State Of Gujarat vs Arjanbhai Bhimabhai Dabhi
2022 Latest Caselaw 9065 Guj

     C/SCA/7871/2012                                 JUDGMENT DATED: 13/10/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7871 of 2012
                                    With
               R/SPECIAL CIVIL APPLICATION NO. 10075 of 2012
                                    With
            MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2019
              In R/SPECIAL CIVIL APPLICATION NO. 7871 of 2012
                                    With
            MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2019
             In R/SPECIAL CIVIL APPLICATION NO. 10075 of 2012

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                              Sd/-

=============================================

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

2     To be referred to the Reporter or not ?                             YES

3     Whether their Lordships wish to see the fair copy of the            NO
      judgment ?

4     Whether this case involves a substantial question of law as         NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

=============================================
                                STATE OF GUJARAT
                                      Versus
                       ARJANBHAI BHIMABHAI DABHI & 1 other(s)
=============================================
Appearance:
MR. DHAWAN JAYSWAL, AGP for the Petitioner(s) No. 1
MR BJ TRIVEDI(921) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
MR JT TRIVEDI(931) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
MS JIGNASA B TRIVEDI(3090) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
RULE SERVED for the Respondent(s) No. 1,2
=============================================

    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE


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 C/SCA/7871/2012                                     JUDGMENT DATED: 13/10/2022




                          Date : 13/10/2022

                           ORAL JUDGMENT

1. The petitions are filed under Article 226 of the Constitution of India against the judgment and award dated 11-10-2010 passed by the Presiding Officer, Labour Court, Bhavnagar in respective References.

2. This two petitions are arising out of the identical facts and are raising the same issues and hence, at the request of both the sides, the same are taken up for joint hearing and final disposal. With consent, the facts are recorded from the lead matter i.e. Special Civil Application No.7871 of 2012.

3. The State is before the Court against the award of the Labour Court, where the respondent-workman, who had claimed to be engaged in the service of the petitioner-Department, had raised an industrial dispute, which came to be allowed by impugned award, whereby the directions were given for reinstatement to his original post with continuity and back-wages to the extent of 20% of his salary.

4. These two petitions were disposed of by CAV Judgment dated 23-07- 2019 along with other two petitions being Special Civil Application No. 2685 of 2012 and Special Civil Application No.13501 of 2012.

5. It appears that when the matter came to be disposed of by CAV Judgment, certain observations were made in the said CAV Judgment, which, according to the respondent-workman, will come in his way to claim benefits and therefore, on behalf of the respondent-workman, Misc. Civil Application No. 1 of 2019 was moved. This Review Application came to be allowed by order dated 03-10-2019 and this Court in Para-10, 10.1, 10.2, 11 and 12 has held as under:

"10. Even if this court was to discard the said record, the facts remain that the findings of facts was recorded by the Labour Court

C/SCA/7871/2012 JUDGMENT DATED: 13/10/2022

as above and this Court could not have re-visited such factual finding more particularly in absence of challenge to it by the State during the arguments advanced in the main petition. Thus this court is of the opinion that there is error apparent on face of record so far as findings in this issue as recorded in paragraph 16 of the order dated 23.07.2019 (supra) is concerned.

10.1 So far as Special Civil Application No. 10075 of 2012 is concerned, concededly neither before the Labour Court nor with this court, the appointment of the workman made in the year 1990 was disputed. The said fact was specifically admitted in the additional affidavit by the State and therefore in absence of the petitioners- State challenging said aspect, this court is of the opinion that an error on the face of record has emerged and therefore observations made by this court in this regard qua Special Civil Application No. 10075 of 2012 "in absence of the material establishing the date of appointment of the workman, it was not possible and prudent to render the finding that the persons named by the workman in the list (supra) were junior to the workman and consequently finding recording breach of section 25G and 25H is also baseless" -are required to be recalled.

10.2 It is however misconceived to say that in two petitions being Special Civil Application No. 7871 of 2012 and Special Civil Application No. 10075 of 2012, the industrial dispute was not belatedly raised. This court however in a review petition would not elaborate more than what is already recorded in the judgment under review; more particularly paragraph 7 and 11 thereof.

11. Under the circumstances, the application must succeed to the

C/SCA/7871/2012 JUDGMENT DATED: 13/10/2022

extent indicated above. The quoted portion of paragraph 7 of the judgment as also the observations made in paragraph 16 of the judgment under review are recalled. Both Misc. Civil Applications are disposed of.

