Gordhanbhai Dhamabhai Patel vs Deputy Range Forest Officer
2023 Latest Caselaw 4926 Guj

    C/SCA/12958/2013                               CAV JUDGMENT DATED: 27/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 12958 of 2013


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 ?

========================================================== GORDHANBHAI DHAMABHAI PATEL Versus DEPUTY RANGE FOREST OFFICER ========================================================== Appearance:

MR PC CHAUDHARI(5770) for the Petitioner(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 27/06/2023

CAV JUDGMENT

1. By way of preferring present petition, the petitioner workman has challenged the judgement and award passed by the Labour Court, Godhra in Reference (LCG) No.870 of 2001 dated 8/3/2011 published on 11/5/2011 by which, the Labour Court directed the respondent to pay lump

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sum compensation of Rs.20,001/- to the petitioner workman in lieu of the reinstatement and back wages.

2. FACTS :

Facts giving rise to file the present petition are as follow:

2.1. The petitioner was working with the respondent since 1982 on the post of Beat Guard in the department of Nursery and in the pay scale of Rs.210-4-250-270. However, his services came to be terminated orally w.e.f. 1/12/1993 without complying with the provisions of the Industrial Disputes Act. The petitioner raised a reference which was referred to the Labour Court, Godhra. The respondent filed Written Statement at Ex.7. The petitioner filed his statement of claim and though opportunity was given to the respondent, the respondent did not avail the same and the respondent had not appeared before the Labour Court and therefore ultimately the right to produce the written statement was closed by the Labour Court and thereafter, as the respondent has chosen not to appear before the Labour Court, the matter was proceeded ex-party. The petitioner has filed an Affidavit in Support of the claim vide Exh.14.

2.4. The Labour Court, Godhra has by its award dated 8/03/2011 published on 11/05/2011 partly allowed the

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reference and directed the respondent to pay an amount of Rs.20,001/- in lieu of reinstatement and back wages mainly on the ground that when termination is of the year 1993, reinstatement cannot be granted after 18 years.

3. SUBMISSION OF THE PETITIONER:-

3.1. Learned advocate for the petitioner has submitted that the award passed by the Labour Court, Godhra is illegal, improper, arbitrary and contrary to the settled principles of Industrial Disputes Act, 1947 as well as contrary to the settled proposition of law.

3.2. The learned advocate for the petitioner has submitted that the respondent has not appeared before the Labour Court and there is no defense from the part of the respondent so far the claim of the Petitioner for termination is concerned.

3.3. The learned advocate for the petitioner has submitted that the Labour Court framed the issue that whether the respondent has illegally and improperly terminated the services of the petitioner and the Labour Court has also answered the said issue in affirmative. It is submitted that when the termination is held to be illegal, consequential benefit of reinstatement is required to be granted. However, the leaned Labour Court instead of granting the benefit of reinstatement with back wages only granted the amount of

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compensation amounting to Rs.20,001/- in lieu of reinstatement and back wages, which is contrary to the evidence on record as well as contrary to the settled principles of law.

3.4. The learned advocate for the petitioner has submitted that because of the reason of lack of knowledge about the law of limitation, challenged the termination of 1982 in the year 2000 i.e. after a period of 8 years. It is submitted that the petitioner is a poor and tribal person and being uneducated, he was not aware about the law of limitation. It is submitted that as such the delay is not huge and inordinate.

3.5. The learned advocate for the petitioner has submitted that so far as the aspect of delay is concerned, as per the settled legal position, considering the length of delay, back- wages is required to be deducted accordingly while granting the back-wages, but on account of delay, reinstatement cannot be denied.

3.6. The learned advocate for the petitioner has submitted that it is nowhere the case of the respondent before the Labour Court that the appointment of the petitioner is illegal, improper or contrary to the rules of the respondent company. However, the Labour Court granted lump sum compensation only on the ground that the appointment of

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the petitioner is not in accordance with the rules of the respondent company and there is delay.

3.7. The learned advocate for the petitioner has submitted that the Labour Court awarded only lump sum compensation and denied the reinstatement and back wages on the ground that there is delay of 8 years and the appointment of the petitioner is not in accordance with the recruitment rules. It is submitted that however, the respondent has never filed any reply before the Labour Court to show that the appointment of the petitioner is dehorse the rules of recruitment. In absence of such pleadings on the part of the respondent, the Labour Court could not have denied the reinstatement and back wages on that ground.

