State Of Gujarat vs President, Kutchh Kamdas Kalyan ...
2021 Latest Caselaw 6082 Guj

     C/SCA/6402/2021                                 ORDER DATED: 16/06/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 6402 of 2021

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                        STATE OF GUJARAT
                             Versus
            PRESIDENT, KUTCHH KAMDAS KALYAN SANGH
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Appearance:
MS. MEGHA CHITALIYA, ASST. GOVERNMENT PLEADER(1) for the
Petitioner(s) No. 1,2
 for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                             Date : 16/06/2021

                               ORAL ORDER

[1.0.] This petition is a classic example of inaction on the part of the authorities in denying right to a workman, who was otherwise entitled to have benefits of Government Resolution dated 17.10.1988 popularly based on Dolatbhai Parmar Reports, to have certain benefits in employment, even the petitioners had recommended regularization of the very employee in the year 2011, after scrutinizing that he is entitled for the benefits under the said G.R. dated 17.10.1988.

[2.0.] This petition, under Articles 226 and 227 of the Constitution, is directed against the Award passed by the Industrial Tribunal, Rajkot, dated 06.02.2020 in Reference (I.T.) No.10 of 2017.

[3.0.] From the Office of Labour Commissioner vide communication dated 27.02.2017, a reference was made to Industrial Tribunal, Rajkot for the issue mentioned in the said

C/SCA/6402/2021 ORDER DATED: 16/06/2021

communication, which is reproduced in the impugned award passed by the Labour Court, including grant of benefit arising from the G.R. dated 17.10.1988 in respect of the present respondent employee - Bhachiben Magan Harijan.

[4.0.] According to the case of the workman, the petitioners

- authorities have granted the benefits of G.R. dated 17.10.1988 to employees junior to the present workman and she produced the document along with list of their names before the Industrial Tribunal. According to the case of the workman, she entered the service on 01.03.1981, and thereafter, she worked with the petitioners, despite that, she is being paid daily wage as a daily wager depriving her of benefits of Resolution as referred to hereinabove, more particularly when similarly situated workmen junior to her are regularised.

[5.0.] As referred to in the impugned award, even the petitioners have admitted in their evidence during the course of cross examination that workman was performing 8 hours duty regularly and not paid even minimum wages. Though there was earlier round of litigation, wherein she was ordered to be reinstated, though without back-wages as modified by the High Court, pursuant thereto, she came to be reinstated on 20.10.2005. As observed by the Industrial Tribunal, after her reinstatement dated 20.10.2005, for how many days she worked, neither party had led any evidence, which includes the present petitioners, therefore, Industrial Tribunal thought it fit to pass an order granting benefits of the G.R. dated 17.10.1988, after her completion of 240 days from 20.10.2005, that too, with effect from 01.01.2020. Over and above that, the Industrial Tribunal

C/SCA/6402/2021 ORDER DATED: 16/06/2021

directed that from 20.10.2005 to 01.01.2020, the said period is to be counted notional and no financial benefit of that period be given to the workman, despite that, the petitioners - authorities have felt that this award passed by the Industrial Tribunal to be challenged. It would be worthwhile to note that, in the year 2011, even the present petitioners were satisfied that she was entitled to have benefits under the said G.R. dated 17.10.1988, and therefore, they had already made proposal to the State Government for passing necessary orders thereof. Be that as it may, the Industrial Tribunal had restricted granting of benefit of the said G.R. only after completion of 240 days from her reinstatement dated 20.10.2005, ignoring order of continuity in service in earlier round of litigation. If petitioners have satisfied themselves, she is entitled for that benefit instead of challenging the award passed by the Industrial Tribunal which grants even monetary benefits from 01.01.2020 after giving benefits of G.R. dated 17.10.1988 on completion of 240 days after her reinstatement date i.e. 20.10.2005.

[6.0.] As such, there is nothing to be challenged in the impugned award. Not only that, the petitioners have not produced any material before the authorities even objecting to the claim of the petitioners, despite that, they have chosen to challenge it before this Court after obtaining an opinion from the advocate, who represented them before the Industrial Tribunal, that too, after 4 months of having received certified copy of the order. It is very disturbing. Very casual and callous approach is reflected by the petitioners in challenging the impugned award, which is not assailable at all on any count.

      C/SCA/6402/2021                         ORDER DATED: 16/06/2021



[7.0.]         It appears that challenging the impugned award

passed by the Industrial Tribunal is nothing but an attempt to delay the execution of the award itself. As such, there is not a single ground pressed into service to assail the said decision. Even when the petitioners themselves have felt that workman is entitled to have benefits of G.R. dated 17.10.1988, that too, in the year 2011, there is no point in challenging the award passed by the Industrial Tribunal granting such benefits, that too, from completion of 240 days after her reinstatement dated 20.10.2005 and that too, financial burden to shoulder only from 01.01.2020 and not before.

[8.0.] Ms. Megha Chitaliya, learned Asst. Government Pleader for the petitioners is unable to raise a single ground to challenge this award and that is rightly done as the Officer concerned is present in her Office during the course of hearing of this petition exchanging the details and provided the same to the Court as referred to hereinabove.

[9.0.] The grounds mentioned in the memo of the petition are not of any worth to be dealt with as it has no connection with the issue involved in the present petition, more particularly, ground-(h) raised at page-15, wherein it is stated that the workman had stopped coming to work voluntarily and she was not terminated by the petitioners. If terms of reference as referred to in the impugned award itself is seen, it is not a case of termination at all but entitlement of benefits of the G.R. dated 17.10.1988 and other benefits and from what date and what time it is to be granted with interest or not. Therefore, unmindful of the issue involved in the present petition, a ground is raised

C/SCA/6402/2021 ORDER DATED: 16/06/2021

for the purpose of raising it as referred to hereinabove.

[10.0.] In absence of any error, much less any error even on facts in passing the impugned award interference of this Court under Articles 226 and 227 of the Constitution is uncalled for and therefore the present petition is required to be dismissed and it is hereby dismissed.

[11.0.] All these consideration of the impugned judgment and award is made only for determining the present petition at the instance of the petitioners.

(UMESH A. TRIVEDI, J) Lalji Desai