Gujarat High Court
Gujarat Sheep & Wool Development ... vs Dhansukhlal B Jethi on 2 July, 2021
Bench: A. P. Thaker
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9531 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 9629 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 9630 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 9631 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 9632 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 ? 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 ?
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GUJARAT SHEEP & WOOL DEVELOPMENT CORPORATION LTD.
THROUGH AD & 1 other(s)
Versus
DHANSUKHLAL B JETHI
================================================================
Appearance:
MS SONA SAGAR(1778) for the Petitioner(s) No. 1,2
MR MUKESH H RATHOD(2432) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 02/07/2021
ORAL JUDGMENT
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
1. Since all these matters tagged together, and Special Civil
Application No.9531 of 2010 being treated as lead matter,
facts are taken from Special Civil Application No.9531 of 2010
with relevant facts of rest of the matters in nutshell. Special
Civil Application No.9531 of 2010 has been filed by the
petitioner under Articles 226 and 227 of the Constitution of
India for the following reliefs:-
"10. ........
(A) To allow this petition with costs;
(B) To quash and set aside the judgment and award
(Annexure-E) dated 13.4.2010 (received by the petitioner
Corporation on 17.5.2010) passed in reference LCB
No.6/1999 by the Labour Court, Bhuj, as illegal, improper
and without jurisdiction;
(C) To reject the Reference LCB No.6/1999 filed by the
respondent workman on the ground of want of
jurisdiction and authority and otherwise on merits as
stated above;
(D) To stay the execution and implementation of the
award dated 13.4.2010 passed in Reference LCB
No.6/1999 by the Labour Court, Bhuj and not to give
effect to the same in any manner, pending the hearing
and final disposal of this petition;
(E) To pass such other and further orders in favour of
the petitioners as may be deemed fit and proper in the
facts and circumstances of the case;"
2. Heard learned advocate Ms.Sona Sagar for the petitioner
and learned advocate Mr.M.H.Rathod for the respondents at
length through video conferencing.
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
3. Short facts of Special Civil Application No.9531 of 2010
are that the respondent-workman has filed a reference (LCB)
No.6 of 1999 before Labour Court, Bhuj for getting permanency
and regular pay on the ground that he was serving since 1986
in the petitioner Corporation. The main grievance raised by the
workman is that he was serving in the Corporation since 1986
but he was not made permanent, whereas juniors to him were
made permanent. The other ground raised by the workman
was that there is a regular set up in the Corporation as the
Corporation has issued advertisement for four posts of
Shepherd and his case was not considered, though he has all
qualifications requisite for the said post. The Corporation has
also not given benefit of Government Resolution of 1988. He
has demanded permanency on the post of Shepherd and all
consequential benefits thereof. The claim of the workman was
resisted by the Corporation by filing defence statement and
submitted that the workman was merely a daily wager and
there was reduction of work and number of other daily wagers
were also relieved. It was also contended that the Corporation
was not an industry and the workman has no right to get
permanency and there is no sanctioned post available.
Ultimately, it was prayed by the employer-Corporation to reject
the reference.
4. On the basis of oral and documentary evidence, the
Labour Court has passed the impugned award dated 30.4.2010
directing the Corporation to make the respondent permanent
from 1.10.1997 and fix his pay notionally upto 31.3.2000 and
difference of arrears be paid from 1.4.2000. Being aggrieved
and dissatisfied with the aforesaid award, the Corporation has
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
ultimately contended that the said award is legally not tenable
in the eyes of law as the Labour Court has no jurisdiction to
pass the order directing permanency to the daily wager. It is
also contended that the Labour Court has not taken into
consideration the defence put up by the Corporation and has
not properly appreciated the evidence on record. It is also
contended that the Labour Court has materially erred in not
properly appreciating the ratio laid down in various decisions
relied upon by the Corporation. It is also contended that the
impugned award is erroneous one as the Labour Court cannot
pass any mandatory order. In the pleadings, the Corporation
has relied upon the decision of the Supreme Court in the case
of Amreli Municipality v. Gujarat Pradesh Municipal
Employees Union reported in 2004 (3) GLR 1842. It is also
contended that reliance placed upon the decision reported in
2005 (3) GLH 2152 by the learned Labour Court is not in
consonance with the law as there is a Full Bench decision
referred to herein above. According to the petitioner, learned
Labour Court has committed serious error of facts and law and
the same deserves to be set aside by this Court. It is prayed to
pass appropriate order of setting aside the impugned award
and to reject the reference filed before the Labour Court.
5. The petitioner-Corporation has also sought for interim
relief of setting aside the impugned award. By order dated
16.8.2010, coordinate Bench of this Court has passed an order
staying the impugned award subject to condition that service
conditions of the respondent will not be disturbed without
following due process of law.
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
6. So far as Special Civil Application Nos.9629 and 9630 of
2010 are concerned, the workmen therein were employed as
"Sweepers" on daily wage basis with the petitioner-Corporation
from 1.4.1986 and 16.6.1985 respectively and they were
relieved on 11.11.1998 against which they have preferred
Reference cases, which were registered as Reference (LCB)
No.105 of 1991 and 58 of 2001 respectively alleging that they
were serving since 12 1/2 years and 13 years respectively and
their services were terminated without following process of law
and without paying notice pay or retrenchment allowance.
They prayed for reinstatement along with backwages and the
same was opposed by the Corporation by filing defence
statement, wherein it is submitted that the claim of the
concerned workman is not true and the workmen were working
as daily wagers only. It is stated that there was reduction of
work and number of other daily wagers were also relieved.
Ultimately, it was prayed by the employer-Corporation to reject
the reference.
7. So far as Special Civil Application Nos.9631 and 9632 of
2010 are concerned, the workmen therein were employed as
"Driver" and "Agricultural Labourer" respectively on daily
wage basis with the petitioner-Corporation from 14.5.1982 and
1985 respectively and they were relieved on 17.11.1998 and
7.10.1998 against which they have preferred Reference cases,
which were registered as Reference (LCB) No.57 of 2001 and
14 of 1999 respectively alleging that they were serving since
16 years and 13 years respectively and their services were
terminated without following process of law and without paying
notice pay or retrenchment allowance. They prayed for
reinstatement along with backwages and the same was
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
opposed by the Corporation by filing defence statement,
wherein it is submitted that the claim of the concerned
workman is not true and the workmen were working as daily
wagers only. It is stated that there was reduction of work and
number of other daily wagers were also relieved. Ultimately, it
was prayed by the employer-Corporation to reject the
reference.
