District Development Officer vs Raiben Naranbhai Sonara
2022 Latest Caselaw 4084 Guj

     C/SCA/17162/2017                                JUDGMENT DATED: 11/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17162 of 2017
                                  With
    CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
            In R/SPECIAL CIVIL APPLICATION NO. 17162 of 2017
                                  With
    CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of 2022
            In R/SPECIAL CIVIL APPLICATION NO. 17162 of 2017


FOR APPROVAL AND SIGNATURE: Sd/-

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

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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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                          DISTRICT DEVELOPMENT OFFICER
                                      Versus
                        RAIBEN NARANBHAI SONARA & 1 other(s)
==========================================================
Appearance:
MS RV ACHARYA(1124) for the Petitioner(s) No. 1
MR SAMIR B GOHIL(5718) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:            HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                           Date : 11/04/2022
                       COMMON ORAL JUDGMENT

1. Rule. Learned Advocate, Mr. Samir Gohi, waives service of rule for the Respondent- Workman.

C/SCA/17162/2017 JUDGMENT DATED: 11/04/2022

1.1 Since, the issue involved in this petition, runs in a narrow compass, with the consent of the learned Advocates for the parties, the same is taken-up for hearing and final disposal, at the admission stage.

2. This is a petition under Article 226 of the Constitution of India in which the petitioner has prayed to quash and set aside the impugned award, Dated: 07.01.2017, passed by Labour Court No.1, Junagadh, in Reference-T Case No. 22 of 2007, whereby, the Tribunal ordered the petitioner to reinstate the Respondent-Workman with the continuity of service, but, without back-wages.

3. Learned Advocate, Ms. Acharya, appearing for the petitioner submitted that the Respondent- Workman was appointed as a part-time Peon on daily wage basis and she was to work for two hours a day. The duty of the Respondent-Workman was cleaning and providing water in the Primary School, Keshod.

3.1 It was submitted that the Respondent- Workman joined services with the petitioner on 01.04.1997 and thereafter, she worked as a daily wager in Mid Day Meal Scheme from the the year

C/SCA/17162/2017 JUDGMENT DATED: 11/04/2022

2004 to 2006.

3.2 It was submitted that, as per Government Resolution dated 01.08.2006, the appointment of the Respondent-Workman was not extended.

3.3 At this stage, it is pointed out that the Respondent-Workman raised industrial dispute, which was referred to the concerned Labour Court, whereupon, the concerned Labour Court passed the impugned award dated 07.01.2017, directing the petitioner to reinstate the Respondent-Workman with continuity of service.

3.4 Hence, the petitioner has preferred the present petition.

4. Learned Advocate, Mr. Acharya, appearing for the petitioner has mainly contended that before the Labour Court the petitioner had produced documentary evidence and had also examined witnesses. However, the Labour Court committed an error by recording the findings that the petitioner terminated the services of the Respondent-Workman without following the mandatory provisions of the Industrial Disputes Act, 1947 (in brief, 'the Act').

4.1 Learned Advocate, Ms. Acharya, referred

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to the observations made by the Labour Court in the impugned award and submitted that the Respondent-Workman is not entitled to reinstatement with continuity of service, as is directed by the Labour Court.

4.2 In the alternative, learned Advocate, Ms. Acharya, submitted that considering the present age of the Respondent-Workman, in lieu of reinstatement with continuity of service, this Court may order the petitioner to pay lump-sum compensation in lieu of reinstatement with continuity of service.

5. On the other hand, learned Advocate, Mr. Gohil, appearing for the Respondent-Workman strongly opposed this petition and contended that after considering the documentary as well as the oral evidence produced by the parties before the Labour Court, the Labour Court has passed the impugned award, directing the petitioner to reinstate the Respondent-Workman with continuity of service, but, without any back-wages.

5.1 It was, therefore, submitted that the Labour Court committed no error in passing the impugned award and this Court may not entertain this petition.

C/SCA/17162/2017 JUDGMENT DATED: 11/04/2022

5.2 However, learned Advocate, Mr. Gohil, alternatively submitted that considering the date of award and the present age of the petitioner, if, this Court awards some lump-sum compensation, in lieu of reinstatement with continuity of service, the ends of justice would be met.

5.3 In support of his submissions, learned Advocate, Mr. Gohil, placed reliance on the decision of the Apex Court, Dated: 13.07.2021, rendered in the case of 'MADHYA BHARAT GRAMIN BANK VS. PANCHAMLAL YADAV' in Civil Appeal No. 9792 of 2010.

6. Having heard the learned Advocates for the parties and having perused the documents produced on record, it transpires that the Respondent-Workman, initially, was appointed by the petitioner on the post of peon on daily-wage basis with effect from 01.04.1997 in the school run by the petitioner-District Panchayat.

