Gujarat High Court
Sarpanch/Talati-Cum-Mantri vs Gunvantray Ravishankarbhai ... on 1 September, 2021
Bench: Nirzar S. Desai
C/LPA/770/2021 ORDER DATED: 01/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 770 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 19747 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 770 of 2021
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SARPANCH/TALATI-CUM-MANTRI
Versus
GUNVANTRAY RAVISHANKARBHAI RAJYAGURU
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Appearance:
MR MURALI N DEVNANI(1863) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3
MS SANDHYA D NATANI(3678) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 01/09/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)
1. When the matter is called out, learned advocate
Mr.Murli Devnani for the appellant tendered a draft
amendment. The Draft Amendment is allowed. Learned
C/LPA/770/2021 ORDER DATED: 01/09/2021
advocate for the appellant is directed to carry out the
draft amendment forthwith.
2. By way of the present Letters Patent Appeal, the
appellant - original petitioner of Special Civil Application
No.19747 of 2019 has challenged the order dated
15.11.2019 passed by the learned Single Judge whereby
the learned Single Judge disposed of the petition
preferred by the present appellant by modifying the
award of the Labour Court No.2, Rajkot passed in
Reference (LCR) No.28 of 2016 dated 02.08.2019 to the
effect that the Respondent No.1 shall be entitled to be
reinstated in service to his original post with continuity of
services, with all consequential benefits flowing from the
continuity of services, with 30% back-wages from the
date of termination till the Respondent no.1 is reinstated
in service. The Labour Court No.2, Rajkot vide award
dated 02.08.2019 had passed an order directing the
reinstatement of the Respondent No.1 with 50% back-
wages and the amount of back-wages was modified to the
extent of reducing it to 30% from 50% by order impugned
in this appeal.
C/LPA/770/2021 ORDER DATED: 01/09/2021
3. Heard learned advocate Mr.Murli Devnani for the
appellant and learned advocate Ms.Sandhya Nathani for
the Respondent No.1.
4. Brief facts giving rise to filing of the present appeal
are stated as under:
4.1 Respondent No.1 was appointed by Atkot Gram
Panchayat by passing a Resolution and the Respondent
No.1 started functioning his duty in Octroi Branch as
Octroi Clerk with effect from 19.05.1988. Even after the
system of collection of octroi was abolished in the year
2001, the present Respondent No.1 was continued by the
appellant as Clerk and he continued to perform his duty
under the present appellant as Clerk till his services were
terminated by present appellant by passing the
Resolution dated 12.02.2016.
4.2 Being aggrieved by the Resolution dated 12.02.2016
directing the services of Respondent No.1, the
Respondent No.1 preferred Reference (LCR) No.28 of
2016 and prayed for his reinstatement, with continuity of
C/LPA/770/2021 ORDER DATED: 01/09/2021
service and full back-wages.
4.3 The Labour Court No.2, Rajkot vide order dated
02.08.2019 directed the present appellant to be
reinstated in services of Respondent No.1 with effect
from 12.02.2016 with continuity of service and 50% back
wages.
4.4 While passing the order of reinstatement with 50%
back-wages, the Labour Court held that there is a clear-
cut breach of Sections 25(F) and 25(H) of the Industrial
Disputes Act, 1947 ('ID Act', for short).
4.5 The aforesaid order dated 02.08.2019 passed by the
Labour Court No.2, Rajkot was challenged by the present
appellant before this Court by filing Special Civil
Application No.19747 of 2019 and the learned Single
Judge disposed of the said petition by modifying the order
passed by the Labour Court No.2, Rajkot and reduced the
amount of back-wages to be paid to Respondent No.1
from 50% to 30% vide order dated 15.11.2019.
4.6 Being aggrieved by and dissatisfied with the
C/LPA/770/2021 ORDER DATED: 01/09/2021
aforesaid order passed by the learned Single Judge, the
appellant has preferred the present Letters Patent
Appeal.