8. On the basis of oral and documentary evidence, the
Labour Court has passed the impugned awards dated
6.4.2010, 9.4.2010 and 5.4.2010 respectively, whereby action
on the part of the Corporation terminating the services of the
workmen with effect from 17.11.1998 is declared as illegal and
they were directed to be reinstated with a direction to pay 25%
of backwages. Being aggrieved and dissatisfied with the
aforesaid award, the Corporation has ultimately contended
that the said award is legally not tenable in the eyes of law as
the Labour Court has no jurisdiction to pass the impugned
order. It is also contended that the Labour Court has not taken
into consideration the defence put up by the Corporation and
has not properly appreciated the evidence on record. It is also
contended that the Labour Court has materially erred in not
properly appreciating the ratio laid down in various decisions
relied upon by the Corporation. It is also contended that the
impugned award is erroneous one as the Labour Court cannot
pass any mandatory order.
9. The petitioner-Corporation has also sought for interim
relief of staying the impugned award. Coordinate Bench of this
Court has passed an order staying the direction granting
continuity of service and backwages, however, direction for
reinstatement is not stayed.
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
10. Ms.Sona Sagar, learned advocate for the petitioner-
Corporation has vehemently submitted the same facts, which
are narrated in the memos of respective petitions. As far as
Special Civil Application No.9531 of 2010 is concerned, she
submitted that the workman therein had prayed for
regularization and making him permanent. She has submitted
that as per the averments of the workman, he was serving as
Shepherd in Bhuj since 1986. She has submitted that the
Labour Court has passed impugned award directing the
petitioner herein to regularize the service of the workman with
effect from 1.10.1997 and to grant notional benefits and to
grant actual pay from 1.4.2000 and arrears thereof. According
to her submission, the Labour Court has no such authority to
pass mandatory order. She has referred to the decision of the
Full Bench reported in 2004 (3) GLR 1842.
10.1 She has also submitted that no regularization can be
given in case of a daily wager as he has not faced selection
process. She has also submitted that since there was no
sanctioned post available, the workman cannot be regularized.
She has also submitted that reliance placed on the
Government Resolution dated 17.10.1988 is not applicable to
the facts of the present case. She has also drawn attention of
this Court to the deposition of both sides, copies of which have
been produced in the present petition. She has submitted that
there is no written evidence produced by the workman to
substantiate his stand that he has worked for 240 days in a
preceding calendar year. It is her submission that it is
incumbent duty of the workman to prove these facts. She has
submitted that in absence of such proof, the bare version of
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
the workman cannot be relied upon. She has also submitted
that the workman has clearly admitted in his deposition that
he was serving as a daily wager and, therefore, he has no right
to be absorbed or being made permanent. She has ultimately
prayed to allow present petition and to set aside the impugned
award passed by Labour Court, Bhuj in Reference (LCB) No.6 of
1999 dated 13.4.2010.
11. So far as Special Civil Application Nos.9629, 9630, 9631
and 9632 of 2010 are concerned, Ms.Sona Sagar, learned
advocate for the petitioner-Corporation has vehemently
submitted the same facts, which are narrated in the memos of
those petitions. She has submitted that as per the averments
of the workman, they were serving on different posts on daily
wage basis and the Labour Court has passed impugned award
directing the petitioner herein to reinstate the workmen herein
with a direction to pay 25% of backwages. According to her
submission, the Labour Court has no such authority to pass
mandatory order. She has referred to the decision of the Full
Bench reported in 2004 (3) GLR 1842.
11.1 She has also submitted that since there were no
sanctioned posts available, the workmen cannot be
regularized. She has also submitted that reliance placed on the
Government Resolution dated 17.10.1988 is not applicable to
the facts of the present case. She has also drawn attention of
this Court to the deposition of both sides, copies of which have
been produced in the present petition. She has submitted that
there is no written evidence produced by the workmen
concerned to substantiate his/her stand that he/she has
worked for 240 days in a preceding calendar year. It is her
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
submission that it is incumbent duty of the workman to prove
these facts. She has submitted that in absence of such proof,
the bare version of the workman concerned cannot be relied
upon. She has also submitted that notice pay was given to the
concerned workman. She further submitted that Notice Pay
tendered to the workman of Special Civil Application No.9630
of 2010 was refused by the workman and, therefore, there is
no question of not following due procedure under the law. She
further submitted that due to reduction of work, services of the
workmen were terminated. She also submitted that since there
is no set up of "Sweeper" or "Driver" or "Agricultural Labour",
the concerned workman do not have any right over such post.
She further submitted that the Labour Court has not
considered the evidence produced on record by the
Corporation and has committed an error of facts and law in
passing the impugned award in all these matters.
11.2 She also submitted that Labour Court cannot pass any
order of backwages in absence of evidence by the workman
concerned that during the interregnum period, he/she was not
earning. She submitted that there is no positive evidence that
the respective workmen were not earning during interregnum
period and, therefore, the order passed by the Labour Court for
reinstatement as well as backwages is erroneous and bad in
law.
12. Per contra, Shri M.H.Rathod, learned advocate for the
respondent-workman has vehemently supported the impugned
award. He has submitted that so far as Special Civil Application
No.9531 of 2010 is concerned, the Labour Court has not
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
committed any serious error of law and fact in passing the
impugned award directing the petitioner herein to regularize
and to make the workman permanent on the post. He has
submitted that the workman has put in almost 23 years of
service and yet he was not made permanent, whereas his
juniors were made permanent. He has also submitted that as
held by the Labour Court post of Shepherd is vacant and,
therefore, the workman can be absorbed in said post. He has
also submitted that the workman is not a part-time worker.
According to him, as per the documentary evidence produced
by the Corporation itself, the workman is working since 1986.
He has also submitted that by not making him permanent and
making his juniors permanent, the Corporation has adopted
unfair labour practice. He has submitted that as there is unfair
labour practice adopted by the employer-Corporation, the
Labour Court has every authority and power to grant
permanency to workman. While relying upon the following
decisions, he has prayed to confirm the impugned award
passed by the Labour Court and to dismiss present petition.