6.1 As per the case of the Respondent- Workman, her services were terminated without following the mandatory provisions of the ID Act and therefore, she raised the industrial dispute, which was referred to the Labour Court,Jungadh.

6.1.1 Before the Labour Court, Junagadh, the

C/SCA/17162/2017 JUDGMENT DATED: 11/04/2022

Respondent-Workman filed her examination-in-chief affidavit vide Exhibit-25 and also produced documentary evidences vide Exhibits-20 to 23, whereas, the present petitioner had examined two witnesses, namely Dhirajlal Punabhai Trada (Exhibit-31) and Rajabhai Karsanbhai (Exhibit-

38).

6.1.2 The petitioner also had produced documentary evidences vide Exhibits- 114 to 136.

6.1.3 Thereafter, the concerned Labour Court, after considering the oral as well as the documentary evidences, passed the impugned award and thereby issued direction to the petitioner to reinstate the Respondent-Workman with continuity of service. However, the Labour Court did not grant any back-wages to the Respondent-Workman.

6.2 This Court has considered the reasons recorded by the Labour Court as well as the documents produced on record and from the impugned award it transpires that the Labour Court has recorded specific findings that before terminating the services of the Respondent- Workman, the petitioner did not comply with the provisions of Sections 25-F, 25-G and 25-H of the ID Act and directed the petitioner to reinstate the Respondent-Workman with continuity of

C/SCA/17162/2017 JUDGMENT DATED: 11/04/2022

service.

6.3 At this stage, it would be profitable to refer to the observations made by the Hon'ble Apex Court in the case of ''MADHYA BHARAT GRAMIN BANK' (Supra), which reads as under;

"Having considered the submissions made on behalf of the parties, we are of the view that the respondent is not entitled for reinstatement in view of the law settled by this Court. The judgments relied upon by Mr. Kapur are clear to the effect that violation of Section 25F of the Industrial Disputes Act, 1947, would not automatically entail in the reinstatement with full back wages. The relief to be granted depends on the facts of individual cases."

6.4           In      the     case       of      'Ranbir       Singh           Vs.
Executive            Engineer,       PWD,'       rendered         in       Civil

Appeal No. 4438 of 2010, Dated: 02.09.2021, the Hon'ble Apex Court has observed as under;

"6. In the light of the state of the law, which we take note of, we notice certain facts which are not in dispute. This is a case where it is found that, though the appellant had worked for 240 days, appellant's service was terminated, violating the mandatory provisions of Section 25F of the Act. The authority involved in this case, apparently, is a public authority. At the same time, it is common case that the appellant was a daily wager and the appellant was not a permanent employee. It is relevant to note that, in

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the award answering Issue No.1, which was, whether the termination of the appellant's service was justified and in order, and if not, what was the amount of back wages he was entitled to, it was found, inter alia, that the appellant could not adduce convincing evidence to establish retention of junior workers. There is no finding of unfair trade practice, as such. In such circumstances, we think that the principle, which is enunciated by this Court, in the decision, which is referred to in Raj Kumar (supra), which we have referred to, would be more appropriate to follow. In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy."

6.5 Keeping in mind the aforesaid decision of the Hon'ble Apex Court, if, the facts of the present case are examined, this Court is of the view that even if, there is violation of mandatory provisions of Sections 25-F, 25-G and 25-H of the ID Act, the reinstatement in service is not automatic. Further, there is no finding recorded by the Labour Court that there is unfair labour practice on the part of the petitioner, while passing the impugned award. Hence, considering the fact that the Reference is of the year 2007 and that the Respondent-Workman is about 49 years of age, the ends of justice would be met, if, the Respondent-Workman is granted lump-sum compensation in lieu of reinstatement

C/SCA/17162/2017 JUDGMENT DATED: 11/04/2022

with continuity of service.

7. Resultantly, this petition is partly allowed. The impugned judgment and award Dated: 07.01.2017, passed by the Labour Court, Junagadh, in Reference-T Case No. 22 of 2007, is modified and the petitioner is DIRECTED to pay lump-sum compensation of Rs.1,75,000/- to the Respondent- Workman, in lieu of reinstatement with continuity of service.

7.1 Such compensation shall be paid within the period of TWO MONTHS from the date of receipt of a copy of this order.

7.2 Rule is made absolute to the aforesaid extent.

7.3 In view of the disposal of the main matter, Civil Applications shall not survive and they also stand DISPOSED OF, accordingly.

No order as to costs. Direct service is permitted.

Sd/-

(VIPUL M. PANCHOLI, J) UMESH/-