Sujansingh Dilubha Gohil vs State Of Gujarat
2021 Latest Caselaw 17100 Guj

     C/MCA/493/2019                              CAV ORDER DATED: 29/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/MISC. CIVIL APPLICATION NO. 493 of 2019

             In R/SPECIAL CIVIL APPLICATION NO. 13499 of 2012

                                    With

                 R/MISC. CIVIL APPLICATION NO. 494 of 2019
                                     In
                SPECIAL CIVIL APPLICATION NO. 13498 of 2012

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.J.DESAI
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 ?

========================================================== SUJANSINGH DILUBHA GOHIL Versus STATE OF GUJARAT ========================================================== Appearance:

MS JIGNASA B TRIVEDI(3090) for the Applicant(s) No. 1

NOTICE SERVED(4) for the Opponent(s) No. 1,2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE NIRZAR S. DESAI

C/MCA/493/2019 CAV ORDER DATED: 29/10/2021

Date : 29/10/2021

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

1. The applicants, by way of these two applications under the provisions of the Contempt of Courts Act, 1971, have prayed for arraigning the respondent for willful breach of non-compliance of oral order passed in Special Civil Application No.13499 of 2012 and 13498 of 2012 dated 15.10.2018 whereby the award of the Labour Court, Bhavnagar in Reference (LCB) Nos.90 of 2010 and 100 of 2010 respectively dated 26.05.2011 were upheld.

2. Heard learned advocate Mr.B.J.Trivedi for the applicants and learned Assistant Government Pleader Mr.J.K.Shah for the respondent State.

3. The brief facts giving rise to the filing of the present applications are as under:

Facts of Miscellaneous Civil Application No.493 of 2019 :

3.1 By way of this application, the applicant of this application was serving as daily wager Watchman under the respondents with effect from 12.04.1993 and he was paid at the rate of Rs.65/- per day. It was the case of the applicant before the Labour Court at Bhavnagar in Reference (LCB) No.90 of 2010 that his services were terminated orally by the respondents from 01.04.2003 without following the mandatory provisions of Section 25

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(f), (g) and (h) of the Industrial Disputes Act, 1947 ('ID Act', for short). It is stated that initially the date of joining of the applicant under the respondent was shown as 12.04.1995 however subsequently the workman preferred an application and got rectified his date of entry under the respondent as in the month of April, 1993.

3.2 The applicant has challenged his termination by way of Reference (LCB) No.90 of 2010 mainly on the ground that the persons junior to him were retained and services of the applicant came to be terminated. The present respondent appeared in the said Reference and by producing muster and other documentary evidences and contended that it is not true that the applicant was terminated from April, 2003. It was further contended before the Labour Court that applicant was called to perform the duty as and when it was required. It was also denied before the Labour Court that persons junior to the applicant was retained in the service. Since the applicant was engaged only for miscellaneous work on daily wages basis, seniority list was not required to be prepared. In support of their say, the respondent had produced various documents including the muster showing the attendance of the present applicant. However, the Labour Court considered the fact that the present applicant in his examination-in-chief below Exh.9 submitted a list of people who were according to the applicant were junior to him. However, since there was no cross-examination by the respondent in respect of the aforesaid aspect, the

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Labour Court, Bhavnagar held that there was breach of sections 25(f), (g) and (h) of the 'ID Act' and considered that since the demand notice was given on 08.07.2010 to the respondents, the applicant is required to be reinstated with 10% back-wages with effect from 08.07.2010.

3.3 The aforesaid award was challenged before the learned Single Judge of this Court by way of filing the Writ Petition being Special Civil Application No.491 of 2012 and allied matters whereby the respondent challenged the said award by filing Special Civil Application No.13499 of 2012 and ultimately the learned Single Judge of this Court vide common order dated 15.10.2018 in Special Civil Application No.491 of 2012 and allied matters dismissed the petitions and directed the State to implement the award passed by the Labour Court within a period of six weeks from the date of receipt of the order.

Facts of Miscellaneous Civil Application No.494 of 2019

3.4 By way of this application, the applicant of this application was serving as daily wager Watchman under the respondents with effect from 01.04.1993 and he was paid at the rate of Rs.65/- per day. It was the case of the applicant before the Labour Court at Bhavnagar in Reference (LCB) No.100 of 2010 that his services were terminated orally by the respondents from 30.04.2003 without following the mandatory provisions of Section 25

(f), (g) and (h) of the Industrial Disputes Act, 1947 ('ID

C/MCA/493/2019 CAV ORDER DATED: 29/10/2021

Act', for short). It is stated that initially the date of joining of the applicant under the respondent was shown as 01.04.1995 however subsequently the workman preferred an application and got rectified his date of entry under the respondent as in the month of April, 1993.