(i) Umrala Gram Panchayat v. Secretary, Municipal
Employees Union and Others reported in 2015 (3) GLR
2197.
(ii) Maharashtra State Road Transport Corporation and
Another v. Casteribe Rajya Parivahan Karmachari
Sanghatana reported in (2009) 8 SCC 556.
12.1 Mr.M.H.Rathod, learned advocate for the respondent-
workmen has vehemently supported the impugned award
which are under challenge in Special Civil Application Nos.9629
to 9632 of 2010. He has submitted that in these cases also the
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Labour Court has not committed any serious error of law and
fact in passing the impugned award directing the petitioner
herein to reinstate the workmen with 25% backwages.
According to him, as per the documentary evidence produced
by the Corporation itself, the workmen are working since seven
to fourteen years. He has prayed to confirm the impugned
award passed by the Labour Court and to dismiss present
petitions.
12.2 Mr.Rathod has further submitted that the decisions relied
upon by learned advocate for the petitioner are not applicable
to the facts of the present case.
13. In rejoinder, learned advocate Ms.Sona Sagar has
submitted that reliance placed on various decisions by learned
advocate for the workman are not applicable to the facts of the
present case. She has submitted that considering the decision
of the Full Bench, the impugned award may be set aside.
14. In the case of Amreli Municipality v. Gujarat Pradesh
Municipal Corporation Employees Union reported in 2004
(3) GLR 1841, Full Bench of this Court has observed as under:-
"12.1 After considering the decisions cited before us, the
following principles emerge:
(A) No regularization or permanency can be effected de hors
the statutory provisions or the guidelines.
(B) Long service put in by the workmen itself may not be a
ground to regularize services of ad hoc/ temporary workmen
against the sanctioned set up without following statutory
procedure of recruitment. At the most, Labour Court/
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
Industrial Tribunal can issue direction for consideration of
absorption subject to availability of posts on the
establishment.
(C) To avoid nepotism and corruption, no backdoor entry in
service;
(D) Financial capacity of the local body to have additional
burden is a relevant consideration to be kept in mind while
ordering regularization or absorption.
12.1.2 The Apex Court, in no uncertain terms, ruled that the
Labour Court/ Industrial Tribunal can neither regularise
services of a workman nor grant permanency when his initial
appointment itself is de hors the rules or not on the
sanctioned post and has depricated orders of the High Court/
Labour Courts/Tribunals directing to regularise services of
illegally recruited persons and has given guidelines. We are
not impressed by the submission advanced on behalf of
that the orders were passed in petitions under Article 226 of
the Constitution of India and, therefore, such orders are not
applicable in the present case in deciding the controversy.
The Labour Courts/ Industrial Tribunals are required to pass
orders consistent with the law laid down by the higher Courts.
Needless to say that the exercise of wide powers by Labour
Court/ Tribunal is always subject to or governed by the law
laid down by the higher Courts.
..................
12.1.13 Even if it is held that the Labour Court/ Industrial
Tribunal has wide jurisdiction to alter service conditions, it
30 12:29:50 IST 2021 to the recruitment rules, availability of
sanctioned posts and subject to the grant and limits of
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
budgetary provisions. When there is no permanent post, no
direction can be given to the authorities to absorb daily wage
employees by creating new posts. It is the common
phenomenon in the case of Nagarpalikas/ Municipalities/
Government Corporations where such appointments are
made on political considerations. The parties in power may
recruit their own persons as daily rated employees and
thereafter by seeking orders from the Court, they want to
absorb such employees on permanent establishment. Time
and again, such practice is depricated in so many words in
the judgments referred by us. The Panchayats, Municipalities,
Municipal Corporations or Government Corporations as well
as Government establishments are facing severe financial
crisis only because of such staff which may be required for
the time being, but to make them permanent would definitely
adversely affect the financial substratum of respective
organisations and the the Courts should not be party to such
illegal and irregular appointments by allowing them to be
continued at the cost of public exchequer. We are conscious
of the fact that by not approving the appointments of such
daily wagers, it will be very difficult for them to survive and
the question of their livelihood would arise. Keeping this
aspect in mind, we do feel that in appropriate cases, their
interests are required to be protected. We accordingly give
following guidelines.
(1) If casual workers or daily rated workers are not required
by the Local bodies and whose services are likely to be
terminated, they should be relieved on the principle of "last
come, first go". In the event of filling up the posts in future,
those who are eligible and qualified from and amongst the
relieved workmen shall be preferred by waiving the age limit.
(2) If the workmen who have continued for years as
temporary employees, in the event of their termination, the
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authorities will see that no unqualified person is appointed in
their place.
(3) The question of regularization can also be considered by
the authorities before terminating services provided the
workers are eligible on the sanctioned posts.
(4) If the posts are not sanctioned, the authorities may take
such steps which are necessary in accordance with the
provisions of law/ rules/ circulars within the budgetary
provisions."
14.1 In the case of Jindarsing Bahra and Another v. Cargo
Motors Limited, reported in 2007 (1) GLR 45, this Court has
observed as under:-
"4. Question of back wages being independent question, is
required to be examined by the labour court independently on
the basis of the evidence led before it by the workman first
and then on the basis of the evidence produced by the
employer for controverting the evidence of workman. It
cannot be said the award of back wages is normal or ordinary
consequence of the award of reinstatement. Merely because
the termination or dismissal is set aside, the workman is not
becoming entitled automatically for back wages. Initially it is
the burden upon the workman to prove by oral or
documentary evidence that he has remained unemployed
during the intervening period inspite of his earnest assiduous
efforts to secure job elsewhere. In absence of such evidence
from workman, labour court cannot assume or presume that
he must have remained unemployed and, therefore, entitled
for back wages because that would, otherwise, deprive the
employer from his right to contend or controvert the claim of
back wages of the workmen. Therefore, while considering the
reinstatement, labour court shall have to examine the issue of
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back wages independently on the basis of evidence on record.
This aspect has been considered by this court in detail in
Special Civil Application No. 13571 of 2006 decided on
13.7.2006 between Atulbhai Chinubhai Shah versus AMTS.
