Gujarat High Court
Jesingbhai Bhurabhai Damor vs State Of Gujarat on 15 September, 2021
Bench: A.S. Supehia
C/SCA/4189/2019 ORDER DATED: 15/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4189 of 2019
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JESINGBHAI BHURABHAI DAMOR
Versus
STATE OF GUJARAT
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR.SAHIL TRIVEDI, AGP for the Respondent no.1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 15/09/2021
ORAL ORDER
[1] Rule. Learned AGP waives service of notice of
rule on behalf of the respondent - State.
[2] In the present writ petition, the petitioner
has challenged the award dated 29.11.2018 passed
by the Labour Court, Godhra in Reference (T)
No.35 of 2003, whereby and wherein the Labour
Court has directed the workman to be reinstated
in service with continuity of service without
back wages.
[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 he is engaged on Piece
Rate wages and the said action is also challenged
in the writ petition.
C/SCA/4189/2019 ORDER DATED: 15/09/2021
[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
directed reinstatement of the workman on original
post. He has submitted that thus, the action of
the respondent State in engaging the present
petitioner on Piece Rate is required to be set
aside.
[4] Learned AGP Mr.Sahil Trivedi has submitted
that the impugned award is not required to be
declared as illegal and arbitrary since the
Labour Court has precisely held by issuing the
direction of reinstatement 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
the 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
C/SCA/4189/2019 ORDER DATED: 15/09/2021
revealed that the respondent State 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 25B 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 precisely
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 award of the back
wages is concerned, the Court finds that the
workman has not categorically pleaded before the
Labour Court that he was not gainfully employed
after his termination and hence, no illegality or
perversity can be found in the award passed by
the Labour Court denying the 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 State would be an unfair labour
practice. It is not the case of the respondent
State 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 State to change the
status of the daily wager to his detriment by
C/SCA/4189/2019 ORDER DATED: 15/09/2021
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 the 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 State
to reinstate the workman on original post. Thus,
the present writ petition filed by the workman is
allowed to the extent that the action of the
respondent State in engaging him on Piece Rate
wages is held to be illegal. The award of the
Labour Court is confirmed. Rule is made absolute
to the aforesaid extent.
(A. S. SUPEHIA, J)
NABILA
