Pankaj Kamaliya vs Dy Conservator Of Forest
2021 Latest Caselaw 4909 Guj

       C/SCA/10546/2012                                 JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 10546 of 2012


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

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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 ?                      No

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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                         PANKAJ KAMALIYA
                              Versus
                DY CONSERVATOR OF FOREST & 1 other(s)
================================================================
Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MR SOAHAM JOSHI AGP (1) for the Respondent(s) No. 1,2
RULE SERVED(64) for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                          Date : 31/03/2021

                          ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the impugned

award dated 05.03.2012 passed by the Labour Court,

Amreli in Reference (L.C.A.) No.8 of 2007 whereby

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instead of granting reinstatement with continuity of

service with back wages, the Labour Court has granted

lump sum amount of Rs.1,50,000/-, the petitioner -

workman has preferred this petition under Articles 226

and 227 of the Constitution of India for the following

reliefs.

[A] This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or certiorari or other appropriate writ, order or direction, declaring the impugned award passed by the Labour Court, denying reinstatement in services with all consequential benefits, as illegal, unjust, arbitrary and be pleased to quash and set aside the same and direct respondents to reinstate workman in services with all consequential benefits.

[B] Be pleased to declare that termination of services of workman was illegal and therefore in light of the judgment of Hon. Supreme Court, respondents be directed to reinstate the petitioner in services.

[C] Pending admission and final disposal of this petition be pleased to direct respondents to take petitioner in services forthwith.

[D] Any other relief which this Hon'ble Court deems fit and proper in the interest of justice together with cost.

2. It is contention of the petitioner is that his service

came to be terminated on 30.10.2004 without following

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mandatory provisions of Section 25F of the Industrial

Disputes Act, 1947 (hereinafter be referred to as the "ID

Act") and, therefore the reference was made before the

Labour Court. It is also the contention of the petitioner

that instead of granting reinstatement, the Labour Court

has committed serious error of facts and law and in

granting Rs.1,50,000/-. It is also contended by the

petitioner that the award passed by the Labour Court is ex

facie, unjust, arbitrary, illegal and it is required to be

quashed and set aside by granting reinstatement with full

back wages to him. While referring to the decisions of the

Apex Court in the case of M/s.Hindustan Tin Works Pvt.

Ltd Vs. Employees of M/s.Hindustan Tin Works Pvt. Ltd,

AIR 1979 SC 75, Gammon India Limited Vs.Niranjan Dass,

AIR 1984 SC 500, Harjindersing Vs. Punjab State

Warehousing Corporation, (2010) 3 SCC 192, State of

Bombay and others Vs. Hotel Mazdoor Sabha, AIR 1960

SC 670, it is contended by the petitioner that the Labour

Court has not considered the legal position as settled by

the Apex Court in the aforesaid decisions and the Labour

Court has committed error of facts and law in granting

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the prayer of reinstatement with full back wages. It is

further contended by the petitioner that last salary drawn

by the workman in the year 2004 was Rs.2200/- and

therefore he is entitled to get pay as if in 2012. It is also

contended by the petitioner that the other employees who

worked with the petitioner were granted benefits of the

award on the basis of government resolution dated

17.10.1988 and they are getting monthly salary of

Rs.15000/- and even minimum wages for skilled category

is Rs.205/- per day. On all these grounds, the petitioner

has prayed to quash and set aside the impugned award

which includes reinstatement with continuity of service

with all consequential benefits.

3. Heard Ms.Reema Kamani, learned advocate for Mr.P.

H. Pathak, learned advocate for the petitioner and

Mr.Soaham Joshi, learned AGP for the respondents at

length through video conferencing.

4. Ms.Reema Kamani, learned advocate for Mr.P. H.

Pathak, learned advocate for the petitioner has

vehemently submitted that the service of the workman

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was for more than five years and there is clear cut

observation of the Labour Court that there is a breach of

Section 25F of the ID Act. According to her submissions,

the Labour Court ought to have granted prayer for

reinstatement with continuity of service. She has

submitted that though no issue regarding the appointment

of the petitioner without following due procedure was

raised in written statement by the respondent herein.

According to her submissions, the appreciation of the

evidence on record by the Labour Court is erroneous.

While relying upon the decisions in the case of Harjinder

Singh Vs. Punjab State Warehousing Corporation,

(2010) 3 SCC 192 and Anoop Sharma Vs. Executive

Engineer, Public Health Division No.1, Panipat

(Haryana), (2010) 5 SCC 497, she has submitted that

considering both these decisions, when there is breach of

Section 25F of the ID Act, the workman is entitled to get

reinstatement with full back wages and continuity of

service. While referring to the impugned award along with

the materials placed on record, she has submitted that

the Labour Court has not properly appreciated the said

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legal aspects and committed serious error of facts and law

and, therefore, the impugned award may be modified and

the relief of reinstatement with continuity of service with

full back wages may be granted in favour of the workman.