Relevant discussion made by this court in para 6 and 7 is
reproduced as under:
6. Recently, the Apex Court has also considered similar
question in case of Haryana State Electronics Development
Corporation Ltd. Vs. Mamni reported in 2005 AIR SCW 2979,
wherein, another recent decision in case of UP State
Brassware Corporation Ltd. Vs. U.N.Pandey reported in JT
2005 (10) SC 344. The Apex Court has observed in Para.15
and 17 as under :
"15. This Court in a number of decisions has categorically
held that the relief of reinstatement with full back wages is
not to be given automatically. Each case must be considered
on its own merits.
17. It was further opined :
'Industrial Courts while adjudicating on disputes between the
management and the workmen, therefore, must take such
decisions which would be in consonance with the purpose
the law seeks to achieve. When justice is the buzzword in the
matter of adjudication under the Industrial Disputes Act, it
would be wholly improper on the part of the superior courts
to make them apply the cold letter of the statutes to act
mechanically. Rendition of justice would bring withing its
purview giving a person what is due to him and not what can
be given to him in law.
A person is not entitled to get something only because it
would be lawful to do so. If that principle is applied, the
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functions of an industrial court shall lose much of its
significance.
The changes brought about by the subsequent decision of
this Court probably having regard to the changes in the
policy-decisions of the government in the wake of prevailing
market economy, globalization, privatization and outsourcing
is evident.
In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya &
Anr., This Court noticed Raj Kumar (supra) and Hindustan Tin
Works (supra) but held :
'As already noted, there was no application of mind to the
question of back wages by the Labour Court. There was no
pleading or evidence whatsoever on the aspect whether the
respondent was employed elsewhere during this long
interregnum. Instead of remitting the matter to the Labour
Court or High Court for fresh consideration at this distance of
time, we feel that the issue relating to payment of back
wages should be settled finally. On consideration of the
entire matter in the light of the observations referred to
supra in the matter of awarding back wages, we are of the
view that in the context of the facts of this particular case
including the vicissitudes of long drawn litigation, it will serve
the ends of justice if the respondent is paid 50% of the back
wages till the date of reinstatement...."
7. Recently, again this question has been examined by the
Apex Court in UPSRTC Ltd. Vs. Sarada Prasad Misra & Anr.
Reported 2006 SCC (L&S) 857, wherein, the Apex Court has
observed that right to claim full back wages when to be
granted. Held, no precise formula can be adopted nor "cast-
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iron rule" can be laid down in this regard. Payment of back
wages is a discretionary power which has to be exercised
keeping in view the facts and circumstances of each case.
The approach of the Court / Tribunal should not be rigid or
mechanical but flexible or realistic. In cases where the
employee is entitled to reinstatement, the question
regarding payment of back wages would be independent of
the question as to entitlement to reinstatement. While
considering and determining the question regarding
payment of back wages, the Court / Tribunal would consider
all relevant circumstances referred to herein and pass an
appropriate order keeping in view the principles of justice,
equity and good conscience. Relevant discussion in Para.13
to 16 which are quoted as under :
"13. But even otherwise, the award passed by the Labour
Court as also the order of the High Court granting back
wages deserves interference. In several cases, this Court has
held that payment of back wages is a discretionary power
which has to be exercised keeping in view the facts and
circumstances of each case and neither straitjacket formula
can be evolved, nor a rule of universal application can be
adopted (vide PGI of Medical Education & Research v. Raj
Kumar; Hindustan Motors Ltd. v. Tapan Kumar
Bnhattacharya). In Kendriya Vidyalaya Sangathan v.
S.C.Sharma this Court held that when question of
determination of entitlement of back wages comes up for
consideration, prima facie, it is for the employee to prove
that he had not been gainfully employed. Initial burden is on
the employee to show that he remained without any
employment. In several cases, similar view has been taken
by this Court in recent years. In MP SEB v. Jarina bee it was
observed that reinstatement in service and payment of back
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wages are two different things and payment of back wages is
not a natural consequence of setting aside and order of
dismissal. In Allahabad Jal Sansthan v. Daya Shankar Rai, it
was indicated that the law is not in absolute terms that in all
cases of illegal termination of services, a workman must be
paid full back wages. In Haryana State Coop. Land
Development Bank v. Neelam it was stated that the aim and
object of the Industrial Disputes Act is to impart social justice
to the workman but keeping in view his conduct. Payment of
back wages, therefore, would not be automatic on
entitlement of the relief of reinstatement. In G.M., Haryana
Roadways v. Rudhan Singh the Court reiterated that there is
no rule of thumb that in each and every case, where the
Industrial Tribunal records a finding that the order of
termination of service was illegal that an employee is
entitled to full back wages. A host of factors which are
relevant, must be taken into account.
14. The Court stated : (SCC p.596, para 8)
'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 a considerable period of service and
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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 be may not be in
a position to get another employment. However, where the
total length o 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.'
15. In Allahabad Jal Sansthan v. Daya Shankar Rai after
considering the relevant cases on the point, the Court stated
(SCC p.130, para 16)
'16. We have referred to certain decisions of this Court to
highlight that earlier in the event of an order of dismissal
being set aside, reinstatement with full back wages was the
usual result. But now with the passage of time, it has come
to be realised that industry is being compelled to pay the
workman for a period during which he apparently contributed
little or nothing at all, for a period that was spent
unproductively, while the workman is being compelled to go
back to a situation which prevailed many years ago when he
was dismissed. It is necessary for us to develop a pragmatic
approach to problems dogging industrial relations. However,
no just solution can be offered but the golden mean may be
arrived at.'
16. From the above cases, it is clear that no precise formula
can be adopted nor "cast-iron rule" can be laid down as to
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when payment of full back wages should be allowed by the
court or tribunal. It depends upon the facts and
circumstances of each case. The approach of the court /
tribunal should not be rigid or mechanical but flexible and
realistic. The court or tribunal dealing with cases of industrial
disputes may find force in the contention of the employee as
to illegal termination of his services and may come to the
conclusion that the action has been taken otherwise than in
accordance with law. In such cases obviously, the workman
would be entitled to reinstatement but the question
regarding payment of back wages would be independent of
the first question as to entitlement of reinstatement in
service. While considering and determining the second
question, the court or tribunal would consider all relevant
circumstances referred to above and keeping in view the
principles of justice, equity and good conscience, should pass
an appropriate order."
Therefore, in view of the aforesaid observations made by the
Hon'ble apex court as well as this Court in aforesaid decision,
according to my opinion, labour court was right in examining
the issue of back wages on the basis of the evidence before
it and was right in coming to the conclusion that when the
workmen have not deposed before the labour court about
their unemployment, then, workmen are not entitled for any
amount of back wages for intervening period because initial
burden to prove unemployment by producing oral or
documentary evidence to that effect was not discharged by
workmen and in doing so, labour court has not committed
any error warranting interference of this court in exercise of
the powers under Article 227 of the Constitutin of India.
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This aspect has been considered by the apex court in
Laxmikant Revchand Bhojwani and another versus
Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC
576. Relevant observations made by the apex court in para 9
of the said judgment are therefore reproduced as under:
"The High Court under Article 227 cannot assume unlimited
prerogative to correct all species of hardship or wrong
decisions. It must be restricted to cases of grave dereliction
of duty and flagrant abuse of fundamental principles of law
or justice, where grave injustice would be done unless the
High Court interferes.
"In Ouseph Mathai and Others versus M. Abdul Khadir,
reported in (2002) 1 SCC 319, the apex court observed as
under in para 4 and 5 :
"It is not denied that the powers conferred upon the High
Court under Articles 226 and 227 of the Constitution are
extraordinary and discretionary powers as distinguished from
ordinary statutory powers. No doubt Article 227 confers a
right of superintendence over all courts and tribunals
throughout the territories in relation to which it exercises the
jurisdiction but no corresponding right is conferred upon a
litigant to invoke the jurisdiction under the said Article as a
matter of right. In fact power under this Article cast a duty
upon the High Court to keep the inferior courts and tribunals
within the limits of their authority and that they do not cross
the limits, ensuring the performance of duties by such courts
and tribunals in accordance with law conferring powers
within the ambit of the enactments creating such courts and
tribunals. Only wrong decisions may not be a ground for the
exercise of jurisdiction under this Article unless the wrong is
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referable to grave dereliction of duty and flagrant abuse of
power by the subordinate courts and tribunals resulting in
grave injustice to any party.
5. In Waryam Singh v. Amarnath (1954 SCR 565) this Court
held that power of superintendence conferred by Article 227
is to be exercised more sparingly and only in appropriate
cases in order to keep the subordinate Courts within the
bounds of their authority and not for correcting mere errors.
This position of law was reiterated in Nagendra Nath Bose v.
Commr. of Hills Division (1958 SCR 1240). In Bhahutmal
Raichand Oswal v. Laxmibai R. Tarta (AIR 1975 SC 1297) this
Court held that the High Court could not, in the guise of
exercising its jurisdiction under Article 227 convert itself into
a Court of appeal when the Legislature has not conferred a
right of appeal. After referring to the judgment of Lord
Denning in R v. Northumber Compensation Appeal Tribunal,
Exparte Shaw (1952 (1) All ER 122, 128) this Court in
Chandavarkar Sita Ratna Rao v. Ashalata S. Gurnam held :
(SCC p.460 para 20)
"20. It is true that in exercise of jurisdiction under Article 227
of the Constitution the High Court could go into the question
of facts or look into the evidence if justice so requires it, if
there is any misdirection in law or a view of fact taken in the
teeth of preponderance of evidence. But the High Court
should decline to exercise its jurisdiction under Articles 226
and 227 of the Constitution to look into the fact in the
absence of clear and cut down reasons where the question
depends upon the appreciation of evidence. The High Court
also should not interfere with a finding within the jurisdiction
of the inferior tribunal except where the findings are
perverse and not based on any material evidence or it
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resulted in manifest injustice (see Trimbak Gangadhar
Teland 1977 (2) SCC 437). Except to the limited extent
indicated above, the High Court has no jurisdiction. In our
opinion therefore, in the facts and circumstances of this case
on the question that the High Court has sought to interfere, it
is manifest that the High Court has gone into questions
which depended upon appreciation of evidence and indeed
the very fact that the learned trial Judge came to one
conclusion and the Appellate Bench came to another
conclusion is indication of the position that two views were
possible in this case. In preferring one view to another of
factual appreciation of evidence, the High Court transgressed
its limits of jurisdiction under Article 227 of the Constitution.
On the first point, therefore, the High Court was in error."
Therefore, in view of the aforesaid discussion, since the
evidence given by one of the workmen at Exh. 61 cannot be
considered to be the evidence of present petitioners qua
unemployment during the intervening period, it cannot be
said that there was evidence of workman about his
unemployment and, therefore, labour court was right in
rejecting claim of back wages for intervening period and,
therefore, there is no substance in these petitions and the
same are required to be dismissed.
In result, these petitions are dismissed."
14.2 In the case of Maharashtra State Road Transport
Corporation (supra) has been referred to by the Apex Court in
the case of Umrala Gram Panchayat (supra) and it is observed
as under:-
"30. The question that arises for consideration is: have the
provisions of MRTU & PULP Act denuded of the statutory
status by the Constitution Bench decision in Umadevi?. In our
judgment, it is not.
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31. The purpose and object of MRTU & PULP AIR 1967 SC
1071 (1972) 1 SCC 409 (1979) 4 SCC 507 Act, inter alia, is to
define and provide for prevention of certain unfair labour
practices as listed in Schedule II, III and IV. MRTU & PULP Act
empowers the Industrial and Labour Courts to decide that the
person named in the complaint has engaged in or is engaged
in unfair labour practice and if the unfair labour practice is
proved, to declare that an unfair labour practice has been
engaged in or is being engaged in by that person and direct
such person to cease and desist from such unfair labour
practice and take such affirmative action (including payment
of reasonable compensation to the employee or employees
affected by the unfair labour practice, or reinstatement of the
employee or employees with or without back wages, or the
payment of reasonable compensation), as may in the opinion
of the Court be necessary to effectuate policy of the Act.
32. The power given to the Industrial and Labour Courts
under Section 30 is very wide and the affirmative action
mentioned therein is inclusive and not exhaustive. Employing
badlis, casuals or temporaries and to continue them as such
for years , with the object of depriving them of the status and
privileges of permanent employees is an unfair labour
practice on the part of the employer under item 6 of Schedule
IV. Once such unfair labour practice on the part of the
employer is established in the complaint, the Industrial and
Labour Courts are empowered to issue preventive as well as
positive direction to an erring employer.
33. The provisions of MRTU & PULP Act and the powers of
Industrial and Labour Courts provided therein were not at all
under consideration in the case of Umadevi1. As a matter of
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fact, the issue like the present one pertaining to unfair labour
practice was not at all referred, considered or decided in
Umadevi1. Unfair labour practice on the part of the employer
in engaging employees as badlies, casuals or temporaries and
to continue them as such for years with the object of
depriving them of the status and privileges of permanent
employees as provided in item 6 of Schedule IV and the
power of Industrial and Labour Courts under Section 30 of the
Act did not fall for adjudication or consideration before the
Constitution Bench.
34. It is true that the case of Dharwad District PWD Literate
Daily Wage Employees Assn.7 arising out of industrial
adjudication has been considered in Umadevi1 and that
decision has been held to be not laying down the correct law
but a careful and complete reading of decision in Umadevi1
leaves no manner of doubt that what this Court was
concerned in Umadevi was the exercise of power by the High
Courts under Article 226 and this Court under Article 32 of the
Constitution of India in the matters of public employment
where the employees have been engaged as contractual,
temporary or casual workers not based on proper selection as
recognized by the rules or procedure and yet orders of their
regularization and conferring them status of permanency
have been passed.
35. Umadevi is an authoritative pronouncement for the
proposition that Supreme Court (Article 32) and High Courts
(Article 226) should not issue directions of absorption,
regularization or permanent continuance of temporary,
contractual, casual, daily wage or ad-hoc employees unless
the recruitment itself was made regularly in terms of
constitutional scheme.
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36. Umadevi does not denude the Industrial and Labour
Courts of their statutory power under Section 30 read with
Section 32 of MRTU & PULP Act to order permanency of the
workers who have been victim of unfair labour practice on the
part of the employer under item 6 of Schedule IV where the
posts on which they have been working exists. Umadevi
cannot be held to have overridden the powers of Industrial
and Labour Courts in passing appropriate order under Section
30 of MRTU & PULP Act, once unfair labour practice on the
part of the employer under item 6 of Schedule IV is
established."
15. It appears from the record that it is the case of the
workmen herein that they were working with the employer
since last many years and were performing duty with utmost
sincerity and were getting daily wage. It is also the case that
their services were terminated without any notice or notice
pay or retrenchment allowance. It is the case of the workman
that his junior has been retained in service and, thereafter,
without affording any opportunity to him, the employer has
also appointed other persons and thus, the action on the part
of the employer in terminating him from the service is bad in
law.
16. It is the case of the petitioner that the workmen herein
would not fall within the definition of the "workman" under
Section 2(s) of the I.D. Act and the employer is also not an
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"industry" within the definition of Section 2(j) of the I.D. Act.
According to the employer, it is a statutory undertaking of the
Government and is dependent on 100% grant which has been
financed by the State Government.
17. The definition of 'industry' as well as 'workman' is provided in
Section 2(j) and 2(s) of the I.D. Act. Section 2(j) and 2(s) of the I.D. Act
reads as under:-
2(j) "industry" means any systematic activity
carried on by co-operation between an
employer and his workmen (whether such
workmen are employed by such employer
directly or by or through any agency, including
a contractor) for the production, supply or
distribution of goods or services with a view to
satisfy human wants or wishes (not being wants
or wishes which are merely) spiritual or
religious in nature), whether or not, -
(i) any capital has been invested for the purpose
of carrying on such activity; or
(ii) such activity is carried on with a motive to
make any gain or profit, and includes -
(a) any activity of the Dock Labour Board
established under section 5A of the Dock
Workers (Regulation of Employment) Act, 1948
(9 of 1948);
(b) any activity relating to the promotion of sales
or business or both carried on by an
establishment,
but does not include -
(1) any agricultural operation except where such
agricultural operation is carried on in an
integrated manner with any other activity
(being any such activity as is referred to in the
foregoing provisions of this clause) and such
other activity is the predominant one.
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Explanation. - For the purposes of this sub-
clause, "agricultural operation" does not
include any activity carried on in a plantation as
defined in clause (f) of section 2 of the
Plantations Labour Act, 1951 (69 of 1951); or
(2) hospitals or dispensaries; or
(3) educational, scientific, research or training
institutions; or
(4) institutions owned or managed by organisations
wholly or substantially engaged in any
charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the
sovereign functions of the Government
including all the activities carried on by the
departments of the Central Government dealing
with defence research, atomic energy and
space; or
(7) any domestic service; or
(8) any activity being a profession practised by an
individual or body of individuals, if the number
of persons employed, by the individual or body
of individuals in relation to such profession is
less than ten; or
(9) any activity, being an activity carried on by a
co-operative society or a club or any other like
body of individuals, if the number of persons
employed by the co-operative society, club or
other like body of individuals in relation to such
activity is less than ten,'
2(s) "workman" means any person (including an
apprentice) employed in any industry to do any
manual, unskilled, skilled, technical,
operational, clerical or supervisory work for hire
or reward, whether the terms of employment
be express or implied, and for the purposes of
any proceeding under this Act in relation to an
industrial dispute, includes any such person
who has been dismissed, discharged or
retrenched in connection with, or as a
consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led to
that dispute, but does not include any such
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
person-
(i) who is subject to the Air Force Act, 1950 (45 of
1950), or the Army Act, 1950 (46 of 1950), or
the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an
officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or
administrative capacity; or
(iv) who, being employed in a supervisory capacity,
draws wages exceeding [ten thousand rupees]
per mensem or exercises, either by the nature
of the duties attached to the office or by reason
of the powers vested in him, functions mainly of
a managerial nature.].
18. In view of the definition of "industry", it is clear that there must
be any systematic activity carried on by co-operation between an
employer and his workmen. Further such activity must be for supply
or distribution of goods or services which satisfies human wants or
wishes, which, may not be wants or wishes which are merely spiritual
or religious in nature. The definition also enumerates that certain
undertakings will not be an industry which are referred to above
within the meaning of the section..