12. Needless to say that the recall of the observations as above in the two petitions would not alter the ultimate operative order whereby the petitions were allowed. Needless also to clarify that the two petitions were allowed on the ground of delay."

6. As operative part of the CAV Judgment dated 23-07-2019 was not modified to be in consonance with the removal of the objectional paras, for which the Review Application was filed. The respondent-workman preferred Letters Patent Appeal No.83 of 2020 and Letters Patent Appeal No.84 of 2020. Both Letters Patent Appeals were allowed by order dated 13-02-2020, wherein in Para-18 and 19, the Court has directed as under:

"[18] Keeping in view the aforesaid principle in mind, the case is made out by the appellants. Thus, order passed in review applications dated 03.10.2019 is hereby quashed and set aside with a request to the learned Single Judge to re-hear and re-consider the Misc.Civil Applications submitted in the proceedings and make an endeavour to pass a fresh order on merit in accordance with law.

[19] Consequentially, we request the learned Single Judge to re- examine the grievance of the appellants submitted in review applications and try to see that same be disposed of as expeditiously as possible. Since we are relegating the matter back to the learned Single Judge for fresh decision on merit in review applications, we

C/SCA/7871/2012 JUDGMENT DATED: 13/10/2022

refrain ourselves from specifically opining anything on merit of Misc. Civil Application (Review) No. 1 of 2019 in both the matters and it is independently left it open to the learned Single Judge to deal with and decide the same in accordance with law."

7. It is in view of the aforesaid directions that now the petitions are placed before this Court for fresh hearing.

8. Learned AGP has taken this Court through the award of the Labour Court and indicated that the grounds on which the Labour Court has allowed the Reference, did not consider the case of the Department to the extent of there being no record with regard to the engagement of the respondent-workman with the petitioner-Department. It is submitted that in absence of record, the Labour Court had proceeded to allow the Reference merely on the basis of presumption.

9. It is reported that after the CAV Judgment dated 23-07-2019, the respondent-workman of Special Civil Application No.10075 of 2012 namely Bharatsinh Pravinsinh has been reinstated and has continued to work with the petitioner-Department. However, the respondent- workman of Special Civil Application No.7871 of 2012; namely Arjanbhai Bhimabhai Dabhi had expired on 09-10-2010 i.e. two days prior to award of the Labour Court dated 11-10-2010 and therefore, there was no question of reinstatement.

10. From the record it appears that Special Civil Application No.13501 of 2012, which was also against the similarly situated employee of the petitioner-Department, wherein date of termination was 30-04-2003, for which the Demand Notice was raised by the said workman on 23- 06-2010, qua him, the Reference was allowed and the petition being Special Civil Application No.13501 of 2012 filed by the State came to be rejected. Similarly, workman in Special Civil Application No.2685 of 2012, who was appointed in the year 1976 as Daily Wager and was

C/SCA/7871/2012 JUDGMENT DATED: 13/10/2022

allegedly terminated in the year 1999, had raised demand on 30-12- 2002. Qua him also, the order of reinstatement with back-wages was passed as in case of the present respondent-workman and was the subject matter of challenge. Such challenge by the State was also rejected.

11. Perusal of the record would indicate that the case of the present respondent-workmen were identical to these aforementioned two workmen, against whom, petitions came to be rejected by this Court by the very order.

12. In the opinion of the Court, similar suit should follow in the case of present respondent-workman of Special Civil Application No.7871 of 2012; namely Arjanbhai Bhimabhai Dabhi and the respondent-workman of Special Civil Application No. 10075 of 2012 namely Bharatsinh Pravinsinh, who have also been identically ordered to be reinstated with 20% of back-wages. Applying similar reasonings, which are adopted by this Court in its CAV Judgment dated 23-07-2019, the Court does not find any reason to interfere with the judgment and award dated 11-10- 2010 passed by the Presiding Officer, Labour Court, Bhavnagar in Reference (LCB) No.32/2008 and judgment and award dated 11-10- 2010 passed by the Presiding Officer, Labour Court, Bhavnagar in Reference (LCB) No.31/2008.

13. In view of the aforesaid, both these petitions deserve to and are hereby dismissed. Rule is discharged with no order as to costs.

14. In view of the order passed in the main matter, connected Misc.Civil Applications do not survive. Hence, connected Misc. Civil Applications stand disposed of, accordingly.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA