Being aggrieved by and feeling dissatisfied with the aforesaid judgment, the present appellant has preferred this Letters Patent Appeal under Clause 15 of the Letters Patent Act. The present appellant was the respondent no.1 in Special Civil Application No. 10109 of 2012, whereas, the present respondent no.1-workman, was the original petitioner, in the aforesaid petition.

3. Brief facts giving rise to the filing of the present appeal are stated as under:

3.1. It was the case of the workman before the Labour Court that, respondent no.1-workman was appointed under the present appellant as Watchman on 21.04.1988 and was paid salary of Rs.900/- per month. According to the workman, the post on which he was appointed and performing his duties was a regular post. However, on 01.03.1989, all of a sudden, without serving the workman with any notice, notice pay, retrenchment compensation or without following any other procedure prescribed under the law, the present appellant terminated the services of the workman - respondent no.1 herein. While terminating the services of the respondent - workman, the principle of 'last come first go' was not followed by the present appellant and the workmen who were junior to the respondent no.1-workman were retained in service. At the time of terminating the service of the workman, the present appellant did not publish or maintain any seniority list, etc. and evenafter, terminating the service of the workman, though, new recruitment took place, the workman was never re-appointed, and hence, the workman raised an industrial dispute against his illegal termination dated 01.03.1989, which was, subsequently, converted

C/LPA/327/2021 ORDER DATED: 05/08/2021

into Reference (L.C.J.) No. 53 of 1991.

3.2. In the said Reference, the present appellant who was the respondent, appeared and filed written statement and denied the claim of the workman. In the written statement, the appellant Municipality took a stand that the services of the respondent no.1 herein-workman was not of a continuous nature, but was a daily- wager. At the time of appointment of the workman, by using some illegal means, certain resolutions were passed by the Staff Selection Committee of the appellant Municipality, but those resolutions were subsequently cancelled, as the State Government appointed the Administrator in the Municipality. The workman had served only for 69 days, and since, the workman has not worked for one year or more, the appellant Municipality prayed for dismissal of the Reference.

3.3. Ultimately, the Presiding Officer, Labour Court, Junagadh, camp at Porbandar, considered the documents on record, examined the witnesses and after considering all the materials available with him and which was on record, framed the issues, and on the basis of the evidence, held that the termination of the workman is violative of Sections 25 (F), 25(G) and 25(H) of the Industrial Disputes Act, 1947 (for short 'the Act, 1947') and the Labour Court after considering the fact that, since the workman had worked for only 69 days, when his services were terminated in the year 1989, and though the Reference was preferred in the year 1991, the same was heard in the year 2012, and hence, as the workman had spent 20 years fighting legal battle, and therefore, the Labour Court vide award dated 07.02.2012 in Reference (L.C.J.)

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No. 53 of 1991 instead of reinstating the workman, awarded the lumpsum compensation of Rs.60,000/- in lieu of the reinstatement to the workman.

3.4. The aforesaid award was challenged by the workman before the learned Single Judge by way of Special Civil Application No. 10109 of 2012. It is noteworthy that, the present appellant - Municipality did not challenge aforesaid award.

3.5. That writ petition being Special Civil Application No. 10109 of 2012 came to be decided vide oral judgment dated 01.02.2021, wherein, the learned Single Judge after considering the arguments advanced by the learned advocates for the parties as well as various decisions cited by both the parties, modified the award passed by the Labour Court and enhanced the amount of lumpsum compensation from Rs.60,000/- to Rs.1,25,000/- in lieu of the reinstatement and directed the present appellant to pay the aforesaid amount within a period of three months from the date of the receipt of the order passed by the learned Single Judge, after due verification of the identity of the workman and further observed that, in the event of failure to pay the amount of compensation of Rs.1,25,000/- within a period of three months from the date of the receipt of the order, the workman will be entitled to claim the interest @ 9% from the date of the judgment i.e. 01.02.2021 till the date of actual realization.

3.6. The aforesaid judgment dated 01.02.2021 is challenged by way of the present Letters Patent Appeal by the present appellant i.e. the Chief Officer, Porbandar Municipality, who was

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the respondent no.1 in the Special Civil Application.

4. Heard learned advocate Mr. Murali N. Devnani for the appellant. Learned advocate Mr. Devnani challenged the judgment dated 01.02.2021 delivered by the learned Single Judge mainly on three contentions. Firstly, according to the learned advocate Mr. Devnani, the workman had actually served only for a period of 3 months under the present appellant and considering the length of service of the workman, the lumpsum compensation awarded by the Labour Court was absolutely just, legal and proper and the learned Single Judge ought not to have enhanced the same. By enhancing the compensation, without there being any justifiable reason assigned by the learned Single Judge, the learned Single Judge has committed an error.

4.1. The next contention of Mr. Devnani was that the learned Single Judge has committed an error by enhancing the compensation awarded to the workman by more than three times, without assigning any cogent and convincing reason.

4.2. The last submission made by the learned advocate Mr. Devnani was that the learned Single Judge has committed an error by not considering the orders passed by the coordinate Bench of this Court, which according to Mr. Devnani has binding effect and the learned Single Judge ought not to have enhanced the amount of compensation, in lieu of the reinstatement, awarded by the Labour Court.

4.3. No other or further submissions were canvassed by the learned advocate Mr. Devnani nor did he cite any decisions of this

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Court or the Hon'ble Apex Court in support of his contentions.

5. We have considered the submissions made by the learned advocate Mr. Devnani for the appellant. We have also perused the entire record of Special Civil Application and award passed by the Labour Court in Reference (L.C.J.) No.53 of 1991.

