Kanubhai Bachubhai Vaghela vs Life Insurance Corporation Of ...
2021 Latest Caselaw 3499 Guj

         C/SCA/17432/2018                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17432 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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                      KANUBHAI BACHUBHAI VAGHELA
                                 Versus
                  LIFE INSURANCE CORPORATION OF INDIA
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MR YOGI K GADHIA(5913) for the Respondent(s) No. 1
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    CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                               Date : 26/02/2021

                               ORAL JUDGMENT

1. Heard Mr. U. T. Mishra, learned advocate for the petitioner and Mr. Yogi K. Gadhia, learned advocate for the respondent.

2. Rule. Mr. Yogi K. Gadhia, learned advocate waives service of notice of Rule.

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3. As the matter involves very short issue, by consent of both the learned advocates, the matter is taken up for final hearing.

4. By way of this petition, the petitioner has challenged the award dated 09/10/2017 passed by the Presiding Officer, Central Government Industrial Tribunal cum Labour Court, Ahmedabad in Reference (CGITA) No. 1061 of 2004 in Reference (ITC) No.35 of 1997 whereby the learned Presiding Officer, CGIT cum Labour Court, Ahmedbad was pleased to award a sum of Rs.40,000/- towards lump sum compensation in lieu of reinstatement and back wages in favour of present petitioner. However, since lump sum compensation was granted by the learned Presiding Officer, CGIT cum Labour Court, Ahmedbad instead of reinstatement with continuity of services with full back wages, as prayed for by the petitioner while raising industrial dispute, being aggrieved by the same, the petitioner has chosen to challenge the aforesaid award by way of filing present petition.

5. Brief facts of the case in nutshell are narrated as under:

5.1. In Reference (CGITA) No.1061 of 2004 in Reference (ITC) No.35 of 1997, it was the case of the petitioner that he was working under the respondent at Botad office since 18/01/1988 and continued to work till 28/02/1989 as a peon cum sweeper on full time basis and was paid wages at the rate of Rs.265/- per month. His services came to be terminated on 01/03/1989 without following due process of law and in violation of provisions of Industrial Disputes Act, 1947.

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Hence, after delay of almost eight years, he raised an industrial dispute which ultimately was culminated into the reference. In the aforesaid reference, by stating the facts as stated herein above, the petitioner prayed for reinstatement with back wages and other consequential benefits by filing statement of claim dated 24/02/1998.

5.2. The respondent herein by filing written statement, denied all the averments made in the statement of claim and stated that the petitioner was engaged only on temporary bases and since the period for which he was engaged was over, his services came to an end and, hence, he was not entitled to any relief.

5.3. The learned Presiding Officer, CGIT cum Labour Court, Ahmedbad, on examining the material available in form of oral and documentary evidence, held that though the petitioner was working under the respondent as a peon cum sweeper but his appointment was not on a permanent post and he was not appointed after following due process of law. However, considering the fact that there was nothing contrary on record to show that the petitioner did not work for more than 240 days prior to his date of termination an adverse inference was drawn and ultimately by relying upon various authorities, the learned Presiding Officer, CGIT cum Labour Court, Ahmedbad passed an award directing the respondent corporation to pay a sum of Rs.40,000/- towards lump sum compensation in lieu of reinstatement and back wages and any other relief and further directed that the same amount be paid within a period of 60 days from the date of publication of award.

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6. Mr. U. T. Mishra, learned advocate for the petitioner submitted that once the learned Presiding Officer, CGIT cum Labour Court, Ahmedbad has came to the conclusion that the termination of the petitioner was in breach of provisions of Section 25(F) of the Industrial Disputes Act, 1947, in that case, reinstatement is a rule and payment of lump sum compensation in lieu of reinstatement can be awarded only in exceptional circumstances.

7. Learned advocate Mr. U. T. Mishra submitted that in the instant case, the learned Presiding Officer, CGIT cum Labour Court, Ahmedbad has not granted any cogent reasons to deny the reinstatement and, hence, the petition is required to be allowed by directing the respondent to reinstate the present petitioner along with full back wages and other consequential and incidental benefits with continuity of service.

8. Learned Advocate Mr. Yogi Gadhia for the respondent opposed the petition vehemently and submitted that there is no specific finding in the entire award suggesting that there is a clear breach of provisions of Section 25(F) of the Industrial Disputes Act, 1947. Mr. Yogi Gadhia, learned advocate further submitted that the petitioner workman had only worked for a period from 18/01/1988 till 28/02/1989 which comes to approximately 13 months.

9. Mr. Yogi Gadhia, learned advocate also submitted that considering the fact that even Presiding Officer, CGIT cum Labour Court, Ahmedbad has held that the petitioner workman had not worked on a permanent post and his appointment was illegal coupled with the fact that there is no

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specific finding in the entire award holding that there is a breach of Section 25(F) of the Industrial Disputes Act, 1947, present petition deserves to be dismissed on that ground only.

10. Mr. Yogi Gadhia, learned advocate submitted that considering the fact that the petitioner's date of appointment is of year 1988 and also considering the fact that the reference was preferred after a delay of almost eight years, the petition is not required to be entertained.

11. Mr. Yogi Gadhia, learned advocate also submitted that considering the fact that the petitioner was terminated in February 1989 and thereafter for all these years, he has survived and, therefore, it can be easily presumed that by now, either the petitioner might have attained the age of superannuation or he might have got employment elsewhere therefore, Mr. Yogi Gadhia, learned advocate prays for dismissal of the petition.

12. In rejoinder, on a query to Mr. U. T. Mishra, learned advocate for the petitioner, Mr. U. T. Mishra, learned advocate submitted that he does not have any idea about the age of the petitioner and whether he has attained the age of superannuation or not. However, when a query was put to Mr. U. T. Mishra, learned advocate about the fact that when there is no specific findings by the learned Presiding Officer, CGIT cum Labour Court, Ahmedbad that there is a breach of Section 25(F) of the Industrial Disputes Act, 1947 in terminating the services of the petitioner, learned advocate Mr. U. T. Mishra submitted that this petition is preferred by the workman with a prayer for reinstatement and back wages

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against the award dated 09/10/2017 which has not been challenged by the respondent corporation till date and, therefore, Mr. U. T. Mishra, learned advocate submitted that it can be presumed that the respondent corporation has accepted the findings of the learned Presiding Officer, CGIT cum Labour Court, Ahmedbad and once according to Mr. U. T. Mishra, learned advocate, findings are accepted by the corporation, Mr. Yogi Gadhia, learned advocate cannot question as to whether that there was breach of Section 25(F) of the Industrial Disputes Act, 1947 or not. Mr.U. T. Mishra, learned advocate once again reiterated his prayer for reinstatement of the workman with full back wages with consequential benefits and with continuity of service.

13. I have heard both the learned advocates and I have considered the material available on record.

14. It is undisputed fact that the petitioner was working under the respondent corporation only for about 13 months. It is also undisputed fact that services of the petitioner were not held to be of permanent nature. I have also considered the fact that there is no specific findings by the Presiding Officer, CGIT cum Labour Court, Ahmedabad that there is a breach of provisions of Section 25(F) of the Industrial Dispute Act, 1947. In fact, the learned Presiding Officer, CGIT cum Labour Court, Ahmedabad has drawn inference by citing various judgments that there is a breach of Section 25(F) of the Industrial Dispute Act, 1947 and on that basis, has awarded a lump sum compensation of Rs.40,000/- in lieu of reinstatement and back wages.

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15. However, I cannot ignore the fact that the aforesaid award has not been challenged by the respondent herein and, therefore, considering the fact that the award has been accepted by the respondent corporation, I will have to consider the arguments of learned advocates bearing this fact in mind. Considering the fact that the petitioner workman had only served for about 13 months and though his termination took place in February 1989 and the reference is of the year 1997 i.e. after delay of almost eight years, I do not find any reason to interfere with the award dated 09/10/2017 passed by the learned Presiding Officer, CGIT cum Labour Court, Ahmedabad in Reference (CGITA) No. 1061 of 2004 in Reference (ITC) No.35 of 1997 as far as amount of sum of lump sum compensation in lieu of reinstatement and back wages. However, while awarding a sum of Rs.40,000/- towards lump sum compensation, learned Presiding Officer CGIT cum Labour Court, Ahmedabad relied upon the judgment delivered by this Court in case of Bantva Municipality vs. Manjulaben Arvindbhai Cholera in Special Civil Application No.3137 of 2013 and held that since said judgment was delivered in the year 2014 and at that time a compensation of Rs.30,000/- was awarded in favour of the workman for two years services, considering his last drawn salary of Rs.400/- per month, in the instant case, considering relevant aspects and considering that facts of the case stated herein above and also considering the fact that the petitioner has survived even without job from 1989 till today and there is no instruction to Mr. U. T. Mishra, learned advocate as to whether he has reached the age of superannuation or not, interest of justice would be served if lump sum compensation awarded to the petitioner is

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enhanced. Accordingly, I deem it appropriate to enhance compensation to Rs.90,000/- instead of Rs.40,000/- considering 13 months services rendered by the petitioner and also considering the fact that at the relevant time he was drawing salary of Rs.265/- per month and also considering the fact that had order of reinstatement been passed, in that case, he would have been entitled to subsequent benefit and the benefit of permanency as well. Therefore, by enhancing lump sum compensation to Rs.90,000/- from Rs.40,000/-, interest of justice would be served.

16. Accordingly, the present petition is partly allowed. The award dated 09/10/2017 passed by the Presiding Officer, CGIT cum Labour Court, Ahmedabad is interfered with and modified to the extend of award of compensation which is enhanced to Rs.90,000/- from Rs.40,000/- which is already awarded by the learned Presiding Officer, CGIT cum Labour Court, Ahmedabad in Reference (CGITA) No.1061 of 2004 in Reference (ITC) No.35 of 1997.

17. Rule is made absolute to the aforesaid extent. No order as to costs.

18. The respondent is directed to pay the amount of compensation within a period of three months from the date of receipt of this order.

(NIRZAR S. DESAI,J) ila