State Of Gujarat - Through Deputy ... vs Manjibhai Bachubhai
2021 Latest Caselaw 1859 Guj

     C/SCA/14906/2010                                               JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO.           14906 of 2010


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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      STATE OF GUJARAT - THROUGH DEPUTY EXECUTIVE ENGINEER
                              Versus
                      MANJIBHAI BACHUBHAI
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Appearance:
MR SOHAM JOSHI, AGP (1) for the Petitioner(s) No. 1
MR YOGEN N PANDYA(5766) 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 : 09/02 / 2 0 2 1

                            ORAL JUDGMENT

1. Heard Mr.Soham Joshi, learned AGP for the petitioner and Mr.Yogen Pandya, learned advocate for the respondent through video conferencing.

2. The petitioner herein has preferred this petition challenging the legality, validity and propriety of award

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dated 1.10.2009 passed in Reference (LCB) No.324 of 1994, whereby the Labour Court has directed reinstatement with continuity of service and 20% of backwages to the workman.

3. It is submitted by the petitioner that the workman has raised industrial dispute and has alleged that the petitioner herein has committed breach of Section 25 (F) and 25 (G) (H) of the Industrial Disputes Act, and the workman has claimed reinstatement to his original post with full backwages and continuity of service. It is contended by the petitioner that by way of filing written statement, taking a plea that the respondent-workman was called for work on daily basis as per availability of work and his presence was filled up in the muster roll and thereby the payment of wages was made. It is also contended in the written statement that no seniority list of the Rojamdar was to be maintained and workman has not worked for 240 days continuously in the previous calendar year. It is contended that the Labour Court has not taken into consideration the entire facts on record and has committed serious breach on facts and law in granting the relief as mentioned earlier.

4. I have heard learned AGP, Shri Soham Joshi for the petitioner and learned advocate Mr.Yogen Pandya for the respondent through video conferencing at length.

5. Mr.Soham Joshi, learned AGP has submitted the same facts, as narrated in the petition memo, and submitted that

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there is no employer-employee relationship between the parties and the workman was not appointed on permanent post and he was simply a daily wage worker. He also submitted that onus of proof would lie on the workman to prove his case and he has failed to prove that he has worked for 240 days continuously for three years. He further submitted that the workman has also failed in proving that he remained unemployed for the whole period. He also submitted that the workman did not work for 240 days in the previous year. He also submitted that the workman was not permanent employee and he was called as and when the work was available, therefore, he cannot be granted any benefit, as claimed by him. In view of all these, he has prayed to dismiss present petition.

6. On the other hand, Mr.Yogen Pandya, learned advocate for the respondent-workman has supported the impugned award. Mr.Pandya, learned advocate for the petitioner has submitted that there are various decisions of the Apex Court to the effect that when the order of reinstatement is passed, then, in that case, the workman is entitled to get 100% back wages, whereas, in the present case, the Labour Court, without any basis, has not granted 100% back wages to the workman and granted only 20% back wages which is erroneous in nature and deserves to be modified. He has supported reasoning given by the Labour Court regarding reinstatement of the workman, but has putforth the claim of the workman for 100% back wages.

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6.1 Mr.Pandya, learned advocate for the petitioner has relied upon the decision in the case of Talwara Cooperative Credit and Service Society Limited v. Sushil Kumar reported in (2008) 9 SCC 486, wherein the Supreme Court has held as under:-

"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment, viz., whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned etc., should be taken into consideration.

9. For the purpose of grant of back wages; one of the relevant factors would indisputably be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service. Some of the other relevant factors in this behalf have been noticed by this Court in G.M.Haryana Roadways v. Rudhan Singh, [(2005) 5 SCC 591], stating:

"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special

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qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrong fully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where thetotal length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."

6.2 He has also relied upon decision in the case of Executive Engineer v. Ayubhai Ladharbhai reported in 2010 (2) GLH 700, wherein it is held as under:-

"6. The above conclusions are equally applicable in the facts of the present case in so far as neither any evidence of actual gainful employment of the respondents could be placed on record by the appellant nor could there be any presumption about receipt of adequate remuneration by the respondents when the mandatory provisions of Section 17-B clearly require proof to the satisfaction of the High Court that the workman concerned has been employed and has been receiving adequate remuneration during the relevant period. Therefore, in absence of the necessary evidence

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and in view of the affidavits filed by the respondents about their unemployment, the respondents were entitled, as a matter of right, to full wages last drawn by them, during the pendency of the proceedings before this Court. ."

7. Having considered the contentions raised by both the sides and the materials placed on record, it clearly appears that during the pendency of this petition, the workman has been reinstated in service. However, so far as the back wages is concerned, it has been stayed. Now, on perusal of the impugned award as well as materials placed on record, it clearly transpires that the while referring to the oral evidence, the Labour Court has observed that there is no evidence that the workman was working for any specific work and for specified period. It also reveals from the record that the workman was appointed by oral order and he was also told to come on duty. The observation of the Labour Court that no written appointment letter has been issued to the workman and merely by passing the oral order of appointment, it cannot be treated as an appointment for fixed term. The Labour Court has also observed that no evidence has been produced by the employer regarding the appointment of the workman on any specified project.

8. It is revealed from the evidence of the witness that since entry of the workman in the service till he was relieved, he has continuously worked in the institution. Thus, considering the evidence on record, there is no error

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of facts and/or law committed by Labour Court in granting relief of reinstatement.

9. Now, so far as the back wages is concerned, it appears that the reference is of the year 1994. It appears that the workman was not paid any salary and he was retrenched from 3.2.1993. Though the respondent-workman had entered into service from 19.5.1989, employees junior to him were made permanent and were continued in service. Therefore, the Labour Court has rightly granted continuity of service and the workman is also reinstated in service. Back wages for the period of retrenchment are required to be paid to the workman as he has already been reinstated in service. Now, considering the materials placed on record and the decisions cited herein above, it is found that the workman is not entitled to 100% backwages, however, granting of backwages at 20% is also not proper, especially in view of peculiar facts of this case. At the relevant time, the workman was getting Rs.35.55 ps. per day and, considering the peculiar facts of this case, instead of granting any back wages, it would be just and proper to pay lump sum compensation of Rs.50,000/- for back wages to the workman, which will serve the ends of justice.

10. In view of above, the petition is partly is allowed. The order of the learned Labour Court granting continuity of service is upheld. However, considering the facts and circumstances of the case, instead of granting 20% of backwages lumpsum of Rs.50,000/- is granted, as the

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workman has already retired in 2016. The petitioner is directed to pay such amount within three months from the date of receipt of this order, failing which the petitioner shall be liable to pay interest at the rate of 9% p.a till the date of realization of the amount.

Sd/-

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