5.1. As far as the submission of Mr. Devnani in respect of the length of service of workman is concerned, we are conscious of the fact that the workman had worked only for a period of 69 days, however, we have also considered the fact that the Labour Court, while passing the award dated 07.02.2012 had categorically stated that, though, the workman had worked only for a period of 69 days, after challenging his illegal termination, the legal battle of workman went-on for 20 years. Ultimately, the Labour Court after appreciating the evidence on record held that, while terminating the services of the workman, there is a clear-cut breach of Sections 25(F), 25(G) and 25 (H) of the Act, 1947 and therefore, the Labour Court held the two issues about whether the workman terminated illegally and whether he should be reinstated with full back-wages, partly affirmative in favour of the workman.

5.2. Since the Labour Court after appreciating the evidence came to the aforesaid conclusion and the aforesaid finding has never been challenged by the Appellate - Municipality by preferring any writ petition against the aforesaid award dated 07.02.2012, we have examined the order passed by the learned Single Judge, keeping in mind this fact also. Therefore, once there is a finding of illegal termination is staring at the face of the present appellant,

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and that too after considering totality of the circumstances, the Labour Court had awarded lumpsum compensation to the workman, in lieu of the reinstatement. The aforesaid award was challenged by the workman by way of Special Civil Application, wherein in para- 8, following prayers were made:

"A. This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and / or certiorary or other appropriate writ, order or direction declaring the impugned order passed by the labour court in Reference LCJ No.53/1991 dated 07.2.2012 denying reinstatement in services with consequential benefits to the petitioner as illegal, unjust, arbitrary, non-application of mind and be pleased to quash and set aside the same.

B. Be pleased to declare that the action of the respondent in terminating the services of the petitioner is illegal, unjust, arbitrary and be pleased to quash and set aside the same. Further be pleased to direct the respondent No.1 to reinstate the petitioner in service with all consequential benefits.

C. Pending admission and final disposal of the petition be pleased to direct the respondent No.1 to reinstate the petitioner in service with all consequential benefits.

D. Any other relief which this Hon'ble Court deems fit and proper in interest of justice."

5.3. The aforesaid prayers would indicate that the petitioner of Special Civil Application, workman, was aggrieved by the fact that, though, the workman was entitled for reinstatement, in stead of reinstating the workman, he was awarded a lumpsum

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compensation, in lieu of reinstatement.

5.4. Therefore, in the aforesaid backdrop, the case of the present respondent no.1- workman, original petitioner, was considered by the learned Single Judge and therefore, in absence of any challenge to the aforesaid finding by the present appellant, who choose not to challenge the original award of the Labour Court, it cannot be said that, if the workman has worked only for a period of 69 days, he ought not to have been awarded the lumpsum compensation. Therefore, now, the only question that remains to be considered is, whether the enhancement of lumpsum compensation awarded by the learned Single Judge from Rs.60,000/- to Rs.1,25,000/- was just, legal and proper or not.

5.5. The learned Single Judge has while deciding the Special Civil Application, in para 11 of the judgment, has relied upon the judgments of the Hon'ble Supreme Court in the case of Tapash Paul Vs. BSNL and Anr. reported in 2016 (1) Scale 92 and in the case of BSNL Vs. Bhurumal reported in 2014 (7) SCC 177. The learned Single Judge has also considered the fact that, if, the relief of reinstatement after a gap of almost 30 years is granted, no useful purpose would be served. The aforesaid observation was made by the learned Single Judge, keeping in mind the fact that by the time the Special Civil Application was decided, a further 9 years' period was consumed in legal battle, and therefore, the amount of Rs.60,000/- awarded by the Labour Court in the year 2012, was rightly enhanced by the learned Single Judge to Rs.1,25,000/-. In fact, there is no straight jacket formula for determining the amount of lumpsum compensation, in lieu of the reinstatement. However,

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the Hon'ble Supreme Court in the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Anr. reported in (2009) 15 SCC 327 in para - 17 observed thus:

"While awarding compensation, a host of factors, inter-alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances."

5.6. If the aforesaid observations of the Hon'ble Supreme Court of India are read alongwith the judgments of the Hon'ble Supreme Court of India in the case of Tapash Paul (supra) and Bhurumal (supra), in that case, it would clearly indicate that, the amount of lumpsum compensation is usually awarded keeping in mind the facts and circumstances of each case, and therefore, we do not find any substance in the argument of learned advocate Mr. Devnani that the learned Single has not given any convincing and cogent reasons, while enhancing the amount of lumpsum compensation from Rs.60,000/- to Rs.1,25,000/-.

5.7. As far as the contention of Mr. Devnani in respect of the fact that the learned Single Judge has failed to appreciate or consider the orders passed by the coordinate Benches are concerned, it may be noted that the learned Single Judge has enhanced the amount of lumpsum compensation by considering the judgments of the Hon'ble Supreme Court of India in the case of Tapash Paul (supra) and Bhurumal (supra), and therefore, once the decisions of the Hon'ble Supreme Court of India are considered by the learned Single Judge, we do not find that the learned Single Judge has committed any error, while enhancing the amount of

C/LPA/327/2021 ORDER DATED: 05/08/2021

lumpsum compensation, in lieu of reinstatement.

6. In view of the above, we are in complete agreement with the view taken by the learned Single Judge and we are of the opinion that the judgment of the learned Single Judge does not require any interference in the same. Hence, the present appeal deserves to be dismissed and the same is dismissed, accordingly. No order as to costs.

6.1. In view of the order passed in main Letters Patent Appeal, Civil Application does not survive and the same is also dismissed, accordingly.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) Pradhyuman