Arla Gram Panchayat Through ... vs Shantilal Muljibhai Gorichi
2022 Latest Caselaw 1691 Guj

     C/LPA/1071/2021                           ORDER DATED: 14/02/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 1071 of 2021

           In R/SPECIAL CIVIL APPLICATION NO. 15142 of 2010

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              ARLA GRAM PANCHAYAT THROUGH SARPANCH
                               Versus
                    SHANTILAL MULJIBHAI GORICHI
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MR PH PATHAK(665) for the Respondent(s) No. 1
MS REENA M KAMANI(6007) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                           Date : 14/02/2022

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned Single Judge dated 31.03.2021 in Special Civil Application No. 15142 of 2010, whereby instead of reinstatement in lieu thereof the learned Single Judge deem it to fit to grant Rs. 2,00,000/- as full and final settlement of the respondent - workman. The said issue is grievance of the appellant - Gram Panchayat in this intra-court appeal filed under Clause-15 of the Letters Patent Appeal.

2. The following facts emerge from the record of the appeal.

2.1. That respondent No.2 - Electricity Company erstwhile

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Gujarat Electricity Board introduced a scheme Vijgar for rural areas and the appellant was the implementing authority. It is the case of the appellant that respondent No.1 was paid Rs. 300/- per month from the grant provided by erstwhile GEB which came to be discontinued w.e.f. 01.03.1996 and hence the services of the respondent - workman came to be discontinued. Such action of the appellant came to be challenged by the respondent - workman by way of filing a reference under Section 10 of the Industrial Disputes Act, 1947 (herein after referred to as the 'ID Act' for the sake of brevity), which came to be registered as LCJ No. 174 of 1996 before the Labour Court, Jamnagar. The appellant did not think it fit to appear before the Labour Court. The workmen through Union erstwhile GEB were represented by advocates. The respondent

- workman relied the oral as well as documentary evidence before the Labour Court. It appears from the record that the appellant did not adduce any oral or documentary evidence more so because the appellant did not prefer even to appear before the Labour Court. The erstwhile GEB did produce documentary evidence. The Labour Court after considering the evidence on record and the cross examination, came to the conclusion that the respondent - workman had worked for more than 240 days in the preceding year and while partly allowing the reference held that there is breach of Section 25 F, G & H of the ID Act, and directed the appellant to reinstate the respondent - workman, taking into consideration, even the factum of scheme being discontinued, however, without any back wages and the reference against GEB came to be rejected. The said judgment and award passed in LCJ No. 174 of 1996 dated 12.08.2009 came to be challenged by the appellant - Gram Panchayat by way of filing a writ petition

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being Special Civil Application No. 15142 of 2010. The learned Single Judge after considering the award passed by the Labour Court, has observed thus :

"12. It is pertinent to note that in the entire proceedings before the Labour Court, the Panchayat has not taken care to defend its stand or produced any evidence in the matter. The documentary evidence produced by the Electricity Company and the workman has already been discussed by the Labour Court while coming to the conclusion that there is breach of mandatory provisions of the I.D. Act in a way that the workman has been retrenched without paying any retrenchment allowance or issuing notice as well as after his retrenchment, other person has been appointed and the work is going on. At this stage, it is pertinent to note that in view of the submissions of the learned advocate for the petitioner that at the time of award, the workman was at the age of 54 years and 6 months and, therefore, in the year 2014, he has reached at the age of superannuation. Considering this aspect, it is not possible, now, to reinstate the workman. But, since, the award has not been challenged by the Panchayat nor has defended itself before the Labour Court and considering the time gap between 1996 till today, instead of granting reinstatement, if some lump sum amount is awarded against the Panchayat and in favour of the workman, it will meet the end of justice. It is also come on record that there was agreement between the Electricity Company and the Panchayat that the Panchayat can appoint any person for carrying out the scheme and the payment of wages will be made by the Electricity Company. This factor has been dealt with by the Labour Court in award and that fact has not been challenged by neither Panchayat nor by the Electricity Company.

13. Considering the facts and circumstances of the case and the fact that the Panchayat has committed the breach of mandatory provisions of the I.D. Act and the fact that the assertion made on behalf of the workman that at the time of his retrenchment, he has served for more than 14 years in the Panchayat which has not been denied by the Panchayat. If lump sum amount of monetary compensation of Rs.2,00,000/- is awarded, then, it will meet the end of justice.

14. Considering the judgment of the Apex Court in the case of Tapash Paul Vs. BSNL and another reported in 2016 (1) Scale 92 and BSNL Vs. Bhurumal reported in 2014 (7) SCC 177, this Court is of the view that in the facts of this case granting of relief of reinstatement after a gap of almost 14 years, no useful purpose will be served and, therefore, this Court deems fit to order grant of compensation of Rs.2,00,000/- as full and final settlement of the claim, in lieu of the reinstatement. Such amount be paid to the workman by the employer after proper verification of the identify by an account payee cheque / pay order within a period of three months from the date of receipt of

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this order, failing which the workman shall be entitled to claim interest at the rate of 9% from today till the date of actual realization. It is observed that the aforesaid amount is in addition to whatsoever paid to him."