5. Mr.Soaham Joshi, learned AGP for the respondent

has submitted that there is delay in filing the reference.

He has submitted that as per the version of the workman,

he was orally terminated on 30.10.2004, whereas, he has

filed reference in the year 2007 and, therefore, there is

delay. He has submitted that it is consistent stand of the

respondent - department that the workman was working

as wireless operator, but he was not appointed by

following due procedure of appointment. It is further

submitted by the learned AGP that the workman was

working on daily rated wages. He has referred to the

affidavit-in-reply filed by the officer of the respondent -

department wherein it is specifically raised the contention

that the petitioner was engaged as daily wager and

assigned miscellaneous work and as and when he was not

selected through the selection process duly approved by

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the State Government. He has also referred to the

observation made by the Labour Court in the impugned

award that the petitioner was working with the

department from 01.07.1999 till 31.12.2000 as short

term assistant and, thereafter from 01.01.2001 till

31.05.2001, he was working as forest protection. He has

also referred to the observation made by the Labour Court

to the effect that in the year 2009, the age of the

workman was 30 years and considering the short term of

service, the Labour Court has granted lump sum

compensation of Rs.1,50,000/-. According to him, the

observation of the Labour Court is proper and no

interference is required. He has invited the attention of

this Court to para-26 of the award of Labour Court where

the Labour Court has relied upon the decision of the Apex

Court in the case of Bharat Sanchar Nigam Limited Vs.

Mansingh, 2012 L.L.R. 1 wherein it was observed that in

case of breach of Section 25F of the ID Act, there is no

need of granting any order of reinstatement, he has

submitted that the petition is devoid of merits and the

same may be dismissed. Mr.Joshi, learned AGP has relied

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upon the decisions of the Apex Court in the case of

Bharat Sanchar Nigam Limited Vs. Bhurumal, (2014)

7 SCC 177 and Prabhakar Vs. Joint Director,

Sericulture Department and another, (2015) 15 SCC

1.

6. In rejoinder, Ms.Kamani, learned advocate for the

petitioner has vehemently submitted that the ground of

delay has not been raised in the pleadings by the

respondent. She has submitted that since there is breach

of mandatory provisions of Section 25F of the ID Act, the

reinstatement with full back wages needs to be granted in

favour of the petitioner. She has prayed to allow the

present petition.

7. In the case of Harjinder Singh (supra), the

appellant was serving in public sector undertaking and his

service was terminated without following any due process

and, therefore, the Labour Court having found termination

unlawful awarded reinstatement with 50% back wages.

The same was challenged before the High Court wherein

new plea of workman's initial appointment being illegal

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was raised by the employer. The Apex Court has clearly

held that no such plea was taken by the employer before

the Labour Court and, therefore, there was no justification

in entertaining new plea raised by the employer for the

first time before the High Court. The Apex Court has also

reiterated the legal position regarding limited power of the

High Court under Articles 226 and 227 of the Constitution.

8. In the case of Anup Sharma,(supra), the Apex

Court, while dealing with the fact of non-compliance of

Section 25F of the I.D. Act, has held that non-compliance

with Clause (a) and (b) of Section 25Frenders

retrenchment nullity and burden lies on employer to lead

tangible evidence as to compliance with the Clause (a)

and (b) of Section 25F. In the said case, the services of

the appellant workman was terminated allegedly by

offering compensation in lieu of notice period, the

employer pleaded that the workman refused to receive

compensation and, therefore, the Labour Court, on the

basis of the evidence on record, found that the

compensation was sent after about three months of

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termination and on that ground, the Labour Court has set

aside termination for non-compliance of Section 25F of the

Act. The said award was challenged before the High Court,

the High Court reversed the award on the facts of the case

of the Supreme Court that the High Court erred in

interfere with the award of the Labour Court in absence of

pleading that initial engagement of appointment was

illegal and it did not find that the award was initiated

apparent on law. The award of the Labour Court directing

reinstatement with Back wages was upheld. Regarding the

jurisdiction of the High Court under Article 226,

interference in labour matters, it has been observed in

para-14 as under:-

14. In Syed Yakoob v. K. S. Radhakrishnan, AIR 1964 SC 477, the Constitution Bench of this Court considered the scope of the High Court's jurisdiction to issue a writ of certiorari in cases involving challenge to the orders passed by the authorities entrusted with quasi judicial functions under the Motor Vehicles Act, 1939. Speaking for majority of the Constitution Bench, Gajendragadkar, J. observed as under: (AIR pp.

479-80, para 7)

"....A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it,

C/SCA/10546/2012 JUDGMENT

or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised."

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9. In the case of Bharat Sanchar Nigam Limited

(supra), while dealing with the provisions of Section 25F

of the ID Act, the Apex Court has observed in paras-33,

34 and 35 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 malafide and/or by way of victimization, 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 procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view 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.

34. 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 non-payment 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 regularization (See: State of Karnataka v. Umadevi (3) (2006) 4 SCC 1). Thus when he cannot claim regularization 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

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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 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 wee regularized under some policy but the concerned workman 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.

10. In the case of Prabhakar (supra), the Apex Court

has held in paras-38, 39, 40 and 41 as under:-

38. It is now a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".

39. This principle is applied in those cases

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where discretionary orders of the Court are claimed, such as specific performance, permanent or temporary injunction, appointment of receiver etc. These principles are also applied in the writ petitions filed under Articles 32 and 226 of Constitution of India. In such cases, Courts can still refuse relief where the delay on the petitioner's part has prejudiced the respondent even though the petitioner might have come to Court within the period prescribed by the Limitation Act.

40. Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This principle is based on the doctrine of acquiescence implying that in such a case party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.

41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party looses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-existent.

11. Now, considering the legal position regarding effect

of non-compliance of Section 25F of the ID Act as well as

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submissions made on behalf of both the sides and the

materials placed on record which includes the impugned

award, it is crystal clear that the employer i.e. respondent

has challenged the award granting lump sum amount of

compensation of Rs.1,50,000/- to the workman. It also

appears that the Labour Court has clearly observed that

the workman was daily wager and he was getting monthly

salary of Rs.2,127/- as daily wager. On the basis of the

evidence on record, it was also observed by the Labour

Court that the workman has worked from 1991 till 2004

i.e. approximately 5 years.

12. It is pertinent to note that during the course of the

arguments, one of the pleas raised by the respondent is

that the industrial dispute is not applicable to them as

respondent is not industry within the meaning of

Industrial Disputes Act. However, such plea was not taken

by the respondent before the concerned Labour Court.

Therefore, that plea cannot be entertained at this stage in

view of the decisions as referred to hereinabove. However,

it is clearly found from the evidence that the workman

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was not paid any notice pay nor any retrenchment amount

and, therefore, there is clear breach of Section 25F of the

ID Act. According to the workman, since the action of the

respondent herein in non-compliance of Section 25F of the

ID Act, the workman is entitled to reinstatement in service

with full back wages is concerned, the same cannot be

accepted in view of the latest decisions of the Apex Court.

It is now well settled that there is non-compliance of

Section 25F of the ID Act, the reinstatement is not

automatic. It is worthwhile to refer to the decision of the

Apex Court in the case of BSNL Vs. Bhurumal wherein in

paras-33, 34 and 35, the Apex Court has clearly held that

when there is violation of Section 25F of the ID Act, the

reinstatement with full back wages is not automatic, the

workman should be given monetary compensation which

will meet the end of justice. In view of the settled

principles of law, this Court is of the considered opinion

that the Labour Court has not committed any serious error

of facts and law in not awarding reinstatement with

continuity of service. However, the amount of lump sum

as has been granted is not just compensation. Considering

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the fact that the workman was receiving Rs.2,197/- as a

salary as daily wager and it has not for five years in

service, the compensation of Rs.2,00,000/- will be just

and proper compensation. Therefore, the amount of lump

sum compensation awarded by the Labour Court i.e.

Rs.1,50,000/- is required to be enhanced to

Rs.2,00,000/-.

13. Considering the judgment of the Apex Court in the

case of Tapash Paul Vs. BSNL and another reported in

2016 (1) Scale 92 and BSNL Vs. Bhurumal reported in

2014 (7) SCC 177, this Court is of the view that in the

facts of this case granting of relief of reinstatement after a

gap of almost 5 years, no useful purpose will be served

and, therefore, this Court deems fit to order grant of

compensation of Rs.2,00,000/- in lieu of the

reinstatement. Such amount be paid to the workman by

the employer after proper verification of the identify by an

account payee cheque / pay order within a period of three

months from the date of receipt of this order, failing which

the workman shall be entitled to claim interest at the rate

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of 9% from today till the date of actual realization. It is

observed that the aforesaid amount is in addition to

whatsoever paid to him.

14. With the aforesaid conclusion, the petition stands

disposed of. Rule is made absolute to the aforesaid extent.

No order as to costs.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL