Bharatsinh D Chudasma vs Chief Officer
2021 Latest Caselaw 1415 Guj

       C/SCA/10111/2012                                      JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 10111 of 2012


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

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

1    Whether Reporters of Local Papers may be allowed                  No
     to see the judgment ?

2    To be referred to the Reporter or not ?                           No

3    Whether their Lordships wish to see the fair copy                 No
     of the judgment ?

4    Whether this case involves a substantial question                 No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
                          BHARATSINH D CHUDASMA
                                   Versus
                          CHIEF OFFICER & 1 other(s)
================================================================
Appearance:
MS REEMA KAMANI FOR MR PH PATHAK(665) for the Petitioner(s) No. 1
MR MURALIN DEVNANI(1863) for the Respondent(s) No. 1
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1,2
================================================================

 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                              Date : 01/02/2021

                             ORAL JUDGMENT

1. By way of present petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the award dated 07.02.2012 passed by the Labour Court, Junagadh, Camp at Porbandar in Reference

C/SCA/10111/2012 JUDGMENT

(L.C.J.) No.45/1991 regarding the granting lump sum amount of Rs.50,000/- and not granting reinstatement.

2. According to the petitioner he was working as junior clerk on the regular post with the respondent since 22.12.1988 and he was paid Rs.1500/- per month and his service was continuous. It is also the case of the petitioner that the respondent has terminated the service of the petitioner w.e.f. 01.03.1989 without following the due procedure. It is further alleged that due to violation of the provisions of Section 25(F), (G) and (H) of the Industrial Disputes Act (hereinafter be referred to as the "I.D. Act."), he has raised his grievance by way of filing Reference (LCJ) No.45/1991. It is also alleged that after considering the evidence of both the sides, the Labour Court has come to the conclusion that the termination of the petitioner was against the provisions of Section 25(F) (G) of the I.D. Act. However, without granting reinstatement, the Labour Court has awarded only Rs.50,000/- as compensation to the petitioner. It is further alleged that this observation in granting compensation instead of reinstatement is factually and legally not tenable. He being prejudice has filed the present petition and prayed to grant him reinstatement in service with all consequential benefits.

3. Heard Ms.Reema Kamani, learned advocate for Mr.P.

C/SCA/10111/2012 JUDGMENT

H. Pathak, learned advocate for the petitioner and Mr.Murali Devnani, learned advocate for the respondent at length through video conferencing.

4. Ms.Kamani, learned advocate for the petitioner has vehemently submitted the same facts which are narrated in the memo of petition. She has submitted that the Labour Court has committed serious error of facts and law in not granting reinstatement with continuity of service to the petitioner. She has submitted that when the Labour Court has come to the conclusion that there was a breach of the provisions of the I.D. Act, then, the Labour Court ought to have granted reinstatement instead of granting lump sum amount as compensation. While referring to the statement and written statement filed by the respondent and the observation made by the Labour Court, she has submitted that the Labour Court has committed serious error of facts and law and, therefore, on the basis of the materials placed on record, this Court should interfere with the impugned award and set aside the order of compensation and pass necessary order for reinstatement of the petitioner with full back wages and continuity of service. She has relied upon the order of the Division Bench of this Court in the case of Mehsana District Panchayat Vs. Satuji Nathaji Chavda rendered in Letters Patent Appeal No.1683 of 2011 dated 28.12.2016 wherein on similar facts, the Division Bench of this Court has granted compensation to the tune of

C/SCA/10111/2012 JUDGMENT

Rs.5,00,000/-. She has prayed to allow the present petition.

5. Per contra, Mr.Murali Devnani, learned advocate for the respondent has submitted that the stand of the petitioner has no basis for reinstatement of the service with continuity and with all benefits. He has submitted that the Labour Court has not committed any error of facts and law in not granting the prayer for reinstatement. He has submitted that after considering the factual aspects of the case, the Labour Court has rightly awarded lump sum compensation to the petitioner. He has prayed to reject the present petition. He has relied upon the decision dated 15.03.2018 rendered by the Coordinate Bench of this Court in the case of Jamnaben Devjibhai Gohel Vs. Porbandar Nagar Palika in Special Civil Application No.11683 of 2012. He has also relied upon the decision dated 23.12.2010 rendered in the case of Bhurabhai Vejabhai Agath Vs. President / Chief Officer in Special Civil Application No.14601 of 2010 and allied matters. He has also relied upon the decision dated 07.02.2011 rendered in the case of Bhurabhai Vejabhai Agath Vs. President / Chief Officer in Special Civil Application No.16792 of 2010.

6. On perusal of the decision dated 28.12.2016 rendered by the Division Bench of this Court in the case of Mehsana District Panchayat Vs. Satuji Nathaji

C/SCA/10111/2012 JUDGMENT

Chavda in Letters Patent Appeal No.1683 of 2011, wherein the Labour Court has, on the basis of relevant evidence, concluded that the petitioner at the relevant point of time had completed the requisite days of service and, therefore, entitled to protection under Section 25(F) and passed the order of reinstatement with continuity which has been upheld by the learned Single Judge. The learned Single Judge has relied upon the documents / muster roll of the workman produced by the appellant - Panchayat and after applying the principles of ratio laid down in the judgment in the case of American International Banking Corporation Vs. Management of American Express reported in AIR 1986 SC 458, the Division Bench has upheld the findings. However, considering long drawn litigation and the time consumed from 1986 till date, the learned advocate for the workman has offered to accept lump sum in lieu of reinstatement and in compliance with the judgment of this Court. After considering the decision of the Apex Court in the case of Tapash Paul Vs. BSNL & Anr reported in 2016 (1) Scale 92 and BSNL Vs. Bhurumal reported in 2014 (7) SCC 177, the Division Bench has thought it fit to grant lump sum amount of Rs.5,00,000/- in lieu of reinstatement as there was a gap of almost 30 years.