3.5 The applicant has challenged his termination by way of Reference (LCB) No.100 of 2010 mainly on the ground that the persons junior to him were retained and services of the applicant came to be terminated. The present respondent appeared in the said Reference and by producing muster and other documentary evidences and contended that it is not true that the applicant was terminated from April, 2003. It was further contended before the Labour Court that applicant was called to perform the duty as and when it was required. It was also denied before the Labour Court that persons junior to the applicant was retained in the service. Since the applicant was engaged only for miscellaneous work on daily wages basis, seniority list was not required to be prepared. In support of their say, the respondent had produced various documents including the muster showing the attendance of the present applicant. However, the Labour Court considered the fact that the present applicant in his examination-in-chief below Exh.9 submitted a list of people who were according to the applicant were junior to him. However, since there was no cross-examination by the respondent about the aforesaid aspect, the Labour Court, Bhavnagar held that there was breach of sections

C/MCA/493/2019 CAV ORDER DATED: 29/10/2021

25(f), (g) and (h) of the 'ID Act' and considered that since the demand notice was given on 08.07.2010 to the respondents, the applicant is required to be reinstated with 10% back-wages with effect from 08.07.2010.

3.6 The aforesaid award was challenged before the learned Single Judge of this Court by way of filing the Writ Petition being Special Civil Application No.491 of 2012 and allied matters whereby the respondent challenged the said award by filing Special Civil Application No.13498 of 2012 and ultimately the learned Single Judge of this Court vide common order dated 15.10.2018 in Special Civil Application No.491 of 2012 and allied matters dismissed the petitions and directed the State to implement the award passed by the Labour Court within a period of six weeks from the date of receipt of the order.

3.7 Since the aforesaid common oral order passed by the learned Single Judge dated 15.10.2018 was not implemented by the respondents, the applicants preferred the present applications under the provisions of the 'ID Act'.

4. Heard learned advocate Mr.Brijesh Trivedi for the applicants and learned Assistant Government Pleader Mr.J.K.Shah for the respondent State authorities.

4.1 Mr.Trivedi, learned advocate for the applicants submitted that though the respondents have, during the pendency of the applications, stated that the they have

C/MCA/493/2019 CAV ORDER DATED: 29/10/2021

complied with the orders passed by the Labour Court which was confirmed by the learned Single Judge, those orders are not complied with in its true spirit. Mr.Trivedi submitted that the amount paid by the respondents to the present applicants is much less than the actual amount which was required to be paid to the applicants. He further submitted that the calculation provided by the respondents is erroneous and hence the amount paid by the respondents is much less than the actual entitlement of the applicants. Mr.Trivedi submitted that he has also made calculation of the actual entitlement of both these applicants and they are required to be paid as per calculation provided by Mr.Trivedi. Since the respondents have not paid the present applicants as per calculation as provided by Mr.Trivedi, he prayed that the respondents have flouted the order passed by the labour Court which was confirmed by the learned Single Judge and this shows willful disobedience on the part of the respondents as they have not complied with the order in its true letter and spirit and prayed that respondents must be punished for commitment of contempt of orders passed by this Court.

5. As against that, learned Assistant Government Pleader Mr.J.K.Shah for the respondents submitted that the order passed by the Labour Court as well as by the learned Single Judge have duly been complied with by the respondents. Mr.Shah submitted that even by way of affidavit-in-reply filed by the respondent no.4 dated 07.02.2020 respondents have elaborately mentioned that

C/MCA/493/2019 CAV ORDER DATED: 29/10/2021

how the amount has been calculated and how they have complied with the order passed by the labour Court which was confirmed by this Court. Mr.Shah further pointed out that, in fact, Labour Court, Bhavnagar has, in its award, only directed to reinstate the applicants with 10% back- wages with effect from 08.07.2010 with all consequential benefits and while considering the services of the applicants as continuous service in the award there is no mention about granting of benefits of Government Resolution dated 17.10.1988. However, other similarly situated persons were granted those benefits and the labour Court also directed the respondents to pay all consequential benefits to the applicants and those benefits are given to the applicants and accordingly the detailed calculation is also provided. Mr.Shah pointed out that Government Resolution dated 17.10.1988 has been interpreted and certain directions are issued by Hon'ble the Supreme Court by way of recent judgment rendered in case of State of Gujarat vs. Public Works Department and Forest Employees Union and others reported in (2019) 15 SCC 248 and from para:16 of the said judgment, learned Assistant Government Pleader Mr.Shah submitted that while extending the benefits as per Government Resolution dated 17.10.1988 only those years of service are required to be counted wherein the workman has completed a period of 240 days of service in a year. Mr.Shah further submitted that, in fact, the applicants of both the applications were handed over cheques as

C/MCA/493/2019 CAV ORDER DATED: 29/10/2021

mentioned in the order dated 31.01.2020, which reads as under:

      Sr.     Name of the workman                       Cheque               Amount
      No.                                              No.
      1       Shri Sujansingh Dilubha Gohil 105275                          10,15,168/-
      2       Shri      Chetansingh      Bhimbha 105274                     11,20,725/-
              Gohil

5.1 On the strength of aforesaid submission, Mr.Shah submitted that as the aforesaid amount has been paid to both the applicants in compliance of the order passed by the Labour Court which was confirmed by the learned Single Judge, it can be said to be the compliance of the order and if still the applicants have any grievance about the calculation, in that case, they may avail appropriate remedy available to them under the law but considering the fact that there is compliance of the order, as per the calculation provided by the respondent herein, the applicants cannot say that there is willful disobedience on the part of the respondent authorities and hence Mr.Shah prayed for dismissal of both these applications.

6. Having heard learned advocates for the respective parties and and having perused the record of both the applications, we find that the labour Court mainly allowed the References preferred by the workmen and passed the award impugned in the writ petitions filed by the respondent State authorities considering the fact that the persons juniors to the applicants were retained in the

C/MCA/493/2019 CAV ORDER DATED: 29/10/2021

organisation and hence both the References were partly allowed. We have also noted the fact that as back as in January, 2020, the cheques were handed over to the applicants and on 31.01.2020 the coordinate Bench of this Court passed the following order:

"Ms.Nisha Thakore, learned Assistant Government Pleader has handed over cheques in both the matters to Shri Brijesh Trivedi, learned counsel for the applicants. The details of the cheques are as follows:

    Sr.     Name of the workman                 Cheque               Amount
    No.                                        No.
    1       Shri Sujansingh Dilubha Gohil 105275                    10,15,168/-
    2       Shri    Chetansingh      Bhimbha 105274                 11,20,725/-
            Gohil

Let these matters be listed on 20.03.2020 as requested by Shri Trivedi to file objection, if any."

6.1 As can be seen from the above, the coordinate Bench of this Court also permitted learned advocate Mr.Trivedi to file objections if any. After the aforesaid order was passed, the Respondent No.4 filed two detailed affidavits on both the applications dated 07.07.2020 explaining that in what manner the respondent authorities have complied with the orders. Thereafter further affidavit was also filed by the Secretary, Narmda Water Resources, Water Supply and Kalpsar Department, Gandhinagar on 15.09.2021 whereby

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even a detailed chart of calculation was also provided.

6.2 However, from the record we find that though the calculation provided by way of 15.09.2021 affidavit was disputed by the learned advocate for the applicants and another calculation was provided the same was provided without explaining anything on oath as to how the calculation provided by the respondent authorities can be said to be erroneous.

6.3 We are conscious that in contempt jurisdiction, we have to examine whether the order has been disobeyed willfully or not and we cannot convert ourselves into fact finding authority. From the record as well as on perusal of the order dated 31.01.2020 we can clearly see that respondents have complied with the order and have issued cheques amounting to Rs.10,15,168/- and Rs.11,20,725/- to both the applicants and now the only dispute remains is in respect of the manner and method of calculation. Hence, we are of the view that such dispute would be outside the purview of contempt of Court. However, the interest of justice would be served if the respondents are directed to consider the representation of the applicants in respect of dispute in relation to calculation made by the respondent authorities if the applicants are desirous of making any such representation.

6.4 If such representation is made, the respondent

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authorities are directed to look into the matter and pass appropriate order. The applicants are also at liberty to challenge the calculation that may be provided by the respondents if they are aggrieved by such calculation by availing appropriate remedy available to them under the law.

7. So far as the present applications are concerned, subject to the above directions, we are convinced that the order passed by the labour Court, which was confirmed by the learned Single Judge, is complied with. We, therefore, would not like to continue with the present applications. Both these applications are disposed of accordingly. No order as to costs. Notice is discharged.

(A.J.DESAI, J)

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