Gujarat High Court

Ahmedabad Municipal Transport ... vs Jitendrakumar Ambalal Raval on 20 July, 2022

Bench: A.Y. Kogje

     C/SCA/23003/2017                             JUDGMENT DATED: 20/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 23003 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                   Sd/-
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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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                AHMEDABAD MUNICIPAL TRANSPORT SERVICE
                                Versus
                 JITENDRAKUMAR AMBALAL RAVAL & 1 other(s)
================================================================
Appearance:
MR DEEP D VYAS(3869) for the Petitioner(s) No. 1
MR AMRESH N PATEL(2277) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
================================================================

    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 20/07/2022

                             ORAL JUDGMENT

1. RULE. Learned Advocate Mr.Amresh Patel waives

service of Rule on behalf of respondent No.1.

2. This Petition under Articles 226 and 227 of the

Constitution of the India is filed against award dated 07.04.2017

passed by Labour Court, Ahmedabad in Reference (LCA) No.355 of

C/SCA/23003/2017 JUDGMENT DATED: 20/07/2022

2003, by which the Labour Court directed the petitioner to pay Rs.

15,000/- towards back wages for intervening period between 2002

to 2006.

3. The main contention of learned Advocate for the

petitioner is that on account of non-availability of work,

respondent-workman was not offered any work, but on availability

of work, respondent-workman has been absorbed in the service in

2006 and respondent workman was a daily wager so he cannot

claim back wages from 2002 to 2006 as matter of right.

3.1 Learned Advocate for the petitioner submitted that

petitioner-Corporation is providing public transportation services in

the city of Ahmedabad and due to the rule made by the State

Government, the buses which were 15 year old, came to be

removed from services for protection of the environment, as a

result of which, the respondent-workman and many others such

similarly situated persons were removed from the services.

3.2 It is submitted that as the respondent-workman was

working as a daily wager and considering the financial condition of

petitioner-Corporation, the petitioner-Corporation was not able to

provide work to the respondent-workman in 2002 and the

respondent-workman was removed form service.

3.3 It is submitted that subsequently, there was increase in

number of buses for public transport in 2006 and all daily wage

C/SCA/23003/2017 JUDGMENT DATED: 20/07/2022

workmen, who could not be offered work, were invited first and

were offered work. Similarly, the petitioner-Corporation also

offered work to the respondent-workman and same has been

accepted unconditionally by the respondent-workman.

3.4 It is submitted that, however the respondent-workman

raised industrial dispute, claiming non-grant of work between 2002

to 2006. The respondent-workman also,claimed back-wages. The

Labour court Ahmedabad partly allowed the reference and directed

the petitioner-Corporation to pay Rs. 15,000/- towards back wages

for the period between 2002 to 2006.

3.5 It is submitted that respondent-workman, having

accepted the employment subsequently in the light of the changed

circumstances, would not be entitled to the benefit as claimed. It is

further submitted that the respondent-workman was offered work

purely on the daily wage basis and therefore, he cannot claim back

wages as matter of right.

3.6 It is submitted that the petitioner-Corporation had

referred Special Civil Application No.6802 of 2003 and allied

matters, wherein by judgment and order dated 10.08.2005 it was

held that financial condition of the petitioner is precarious.

4. As against this, learned Advocate for the respondent-

workman submitted that respondent was working as a Driver with

the petitioner-Corporation on daily wage basis from 05.05.1997,

C/SCA/23003/2017 JUDGMENT DATED: 20/07/2022

but in may 2002, he has been removed form services without any

prior notice. The respondent-workman therefore approached the

Labour Court for reinstatement and back wages. However,

pending the reference, as the respondent-workman was reinstated

by the petitioner-Corporation in 2006, the Labour Court passed

award only to the extent of back wages and awarded Rs.15,000/-

towards back wages from 2002 till 2006.

5. Having considered the rival submission of the learned .

Advocates for the parties and having perused the documents on

record, it appears that petitioner-Corporation is providing public

transport services in the city of Ahmedabad and respondent is daily

wage workmen, who worked with the petitioner-Corporation from

05.05.1997 till may 2002. After that, he was removed form

services work due to non-availability of work on account of removal

of 15 year old buses from services for environment protection.

Later on, in 2006, respondent-workman was again taken back in

service, which was accepted by the respondent-workman

unconditionally.

6. It also appears from the record that when the

respondent-workman was removed from the work, he approached

the Labour Court by filing Reference (LCA) No.355 of 2003,

wherein the Labour Court awarded an amount of Rs.15,000/-

towards for back wages for the period between 2002 to 2006.

C/SCA/23003/2017 JUDGMENT DATED: 20/07/2022

7. This Court by judgment and order dated 10.08.2005 in

Special Civil Application No.6802 of 2003 and allied matters has

held as under:-

"14. So far as the further direction issued by the Industrial Tribunal on the petitioners to run the 612 buses as per schedule dated 15th January 2002 is concerned, such a direction is not only arbitrary and illegal but also beyond the scope of Sections 33 and 33-A of the I.D. Act. It is an admitted position that the financial condition of the petitioners is not sound and due to this amongst other factors the petitioners had to effect reduction in number of buses plying on the road which is evident from the fact that 131 buses were withdrawn. Therefore, by virtue of the aforesaid direction, the petitioners will be compelled to ply 612 buses though the buses are not available. It is required to be noted here that all the concerned workmen were serving as daily- rated workers and they were offered the work as and when it is available. Considering the aforesaid reasons and the precarious position of the AMTS where the AMTS is facing financial crisis and inspite of such sorry state of affairs of the AMTS and when the permanent workmen are being paid the salary/idle wages without there being any work or buses, even in absence of any right in favour of the concerned workmen to get work, such a direction could not have been issued by the Industrial Tribunal. Even in absence of any right accrued in favour of the concerned

C/SCA/23003/2017 JUDGMENT DATED: 20/07/2022

workmen who were working as daily-rated workmen and who were offered work as and when it was available and due to reduction of buses the petitioners cannot stick to the Schedule dated 15th January 2002 of running 612 buses and if the concerned workmen are not offered the work more particularly in the factual scenario where the permanent workmen, i.e., drivers and conductors are being paid idle wages, it cannot be said that there is a change in the conditions of service of the concerned workmen and it has led to breach of Section 33 of the I.D. Act. Under the circumstances, even the complaints under Section 33-A of the ID Act were also not maintainable."

8. Looking to the facts of the present case, this Court is of

the opinion that the respondent-workman was working as a driver

on dally wage basis and due to non-availability of work on account

of removal of 15 year old buses from services for environment

protection and due to poor financial condition of the petitioner-

Corporation, the respondent-workman was not provided the work

and was removed from services. However, in the year 2006, during

the pendency of the Reference, the respondent-workman was

reinstated in services by the petitioner-Corporation. Therefore, the

Court is of the opinion that the Labour Court committed an error in

granting back wages for the period between 2002 to 2006. It is

pertinent to observe that the Labour Court has not assigned any