Gujarat Pollution Control Board vs Jagadish Nathabhai Chavda
2021 Latest Caselaw 1259 Guj

       C/LPA/2202/2007                                     JUDGMENT DT.:28.01.2021
            GUJARAT POLLUTION CONTROL BOARD Vs. JAGADISH NATHABHAI CHAVDA



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/LETTERS PATENT APPEAL NO. 2202 of 2007
                                In
           R/SPECIAL CIVIL APPLICATION NO. 1349 of 1999


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE VINEET KOTHARI

and

HONOURABLE MS. JUSTICE GITA GOPI

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

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 ?

==============================================================
                 GUJARAT POLLUTION CONTROL BOARD
                              Versus
                    JAGADISH NATHABHAI CHAVDA
==============================================================
Appearance:
MR DG CHAUHAN(218) for the Appellant(s) No. 1
MR MUKESH H RATHOD(2432) for the Respondent(s) No. 1
==============================================================

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
       and
       HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 28/01/2021

                         ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

C/LPA/2202/2007 JUDGMENT DT.:28.01.2021 GUJARAT POLLUTION CONTROL BOARD Vs. JAGADISH NATHABHAI CHAVDA

1. The present Letters Patent Appeal arises out of Order of

the learned Single Judge dated 12.09.2007, whereby the Award

dated 02.11.1998 passed by the Labour Court, Ahmedabad in

Reference (LCIDAT) No.27 of 1997 (Old Reference No.362/1993),

directing reinstatement of respondent workman with 100%

backwages and consequential benefits came to be affirmed.

2. The Appellant - Original Petitioner / Gujarat Pollution

Control Board, aggrieved by the order dated 12.09.2007 of the

learned Single Judge approached this Court by way of the present

Appeal.

3. Learned Counsel Mr. D.G. Chauhan, for the Appellant -

Gujarat Pollution Control Board, contended that the Labour Court as

well as learned Single Judge have failed to appreciate the import and

effect of the fixed term appointment orders containing express

condition as regard the period of the project for which he was

employed and thereby the services of the Respondent Workman

could not be considered as continuous, where separate orders after

clear gap and hiatus were issued for service of different projects,

C/LPA/2202/2007 JUDGMENT DT.:28.01.2021 GUJARAT POLLUTION CONTROL BOARD Vs. JAGADISH NATHABHAI CHAVDA

contending that there would not be any termination as defined under

Section 2(oo) and (bb) of Industrial Disputes Act, 1947, (for short

'I.D. Act').

4. Learned Counsel, Mr. D.G. Chauhan, contended that

there would not be any continuous service of the Respondent

Workman for claiming the benefits under Sub-section 2 of Section

25-B of the I.D. Act. Hence, stated that the order and direction by

the learned Single Judge as well as Award passed by the Labour

Court deserve to be quashed and set aside.

5. Mr. Mukesh H.Rathod, learned Counsel for the

Respondent Workman, in support of the Judgment passed by the

learned Single Judge, stated that the Respondent - Workman was

appointed as a Driver by the Board on 22.09.1989 and continued up

to 01.02.1991 and thereafter under an order, Respondent was

appointed in Gems Minar Project with effect from 02.02.1991 and

worked upto 24.07.1991. After a break of 53 days, he was

reappointed on 17.09.1991 and again after some break ultimately he

was removed from service on 20.12.1991. Thus, submitted that the

Respondent has worked for 240 days in 12 calendar months

C/LPA/2202/2007 JUDGMENT DT.:28.01.2021 GUJARAT POLLUTION CONTROL BOARD Vs. JAGADISH NATHABHAI CHAVDA

preceding the date of retrenchment with a right to claim the benefits

under the I.D. Act.

6. Heard learned Counsel Mr. Mr. D.G. Chauhan, for the

Appellant and Mr. Mukesh H.Rathod, learned Counsel for the

Respondent Workman. Mostly, two contentions received

prominence before the learned Single Judge viz.

(i) The order of reinstatement could not be

made as project stood closed.

(ii) The workman would not be entitled to 100%

backwages, nor any benefit of continuity of service,

can be granted.

7. The learned Single Judge answering to both contentions,

has observed, as under:

"13. It was then contended that the project stood closed, therefore, an order of reinstatement could not be made.

14. In the opinion of this Court, the argument

C/LPA/2202/2007 JUDGMENT DT.:28.01.2021 GUJARAT POLLUTION CONTROL BOARD Vs. JAGADISH NATHABHAI CHAVDA

would not be available to the petitioner in view of my earlier findings that Pollution Control Board was issuing appointment orders to suit its cause and case. In fact, they were transferring one man from one place to another and were issuing orders in their favour. Though appointment was termed to be an appointment for the project, but, in fact, the appointment continued to be under the employership of the present petitioner Board. From the Certificate dtd.26/8/1991 issued by Mr. K.M. Patel, Administrative Officer of Gujarat Pollution Control Board, it would clearly appear that the respondent workman had worked with the Board as a driver as daily wager temporarily for the period detailed in the certificate. If such was the certificate issued by the Administrative Officer of the Gujarat Pollution Control Board and correctness and authenticity of the certificate was not disputed by the Pollution Control Board, then, they cannot be allowed to say that the appointment of the respondent workman was on a project and was co- terminus with the closure of the project.

15. It was then contended that present is a case where the workman would not be entitled to 100% back wages, nor any benefit of continuity of service can be granted to him. Taking into consideration that the workman was being appointed from time to time and had virtually worked for almost about 295

C/LPA/2202/2007 JUDGMENT DT.:28.01.2021 GUJARAT POLLUTION CONTROL BOARD Vs. JAGADISH NATHABHAI CHAVDA

days during the period between 21/11/1990 and 20/11/1991, I find no hesitation in holding that the court below was not unjustified in directing award of 100% back wages, because if we deduct Sundays and other gazetted holidays, then a workman would be required to work for about 295 / 300 days in a year. In the present case, the workman had worked for 295 days in a period of 12 calender months. The respondent workman certainly would be entitled to be reinstated on the post held by him. If the petitioner is still of the opinion that they do not need the services of the present respondent, then, after observing legal provisions, they may take appropriate action against the respondent workman.

16. The petition is dismissed with costs quantified at Rs.5000=00. Rule is discharged. "

8. The learned Single Judge while observing that the

Respondent Workman would be entitled to be reinstated on the post

held by him, expressed that if the Board does not need the service of

the Respondent Workman, then observing legal provisions, it shall

be permitted to take appropriate action against the Respondent

Workman.

C/LPA/2202/2007 JUDGMENT DT.:28.01.2021 GUJARAT POLLUTION CONTROL BOARD Vs. JAGADISH NATHABHAI CHAVDA

9. The Co-ordinate Bench (Coram: Mr. Justice S.R.

Brahmbhatt, as he then was, and Mr. Justice A.G. Uraizee) in the

present Letters Patent Appeal, on 08.0.2019 had granted time to the

learned Counsel Mr. D.G. Chauhan for the Board, so as to indicate

from the deposition or the records of the case, as to whether the

workman was challenged qua his submission in the Box that he was

not employed. Till then, nothing has been brought on record in that

context.

10. Be that as it may, hearing this case, it transpires that the

Respondent Workman was appointed on 22.09.1989, whose service

continued upto 01.02.1991 and on the next date i.e. with effect from

02.02.1991, he came to be appointed in Gems Minar Project, where

he had worked upto 24.07.1991. Again he was reappointed on

17.09.1991 and ultimately removed from the service on 20.12.1991.

The learned Labour Court has held that workman had worked for

more than 240 days in 12 calendar months preceding the date of

retrenchment making his removal from service violative of Section

25-F of the I.D. Act.

C/LPA/2202/2007 JUDGMENT DT.:28.01.2021 GUJARAT POLLUTION CONTROL BOARD Vs. JAGADISH NATHABHAI CHAVDA

10.1 In view of Section 25-B, the workman shall be deemed

to be in continuous service, if he has "actually worked under the

employer" for the particular period. This expression cannot mean

those days only when workman actually worked, but must

necessarily comprehend all those days during which he was in the

employment of the employer and for which he had been paid wages

either under express or implied contract of service or by compulsion

of statute, standing orders etc.

10.2 Here, in this case, the workman was removed on

20.12.1991, preceding that date, that workman has worked for 240

days, then under Section 25-B(2) of the I.D. Act, he would be

deemed to be in continuous service of the employer. The learned

Single Judge has ordered for reinstatement of the workman on the

post, and since long time has elapsed from the removal of services as

on 20.12.1991, a lump-sum compensation in lieu of reinstatement

would be appropriate for the Respondent Workman.

11. Taking the nature of work and status of the Appellant -

Original Petitioner / Gujarat Pollution Control Board, we hereby

C/LPA/2202/2007 JUDGMENT DT.:28.01.2021 GUJARAT POLLUTION CONTROL BOARD Vs. JAGADISH NATHABHAI CHAVDA

direct the Appellant - Original Petitioner / Gujarat Pollution Control

Board to pay an amount of Rs.1,00,000/- (Rs. One Lakh) as

compensation to the Respondent Workman in lieu of reinstatement

by way of Demand Draft within a period of Two Months from the

date of receipt of Writ of this Order.

12. In view of the above observations and directions, the

present Letters Patent Appeal is disposed of. No order as to costs.

(DR. VINEET KOTHARI, J.)

(GITA GOPI, J.) Pankaj