State Of Gujarat vs Tapubhai Ukabhai Thro. His Legal ...
2023 Latest Caselaw 6123 Guj

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       C/LPA/284/2023                                  ORDER DATED: 21/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO.             284 of 2023

         In R/SPECIAL CIVIL APPLICATION NO. 297 of 2009
                               With
          CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
            In R/LETTERS PATENT APPEAL NO. 284 of 2023
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                           STATE OF GUJARAT
                                Versus
                TAPUBHAI UKABHAI THRO. HIS LEGAL HEIRS
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Appearance:
MS SHRUTI DHRUVE, AGP for the Appellant(s) No. 1,2
AAKASH D MODI(7449) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
           and
           HONOURABLE MR. JUSTICE DEVAN M. DESAI

                              Date : 21/08/2023

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned Assistant Government Pleader Ms. Shruti Dhruve for the appellants and learned advocate Mr. Aakash Modi for the respondent.

2. This Letters Patent Appeal is directed against the judgment and order dated 27.08.2019 of learned Single Judge whereby the Special Civil Application filed by the State came to be dismissed.

3. The State and the Range Forest Officer, by filing the original petition, prayed to set aside the judgment and award of the Labour Court, Bhavnagar in LCB No. 489 of 1990. The Reference was partially allowed. The

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C/LPA/284/2023 ORDER DATED: 21/08/2023

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workman since had died on 31.08.2006, during the pendency of the Reference proceedings, what was directed by the Labour Court was to pay 50% salary for the period from 01.09.1988 to 31.08.2006, further awarding cost of Rs. 1,000/-.

4. In order to assail the confirmation of the said judgment and award of learned Single Judge, it was mainly contended by learned Assistant Government Pleader that the workman was engaged on temporary basis, therefore, the benefits could not have been accorded to him even for the period indicated by the Labour Court. It was submitted that the Labour Court ought to have appreciated that the workman stopped coming on duty on his own from 01.09.1988. It was therefore submitted that the finding about violation of Section 25F of the Industrial Disputes Act, 1947, was erroneous.

5. Learned Single Judge revisited with the merits considered by the Labour Court to notice on the basis of relevant materials that the workman had served continuously and that the submission and the presumption that he had worked only for few number of days in the preceding calendar months was unwarranted; also that the submission in that regard had no backing of relevant material evidence. Learned Single Judge found further that the theory of the employer that the workman had abandoned his duties, rightly did not find favour with the Labour Court. It was recorded that the the fact, the circumstances and the evidence showed that in contrast to the theory of abandonment, the workman was driven out from service. Learned Single Judge did not interfere

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C/LPA/284/2023 ORDER DATED: 21/08/2023

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with the findings recorded by the Labour Court.

5.1 As regards the relief as to backwages was concerned, it was reasoned by learned Single Judge that though normally, principle of 'no work no pay' would apply, in the instance case, the workman had pleaded in evidence that despite his efforts, he could not get alternative job and that there was no source of earning. It was further recorded that the said aspect was not controverted by the employer and that no evidence was adduced to show that the workman was alternatively employed.

5.2 Noticeably, while admitting the petition, the Court had passed the order on 13.07.2009, which was reproduced by learned Single Judge,

"Looking to the submission that the workman was always invited to join but never turned up, there shall be interim stay of the operation of the impugned award till final disposal of the matter. It goes without saying that in case dismissal of this petition against the Government, then the amount payable will be subject to passing appropriate interest to be paid to the respondent."

5.3 Learned Single Judge found that the workman had been deprived by the benefits of the award for long 18 years and therefore, the payment of 6% interest was justified. Learned Single Judge gave directions to pay interest as well on the said consideration while disposing the petition.

6. This Court is in total agreement with the reasoning supplied and the decision rendered by learned Single Judge for dismissing the petition. No interference is

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C/LPA/284/2023 ORDER DATED: 21/08/2023

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warranted in exercise of Letters Patent jurisdiction.

7. This appeal is accordingly dismissed.

Civil Application would not survive in view of the dismissal of the main appeal and the same is disposed of.

(N.V.ANJARIA, J)

(D. M. DESAI,J) BIJOY B. PILLAI