Vijay Vamanray Bhatti vs State Of Gujarat
2021 Latest Caselaw 15900 Guj

    C/LPA/654/2021                                 CAV JUDGMENT DATED: 08/10/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/LETTERS PATENT APPEAL NO. 654 of 2021

              In R/SPECIAL CIVIL APPLICATION NO. 1605 of 2016

                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                 In R/LETTERS PATENT APPEAL NO. 654 of 2021

                                      With

                 R/LETTERS PATENT APPEAL NO. 656 of 2021
                                     In
                 SPECIAL CIVIL APPLICATION NO. 1460 of 2016

                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                     In
                 R/LETTERS PATENT APPEAL NO. 656 of 2021
                                     In
                 SPECIAL CIVIL APPLICATION NO. 1460 of 2016


FOR APPROVAL AND SIGNATURE:

HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA

and

HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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

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 ?

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

========================================================== VIJAY VAMANRAY BHATTI Versus STATE OF GUJARAT ========================================================== Appearance:

MR YOGEN N PANDYA(5766) for the Appellants MR TIRTHRAJ PANDYA, Assistant Government Pleader for the Respondent State Authorities ==========================================================

CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.

JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 08/10/2021

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)

1. By way of the present Letters Patent Appeals under

Clause 15 of the Letters Patent Act, the present

appellants - original workmen have challenged the even

orders dated 27.06.2018 passed by the learned Single

Judge in Special Civil Application No.1605 of 2016 and in

Special Civil Application No.1460 of 2016. The learned

Single Judge, disposed of the petition i.e. Special Civil

Application No.1605 of 2016 by partly setting aside and

modifying the award impugned passed by the Labour

Court, Jamnagar in Reference (T) No.85 of 2010 wherein

vide award dated 13.10.2015 the learned Labour Judge

partly allowed the Reference preferred by the workman

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

and directed the employer to reinstate the workman with

10% back-wages and continuity of service. Similarly, the

learned Single Judge, disposed of the petition i.e. Special

Civil Application No.1460 of 2016 by partly setting aside

and modifying the award impugned passed by the Labour

Court, Jamnagar in Reference (T) and 86 of 2010 wherein

vide award dated 13.10.2015 the learned Labour Judge

partly allowed the Reference preferred by the workman

and directed the employer to reinstate the workman with

10% back-wages and continuity of service. The learned

Single Judge by modifying the aforesaid award impugned,

in both the writ petitions, granted lumpsum compensation

of Rs.45,000/- and Rs.25,000/- respectively to the

workmen in lieu of reinstatement with continuity of their

services and 10% back-wages and directed the

respondent herein - original petitioner to pay the amount

of lumpsum compensation, within a period of four weeks

from the date of receipt of the certified copy of the

orders.

2. Being aggrieved and feeling dissatisfied with the

aforesaid even order dated 27.06.2018, both the

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

workmen - original respondents preferred these Letters

Patent Appeals challenging the order passed by the

learned Single Judge dated 27.06.2018.

3. On 29.07.2021, this Court passed the following

order in both the writ petitions being Special Civil

Application No.1460 of 2016 and Special Civil Application

No.1605 of 2016.

"Heard Mr.Yogen Pandya, learned advocate for the appellant. Mr. Pandya, learned advocate submits that he restricts the prayer only to the extent of enhancement of lumpsum compensation.

In view of the aforesaid statement of Mr. Pandya, issue Notice to the respondents returnable on 18.08.2021."

3.1 Since the Notice was issued, in both the appeals,

only for the purpose of enhancement of lumpsum

compensation by consent of the parties the matters were

heard finally and the same were considered only for the

purpose of enhancement of lumpsum compensation

awarded by the learned Single Judge.

4. The brief facts leading to the filing of the present

appeals are stated as under:

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

FACTS OF LETTERS PATENT APPEAL NO.654 OF

2021 :

4.1 The workman was serving under present

Respondent No.2 as Peon on a monthly salary of

Rs.1350/- and as per his say he was serving since five

years and worked for more than 240 days in each year at

the time of his termination. His services came to be

terminated without following due procedure as

prescribed under the law with effect from 31.03.2006

orally. In view of his oral termination, after four years he

preferred Reference Case (T) No.85 of 2010. In the said

Reference, the learned Judge, Labour Court, Jamnagar

held that conditions of sections 25(f), 25(g) and 25(h) of

the Industrial Disputes Act, 1947 ('ID Act', for short) are

breached and accordingly the learned Labour Judge

passed award directing the present respondent to

reinstate the workman (present appellant) with continuity

of services and with 10% back-wages.

4.2 Being aggrieved by the aforesaid award, the present

respondent preferred Special Civil Application No.1605 of

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

2016 before the learned Single Judge.

FACTS OF LETTERS PATENT APPEAL NO.656 OF 2021 :

4.3 The workman was serving under present

Respondent No.2 as Sweeper on a monthly salary of

Rs.450/- and as per his say he was serving since three

years and worked for more than 240 days in each year at

the time of his termination. His services came to be

terminated without following due procedure as

prescribed under the law with effect from 31.03.2006

orally. In view of his oral termination, after four years he

preferred Reference Case (T) No.86 of 2010. In the said

References, the learned Judge, Labour Court, Jamnagar

held that conditions of sections 25(f), 25(g) and 25(h) of

the Industrial Disputes Act, 1947 ('ID Act', for short) are

breached and accordingly the learned Labour Judge

passed awards directing the present respondents to

reinstate the workmen (present appellants) with

continuity of services and with 10% back-wages.