5. Learned advocate Mr.Murli Devnani for the
appellant tendered draft amendment and placed on
record a copy of the cross-examination of the Respondent
No.1 and submitted that the Respondent No.1 was
gainfully employed as he was running the shop in the
name of his wife and was having agency of Ultratech
Cement in the name and style of 'Shree Bhumika
Traders'. On the basis of cross-examination of
Respondent No.1, learned advocate Mr.Devnani
submitted that in view of the fact that Respondent No.1
was gainfully employed, the learned Single Judge has
committed an error by reducing the back-wages from
50% to 30% to be paid to Respondent No.1 as according
to Mr.Devnani the Respondent No.1 is not entitled to any
back-wages as he was gainfully employed.
5.1 Learned advocate Mr.Devnani further submitted that
any order of back-wages in favour of Respondent No.1
would only increase the financial burden of the Gram
C/LPA/770/2021 ORDER DATED: 01/09/2021
Panchayat and therefore also the learned Single Judge
has committed an error by awarding 30% back-wages in
favour of Respondent No.1.
5.2 No ground in respect of reinstatement was raised by
learned advocate Mr.Devnani and no other and further
arguments were made or any judgments were relied upon
by learned advocate Mr.Devnani.
6. Per contra, learned advocate Ms.Sandhya Nathani
for the Respondent No.1 submitted that the Labour Court
passed the order of reinstatement with 50% back-wages
after taking into consideration documentary and oral
evidence on record and while passing the aforesaid order,
the Labour Court was well aware about the fact that wife
of Respondent No.1 was having agency of Ultratech
Cement and was running the shop in the name and style
of 'Shree Bhumika Traders'. The Labour Court was
pleased to pass an order of reinstatement of Respondent
No.1 with continuity of service, with 50% back-wages
after considering the totality of the facts, since all the
grounds, which are sought to be canvassed by the learned
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advocate for the appellant, were canvassed before the
learned Single Judge as well. Taking note of the aforesaid
fact that the petitioner's wife was running a shop in the
name of 'Shree Bhumika Traders' and also considering
the financial aspects of burdening the Gram Panchayat
financially, on account of back-wages, the learned Single
Judge has rightly modified the order of Labour Court,
Rajkot by reducing the amount of back-wages to be paid
to the Respondent No.1 from 50% to 30% and on the
strength of aforesaid submission, learned advocate
Ms.Nathani prayed for dismissal of present appeal.
7. We have heard learned advocates for the respective
parties. We have also perused the record of Special Civil
Application No.19747 of 2019 and the evidence forming
part of the paper-book. The main contention of learned
advocate Mr.Devnani in respect of back-wages awarded
in favour of Respondent No.1 to the extent of 30% is that
the wife of Respondent No.1 was having shop in the name
of 'Shree Bhumika Traders' and hence Respondent No.1
was gainfully employed and, therefore, both the Labour
Court as well as the learned Single Judge have committed
C/LPA/770/2021 ORDER DATED: 01/09/2021
an error by awarding back-wages in favour of Respondent
No.1 while issuing direction to reinstate the Respondent
No.1.
7.1 Since the main limb of argument of Mr.Devnani was
two- fold i.e. (i) that the Respondent No.1 was gainfully
employed as his wife is having shop in his name i.e.
'Shree Bhumika Traders' and (ii) that awarding back-
wages in favour of Respondent No.1 would increase the
financial burden of Gram Panchayat, considering the fact
that no argument was advanced in respect of order of
reinstatement of Respondent No.1, we have confined
ourselves to examine the order of the Labour Court as
well as the learned Single Judge, only to the extent of
awarding back-wages in favour of Respondent No.1.
7.2 The record indicates that the fact about wife of the
petitioner having a shop in the name of 'Shree Bhumika
Traders' was already there before the Labour Court. The
said issue was also raised before the learned Single Judge
as well. While recording the submission of petitioner
( present appellant ), the learned Single Judge has
C/LPA/770/2021 ORDER DATED: 01/09/2021
observed thus, in paras:4 and 5:-
"4. It is alleged that the respondent no.1 is
carrying out the business of selling of Ultratech
Cement at a large scale from a premise which is
in the name of his wife Shobhna Shasikant
Samiya in the name and style of 'Shree Bhumika
Traders'. The details of registration, etc. has been
given to urge that, this 50% of back-wages is a
huge burden."
5. Mr.H.S. Munshaw appearing for the
petitioner Gram Panchayat has made an extensive
submission along the line of the memo of the
petition. He, however, fairly submitted that the
material with regard to the business of wife of the
present respondent no.1 and the proof in support
thereof had not been adduced before the Labour
Court. He also admitted fairly that no inquiry has
been conducted against the respondent no.1, at
the time of terminating his services. He, however
emphasized that there is no question of breach of
Sections 25G and 25H of the I.D. Act, as Mr.
Rajeshbhai Chovatiya has not been put on a job in
place of the respondent no.1."
7.3 Thereafter, after considering the argument
advanced by both the sides, the learned Single Judge, in
C/LPA/770/2021 ORDER DATED: 01/09/2021
para:8 of the order, observed thus:-
"8. When no material with regard to any
misconduct on the part of the respondent as the
respondent having indulged into any activities
contrary to the Service or Code or Rules and
Regulations, has been placed on record and
therefore, the petitioner will not be permitted to
rely on the document of the wife pursuing the
business in the name and style of 'Bhumika
Traders'. Permitting that at this stage would
tantamount to denying opportunity to the
respondent. It is not being disputed that wife of
the present respondent no.1 is pursuing her
business. She is an independent person, who is
entitled to carry on such business and that would
not permit the Gram Panchayat to indulge into
any illegality in dealing with its employees. Even
if, he was drawing the salary of Rs.18, 112/- per
month, that is not the ruminative of his status and
determinative of the fact whether he can be
termed as workman or not. It is the nature of
work which carried out by him will determine
whether the person can fall into the category of
'workman' or not. Considering the nature of work
that was taken from him of miscellaneous kind
after the Octroi got abolished in the year 2001,
C/LPA/770/2021 ORDER DATED: 01/09/2021
even that contention has rightly not been upheld
by the Labour Court."
7.4 Thereafter, the learned Single Judge also considered
the aspect of financial burden of Gram Panchayat, in
para:10 of the order and observed thus:
"10. So far as the aspect of 50% of the back-
wages is concerned, with much perseverance, a
request is made on behalf of learned advocate
Mr.Munshaw, considering the same on the
ground that financial strength of the Gram
Panchayat at loss and to much to be desired,
therefore, the overall circumstances of the
respondent no.1 should lead the Court to reduce
the same. This has been, of course, resisted on
the part of Mr. Mehta, who however, on
instructions has admitted that wife of the present
respondent no.1 is carrying on the business and
has also not disputed the weal financial condition
of the petitioner Panchayat. Considering all these
aspects and overall facts and circumstances, the
Court is inclined to reduce the percentage of
back-wags from 50% to 30%."
7.5 The aforesaid observations made by the learned
C/LPA/770/2021 ORDER DATED: 01/09/2021
Single Judge clearly indicate that not only both the issues
in respect of allegations about gainful employment by
Respondent No.1 on account of a shop which was run by
his wife as well as the contention in respect of financial
burden on the Gram Panchayat were raised before the
learned Single Judge and both the aforesaid aspects were
duly considered by the learned Single Judge and
thereafter only the learned Single Judge modified the
award passed by the Labour Court, Rajkot by reducing
the percentage of back-wages from 50% to 30% to be
paid to Respondent No.1.
8. In view of the above, we are in complete agreement
with the view taken by the learned Single Judge as the
learned Single Judge has taken care of both the
arguments advanced by learned advocates before us and
we are convinced that the learned Single Judge has not
committed any error by modifying back-wages to the
extent of 30% in favour of Respondent No.1 and hence we
are not inclined to interfere with the order passed by the
learned Single Judge.
C/LPA/770/2021 ORDER DATED: 01/09/2021
9. In view of the above, the present appeal deserves to
be dismissed. The same is dismissed accordingly. No
order as to costs. In view of disposal of the main appeal,
the connected Civil Application would stand dismissed.
(R.M.CHHAYA, J)
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
