Divisional Controller - Gujarat ... vs George Augestine
2022 Latest Caselaw 9841 Guj

     C/SCA/3263/2012                                    JUDGMENT DATED: 07/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3263 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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         DIVISIONAL CONTROLLER - GUJARAT STATE TRANSPORT
                          CORPORATION
                              Versus
                    GEORGE AUGESTINE & 1 other(s)
==========================================================
Appearance:
MS SEJAL K MANDAVIA(436) for the Petitioner(s) No. 1
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
MR SAMIR B GOHIL(5718) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                 Date : 07/12/2022

                                 ORAL JUDGMENT

1. By way of this petition the petitioner has prayed for

quashing and setting aside the award dated 29.08.2011,

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passed by the learned presiding Officer, labour Court,

Junagadh in Reference Case No. 126 of 1999 passed below

Exh.43, whereby labour Court while allowing the reference

held the action of the petitioner-Corporation to retire

respondent-workman on 31.10.1995 as illegal and further

directing that the respondent-workman be treated to have

retired from 31.10.1997 instead of 31.10.1995 and further

directed to pay all the benefits to the respondent-workman

including salary for a period of two years from 31.10.1995 to

31.10.1997.

2. Heard learned advocate Ms. Sejal Mandaviya for the

petitioner and learned advocate Mr. Samir Gohil for the

respondent-workman.

3. The facts arising to this petition are stated as under:

3.1 It is the case of the respondent-workman that the

respondent-workman has joined as the Assistant Turner in

erstwhile- Saurashtra State Road Transport Corporation

(hereinafter for short 'SSRTC') and the same was owned by

the Saurashtra Government thereafter he was promoted to

the post of Head Turner. At the time when he joined the

service the retirement age prescribed by the Corporation was

60 years, however, subsequently upon creation of State of

Gujarat when Gujarat State Road Transport (hereinafter for

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short 'GSRTC') was created the employees of SSRTC were

absorbed in th GSRTC where the retirement age was 58

years. Though by Circular no. 139 the retirement age limit of

the employees working in Saurashtra region of SSRTC and

working in the workshop was decided to be 60 years,

however, the petitioner was made to retire on completing 58

years on 31.10.1995 whereas he should have been retired on

completion of 60 years on 31.10.1997 as the initial

appointment of the workman was at SSRTC. Therefore, the

petitioner was entitled to the benefits of Circular no. 139.

3.2 Earlier when the reference no. 126/1999 was preferred by

the respondent-workman challenging the action of petitioner-

Corporation to retire on completion of 58 years with effect

from 31.10.1995. The labour Court has passed an award on

5.3.2003 and allowed the reference and directed to grant all

the benefits from 31.10.1995 till 31.10.1997 as if the

petitioner was continued in services. The said order was

challenged by the petitioner Corporation by preferring SCA

No. 667 of 2004 therein the matter was remanded back to

the labour Court vide judgment and order dated 27.10.2010,

this Court had directed and observed that it will be open for

the parties to lead evidence to show what would have been

the position, if the respondent would have been continued in

SSRTC and would not have been absorbed in GSRTC. The

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parties were permitted to lead evidence before the labour

Court and the labour Court was also directed to consider the

aspect of delay as the reference was preferred in the year

1999, after the respondent-workman was made to retire in

the year 1995.

3.3 The aforesaid judgment dated 27.10.2010, in Special

Civil Application No. 667 of 2004 though is not on record the

same was made available by the advocates for the parties

during the course of arguments. Pursuant to the aforesaid

order of remand the matter proceeded before the labour

Court and the labour Court framed the issued and considered

the question as to whether the respondent-workman can be

said to be the employee of Saurashtra Government/SSRTC or

GSTRC. The labour Court permitted the respondent-workman

to file additional statement of claim to which petitioner-

original respondent before the labour Court also filed written

statement. However, in the award the labour Court is

observed that the petitioner - Corporation did not produced

any evidence after the matter was remanded back and was

heard afresh nor any oral evidence was produced. Ultimately,

after hearing the parties and taking into consideration of

Circular No. 139 dated 27.01.1961, the labour Court held that

action of the petitioner- Corporation of retiring the

respondent-workman upon completion of age of 58 years on

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31.10.1995, is illegal and accordingly directed that the

petitioner, that respondent-workman is entitled to full years

salary and all other benefits from 31.10.1995 till 31.10.1997.