Being aggrieved by the same, the present appeal is filed by the Gram Panchayat.

3. Heard Mr. H.S. Munshaw, learned advocate for the appellant - Gram Panchayat and Mr. P.H. Pathak, learned advocate for respondent No.1. Though served, no one appears for respondent No.2.

4. Mr. Munshaw, learned advocate for the appellant - Gram Panchayat has drawn attention of this Court to the photo copy of the balance sheet of the appellant - Gram Panchayat for the year 2020-21 and has contended that the appellant is Gram Panchayat and has no means to pay lump-sum compensation of Rs. 2,00,000/- to the respondent - workman. Mr. Munshaw, learned advocate for the appellant on the financial hardship of the appellant - Gram Panchayat, contented that lump- sum amount of compensation awarded by the Labour Court deserves to be reduced at least by 50%.

Mr. Munshaw, learned advocate for the appellant further contended that the scheme is discontinued and the grant which was provided by the erstwhile GEB is also discontinued which renders, the appellant - Gram Panchayat without any financial support and for which the appellant - Gram Panchayat has been saddled to pay the lump-sum compensation. It is also contended that as the scheme is now discontinued and that the respondent had worked as Vijgar only for a short period, he cannot be given benefit of Rs. 2,00,000/- which is excessive and on higher side. On the

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aforesaid grounds, it was contended by Mr. Munshaw, learned advocate for the appellant that the appeal requires consideration and the impugned judgment and order deserves to be modified by reducing the amount of compensation.

5. Per contra, Mr. P. H. Pathak, learned advocate for the respondent No.1 has opposed the present appeal and supported the impugned orders passed by the Labour Court as well as passed by the learned Single Judge. It is contended that before the learned Single Judge, no contentions were as such raised and the learned Single Judge after appreciating the evidence on record has passed the order of lump-sum compensation of Rs. 2,00,000/-, which is just and proper, in view of fact that there is finding of fact that the respondent workman had worked for 14 years. According to Mr. Pathak, learned advocate for the respondent - workman that as per the oral evidence of the respondent - workman it has already come on record that he hardly earns Rs. 1,000/- per month, whereas the Vijgar helpers, who are now working under the Panchayat are getting Rs. 2,200/- and more as salary. It was therefore contended by Mr. Pathak that the appeal is misconceived and the same deserves to be dismissed.

6. Mr. Munshaw, learned advocate for the appellant - Gram Panchayat in re-joinder has reiterated the contentions raised in the appeal and has contended that this Court may reduce the amount of lump- sum compensation awarded by the learned Single Judge.

7. No other and further contentions, submissions or grounds have been raised by the learned advocates for the parties.

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8. It is an admitted position that no evidence is led by the appellant. The Labour Court has considered the oral as well as documentary evidence before it raised by the respondent - workman as well as erstwhile GEB and has definitely come to the finding that there is breach of Section 25 F, G & H of the ID Act. It has also come to definite finding that the respondent - workman had worked more than 240 days in the preceding year. Upon considering the observations made by the learned Single Judge, though the appellant is a Gram Panchayat, the fact remains that the respondent - workman had worked for 14 years as Vijgar, as per the conclusion arrived by the Labour Court as well as learned Single Judge. In absence of any rebuttal by the appellant, the appellant now cannot be permitted to argue for the first time in this appeal before this Court, that the lump- sum compensation is exorbitant or excessive. We notice that the appellant is a Gram Panchayat and the resources are limited. However, the fact remains that even the Gram Panchayat like the present appellant is duty bound and required to perform its Act in accordance with law and the Labour Court having recorded finding that there is breach of Section 25F, G & H of the ID Act, the financial condition of the appellant is of no consequences. The amount of lump-sum compensation of Rs. 2,00,000/- granted to the respondent -workman that too in the year 2021 i.e. almost after 25 years of his discontinuation from service can in any terms, cannot be labelled or called excessive or exorbitant. Having worked for 14 years, the learned Single Judge has rightly awarded total compensation of Rs. 2,00,000/- as full and final settlement of the claim in lieu of reinstatement and no interference is called for. However, we deem it to fit to

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modify the direction issued in Para-14 of the impugned judgment and order, whereby we direct the appellant - Gram Panchayat to make payment of Rs. 2,00,000/- within a period of three months from today and the direction of awarding 9% interest is quashed and in case if the appellant - Gram Panchayat fails to make payment of Rs. 2,00,000/- within a period of three months from today i.e. on or before 31 st May, 2022. The amount of lump- sum compensation shall be recoverable from the Panchayat in accordance with law by the respondent - workman. The impugned judgment and order is modified only to the aforesaid extent. The appeal stands disposed of. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Salim/