Kadubhai Udabhai Damor vs State Of Gujarat
2021 Latest Caselaw 14088 Guj

    C/SCA/4176/2019                               ORDER DATED: 15/09/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
            R/SPECIAL CIVIL APPLICATION NO. 4176 of 2019
                                With
            R/SPECIAL CIVIL APPLICATION NO. 1769 of 2020
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                       KADUBHAI UDABHAI DAMOR
                                Versus
                      STATE OF GUJARAT & 1 other(s)
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR.ROHAN SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(S) for the Respondent No.
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 15/09/2021
                   ORAL ORDER

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

Since the common award is challenged in both the writ petitions, the same are heard and decided analogously.

[2] In the present writ petitions, the petitioners have challenged the award dated 29.11.2018 passed by the Labour Court, Godhra in Reference (T) No. 34 of 2003, whereby and wherein the Labour Court has directed the workman to be reinstated in service with continuity of service without back-wages. The workman has challenged the award to the extent of not granting the back- wages, whereas the State authority has challenged the same by contending that since the workman

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had not completed 240 days, the Labour Court has fallen in error in directing the respondent- State to reinstate the workman.

[3] At the outset, learned advocate Mr.P.C.Chaudhri has submitted that even after passing of the award of reinstatement, though the workman is reinstated, but they are engaged on Piece Rate wages and the said communication dated 31.01.2019 is also challenged in the writ petition.

[3.1] He has submitted that on similar set of facts, the Coordinate Bench in group of petitions being Special Civil Application No. 2767 of 2018 and other allied matters, vide judgment dated 05.11.2020, while confirming the award, has set aside the communication of the respondent authorities in reinstating the workman on Piece Rate wages. He has submitted that thus, the action of the respondent authorities in engaging the present petitioner on Piece Rate is required to be set aside.

[4] Learned AGP Mr.Rohan Shah has submitted that the said authority has challenged the award and the same is required to be declared as illegal and arbitrary since the Labour Court has grossly erred by issuing the direction of reinstatement

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of the workman since it is the case of the State authority that the workman has not completed 240 days in each year.

[5] I have considered the rival submissions and impugned award, which is the subject matter of challenge in the captioned writ petition.

[6] The facts, which are brought on record are that the petitioner was engaged as a daily-wager in the year 1996 as a Watchman-cum-mali and was terminated on 10.08.2002 for want of grant.

[7] On a perusal of the award in fact it is revealed that the respondent authority has not pleaded that the workman did not complete 240 days in each year of his service and he did not render continuous service under Section 25(B) of the Industrial Disputes Act, 1947 (for short "I.D.Act"). The workman is also not cross- examined to that effect before the Labour Court and thus, the Labour Court, in absence of such pleadings and documentary evidence has preciously concluded that the termination of the workman is in violation of Section 25F of the I.D.Act. So far as the challenge to the awarding back-wages is concerned, the Court finds that the workman has not categorically pleaded before the Labour Court that he was not gainfully employeed after

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his termination and hence, no illegality or perversity can be found in the award passed by the Labour Court denying back wages.

[8] With regard to the issue of engaging the workman as on Piece Rate wages, this Court is of the considered opinion that such action of the respondent authority would be an unfair labour practice. It is not the case of the respondent authority that before the termination, he was engaged in Piece Rate basis. After his termination is declared as illegal by the Labour Court, it is not open for the respondent authority to change the status of the daily-wager to his detriment by engaging the workman on Piece Rate wages. The reinstatement would mean that the daily-wager has to be reinstated on his original status by conferring the same status and such alteration of status from daily-wager to Piece Rate worker is not permissible under the law.

[9] The Coordinate Bench in similar issue vide judgment dated 05.11.2020 passed in Special Civil Application No. 2764 of 2018 has set aside such communication and directed the respondent authorities to reinstate the workman on original post. Thus, the writ petition filed by the workman being Special Civil Application No. 4176 of 2019 is allowed to the extent that the action

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of the respondent authorities in engaging him on Piece Rate wages vide communication dated 31.01.2019 is held to be illegal and such communication is quashed and set aside. The award of the Labour Court is confirmed and the petition i.e. Special Civil Application No. 1769 of 2020 challenging the said award is rejected. Rule is made absolute to the aforesaid extent only in Special Civil Application No. 4176 of 2019.

(A. S. SUPEHIA, J) NABILA