Chhanabhai Koyabhai Machhar - ... vs State Of Gujarat, Throu R F O
2023 Latest Caselaw 4872 Guj

     C/SCA/21164/2018                              JUDGMENT DATED: 23/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 21164 of 2018


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                             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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     CHHANABHAI KOYABHAI MACHHAR - SINCE DECEASED THROUGH
                           LEGAL HEIR
                             Versus
                 STATE OF GUJARAT, THROU R F O,
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1,1.1,1.2,1.3
MR MD RAHEVAR AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                               Date : 23/06/2023

                              ORAL JUDGMENT

1. By way of this petition, initially, the petitioner has prayed for the following main reliefs:

"[A] Your Lordship may be pleased to issue a writ of of mandamus or any other

C/SCA/21164/2018 JUDGMENT DATED: 23/06/2023

appropriate writ and/or direction declaring the findings recorded by the learned Labour Court refusing to grant full back wages with continuity of service and all consequential benefits to the petitioner by the order and award dated 3/3/2018 passed in Reference (LCG) No. 75 of 2010, as illegal, improper, arbitrary and contrary to the Act as well as provisions of the Act, against the evidence on record and the same may be please to modify the same.

[B]. Your Lordship may further be pleased to direct the respondent to reinstate the petitioner on his original Post with continuity of service and full back wages along with all consequential benefits.

[C]. Your Lordship may be pleased to direct the respondent authority to reinstate the petitioner on his original post as directed by the learned Labour Court in its true spirit and later and be please to hold and declare that the communication dated 13/11/2018 is illegal improper and be please to quash and set aside the same

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[D] Pending admission and final hearing of the petition, Your Lordship may be pleased to restrain the respondent from changing the service condition and further be pleased to direct the respondent not to terminate the services of the workman under the guise of communication dated 13/11/2018."

2. During the pendency of the present petition the original petitioner workman died on 6/2/2021 and hence his heirs are brought on record as per order dated 17/11/2021 and therefore the prayers of reinstatement of the workman on original post will not survive. The petitioner has submitted that considering the length of service, the period of litigation the reasonable amount of compensation is required to be granted to the heirs of the workman in lieu of reinstatement. Therefore, the amendment has been made by adding the following prayer.

"[E]. Your Lordship may be pleased to issue a writ of mandamous or certiorari or any other appropriate writ and/or direction directing the respondent to pay the compensation in view of the reinstatement, continuity of service, full back wages and all consequential benefits as the original petitioner as died during the pending petition considering the length of

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service and period of litigation."

2. SUBMISSION OF THE PETITIONER WORKMAN. 2.1. Mr.P.C. Chaudhary, learned advocate for the workman has submitted that the workman was serving as a watchman since 1984 at the monthly salary of Rs.500/-. It is submitted that however, his services came to be terminated in 1997 illegally, without issuing any kind of Memo, show cause notice or chargesheet. It is submitted that the services of the petitioner has been terminated without following the provisions of the Industrial Disputes Act. It is submitted that the services of the petitioner came to be terminated for want of grant. It is submitted that thereafter the respondent No.1 has continued the work which the petitioner had been doing by fresh appointment but on piece rate wages vide communication dated 13/11/2018, which is also illegal and therefore, the petitioner has challenged the said communication also.

2.2. Mr.P.C. Chaudhary, learned advocate for the workman has further submitted that when the Labour Court has held the termination of the workman as illegal, and directed the respondent No.1 authority to reinstate the workman on his original post with continuity of service but without back wages. It is submitted that when the termination is held to be illegal, consequently, the workman is entitled continuity of service and full back-wages. It is submitted that since

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the workman has expired, the heirs of the workman are entitled to the full back wages from the date of termination till realization in lieu of reinstatement.

2.3. Mr.P.C. Chaudhary, learned advocate for the petitioner has submitted that in similar set of facts the co-ordinate bench of this court in a group of petitions being Special Civil Application No.2767 of 2018 and other allied matters, vide judgment dated 05.11.2020, while confirming the award, has set aside the communication of the respondent authorities in reinstating the workman on Piece Rate wages. He has submitted that thus, the action of the respondent authorities in engaging the present workman on Piece Rate is required to be set aside.

2.4. Mr.P.C. Chaudhary, learned advocate for the petitioner has further submitted that the learned Single Judge, while passing order dated 15/9/2021 in Special Civil Application No.4191 of 2019 with 1771 of 2020, in similar facts, has quashed and set aside the communication by which the workman was appointed on Piece Rate. Learned advocate for the petitioner has submitted that the aforesaid order passed by the learned Single Judge of this Court in Special Civil Application No.4191 of 2019 with 1771 of 2020 was challenge before the Division Bench and the Division Bank in a group of Latest Pattern Appeal No.1557 of 2022 vide judgement and order dated 14/12/2022, confirmed the view

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taken by the learner Single Judge in Special Civil Application No.4191 of 2019 with Special Civil Application No.1771 of 2020.

2.5. Learned Advocate for the petitioner has further submitted that the judgement and order pass by the Division Bench of this court in Letters Patent Appeal No.1557 of 2022 is not carried further in appeal before the Hon'ble Apex Court and the the same has attained finally and has become conclusive. He has prayed to allow the present petition.

