Esdee Paints Limited vs Ramsing Ranusing Zala
2021 Latest Caselaw 1441 Guj

        C/SCA/2796/2008                                    JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 2796 of 2008
                            With
        R/SPECIAL CIVIL APPLICATION NO. 2797 of 2008

FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                       Sd/-

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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 ?

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                      ESDEE PAINTS LIMITED & 1 other(s)
                                 Versus
                         RAMSING RANUSING ZALA
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2
MR PINAKIN B RAVAL(3468) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 01/02/2021

                             ORAL JUDGMENT

1. Both these petitions arise from the award passed by Labour Court No.4, Ahmedabad in Reference (LCA) No.1145 of 1999 dated 28.5.2007, whereby the Labour Court has directed the employer to reinstate the workman in service with 25% backwages.

C/SCA/2796/2008 JUDGMENT

2. Special Civil Application No.2796 of 2008 has been preferred by the employer, whereas Special Civil Application No.2797 of 2008 is a one page petition. As both the petitions have arisen out of same award, both are being heard together and are disposed of by this common order.

3. For the brevity and convenience, the parties are referred to in this order as "workman" and "employer" respectively.

4. According to the employer, the workman was serving as driver in Ganesh Industries. The contract was given to Ganesh Industries by the employer i.e. Esdee Paints Limited and thus, the workman was contractor's employee. According to the employer, the workman has abandoned the service since he joined new company. It is also alleged that, with a view to extort money, false complaint came to be filed by the workman after eight to nine months on 13.4.1999. It is also alleged that before Conciliation Officer, the employer has made clear that the workman has never been terminated from service and workman has left the job on his own. It is also alleged that even the loan was required to be recovered from the workman.

5. It is also contended by the employer before the Conciliation Officer that the workman was called to resume the duty but he did not resume his duty. Even thereafter, he never resumed his duty. Thereafter, the workman preferred the claim before the Labour Court, wherein employer has filed necessary written statement to the effect that service of workman was never terminated. It is also contended that oral evidence on behalf of

C/SCA/2796/2008 JUDGMENT

the workman was recorded at Exh.30 and of Mr.Pranjivan Vasantlal, Exh.34. It is contended that after hearing both the parties, Labour Court passed impugned order, which is not valid according to the employer. The Labour Court has passed the award against the express provisions of law and the case of the workman has been believed without any documentary evidence. According to the employer, the Labour Court has not appreciated the fact that workman has never worked for 240 days in a calendar year. That the Labout Court has ignored the letter written by the employer to the workman and has passed patently erroneous award in favour of the workman. It is prayed by the employer to quash the impugned award and reject the reference of the workman.

6. The workman has also challenged said award on the ground that though relief of reinstatement has been granted, 100% backwages are not ordered. According to workman, the relief of 25% backwages is not in consonance with settled law and when the workman was not gainfully employed in any establishment, the Labour Court ought to have granted full backwages.

7. In the matter of workman, one Rameshbhai Bhikhabhai has filed affidavit in reply challenging the petition of the workman. It is specifically averred that though many letters were send to the workman, he did not resume his duty. It is also averred thereafter that even after issuance of notice by this Court, the workman chose not to remain present before this Court.

C/SCA/2796/2008 JUDGMENT

8. Heard Mr.Dipak Dave, learned advocate for the employer and Mr.Pinakin Raval, learned advocate for workman.

9. It is submitted by Mr.Dave that the Labour Court has committed serious error of facts and law in granting prayer of reinstatement with 25% backwages. According to him, during conciliation proceedings the workman was informed to resume his duty and even thereafter many letters were sent to him but he did not respond and did not resume his duty. According to him, the impugned order of the Labour Court is erroneous one. He reiterated the facts narrated in the memo of the petition. He prayed to allow the petition filed by the employer and dismiss the petition filed by the workman against the impugned order of Labour Court.

10. Per contra, learned advocate Mr.Pinakin Raval for the workman has vehemently submitted that so far as the award granting reinstatement is concerned, it is legal and valid. According to him, there is no error of facts and law in granting relief of reinstatement by the Labour Court to the workman. He has prayed to dismiss the petition by the employer, however, he has submitted that the Labour Court has committed serious error of facts and law in not granting full backwages when the Labour Court has come to the conclusion that the workman was entitled to be reinstated. He has submitted that the Labour Court has considered only 25% backwages to be paid to the workman and to that effect the award passed by the Labour Court is required to be interfered and 100% backwages may be awarded to the workman.

C/SCA/2796/2008 JUDGMENT

11. Having considered the submissions made by learned advocates for both sides and considering the material placed on record and the impugned award passed by the labour Court, Ahmedabad, it appears that the workman has specifically stated that he was serving as a daily wager with the employer since 1996 and he was being paid at the rate of Rs.74/- and he has been retrenched by the employer without any notice or payment of any amount thereof. Against this, it is the stand of the employer that though the workman was informed to resume the duty, he did not join the service and abandoned his service. On perusal of the award, it appears that after perusing the evidence on record, the Labour Court has came to the conclusion that factum of retrenchment of the workman has been proved and on that basis the Labour Court has granted reinstatement with 20% backwages.

12. On perusal of statement of claim, it appears that the workman has only stated that his service came to be terminated without any notice.

13. It is pertinent to note that at the time of recording of evidence i.e. on 6.12.2000, age of the workman is shown to be 33 years. Therefore, it appears that he might be at the fag end of his career and reached the age of superannuation. Now, admittedly the Labour Court has granted reinstatement on the ground that there is breach of provisions of Section 25-F of the Industrial Disputes Act. Now it is well settled by catena of decisions by the Supreme Court that in case of daily wager, if there is a technical breach of Section 25-F of the Industrial

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Disputes Act, then reinstatement is not automatic. It is also settled principle that in case of daily wager, if he is reinstated, the employer has every right to follow the procedure of Section 25-F of the Industrial Disputes Act and retrench the workman from service. The Apex Court has also observed in catena of decisions that, in such a situation, the workman may be awarded monetary lumpsum amount instead of reinstatement. Therefore, in this case also, considering the life span and the long period of proceedings from the stage filing of the reference till today, no purpose would be served by reinstating the workman, however, as there is technical breach of Section 25-F of the Industrial Disputes Act, monetary compensation in lieu of reinstatement can be granted to meet the ends of justice. In view of the facts and circumstances of the present case and the fact that workman was drawing Rs.74/- per day at the relevant time, and considering long passage of almost 30 years, as well as 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, in the opinion of this Court, if Rs.1,50,000/- is awarded as lumpsum compensation instead of reinstatement it will meet the ends of justice.

14. Accordingly, the petitioners herein are directed to pay Rs.1,50,000/- to the workman, jointly and severally, 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 shall be entitled to claim interest at the rate of 9% from today till the date of actual realization. It is observed that the aforesaid amount is in

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addition to whatsoever amount paid to him till today. It is also observed that such amount shall be paid towards full and final settlement of the claim of the workman.

15. With the aforesaid direction, impugned award of the Labour Court is modified accordingly and both these petitions are disposed of. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK