Somabhai Kanchanbhai Bariya vs Deputy Executive Engineer
2021 Latest Caselaw 13832 Guj

    C/SCA/10323/2020                                     JUDGMENT DATED: 13/09/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10323 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA
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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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                     SOMABHAI KANCHANBHAI BARIYA
                                Versus
                  DEPUTY EXECUTIVE ENGINEER & 3 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR.ROHAN SHAH, AGP for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                  Date : 13/09/2021
                                  ORAL JUDGMENT

[1] Rule. Learned AGP waives service of notice of rule on behalf of the respondent - State authorities.

[2] By way of the present petition, the petitioner seeks to challenge the award dated 09.04.2019 passed by the Labour Court, Godhra in Reference (T) No.54 of 2000. By the impugned

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award, the Labour Court held that termination of the petitioner is illegal and in violation of Section 25F of the Industrial Disputes Act, 1947, (the I.D.Act) and awarded compensation of Rs.70,000/-.

[3] The short facts given rise to the present petition are that the petitioner came to be appointed as a daily-wager Irrigation Patrolling with effect from 16.12.1993 the office of the respondent. The petitioner was asked to work in different Sub Divisions of the respondent right from the beginning. The petitioner had worked at sub divisions such as Chokadi, Minor Canal, Hirapur Minor Canal Section, etc. and his services were considered to be continuous all throughout. The petitioner was orally terminated from service by the respondent with effect from 1997. It is the case of the petitioner that juniors to the petitioner were retained in service and in order to deprive the petitioner of the benefits under Government Resolution dated 17.10.1988, he came to be orally terminated from service.

[3.1] At the first instance, the petitioner represented his case before the competent authority, however since no action was taken, the petitioner approached the Labour Court by way of

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Reference (T) No.54 of 2000.

[4] Learned advocate Mr.Dipak Dave for the petitioner has submitted that the Labour Court, though directed the respondent to produce on record the last three years of wage registers, vouchers and other documents, however the respondent did not produce all the documentary evidence, instead produced only selective and intermittent documents. On behalf of the respondent, one Dineshbhai Shantilal Chauhan came to be examined before the Labour Court.

[4.1] After holding that the petitioner has worked continuously under Section 25B of the I.D.Act, for four years, the Labour Court held that already 19 years have passed since the petitioner's termination, so a lot of time has flown by now and since the petitioner is not a permanent employee and the petitioner might be retrenched again, he is entitled for compensation only.

[4.2] Learned advocate Mr.Dipak Dave appearing for the petitioner has submitted that though the Labour Court has recorded the violation of provision under Section 25F of the I.D.Act, minimum compensation of Rs.70,000/- is paid to the petitioner by the impugned award. He has

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submitted that in fact the petitioner, if would have been reinstated in the service, he would have got all benefits of service arising from the Government Resolution dated 17.10.1988. He has submitted that the Government Resolution dated 17.10.1988 has been interpreted by the Supreme Court in the case of State of Gujarat vs. PWD & Forest Employees Union and others rendered in (2019) 3 Scale 642. He has submitted that the workman, who has completed 05,10,15 years of service, is entitled for a particular pay scale as well the benefits which are granted to the regularly selected employees, including the pay scale. He has submitted that such workmen are also conferred the benefits of pay scale and hence, by the impugned award, of granting compensation of Rs.70,000/- the entire service is wiped out and he would not be entitled to any such benefits of service.

[4.3] In support of his submissions learned advocate Mr.Dave has placed reliance on the order dated 20.01.2020 passed in Special Civil Application No. 22362 of 2019 and other allied matters, the judgment rendered in the case of Kalamuddin M. Ansari vs. Government of India, reported in, 2016 Lawsuit (Guj) 508, the judgment reported in the case of Junagadh Minicipal Corporation vs. Bhavesh Laxman Rathod reported in

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2020 LawSuit (Guj) 680.

[4.4] Thus, he has submitted that the impugned award may be modified to the extent that the respondent - State authorities may be directed to reinstate the workman without any back wages but with continuity of service as they would be entitled to Government Resolution dated 17.10.1988.

[5] In response to the aforesaid submissions, learned AGP Mr.Rohan Shah has submitted that the impugned award does not require any interference and the award conferring the compensation of Rs.70,000/- to the workman does not require any interference. He has submitted that the award is just and proper looking to the overall length of service prior to termination. He has submitted that it is not in dispute that the termination is effected in the year 1997 and looking to the date of tenure of service, the compensation of Rs.70,000/-is just and proper.

[6] Heard the learned advocates for the respective parties.

[7] In this writ petition, the petitioner has challenged the award dated 09.04.2019 granting compensation against the reinstatement. The

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petitioner has also claimed the benefits of Government Resolution date 17.10.1988. It is the case of the petitioner that the petitioner- workman is also entitled to benefits of Government Resolution dated 17.10.1988 with continuity of service. However, the learned advocate appearing for the petitioner, on instructions, has submitted that the workman will not claim the back wages. The Court has also perused the impugned award passed by the Labour Court. The workman has completed almost more than four years of service before he was terminated in the year 1995. The muster roll, which was examined by the Labour Court, reveals that the petitioner was appointed in the year 1993 and he was terminated in the year 1997. After relying upon the judgment of the Labour Court as well as this Court, the Labour Court has concluded that the termination is in violation of Section 25F of the I.D.Act. The continuity of service of the workman is also proved under Section 25B of the I.D.Act. Thus, the only issue remains whether the compensation of Rs.70,000/- awarded by the Labour Court to the petitioner workman is just and proper.

[8] It is not in dispute that the scheme of Government Resolution dated 17.10.1988 is still in force in the State Government and the same is

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made applicable to all the workmen, who have completed 5, 10 and 15 years of service. The Apex Court in the case of State of Gujarat vs. PWD & Forest Employees Union and others (supra) has held that the daily wagers, who have completed 5,10 and 15 years of service are entitled to the benefits of Government Resolution dated 17.10.1988. The present workman would be entitled to the benefits of Government Resolution dated 17.10.1988, if he is reinstated with continuity of service. Thus, since the aforesaid scheme is still in force, and the workman has completed more than four years in service the grant of compensation to the present petitioner would wipe out his earlier service and he would be deprived of all the benefits of service including pay fixation, pension etc. It is also not the case of the respondent authority that no work is available, hence the workman cannot be reinstated.

[9] In these circumstances and in light of the aforesaid scheme, this court is of the considered opinion that the payment of compensation in lieu of reinstatement would be detrimental to the interest of the petitioner as he would loose his retirement benefits also. Under the circumstances, the impugned award passed by the Labour Court is misconceived to the extent of

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granting compensation. The respondents are directed to reinstate the workman in service with continuity of service. However, it is clarified that he will not be entitled to any back wages as he has given up his claim. After his reinstatement, it will be open for the petitioner-workman to file a representation claiming the benefits of Government Resolution dated 17.10.1988. The order reinstating the petitioner workman shall be passed within a period of three months from the date of receipt of this order. The amount of compensation, if it is already paid to the workman, the same shall be adjusted while fixing his pay. Since the petitioner has attended the age of superannuation during pendency of the present petition as well as the reference, the respondents are directed to treat him in continuous service till the date of his retirement and accordingly confer the benefits, for which he is entitled.

[10] With the aforesaid directions, the present writ petition is allowed. The impugned award dated 09.04.2019 passed by the Labour Court, Godhra in Reference (T) No. 54 of 2000 is modified to the aforesaid extent. Rule is made absolute accordingly.

(A. S. SUPEHIA, J) NABILA