4.4 Being aggrieved by the aforesaid award, the present

respondents preferred Special Civil Application No.1460

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

of 2016 before the learned Single Judge.

4.5 In both the above writ petitions, vide even order

dated 27.06.2018, the learned Single Judge held that

findings of the Labour Court in respect of breach of

sections 25(g) and 25(h) were not sustainable in view of

the facts of each case. However, the learned Single Judge

held that the learned Labour Judge was justified in

holding that the present respondent - employer has

committed breach of section 25(f) of 'ID Act'. The learned

Single, after taking into consideration the fact that the

claimants were engaged without following due procedure,

has considered the aspects that (i) their appointment was

intermittently and on ad hoc and daily basis (ii) they were

engaged only for 6 hours per day on part-time basis and

(iii) on each occasion, they were engaged by virtue of

specific order with specific conditions regarding part-time

work, narration of work and specific period for which

they were engaged.

4.6 Ultimately, the learned Single Judge modified the

award passed by the learned Labour Judge, Jamnagar and

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

passed the orders to pay lumpsum compensation of

Rs.45,000/- and Rs.25,000/- to be paid to the claimants

workmen (appellants of Letters Patent Appeal No.654 of

2021 and Letters Patent Appeal No.656 of 2021

respectively) in lieu of reinstatement, without continuity

of service and 10% back-wages.

5. The present appellants being the workmen, who

were respondent in the writ petitions, being aggrieved

and feeling dissatisfied with the said orders, challenged

the aforesaid orders by way of present appeals.

6. Heard learned advocate Mr.Yogen Pandya for the

appellants (workmen) - original respondents and learned

Assistant Government Pleader Mr.Tirthraj Pandya for the

State - respondent herein.

7. Since the present appeals are confined only in

respect of enhancement of lumpsum compensation,

learned advocate Mr.Yogen Pandya pointed out from the

record and submitted that the present appellants

workmen had worked for five years as Peon and for three

years as Sweeper respectively under the respondent -

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

employer. Considering their length of service, lumpsum

compensation awarded by the learned Single Judge is too

meager amount and, therefore, he prayed that in view of

the judgment of the Hon'ble Supreme Court of India in

the case of Bhavnagar Municipal Corporation and others

vs. Jadeja Govubha Chhanubha and another reported in

2014 (16) SCC 130 wherein the workman had worked

for 18 months and yet lumpsum compensation of

Rs.2,50,000/- was awarded by Honourable the Supreme

Court, present appellants also may be paid some more

lumpsum compensation to the tune of Rs.2,50,000/-.

8. Per contra, learned Assistant Government Pleader

Mr.Tirthraj Pandya pointed out from the record that the

present appellants were appointed and were well aware

at the time when they were engaged that their

appointment would be for the limited and specific period

and the said arrangement would come to an end on expiry

of period of work for which they were engaged. He

further submitted that it is the say of the appellants that

they have worked continuously for five years and three

years but there is no cogent evidence on this ground. He

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

also pointed out from the order of the learned Single

Judge that even the learned Single Judge has also

observed the aforesaid facts in the order. He further

submitted that according to the present appellants their

services were terminated in March, 2006 whereas the

Reference was preferred in the year 2010, after delay of

four years, and therefore also considering the aforesaid

aspects the learned Single Judge has rightly awarded

lumpsum compensation of Rs.45,000/- to the appellant

who was working as Peon and Rs.25,000/- to the

appellant who was working as Sweeper, in lieu of

reinstatement and he prayed for dismissal of the present

appeals. No other and further submissions were made by

either sides.

9. We have perused the record of the present appeals

and have gone through the orders of the learned Single

Judge impugned in this appeals. We have also perused

the entire set of papers of both the writ petitions i.e.

Special Civil Application No.1605 of 2016 and Special

Civil Application No.1460 of 2016 and relevant record of

proceedings before the Labour Court, as provided in both

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

the writ petitions as the same is not disputed by either

side.

9.1 Considering the fact that the present appellants -

workmen though have claimed to work for five years and

three years, under the respondent, as observed by the

learned Single Judge in the order that there is no cogent

evidence about whether the workmen had served for five

years and three years or not. Furthermore, we have

noticed the fact that the posts on which appellants were

working was part-time post and they were required to

work only six hours in a day. Therefore, considering the

overall circumstances and also considering the judgment

of Bhavnagar Municipal Corporation (supra) pressed into

service by learned advocate Mr.Yogen Pandya, we are of

the view that the lumpsum compensation awarded by the

learned Single Judge to the tune of Rs.45,000/- and

Rs.25,000/- is required to be enhanced. We accordingly

enhance the lumpsum compensation to Rs.1,00,000/- and

Rs.50,000/- respectively to be paid to the workmen

keeping in mind the fact that in the case cited by the

learned advocate for the appellants, the workman was in

C/LPA/654/2021 CAV JUDGMENT DATED: 08/10/2021

full-time service whereas in the present case the

workmen were in part-time service. Furthermore, under

the facts and circumstances of the case, breach of Section

25(f) of the 'ID Act' only is proved and the learned Single

Judge has taken a view that breach of Sections 25(h) and

25(g) of the 'ID Act' are not sustainable and, therefore, in

view of above, we deem it appropriate to enhance the

lumpsum compensation as stated above. The order of the

learned Single Judge stands modified to the aforesaid

extent.

10. With the above observations and directions, both the

present appeals are partly allowed. No costs.

11. In view of the dismissal of both the main appeals,

connected civil applications would not survive. They are

disposed of accordingly.

(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) MISHRA AMIT V.