Umedsinh Sendhaji Thakore vs Divisional Controller
2022 Latest Caselaw 4550 Guj

      C/SCA/16/2020                               ORDER DATED: 02/05/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16 of 2020

==========================================================
                      UMEDSINH SENDHAJI THAKORE
                                 Versus
                        DIVISIONAL CONTROLLER
==========================================================
Appearance:
MR PARESH J BRAHMBHATT(9788) for the Petitioner(s) No. 1
MS VYOMA K JHAVERI(6386) for the Respondent(s) No. 1
==========================================================
    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 02/05/2022

                              ORAL ORDER

1 Heard Mr.Paresh Brahmbhatt, learned advocate for the petitioner

and Ms.Vyoma Jhaveri, learned advocate for the respondent.

2 While issuing notice, this Court has passed the following order:

"1. This is a petition preferred being aggrieved by the rejection of Recovery Application No. 50 of 2013 on dated 25.03.2015 by the Labour Court, Ahmedabad, seeking the direction against the respondent to pay full salary from the date of judgment and award i.e. 22.11.2011 passed by the Labour Court, Ahmedabad in Reference (T) No. 164 of 2008 till the date of actual reinstatement which is 09.02.2013 with all monetary benefits with interest.

2. Learned advocate Mr. Paresh Brahmbhatt appearing for the petitioner has urged that the cross petitions were preferred against the judgment and award passed by the Labour Court, Ahmedabad in Reference (LCA) No. 164 of 2008 dated 22.11.2011, whereby, the reference was partly allowed and the respondent - corporation was directed to reinstate the petitioner - workman on his original post without any backwages.

3. This Court in Special Civil Application No. 11346 of 2012 and in Special Civil Application No. 9776 of 2012 passed a common

C/SCA/16/2020 ORDER DATED: 02/05/2022

oral order and held thus:-

"3. Heard learned counsel for the respective parties. It appears from the documents on record that the workman had committed 16 defaults in the past. However, while substituting the order of dismissal u/s.11-A of the ID Act, the Labour Court has not imposed any penalty, which was required to be imposed looking to the past conduct of the workman. Considering the defaults committed by the workman in the past and since he was found guilty of misconduct and insubordination, if the penalty of stoppage of three increments with future effect is imposed upon the workman, the same would meet with the ends of justice. However, the workman shall be granted the benefit of continuity of service looking to his long tenure of service with the Corporation. But, he shall not be entitled for any back wages. Thus, the impugned award of the Labour Court is required to be modified accordingly.

4. For the foregoing reasons, both the petitions are partly allowed. The impugned award is modified to the extent that the petitioner-workman shall be reinstated in service, as per the directions issued in the impugned award, but, shall be imposed a penalty of stoppage of three increments with future effect. Along with reinstatement, the petitioner- workman shall be granted the benefit of continuity of service but, without any back wages. The impugned award stands modified to the above extent. The petitions stand disposed of accordingly. Rule is made absolute to the above extent in each of the petitions."

4. The petitioner had preferred an application being Recovery Application No. 50 of 2013 under Section 33(c)(2) of the Industrial Disputes Act, 1947, which came to be rejected by the Court concerned. According to him, what had been requested by the petitioner was his claim of wages from the date on which he ought to have been reinstated as per the judgment and award.

5. Learned advocate Mr. Brahmbhatt has sought to rely on the decision of this Court rendered in case of Rajnagar Textile Mills vs. Bharatbhai Jivanbhai Patel, reported in 1994 (1) GCD 378 (Guj).

6. Issue Notice for final disposal, returnable on 29.01.2020. Over

C/SCA/16/2020 ORDER DATED: 02/05/2022

and above the regular mode, service by speed post/ RPAD is permitted."

3 The case of the petitioner is that he had approached the Labour

Court challenging his dismissal from service and prayed for

reinstatement. The labour Court by an award dated 22.11.2011 partly

allowed the reference directing the respondent- State Road Transport

Corporation to reinstate the petitioner without backwages. Aggrieved by

the award so passed, both, the petitioner and the Corporation filed Special

Civil Applications before this Court. By an oral order dated 29.11.2012,

the Court held as under:

"1. These cross-petitions have been filed against the judgment and award passed by the Labour Court, Ahmedabad in Reference (LCA) No.164/2008 dated 22.11.2011 whereby, the reference was partly allowed and the respondent-Corporation was directed to reinstate the petitioner-workman on his original post without any back wages. S.C.A. No.11346/2012 has been preferred by the workman against the impugned award insofar as he has been denied the benefits of continuity of service and full back wages, whereas, S.C.A. No.9776/2012 has been preferred by the Corporation against the award of the Labour Court directing to reinstate the workman on his original post.

2. The facts in brief are that the petitioner-workman was appointed as a Driver by the respondent-Corporation on 06.04.1994. On the ground of alleged misconduct, the petitioner was served with charge-sheet dated 23.11.2004 and thereafter, departmental enquiry was initiated. Ultimately, vide order dated 30.06.2006, the petitionerworkman was dismissed from service. Against the said order of dismissal, the petitioner-workman had filed an appeal before the appellate authority of the respondent-Corporation, which was rejected vide order dated 21.07.2006 and later confirmed vide order dated 30.06.2006. Being aggrieved by the said order of dismissal, the workman raised a dispute, which,

C/SCA/16/2020 ORDER DATED: 02/05/2022

ultimately, culminated into a reference before the Labour Court, Ahmedabad. After hearing both the sides, the Labour Court partly allowed the reference by way of the impugned award. Hence, these cross-petitions.

3. Heard learned counsel for the respective parties. It appears from the documents on record that the workman had committed 16 defaults in the past. However, while substituting the order of dismissal u/s.11-A of the ID Act, the Labour Court has not imposed any penalty, which was required to be imposed looking to the past conduct of the workman. Considering the defaults committed by the workman in the past and since he was found guilty of misconduct and insubordination, if the penalty of stoppage of three increments with future effect is imposed upon the workman, the same would meet with the ends of justice. However, the workman shall be granted the benefit of continuity of service looking to his long tenure of service with the Corporation. But, he shall not be entitled for any back wages. Thus, the impugned award of the Labour Court is required to be modified accordingly.

4. For the foregoing reasons, both the petitions are partly allowed. The impugned award is modified to the extent that the petitionerworkman shall be reinstated in service, as per the directions issued in the impugned award, but, shall be imposed a penalty of stoppage of three increments with future effect. Along with reinstatement, the petitioner-workman shall be granted the benefit of continuity of service but, without any back wages. The impugned award stands modified to the above extent. The petitions stand disposed of accordingly. Rule is made absolute to the above extent in each of the petitions."

4 Reading the aforesaid order would indicate that the order of

dismissal from service was modified to that of penalty of stoppage of

three increments with future effect. Both the petitions were partly

allowed. The Court observed that along with reinstatement, the workman

shall be granted the benefit of continuity of service but without

backwages.

      C/SCA/16/2020                               ORDER DATED: 02/05/2022



5     Mr.Paresh Brahmbhatt, learned counsel for the petitioner, would

rely on a decision in the case of Rajnagar Textile Mills vs. Bharatbhai

Jivanbhai Patel., reported in 1994 (1) GCD 378 (Guj). Para 21 of the

judgement reads as under:

"21. It should be realised that in view of section 120 A of the Bombay Industrial Relations Act, 1946, the provisions of Industrial Disputes Act, 1947 are in no way affected. Once an order of reinstatement is passed by the Labour Court under Bombay Industrial Relations Act, 1946, the workman would be entitled to claim reinstatement as per the judgment and order and if he is not reinstated he would be entitled to claim full wages from the date on which he ought to have been reinstated as per judgment and award. He can very well invoke the provisions of section 33-C of the Industrial Disputes Act, 1947 and claim recovery of the money which he would have otherwise been paid had the judgment and order passed by the Labour Court been implemented. It should have also been realised by the Officers of the Mill Companoy that non-compliance of the binding award is an offence under section 29 of the Industrial Disputes Act, 1947 with imprisonment of a term which may extend to six months, or with fine, or with both. In this connection reference may be made to a Divion Bench judgment of Bombay High Court in the case of State vs. Caulfield Holland Ltd., reported in AIR 1954 Bombay 70. For attracting the provisions of section 29 of the Industrial Disputes Act, 1947, it is not necessary for the prosecution to show that the breach committed was "wilful" or actuated by mens rea. Once it is shown that binding award is not complied with by the accused and breach of the award is committed, the liability under section 29 of the Industrial Disputes Act, 1947 arises and such a person is required to be held guilty of the offence charged. No matter whether breach of the binding award or order committed was 'wilful' or that it was actuated by mens rea or not."

6 Ms.Vyoma Jhaveri, learned counsel for the respondent, inviting the

Court's attention to the observation made in the order dated 29.11.2012

would submit that though the award of the Labour Court was modified,

C/SCA/16/2020 ORDER DATED: 02/05/2022

the Co-ordinate Bench of this Court clearly opined that the petitioner

would not be entitled to backwages, and therefore, on the principle of 'No

Work, No Pay', from the date of the award, i.e. 22.11.2011 till the date of

actual reinstatement i.e. 09.02.2013, the petitioner was not entitled to the

benefits of salary. The recovery application of the petitioner has,

therefore, rightly been rejected vide order dated 25.03.2015.

7 Considering the decision rendered by this Court in Rajnagar

Textile Mills (supra), particularly para 21 thereof, what appears from the

facts on record is that once the order of dismissal was set aside and

though the petitions were partly allowed, the petitioner was directed to be

reinstated with continuity of service. Merely because of denial of

backwages, actual benefits of salary from the date of award till the date of

reinstatement ought to be paid to the petitioner.

8 Accordingly, the petition is allowed. The judgment and order dated

25.03.2015 passed in Recovery Application No. 50 of 2013 is hereby

quashed and set aside. Amounts due to the petitioner pursuant to the

prayer made in the recovery application shall be paid to the petitioner

within a period of eight weeks from the date of receipt of copy of this

order. Direct service is permitted.

(BIREN VAISHNAV, J) Bimal