3.4 Being aggrieved by the aforesaid order dated 29.08.2011

passed by the labour Court, Junagadh in reference Case no.

126 of 1999, the petitioner-Corporation has challenged the

aforesaid award by way of this petition.

3.5 Vide order dated 15.03.2012, this Court had issued

RULE and granted ad-interim relief in favour of the

petitioner on a condition that the petitioner shall deposit the

entire amount as directed by the labour Court in this award

with the registry of this Court within two months from the

date of order is passed ie on 15.03.2012. Thereafter, vide

order dated 08.05.2012, the Court observed that a sum of

Rs. 2,14,236/- has been deposited by the petitioner on

19.04.2012, and ultimately, the ad- interim relief granted in

favour of the petitioner was confirmed. Thereafter, the matter

was heard finally today.

4. Learned advocate Ms. Sejal Mandavia submitted that

their respondent-workman himself has stated that he was

appointed on 04.03.1957, and that appointment order was on

record before the labour Court and was exhibited. The

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aforesaid document would establish the fact that the

applicant was employee of SSRTC and not of Saurashtra

Government, whereas, Circular no. 139 which has been

heavily relied upon respondent-workman was applicable only

to the employees who are appointed by Saurashtra

Government, therefore, the impugned award is erroneous. She

further submitted that while allowing the reference, the

labour Court has not decided the issue for which the matter

was remanded back. She further submitted that though while

remanding the matter back to the labour Court, this Court

specifically directed the labour Court to take into

consideration the fact that there was delay of 4 years in

raising the dispute at the end of respondent-workman as he

was retired in the year 1995 and whereas reference was

made in the year 1999. The aforesaid aspect has not been

considered by the labour Court and therefore, the impugned

order is bad and deserves to be quashed and set aside.

5. Learned advocate Mr. Samir Gohil appearing for the

respondent-workman pointed out from the award that labour

Court has considered all the materials that was placed before

the labour Court. Labour Court has categorically observed

that the petitioner-Corporation has not produced any evidence

after the matter was remanded. No documentary or oral

evidence was produced before the labor Court. Only the

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materials that was placed for consideration before the labour

Court was Circular no. 139 dated 27.01.1961 and the

recommendation made in respect of the aforesaid Circular. He

submitted that the Circular dated 27.01.1961, nowhere

provides that for availing the benefits of retirement age of 60

years a person must be appointed by the Saurashtra

Government and not by the SSRTC. He further submitted

that what is important to get the benefit of retirement age

of 60 years is that a person must be on a permanent

establishment and must be working in Saurashtra area of

Corporation on the date on which Circular no. 139 was

published i.e on 29.01.1961. As the respondent-workman was

fulfilling the aforesaid criteria and there is nothing contrary

on record was produced by the petitioner- Corporation, the

labour Court has rightly allowed the reference and issued

directions which are already stated in the forgoing

paragraphs. By making aforesaid submissions he prayed for

dismissal of the petition.

6. Having heard the learned advocates appearing for the

respective parties and perused the materials available on

record and also considered earlier judgment dated 27.10.2010,

passed in SCA No. 667 of 2004, whereby the matter was

remanded back to the labour Court. While remanding back

the matter this Court categorically observed that it is open

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for the parties to lead evidence, however, the petitioner-

Corporation did not produce any additional evidence after the

matter was remanded back, no documentary or oral evidence

was produced nor any evidence was led by the petitioner-

Corporation. The labour Court has considered the entire

controversy on the basis of Circular No. 139 dated

27.01.1961, the relevant portion of the said Circular is

reproduced in the award and the same is reproduced here as

well, which is as under:

"10: AGE OF RETIREMENT : GR No. 139, DT 27.1.61"

In the Saurashtra area of the Corporation, the existing permanent workman in the workshop who are allowed to retire at 60, according to the present practice, may be allowed to continue upto 60. This concession will, however, be personal to the existing permanent incumbents only and will not be extended to any other employee."