3. SUBMISSION OF THE RESPONDENT:

3.1. Mr.M.D. Rahevar, learned AGP for the respondent authority has submitted that the respondent was doing casual work as and when available and when there was no work available with the respondent No.1 on the respondent No.1 authority terminated the services of the workman.

3.2. Learner AGP has submitted that the award passed by the Labour Court does not suffer from any infirmity. It is the case of the respondent authority that the workman was part timer and was not having status of workman. It is submitted that the workman was temporary and seasonal worker and work was available in season and when the work was not available, his services came to be terminated. However on perusal of the the record it has bone out that

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the services of the workman was terminated for want of grant.

3.3. It is submitted by the learned AGP that the workman was casual worker and when the work was not available, his services came to be terminated. He has submitted that there is no illegality in the award passed by the labour Court. Learned AGP has submitted that workman was part timer and was not having status of workman. Learned AGP has further submitted that considering the facts and evidence on record, the labour Court has rightly not granted any back wages while granting reinstatement which in the facts of the case is not required to be interfered with. It is prayed to reject the present petition.

4. FINDINGS:

4.1. I have considered the rival submissions and perused the award which is the subject matter of challenge in the caption writ petition.

4.2. Having heard the learner advocate for the respective parties and considering the award, it appears that the workman was working with the response No.1 as a watchman from 1984 and his services came to be terminated illegally in the year 1997 without issuance of any show cause notice, memo or charge-sheet. His services came to be terminated for want of grant. It is the case of the

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petitioner workman that after termination of the services, the deceased workman continued to work with the respondent No.1 by fresh apartment and on Piece Rate, which is illegal as per the decision of this Court.

4.3. On perusal of the award, it reveals that the workman has not completed 240 days in each year of his service and he did not render continuous service as per section 25B of the Industrial Disputes Act.

4.4. The Labour Court, considering the Judgement of the Division Bench in the case of Divisional Manager, New India Assurance Company versus S. Shankaralingam, reported in 2009 (1) GLH 503, the Labour Court has come to the conclusion that even if it is believed that the workman was a part timer, the workman comes under the definition of section 2 (7) of the Industrial Disputes Act.

4.5. It is the case of the respondent No.1 employer that the workman was temporary worker and as the work was not available, his services came to be terminated. However on perusal of the the record it has come on record that the services of the workman was terminated for want of grant. Considering the record and as per the findings of the Labour Court, it is clear that the services of the workman has been terminated without following the provisions of law and hence the Labour Court held the termination to be illegal

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and directed to reinstate the workman without backwages. Thereafter, the workman is reinstated but on Piece Rate.

4.6. So far as contention raised by the learned AGP for the respondent authority that the workman has not completed 240 days in a year is concerned, no documentary evidence has been produced by the respondent authority, such as attendance-sheet, muster roll. Etc., to prove that the workman has not worked for 240 days in a year. In absence of any evidence that the workman has not worked for 240 days in a year, the Labour Court, relaying upon the decision of the Hon'ble Apex Court in the case of RM Yaloti vs. Assistant Executive, reported in 2005 (9) Scale 139, has come to a conclusion that since the employer has not produce any documentary evidence though the workman has contended that he has completed 240 days, then it is to be presume that workman has completed 240 days and therefore, he is entitled to be reinstated.

4.7. So far as challenge to non-granting backwards to the workman is concerned, the Labour Court has come to the conclusion that the workman has admitted that after the termination, he was doing labour work for survival of his family and therefore considering the facts and material on record the finding of the Labour Court of not granting back- wages to the workman cannot be said to be illegal.

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4.8. With regard to the issue of engaging the workman as on Piece Rate wages, this Court is of the considered opinion that such action of the respondent authority would be an unfair labour practice. It is not the case of the respondent authority that before the termination, he was engaged in Piece Rate basis. After his termination is declared as illegal by the Labour Court, it is not open for the respondent authority to change the status of the daily wager to his detriment by engaging the workman on Piece Rate wages. The reinstatement would mean that the daily wager has to be reinstated on his original status by conferring the same status and such alteration of status from daily wager to Piece Rate worker is not permissible under the law.

4.9. In similar set of facts, the co-ordinate bench of this court in a group of petitions being Special Civil Application No.2767 of 2018 and other allied matters, vide judgment dated 05.11.2020, while confirming the award, has set aside the communication of the respondent authorities in reinstating the workman on Piece Rate wages. The aforesaid order passed by the learned Single Judge of this Court in Special Civil Application No.4191 of 2019 with 1771 of 2020 was challenge before the Division Bench and the Division Bank in a group of Latest Pattern Appeal No.1557 of 2022 vide judgement and order dated 14/12/2022, confirmed the view taken by the learner Single Judge in Special Civil Application No.4191 of 2019 with

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Special Civil Application No.1771 of 2020. The judgement and order pass by the Division Bench of this court in Letters Pattern Appeal No.1557 of 2022 is not carried further in appeal before the Hon'ble Apex Court and the the same has attained finally and has become conclusive.

5. In the result, the present writ petition filed by the workman is allowed to the extent that the action of the respondent authorities in engaging the workman on Piece Rate wages vide communication dated 13/11/2018 is held to be illegal and such communication is quashed and set aside.

With the aforesaid observation, the award passed by the Labour Court stands modified accordingly. The petition stands disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.

Sd/-

(RAJENDRA M. SAREEN,J) R.H. PARMAR