Jesingbhai Hirabhai Damor vs Range Forest Officer Shri
2022 Latest Caselaw 8827 Guj

      C/SCA/6662/2021                             ORDER DATED: 06/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 6662 of 2021

                                  With
               R/SPECIAL CIVIL APPLICATION NO. 840 of 2022
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                        JESINGBHAI HIRABHAI DAMOR
                                  Versus
                        RANGE FOREST OFFICER SHRI
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Appearance:
MR. HEM DAVE, ADVOCATE FOR MR DIPAK R DAVE(1232) for the
Petitioner(s) No. 1
MR. SOAHAM JOSHI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 06/10/2022

                              ORAL ORDER

1 Special Civil Application No. 840 of 2022 has been

filed by the State, challenging the award of the Labour

Court dated 27.01.2021, by which, the Labour Court has

awarded compensation of Rs.1,05,000/- to the respondent

workman. The respondent workman too aggrieved by the

same award, filed Special Civil Application No. 6662 of

2021.

2 It is the case of the workman that rather than

awarding compensation, he deserved an award of

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reinstatement.

3 While issuing notice in Special Civil Application No.

6662 of 2021, this Court on 25.06.2021, passed the

following order:

4 Mr. Soaham Joshi, learned Assistant Government

Pleader appearing for the State, would challenge the

award of compensation and would submit that since the

workman was only a daily wager and had worked for only

one year and nine months, the award of compensation of

Rs.1,05,000/- was unjustified.

5 Mr.Hem Dave, learned advocate appearing for

Mr.Dipak Dave, learned advocate for the workman, would

submit that once a positive finding of violation of Sec.25-F

was recorded by the Labour Court, compensation was not

the remedy and the petitioner deserved to be reinstated.

5.1 Mr.Hem Dave, learned counsel, also read out the

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decision of the Hon'ble Supreme Court in the case of

Jeetubha Khansangji Jadeja vs. Kutchh District

Panchayat., reported in 2022 lawsuit (SC) 1153. The

Court, while referring to the decision in the case of

Bharat Sanchar Nigam Limited vs. Bhurumal,

reported in 2014 (7) SCC 177, considered paras 33 to

35 thereof, which read as under:

"13 In Bharat Sanchar Nigam Limited v. Bhurumal, 2014 7 SCC 177 on the other hand, the discretion of the Court in directing reinstatement with backwages in the event of a retrenchment being declared illegal was described in the following terms:

"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.

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34. Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.

35. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the

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terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."

6 Perusal of the award of the Labour Court would

indicate that on two counts of whether there was a

violation of Sec.25-F in light of the findings arrived at on

the question of Sec.25-B of the Industrial Disputes Act,

the Labour Court held in favour of the workman,

inasmuch as, it found that the workman had worked from

15.10.1998 to 16.04.2000 continuously and

uninterruptedly. This finding was arrived at by the Labour

Court on examining the evidence and recording a positive

finding to the fact that despite a direction by the Labour

Court to produce the relevant muster rolls preceding

16.04.2000 for the period of three years, the employer

had not produced such muster rolls, and therefore,

relying on the decision in the case of Gauri Shankar vs.

State of Rajasthan, reported in 2015 (12) SCC 754,

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the Labour Court drew adverse inference against the

employer.

7 Mr.Joshi, learned AGP, submitted that the work was

carried out on piece rate basis and since the project was

over, there was no reason for the workman to be

continued in service.

7.1 That submission on reading the award indicates that

there was no evidence produced before the Labour Court

by the State to support their stand that the work was for

a particular time limit and the Labour Court, therefore,

positively and in my opinion rightly so arrived at such a

finding that in absence of any proof in terms of

documentary evidence as well as oral evidence, there was

no reason to held that the work was perennial in nature.