19. Now, in the present case, the stand of the Corporation -
employer is to the effect that this is a Public Limited Company and
having majority of its shares held by the Government of Gujarat and is
established with a view to breed sheep and help the wool industry in
the State of Gujarat. It is the case of the employer that it is dependent
on 100% finance provided by the Central Government or the State
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Government for different schemes. It is also contended by the
Corporation that the agricultural labourers, shepherds and casual
workers are being engaged on need basis. Thus, according to the
Corporation, it is not an industry. However, in view of Section 2(j) of
the I.D. Act as amended in the year 1982, whether or not any capital
has been invested for the purpose of carrying on various activities as
reflected in the definition itself, the stand taken by the Corporation
that due to finance by the Government, it is not an industry, is devoid
of merits.
20. It is pertinent to note that the Labour Court has, on the basis of
the evidence on record, clearly held that the Corporation is an
industry and this finding of facts is legally tenable.
21. Section 11-A of the Industrial Disputes Act, 1947 deals
with the powers of the Labour Courts, Tribunals and National
Tribunals to give appropriate relief in case of discharge or
dismissal of workmen. Section 11-A provides as under:-
"11A. Powers of Labour Courts, Tribunals and National
Tribunals to give appropriate relief in case of discharge or
dismissal of workmen.- Where an industrial dispute relating to
the discharge or dismissal of a workman has been referred to
a Labour Court, Tribunal or National Tribunal for adjudication
and, in the course of the adjudication proceedings, the Labour
Court, Tribunal or National Tribunal, as the case may be, is
satisfied that the order of discharge or dismissal was not
justified, it may, by its award, set aside the order of discharge
C/SCA/9531/2010 JUDGMENT DATED: 02/07/2021
or dismissal and direct reinstatement of the workman on such
terms and conditions, if any, as it thinks fit, or give such other
relief to the workman including the award of any lesser
punishment in lieu of discharge or dismissal as the
circumstances of the case may require:
Provided that in any proceeding under this section the
Labour Court, Tribunal or National Tribunal, as the case may
be, shall rely only on the materials on record and shall not
take any fresh evidence in relation to the matter.]"
21.1 The power is vested to the Labour Court and the Tribunal
to pass appropriate order, which may include reinstatement in
case of satisfaction that the order of discharge or dismissal
was not justified. Such order of reinstatement of workman may
be passed with such terms and conditions as the Labour Court
or Tribunal thinks fit.
21.2 It is pertinent to note that the 5 th Schedule deals with the
unfair labour practices. The term "unfair labour practice" is
defined in Section 2 (ra) of the Act, which reads as under:--
2.(ra) "unfair labour practice" means any of the practices
specified in the Fifth Schedule;
21.3 Thus, Section 2 (ra) defines "Unfair labour practice",
which have been enumerated in the Fifth Schedule. Item no.10
of the Schedule provides that it will be unfair labour practice to
employ workman as "Badlis" "Casuals" or "Temporaries" and
to continue them as such for more years with the object of
depriving them of the status and privileges of permanent
workman. Thus, whenever the employer adopts such practice,
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it will amount to unfair labour practice.
22. Now, it appears from record that the respondent-
workman in Special Civil Application No.9531 of 2010 is serving
as Shepherd from 1986. It also appears from record that while
appointing him, order was issued to him, as has been deposed
by him in his evidence, which is not challenged by the
employer. It also transpires that there is permanent set up of
the Shepherd in the Corporation and the Corporation has
issued advertisement and has appointed other persons on
post, without giving any opportunity to the present workman.
The employment of the workman is purely on daily basis since
1986 would fall under Item No.10 of 5 th Schedule to the
Industrial Disputes Act, which may be unfair labour practice. It
is settled law that when there is unfair labour practice adopted
by the employer, then the workman would be entitled for
regularization and permanency in his job.
23. On perusal of the impugned award passed by the learned
Labour Court, it appears that it deals with all these aspects and
considering the availability of the set up and the facts that
junior to him were appointed and the workman was kept as
daily wager since 1986, it has passed the impugned award,
which does not suffer from any illegality. The award of the
Labour Court is based on peculiar facts and circumstances of
the case and while deciding reference, it has followed the
judgment of this Court reported in 2005 (3) GLR 2152.
24. It also reflects that he was directed to be made
permanent on the post of Shepherd from 1.10.1997 and
directed to pay him notional benefit till 31.3.2000 and directed
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the employer to make actual payment from 1.4.2000, as has
been given to other workers juniors to the respondent. This
decision of the Labour Court is in consonance with the factual
aspects of the case and it is also in consonance with the
judgment of the Supreme Court, referred to herein above.
Therefore, this Court does not find any illegality in the award
passed by the Labour Court. The same is sustainable in the
eyes of law.
Special Civil Application Nos.9629 to 9632 of 2010
25. Having considered the submissions made by learned
advocates for the parties and material place on record, it
appears that there is no dispute that the concerned workmen
of Special Civil Application Nos.9629 to 9632 of 2010 were
working in the Corporation as daily wagers for the period
ranging from 7 years to 14 years. It appears that the workmen
have approached Labour Court alleging that their services
came to be terminated by the employer without following due
process of law and without paying them notice pay or
retrenchment allowance. Having considered the impugned
awards passed in respective references, it appears that the
Labour Court has relied upon oral as well as documentary
evidence produced by both sides. It appears that they have
sought only relief of reinstatement and backwages and they
have not sought relief for regularization or permanency in
service. Now, admittedly the Labour Court has passed the
order of reinstatement with 25% backwages and continuity of
service. This order has been stayed so far as continuity of
service and 25% backwages is concerned and the order of
reinstatement is not stayed. It is submitted at bar that the
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workmen are reinstated. Now, considering the evidence on
record in the respective petitions, it appears that there is no
cogent evidence produced by the workmen that they were
unemployed during the period from the date of their
retrenchment till the impugned award. Rather, it appears from
record that the workmen were earning during the interregnum
period.
25.1 In the case of Rajasthan State Road Transport
Corporation, Jaipur Vs. Shri Phool Chand (Dead) Through
Legal Heirs rendered in Civil Appeal No.1756 of 2010 dated
20.09.2018, the Apex Court has observed in paras-11, 12, 13 and 14
as under:-
"11. In our considered opinion, the Courts below
completely failed to see that the back wages could not
be awarded by the Court as of right to the workman
consequent upon setting aside of his dismissal /
termination order. In other words, a workman has no
right to claim back wages from his employer as of right
only because the Court has set aside his dismissal order
in his favour and directed his reinstatement in service.
12. It is necessary for the workman in such cases to
plead and prove with the aid of evidence that after his
dismissal from the service, he was not gainfully
employed anywhere and had no earning to maintain
himself or/and his family. The employer is also entitled to
prove it otherwise against the employee, namely, that
the employee was gainfully employed during the
relevant period and hence not entitled to claim any back
wages. Initial burden is, however, on the employee.
13. In some cases, the Court may decline to award
the back wages in its entirety whereas in some cases, it
may award partial depending upon the facts of each
case by exercising its judicial discretion in the light of the
facts and evidence. The questions, how the back wages
is required to be decided, what are the factors to be
taken into consideration awarding back wages, on whom,
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the initial burden lies etc. were elaborately discussed in
several cases by this Court wherein the law on these
questions has been settled. Indeed, it is no longer res
integra. These cases are, M. P. State Electricity Board vs.
Jarina Bee (Smt.) (2003) 6 SCC 141, G. M. Haryana
Roadways vs. Rudhan Singh, (2005) 5 SCC 591, U. P.
State Brassware Corporation vs. Uday Narain Pandey,
(2006) 1 SCC 479, J. K. Sunthetics Ltd. vs. K. P. Agrawal
& Anr., (2007) 2 SCC 433, Metropolitan Transport
Corporation vs. V. Venkatesan, (2009) 9 SCC 601, Jagbir
Singh vs. Haryana State Agriculture Marketing Board &
Anr., (2009) 15 SCC 327) and Deepali Gundu Surwase vs.
Kranti Junior Adhuapak Mahavidyalaya (D.Ed) & Ors,
(2013) 10 SCC 324.
14. The Court is, therefore, required to keep in
consideration several factors, which are set out in the
aforementioned cases, and then to record a finding as to
whether it is a fit case forward of the back wages and, if
so, to what extent."
25.2 In the case of Deputy Executive Engineer v. Kuberbhai
Kanjibhai, AIR 2019 SC 517, the Apex Court, while referring to the
it's earlier decision in the case of Bharat Sanchar Nigam Limited
Vs. Bhurumal, AIR 2014 SC 1188, has reproduced paras-33, 34 and
35 which read as under:-
"33. It is clear from the reading of the aforesaid
judgments that the ordinary principle of grant of
reinstatement with full back wages, when the
termination is found to be illegal is not applied
mechanically in all cases. While that may be a
position where services of a regular/permanent
workman are terminated illegally and/or mala fide
and/or by way of victimisation, unfair labour
practice, etc. However, when it comes to the case
of termination of a daily-wage worker and where
the termination is found illegal because of a
procedural defect, namely, in violation of Section
25F of the Industrial Disputes Act, this Court is
consistent in taking the view that in such cases
reinstatement with back wages is not automatic
and instead the workman should be given monetary
compensation which will meet the ends of justice.
Rationale for shifting in this direction is obvious.
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34. The reasons for denying the relief of reinstatement
in such cases are obvious. It is trite law that when
the termination is found to be illegal because of
nonpayment of retrenchment compensation and
notice pay as mandatorily required under Section
25-F of the Industrial Disputes Act, even after
reinstatement, it is always open to the
management to terminate the services of that
employee by paying him the retrenchment
compensation. Since such a workman was working
on daily-wage basis and even after he is reinstated,
he has no right to seek regularisation [see State of
Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : (AIR
2006 SC 1806)] . Thus when he cannot claim
regularisation and he has no right to continue even
as a daily-wage worker, no useful purpose is going
to be served in reinstating such a workman and he
can be given monetary compensation by the Court
itself inasmuch as if he is terminated again after
reinstatement, he would receive monetary
compensation only in the form of retrenchment
compensation and notice pay. In such a situation,
giving the relief of reinstatement, that too after a
long gap, would not serve any purpose.
35. We would, however, like to add a caveat here.
There may be cases where termination of a daily-
wage worker is found to be illegal on the ground
that it was resorted to as unfair labour practice or in
violation of the principle of last come first go viz.
while retrenching such a worker daily wage juniors
to him were retained. There may also be a situation
that persons junior to him were regularised under
some policy but the workman concerned
terminated. In such circumstances, the terminated
worker should not be denied reinstatement unless
there are some other weighty reasons for adopting
the course of grant of compensation instead of
reinstatement. In such cases, reinstatement should
be the rule and only in exceptional cases for the
reasons stated to be in writing, such a relief can be
denied."
26. Therefore, in view of above decisions in absence of any
cogent evidence of unemployment during the interregnum
period, there cannot be any order of backwages to be paid to
the concerned workman.
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27. However, in view of decision of the Apex Court in the
case of Nandkishore Shravan Ahirrao v. Kosan Industries
(P) Ltd rendered in Civil Appeal Nos.201-202 of 2020 dated
10.1.2020, when there is an order of reinstatement, continuity
of service would follow as a matter of law. Therefore, when
reinstatement of the workman is upheld, continuity of service
needs to be granted. Accordingly, order in this regard passed
by the Labour Court is upheld. However, the order of
backwages is set aside in view of foregoing discussion.
28. In view of above discussions, Special Civil Application
No.9531 of 2010 deserves to be dismissed and the same is
dismissed. The petitioner is hereby directed to comply with the
award passed by the Labour Court, Bhuj in Reference (LCB)
No.6 of 1999 dated 30.4.2013, within a period of four months
from the date of receipt of this order. Interim relief stands
vacated. Rule is discharged. No order as to costs.
29. The rest of the petitions being Special Civil Application
Nos.9629 to 9632 of 2010 are partly allowed. The impugned
awards of the Labour Court are modified to the extent that
workmen are not entitled to backwages, however, the order of
reinstatement and continuity of service is confirmed. Rule is
made absolute accordingly in all these petitions. No order as to
costs.
Sd/-
(DR. A. P. THAKER, J)
R.S. MALEK