7. On perusal of the decision of the Coordinate Bench of this Court dated 23.12.2010 passed in the case of Bhurabhai Vejabhai Agath Vs. President / Chief

C/SCA/10111/2012 JUDGMENT

Officer in Special Civil Application No.14601 of 2010 and allied matters wherein the adhoc compensation of Rs.50,000/- each and Rs.30,000/- each were awarded.

8. On perusal of the decision of the Coordinate Bench of this Court dated 15.03.2018 passed in the case of Jamnaben Devjibhai Gohel Vs. Porbandar Nagar Palika in Special Civil Application No.11683 of 2012, wherein the Labour Court has granted compensation of Rs.20,000/- in lieu of reinstatement to the petitioner and that finding was upheld by the learned Single Judge. While confirming the decision of the Labour Court, this Court has taken into consideration the fact that the workman was taken in service as daily wager on 13.1.1979 and he was paid at the rate of Rs.5.55 per day and services of the petitioner came to be terminated on 15.10.1981 and after laps of almost 9 years, the Reference was filed before the Labour Court without any explanation for late filing of the Reference.

9. On perusal of the decision of the learned Single Judge dated 07.02.2011 passed in the case of Chanabhai Ghelabhai Odedara Vs. President / Chief Officer in Special Civil Application No.16792 of 2010 wherein the Labour Court has granted Rs.20,000/- with costs of Rs.1,000/- which is alleged to be meagre amount and the workman claimed Rs.50,000/-. This Court has observed therein that the workman had in fact put in more than

C/SCA/10111/2012 JUDGMENT

nine years service with the respondent and his services came to be terminated unceremoniously without following due process of law and, therefore, the amount of Rs.20,000/- granted by the Labour Court was treated to be inadequate enough to meet with the ends of justice and ultimately, this Court has enhanced the said amount of compensation from Rs.20,000/- to Rs.50,000/-.

10. Having heard learned advocates for both the sides and considering the material placed on record and on perusal of the impugned award of the Labour Court, it is apparent that the requisite number of 240 days service has been proved. It is also apparent from the record that no oral evidence has been produced by the employer before the Labour Court. While observing various decisions of this Court, the Labour Court has come to the conclusion that considering the circumstances, it deemed fit not to grant reinstatement. Of course, the Labour Court has considered the period of pendency of litigation from 1991 to 2012 i.e. 20 years and has opined that the workman could be granted compensation of Rs.2500/- p.a. and ultimately awarded Rs.50,000/- to the workman. On perusal of the award and the material placed on record, it appears that the observation of the Labour Court in not granting reinstatement to the petitioner is proper. However, considering the facts of the case, it clearly appears that almost 20 years has been passed during pendency of the litigation for which the workman cannot

C/SCA/10111/2012 JUDGMENT

be faulted for long term process. Considering the long time of litigation and time consumed from 1991 till date and the fact that the employer has not challenged the impugned award of granting lump sum amount as well as the facts that at the time of initial engagement in service of the workman with payment of Rs.1500/- per month, this Court is of the considered opinion that the lump sum amount of Rs.50,000/- cannot be said to be an amount adequate enough to meet with the ends of justice. Therefore, the amount of compensation is required to be enhanced accordingly. Since the workman was serving as junior clerk and was getting salary of Rs.1500/- per month, a lump sum amount of Rs.1,75,000/- would be adequate to meet with the end of justice.

11. In view of the aforesaid and considering the judgment of the Apex Court in the case of Tapash Paul Vs. BSNL and Another reported in 2016 (1) Scale 92 and BSNL Vs. Bhurumal, reported in 2014 (7) SCC 177, this Court is of the considered view that in the facts of this case granting of relief of reinstatement after a gap of almost 30 years, no useful purpose will be served. At the same time, this Court is of the considered view that the lump sum amount of Rs.50,000/- cannot said to be an amount adequate enough to meet with the ends of justice. This Court is of the considered opinion that instead of Rs.50,000/- if the workman is ordered to be paid lump sum amount of Rs.1,75,000/- in lieu of the reinstatement, then,

C/SCA/10111/2012 JUDGMENT

the ends of justice would be met appropriately. This Court deems fit to order grant of compensation of Rs.1,75,000/- as full and final settlement of the claim in lieu of the reinstatement. Such amount along with the cost awarded by the Labour Court is needed to be paid to the workman by the employer after proper verification of the identity by an account payee cheque / pay order within a period of three months from the date of receipt of this order, failing which the workman will be entitled to claim interest at the rate of 9% from today till the date of actual realization.

12. With the aforesaid observation, the award passed by the Labour Court stands modified accordingly. The petition stands disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL