Gujarat High Court
Karsan Shivaji Sanghar vs Ashapura Mines Chem Limited on 13 January, 2021
Bench: A. P. Thaker
C/SCA/540/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 540 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 10377 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
================================================================
KARSAN SHIVAJI SANGHAR
Versus
ASHAPURA MINES CHEM LIMITED
================================================================
Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1
MR MB GANDHI(326) for the Petitioner(s) No. 1
MR MUKESH H RATHOD(2432) for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 13/01/2021
ORAL JUDGMENT
1. Being aggrieved with the award dated 23.04.2009
passed by the Labour Court, Bhuj in Reference Case (L.C.B.)
No.43/2000, the workman as well as the employer have
preferred the respective petitions.
C/SCA/540/2010 JUDGMENT
2. As both the petitions are arising out of the same
award, they are being disposed of by this common
judgment.
3. For the sake of brevity and convenience, the parties
shall be referred to as the "workman" and "employer".
4. The workman has preferred Special Civil Application
No.540 of 2010 inter alia contending that he was serving
with the employer on the post of supervisor (Mukadam) and
he has rendered service for more than five years. That no
appointment letter was issued and after a long span of
service, without any inquiry, he was terminated with effect
from 30.06.1999. It is contended by the workman that he
has preferred the reference before the Labour Court wherein
he was granted prayer for reinstatement in service treated
his service as continuous with 25% back wages. It is also
contended by the workman that when he was reinstated in
continuous service, the Labour Court ought to have
awarded 100% back wages. It is contended by the workman
that the Labour Court has factually and legally erred in not
granting 100% back wages. He has prayed to quash and set
aside the award and grant him 100% back wages.
5. The employer has filed Special Civil Application
No.10377 of 2009 against the award inter alia contending
that the Labour Court has committed serious error of law
and facts in granting reinstatement in service. It is
contended by the employer that the workman has admitted
C/SCA/540/2010 JUDGMENT
that he was working on daily rated basis and in that view of
the matter, when work was not available with the employer,
automatically he is discharged from the work. It is also
contended by the employer that when there is no work, it
cannot be treated the industrial dispute. It is also
contended by the employer that it is an contractual
obligation, the Industrial Disputes Act is not applicable to
the case of the workman. It is contended by the employer
that various issues has been raised in the written statement
filed before the Labour Court, but the Labour Court has not
considered in its proper perspective. It is further contended
by the employer that the evidence on record has not been
properly appreciated by the Labour Court. It is also
contended that without any evidence, regarding four years
of continuous service of the workman, the Labour Court has
granted award in favour of the workman. It is also
contended by the employer that the workman has not
worked in regular post and he was only daily rated labourer.
While relying upon the decision in the case of Himanshu
Vidhyarthi, AIR 1997 SC 3657, it is submitted that the law
of retrenchment cannot be made applicable to the daily
rated labourer. It is contended by the employer that the
workman has not resumed his duty. According to the
employer, the impugned award is not based on any material
on record and the finding of fact is erroneous and the
impugned award is not sustainable in the eyes of law.
C/SCA/540/2010 JUDGMENT
6. Heard Mr.C. M. Gandhi, learned advocate for the
workman and Mr.Mukesh Rathod, learned advocate for the
employer at length through video conferencing.
7. Learned advocates for respective parties have narrated
the same facts which are narrated hereinabove in their
respective petitions.
8. Mr.Chinmay Gandhi, 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 25%
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.
8.1 Mr.Chinmay Gandhi, 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
C/SCA/540/2010 JUDGMENT
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
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.
C/SCA/540/2010 JUDGMENT
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."
8.2 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
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. ."
9. Mr.Mukesh Rathod, learned advocate for the
respondent has vehemently submitted that the Labour
Court has ignored the very fact that the workman was daily
wager and he has not worked as alleged by the workman.
He has submitted that there was no retrenchment of the
workman, as he was working on the daily wage basis and
C/SCA/540/2010 JUDGMENT
the workman was not entitled to reinstate with continuous
service. Therefore, according to him, the impugned award is
required to be set aside.
9.1 Mr.Rathod has relied upon the decision in the case of
General Manager, Haryana Roadways v. Rudhan Singh
reported in (2005) 5 SCC 591, wherein it is observed as
under:-
"7. In our opinion certain factors, which are relevant for
forming an opinion regarding award of back wages, have
been completely ignored and, therefore, the award on this
point is vitiated. The list of dates given in the Special Leave
Petition, which have not been controverted, show that
though according to the own case of the respondent his
services had been terminated on 18.2.1989, yet he served a
demand notice praying for reinstatement in service after
two and half years on 24.8.1991. The State Government
made reference to the Industrial Tribunal-cum-Labour Court
in the year 1997, which means eight years after the
termination of service. Normally, a reference should not be
made after lapse of a long period. A labour dispute should
be resolved expeditiously and there is no justification for the
State Government to sleep over the matter and make a
reference after a long period of time at its sweet will. It
causes prejudice both to the workman and also to the
employer. It is not possible for an employer to retain all the
documents for a long period and then to produce evidence,
whether oral or documentary, after years as the officers,
who may have dealt with the matter, might have left the
establishment on account of superannuation or any other
reason. The employer is not at fault if the reference is not
made expeditiously by the State Government, but it is
saddled with an award directing payment of back wages
without having taken any work from the concerned
workman. The plight of the workman who is thrown out of
employment is equally bad as it is a question of survival for
his family and he should not be left in a state of uncertainty
for a long period.
C/SCA/540/2010 JUDGMENT
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
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 wrongfully 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 the total 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."
9.2 He has also relied upon decision in the case of
U.P.State Brassware Corpn. Ltd. And Another v. Uday
Narain Pandey reported in (2006) 1 SCC 479, wherein it is
held as under:-
"22. No precise formula can be laid down as to under what
circumstances payment of entire back wages should be
allowed. Indisputably, it depends upon the facts and
circumstances of each case. It would, however, not be
correct to contend that it is automatic. It should not be
granted mechanically only because on technical grounds or
otherwise an order of termination is found to be in
contravention of the provisions of Section 6-N of the U.P.
Industrial Disputes Act.
C/SCA/540/2010 JUDGMENT
42. A person is not entitled to get something only because
it would be lawful to do so. If that principle is applied, the
functions of an industrial court shall lose much of its
significance."
10. Having considered the contentions raised by both the
sides and the materials placed on record, it clearly appears
that during the pendency of these petitions, 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 not 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.
11. It is also pertinent to note that as per the evidence of
the witness of the employer, the workman has worked since
20.01.1995 and he was not retrenched on 30.06.1995, but
he was transferred. However, no transfer order has been
produced. It also reveals from the evidence of the said
C/SCA/540/2010 JUDGMENT
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
of facts and/or law committed by Labour Court in granting
relief of reinstatement.
12. Now, so far as the back wages is concerned, it appears
that the reference is of the year 2000. It appears that the
workman was not paid any salary and he was retrenched
during the period from 30.06.1999 to 23.04.2009.
Therefore, the back wages for that period is 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 25% is also not proper, especially
in view of peculiar facts of this case. At the relevant time,
the workman was getting Rs.1500/- 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.55,000/- for back wages to the
workman, which will serve the ends of justice.
13. In view of the above, the employer i.e. petitioner of
Special Civil Application No.10377 of 2009 and respondent
of Special Civil Application No.540 of 2010 is hereby
directed to pay lump sum compensation of Rs.55,000/- as
full and final settlement to the workman within a period of
four weeks from the date of receipt of the writ of this order.
C/SCA/540/2010 JUDGMENT
14. Both the petitions are disposed of accordingly. Rule is
made absolute to the aforesaid extend.
Sd/-
(DR. A. P. THAKER, J)
V.R. PANCHAL