7. The aforesaid Circular which is in respect of retirement

age specifies that it would be applicable only to the existing

permanent workman in the workshop in the Saurashtra area

of Corporation to retire at the age of 60 years, which would

indicate that it is applicable only to the workman in the

Saurashtra area and those who are on permanent

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establishment as permanent workman i.e as per Circular

dated 27.01.1961. The Circular states that those persons who

are entitled to have a retirement age of 60 years. The

aforesaid being the language of the Circular the submission

of learned advocate Ms. Mandavia that the date of

appointment of the respondent workman was of the year

1957 and therefore since the SSRTC was created on

01.03.1956 and before that it was known as Saurashtra

Goevrnment Department and therefore, the benefit of

retirement age of 60 years would be available only to the

employees who were appointed prior to creation of SSRTC

and were appointed in Saurashtra Government only cannot be

accepted.

7.1 The language of the aforesaid Circular is very clear

wherein it is specifically stated that it would be applicable to

the existing permanent workman and does not speak

anything about Saurashtra Government or SSRTC. It only

speaks about Saurashtra area of the Corporation. At the

relevant point of time it was SSRTC and therefore whosoever

working in SSRTC in Saurashtra area were permitted to

retire at the age of 60 years.

7.2 Further, the labour Court has categorically observed

that one employee namely Jeenabhai Dhanjibhai who was

appointed on 25.09.1958, i.e, after the petitioner was

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appointed was also given the benefits of Circular no.139 by

way of order of Competent Court. If a person who is

appointed after the present petitioner and yet he has been

considered positively for the benefit of Circular 139 by the

Competent Court, and if the said order is implemented, in

that case this Court is of the view that the respondent

workman also should be given the same benefit. Further, the

labour Court has also considered the aspect of delay, the

labour Court has categorically observed that when industrial

dispute was raised by the workman before the labour

Commissioner, at that point of time or thereafter in response

to the notice issued by the labour Commissioner, the

petitioner did not raised any dispute in respect of delay. In

absence of there being any pleading about delay, at the

initial stage, it can be said that the petitioner has given up

the plea about delay at the relevant point of time.

8. The labour Court has also observed the fact that

though the respondent-workman has time and again made

demands and the petitioner-Corporation has replied to the

same the aspect of limitation would not come in way of

respondent-workman. Though it is true that this Court while

remanding the matter back to the labour Court has

specifically directed the labour Court to consider the aspect of

delay as well.

C/SCA/3263/2012 JUDGMENT DATED: 07/12/2022

9. The aforesaid aspect has been highlighted by learned

advocate Ms. Mandaviya and submitted that the delay aspect

has not been considered by the labour Court. Though the

labour Court has considered the aspect in its own way.

Considering the fact that the petitioner attained the age of

superannuation by completing the age of 58 years in 1995

which according to the petitioner should have been retired on

31.10.1997 the reference was also preferred in the year 1999.

Considering the fact that today the age of the respondent-

workman would be around 85 years.

10. Therefore now, if at this juncture, if the matter is

remanded back once again for re-consideration on the aspect

of delay that would not serve the end of justice. Further, the

amount involved in the entire controversy is Rs.2,14,236/- as

was recorded in the order dated 08.05.2012, by the Co-

ordinate Bench. The aforesaid amount was directed to be

invested in Fixed Deposit in any nationalised bank and the

said amount is lying in the nationalised bank in form of

Fixed Deposit since last 10 years. When the original amount

is only Rs.2,14,236/- and the labour Court has not directed

the petitioner Corporation to pay the salary of two years and

other monetary benefits to the respondent-workman with some

interest. The respondent-workman has already lost interest for

a period from 1995 till 2012 the date on which the amount

was deposited by the petitioner-Corporation. According to this

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Court though the aspect of delay has not been properly

considered by the labour Court the monetary loss suffered by

the petitioner as the amount which was direct to be paid by

the petitioner within a period of 30 days was deposited in

the year 2012, as no interest was awarded to the respondent-

workman there is no need to go any further in the aspect of

delay at this stage in the year 2022.

11. In view of above, for the reasons stated herein above, I

do not see that labour Court has committed any illegality or

the order passed by the labour Court is erroneous.

12. Hence, no interference by this Court is required. The

petition is accordingly dismissed. Notice is discharged. No

order as to cost.

13. Registry is directed to disburse the amount which are

already lying in Fixed Deposit pursuant to the order passed

by this Court dated 08.05.2012, in favour of respondent-

workman within a period of one month, by way of ECS. The

learned advocate for the respondent is directed to provide

bank details of the respondent workman within a period of

15 days. Direct service is permitted.

(NIRZAR S. DESAI,J) Radhika