7.2 Therefore, on the fact of the project being perennial

and that the workman had uninterruptedly worked for a

period of 240 days which was accepted by the Labour

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Court, the only ground on which the Labour Court

awarded compensation in addition to the tenure and work

was that it took Labour Court 20 years to decide the

reference.

8 This Court in the case of Chhatrasing Marutising

Bariya vs. Dy. Executive Engineer & Anr., in SCA No.

10316 of 2020, in somewhat similar circumstances,

considering the facts, albeit, wherein the workman had

worked for six years, set aside the award of compensation

and awarded reinstatement. The order reads as under:

"[1] Rule. Learned AGP waives service of notice of rule on behalf of the respondent - State authorities.

[2] By way of the present petition, the petitioner seeks to challenge the award dated 09.04.2019 passed by the Labour Court, Godhra in Reference (T) No.107 of 2000. By the impugned award, the Labour Court held that termination of the petitioner is illegal and in violation of Section 25F of the Industrial Disputes Act, 1947, (the I.D.Act) and awarded compensation of Rs.70,000/-.

[3] The short facts given rise to the present petition are that the petitioner came to be appointed as a daily-wager Irrigation Patrolling with effect from 30.10.1991 in the office of the respondent. The petitioner was asked to work in different Sub Divisions of the respondent right from the

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beginning. The petitioner had worked at sub divisions such as Chokadi, Minor Canal, Hirapur Minor Canal Section, etc. and his services were considered to be continuous all throughout. The petitioner was orally terminated from service by the respondent with effect from 1997. It is the case of the petitioner that juniors to the petitioner were retained in service and in order to deprive the petitioner of the benefits under Government Resolution dated 17.10.1988, he came to be orally terminated from service.

[3.1] At the first instance, the petitioner represented his case before the competent authority, however since no action was taken, the petitioner approached the Labour Court by way of Reference (T) No.107 of 2000.

[4] Learned advocate Mr.Dipak Dave for the petitioner has submitted that the Labour Court, though directed the respondent to produce on record the last three years of wage registers, vouchers and other documents, however the respondent did not produce all the documentary evidence, instead produced only selective and intermittent documents. On behalf of the respondent, one Dineshbhai Shantilal Chauhan came to be examined before the Labour Court.

[4.1] After holding that the petitioner has worked continuously under Section 25B of the I.D.Act, for six years, the Labour Court held that already 22 years have passed since the petitioner's termination, so a lot of time has flown by now and since the petitioner is not a permanent employee and the petitioner might be retrenched again, he is entitled for compensation only.

[4.2] Learned advocate Mr.Dipak Dave appearing for the petitioner has submitted that though the Labour

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Court has recorded the violation of provision under Section 25F of the I.D.Act, minimum compensation of Rs.70,000/- is paid to the petitioner by the impugned award. He has submitted that in fact the petitioner, if would have been reinstated in the service, he would have got all benefits of service arising from the Government Resolution dated 17.10.1988. He has submitted that the Government Resolution dated 17.10.1988 has been interpreted by the Supreme Court in the case of State of Gujarat vs. PWD & Forest Employees Union and others rendered in (2019) 3 Scale 642. He has submitted that the workman, who has completed 05,10,15 years of service, is entitled for a particular pay scale as well the benefits which are granted to the regularly selected employees, including the pay scale. He has submitted that such workmen are also conferred the benefits of pay scale and hence, by the impugned award, of granting compensation of Rs.70,000/- the entire service is wiped out and he would not be entitled to any such benefits of service.

[4.3] In support of his submissions learned advocate Mr.Dave has placed reliance on the order dated 20.01.2020 passed in Special Civil Application No. 22362 of 2019 and other allied matters, the judgment rendered in the case of Kalamuddin M. Ansari vs. Government of India, reported in, 2016 Lawsuit (Guj) 508, the judgment reported in the case of Junagadh Minicipal Corporation vs. Bhavesh Laxman Rathod reported in 2020 LawSuit (Guj) 680.

[4.4] Thus, he has submitted that the impugned award may be modified to the extent that the respondent - State authorities may be directed to reinstate the workman without any back wages but with continuity of service as they would be entitled to Government Resolution dated 17.10.1988.

[5] In response to the aforesaid submissions, learned

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AGP Mr.Rohan Shah has submitted that the impugned award does not require any interference and the award conferring the compensation of Rs.70,000/- to the workman does not require any interference. He has submitted that the award is just and proper looking to the overall length of service prior to termination. He has submitted that it is not in dispute that the termination is effected in the year 1997 and looking to the date of tenure of service, the compensation of Rs.70,000/-is just and proper.

[6] Heard the learned advocates for the respective parties.

[7] In this writ petition, the petitioner has challenged the award dated 09.04.2019 granting compensation against the reinstatement. The petitioner has also claimed the benefits of Government Resolution date 17.10.1988. It is the case of the petitioner that the petitionerworkman is also entitled to benefits of Government Resolution dated 17.10.1988 with continuity of service. However, the learned advocate appearing for the petitioner, on instructions, has submitted that the workman will not claim the back wages. The Court has also perused the impugned award passed by the Labour Court. The workman has completed almost more than six years of service before he was terminated in the year 1997. The muster roll, which was examined by the Labour Court, reveals that the petitioner was appointed in the year 1991 and he was terminated in the year 1997. After relying upon the judgment of the Labour Court as well as this Court, the Labour Court has concluded that the termination is in violation of Section 25F of the I.D.Act. The continuity of service of the workman is also proved under Section 25B of the I.D.Act. Thus, the only issue remains whether the compensation of Rs.70,000/- awarded by the Labour Court to the petitioner workman is just and proper.

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[8] It is not in dispute that the scheme of Government Resolution dated 17.10.1988 is still in force in the State Government and the same is made applicable to all the workmen, who have completed 5, 10 and 15 years of service. The Apex Court in the case of State of Gujarat vs. PWD & Forest Employees Union and others (supra) has held that the daily wagers, who have completed 5,10 and 15 years of service are entitled to the benefits of Government Resolution dated 17.10.1988. The present workman would be entitled to the benefits of Government Resolution dated 17.10.1988, if he is reinstated with continuity of service. Thus, since the aforesaid scheme is still in force, and the workman has completed more than five years in service the grant of compensation to the present petitioner would wipe out his earlier service and he would be deprived of all the benefits of service including pay fixation, pension etc. It is also not the case of the respondent authority that no work is available, hence the workman cannot be reinstated.

[9] In these circumstances and in light of the aforesaid scheme, this court is of the considered opinion that the payment of compensation in lieu of reinstatement would be detrimental to the interest of the petitioner as he would loose his retirement benefits also. Under the circumstances, the impugned award passed by the Labour Court is misconceived to the extent of granting compensation. The respondents are directed to reinstate the workman in service with continuity of service. However, it is clarified that he will not be entitled to any back wages as he has given up his claim. After his reinstatement, it will be open for the petitioner-workman to file a representation claiming the benefits of Government Resolution dated 17.10.1988. The order reinstating the petitioner workman shall be passed within a period of three months from the date of receipt of this order. The

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amount of compensation, if it is already paid to the workman, the same shall be adjusted while fixing his pay.

[10] With the aforesaid directions, the present writ petition is allowed. The impugned award dated 09.04.2019 passed by the Labour Court, Godhra in Reference (T) No. 107 of 2000 is modified to the aforesaid extent. Rule is made absolute accordingly."

9 Accordingly, the impugned award of the Labour

Court dated 27.01.2021 in Reference (T) No. 93 of 2002

is quashed and set aside. Special Civil Application No.

6662 of 2021 is allowed. Special Civil Application No. 840

of 2022 is dismissed. The award of the Labour Court is

modified to that of reinstatement of the workman without

backwages. Orders accordingly.

(BIREN VAISHNAV, J) BIMAL