Gujarat High Court
Riaz Abdul Sattar Khatri vs Dhoraji Nagar Palika Through ... on 25 April, 2022
Bench: Hemant M. Prachchhak
C/LPA/671/2021 ORDER DATED: 25/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 671 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 16421 of 2010
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RIAZ ABDUL SATTAR KHATRI
Versus
DHORAJI NAGAR PALIKA THROUGH CHIEF OFFICER
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Appearance:
MS MAMTA R VYAS(994) for the Appellant(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 25/04/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the
judgment and order dated 26.06.2019 passed by the
learned Single Judge, whereby the petition filed by
the appellant challenging the order dated 08.10.2010
came to be confirmed, the appellant has preferred the
present appeal.
2. The following facts emerge from the record of
the appeal -
2.1 That the appellant was working on daily basis as
a Clerk with remuneration of Rs.72.90 with the
Respondent municipality from 16.04.1997 to
08.02.2000. The record indicates that services of
the appellant came to be terminated on 08.02.2000, a
C/LPA/671/2021 ORDER DATED: 25/04/2022
notice was issued by the appellant to the
Municipality on 18.08.2000. Thereafter, the
Reference was filed under Section 10(1) of the
Industrial Disputes Act, which came to be registered
as Reference (LCR) No. 61 of 2001. The learned
Labour Court, Rajkot, by award dated 08.10.2010,
dismissed the reference. The said order of
dismissing the reference came to be challenged by the
appellant by filing writ petition being SCA No. 16421
of 2010, which came to be dismissed and being
aggrieved by the same, the present appeal is filed.
3. Heard Ms. Mamta Vyas, learned advocate for the
appellant and Mr.Premal Joshi, learned advocate for
the Respondent Municipality.
4. Ms. Vyas, learned advocate appearing for the
appellant contended that the learned Labour Court as
well as the learned Single Judge both have committed
an error in appreciating the evidence on record. Ms.
Vyas contended that it had come on record that the
appellant workman had worked from 16.04.1997 till
08.02.2000 as Clerk, the date on which, he came to be
terminated. Ms. Vyas therefore submitted that the
appellant workman had worked for almost 4 years and
came to be dismissed. According to Ms. Vyas, even
though the said fact was duly proved before the
Labour Court, the same has not been properly
considered by the Labour Court as well as the learned
Single Judge. Ms. Vyas contended that the documents
relating to details of service done by the appellant
C/LPA/671/2021 ORDER DATED: 25/04/2022
was in the custody of the respondent Municipality,
still however, the same was not produced. Ms. Vyas
contended that the appellant came to be terminated
without any notice or notice pay in clear violation
of Section 25H of the Act. Ms. Vyas further
contended that only on the ground that the appellant
worked for 39 days in the last preceding year, the
case of the appellant is not properly appreciated, as
admittedly, the appellant has worked from 1997 to
2000 continuously and such factor has not been
considered at all. On the aforesaid grounds, Ms.
Vyas contended that the appeal be allowed. Ms. Vyas
alternatively submitted that the Court may consider
the fact that the appellant had worked for four long
years and grant lumpsum compensation in lieu of
reinstatement.
5. Per contra, Mr. Joshi, learned advocate for the
respondent Corporation has opposed the appeal and
contended that the appellant is not entitled for the
prayers prayed for in the Reference and the Labour
Court as well as the learned Single Judge has rightly
rejected the claim raised by the appellant. Mr.
Joshi contended that the Labour Court has come to a
definite finding that there is no breach of Section
25H and G and hence, no interference is called for
and the appeal being meritless, deserves to be
dismissed.
6. No other or further submissions have been made
by the learned counsel appearing for the parties.
C/LPA/671/2021 ORDER DATED: 25/04/2022
7. Upon considering the submissions made and on
perusal of the impugned order as well as the relevant
evidence adduced before the Labour Court, it clearly
transpires that the appellant had worked from
16.04.1997 to 08.02.2000 continuously. However, his
services came to be terminated without following any
procedure on 08.02.2000. The evidence on record
before the Labour Court also clearly shows that the
seniority list from 2000 onward is in possession of
the Municipality. Even in the cross-examination of
the employee of the Municipality, it has come on
record that no notice or notice pay has been given to
the appellant before his termination. The Labour
Court has thus committed error in appreciating the
evidence on record. We also find that the learned
Single Judge while considering the documents Mark
37/1, which was not proved by the Municipality before
the Tribunal. The record clearly indicates that the
appellant came to be appointed on daily wages as
Clerk with remuneration of Rs. 72.90 from 16.04.1997
and he worked continuously till 07.02.2000. However,
considering the time gap between the date of
termination and today, instead of reinstatement, same
lumpsum compensation should be granted in lieu of
reinstatement, as we find that the authorities have
committed breach of Section 25H. Following the ratio
laid down by the Apex Court in the case of Bhavnagar
Municipal Corporation Vs. Jadeja Govubha Chhanubha &
Anr. reported in AIR 2015 SC 609, we deem it fit to
quantify the backwages considering the period of 4
C/LPA/671/2021 ORDER DATED: 25/04/2022
years, i.e. from 16.04.1997 to 08.02.2000, at Rs.2
lakhs to be paid to the appellant by the respondent
municipality as lumpsum compensation in lie of
reinstatement. However, as held by the Apex Court in
the case of Bhavnagar Municipal Corporation (supra),
no adverse inference can be drawn against the
respondent Municipality for failure to produce
relevant document in its possession.
8. Considering the totality of facts therefore,
instead of reinstatement, monetary compensation
should be awarded in this case. The Respondent
municipality shall pay an amount of Rs. 2 lakhs from
the date of the receipt of this judgment failing
which the same shall bear interest at the rate of 6%
p.a. from the date of this order till the actual
payment of amount is made to the appellant. The
appeal is disposed of accordingly.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
BIJOY B. PILLAI