3.8. The learned advocate for the petitioner has submitted that in absence of pleading of the respondent that the petitioner is gainfully employed, the Labour Court erred in refusing to grant reinstatement and back wages.

4. SUBMISSION OF THE RESPONDENT:-

Mr.Meet Thakkar, learned advocate for the respondent has vehemently submitted that the respondent could not defend his case properly and therefore, the Labour Court closed the right of the respondent employer to file written statement and thereafter also, the case was not

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represented before the Labour Court and therefore, the Labour Court proceeded ex-parte and passed the ex-parte judgement and award. It is submitted that considering the fact that the judgement and award passed by the Labour Court is ex-parte, the Labour Court has rightly awarded compensation of Rs.20,001/- towards lump sum compensation and no error or illegality is committed by the Labour Court. It is submitted that the judgement and award passed by the Labour Court is just, legal and proper and the same do not call for interference at the hands of this Court.

5. FINDINGS:

5.1. Having heard the learned advocates for the respective parties and considering the material on record, it appears that the petitioner was working as working as Beat Guard in the respondent department from 1/1/1982 and his services came to be terminated orally on 1/12/1990, without following the provisions of the Industrial Disputes Act. The respondent did not appear before the Labour Court and therefore, his right to file written statement was closed and thereafter also since the respondent did not appear, the Labour Court passed ex-parte judgement and Award, awarding lump sum compensation of Rs.20,001/- to the petitioner in lieu of reinstatement and back wages on the ground that there is delay of 8 years in filing the reference, there is delay of 5 years in filing the statement of claim and hence, the termination is of the year 1993 and

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reinstatement cannot be granted after 18 years.

5.2. On perusal of the award and the material placed on record, it appears that as per the case of the petitioner he has worked from 1982 to 1993 and his services came to be terminated w.e.f. 1/12/1990 and thereafter he raised a reference in the year 1999 i.e. after a period of 8 years. The Labour Court while passing the impugned judgement and award, awarded lump sum compensation of Rs.20,001/- in lieu of reinstatement and back wages on the ground that there is delay of 8 years and it cannot be believed that the petitioner is without employment since last 18 years. This court is also of the opinion that reinstatement cannot be granted after 18 years and the award of not granting reinstatement to the petitioner is proper. However, considering the facts of the case, it clearly appears that almost 24 years has been passed during pendency of the litigation for which the workman cannot be faulted for long term process. Considering the long time of litigation and time consumed from 2001 till date and the fact that the employer has not challenged the impugned award of granting lump sum amount as well as the facts that the respondent had chosen not to appear before the Labour Court and therefore, the Labour Court passed ex-parte judgement and award and when in 1982, monthly salary of the petitioner was Rs.500/-, this Court is of the considered opinion that the lump sum amount of Rs.20,001/- cannot be said to be an amount adequate enough to meet with the ends of justice. Therefore, the amount of compensation is

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required to be enhanced accordingly. In the opinion of this Court, if the lump sum compensation is enhanced from Rs.20,001/- to Rs.1,50,000/- it would meet the ends of justice.

5.3. It is pertinent to note that the Labour Court has awarded lump sum compensation in lieu of compensation relying upon the decision of the Hon'ble Apex Court in the case of Senior Superintendent Telegraph (Traffic) Bhopal vs. Santosh Kumar Seal and Ors., reported in (2010) 2 SCC 309 wherein the Hon'ble Supreme Court has observed and held as under :-

6. In last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate,.... (See U.P. State Brassware Corpn. Ltd. & Anr. v. Uday Narain Pandey1; Uttaranchal Forest Development Corpn. v. M.C. Joshi2; State of M.P. & Ors. v. Lalit Kumar Verma3; Madhya Pradesh Administration v. Tribhuban4; Sita Ram & Ors. v. Moti Lal Nehru Farmers Training Institute5; Jaipur Development Authority v. Ramsahai & Anr.6; Ghaziabad Development Authority & Anr. v. (2006) 1 SCC 479 (2007) 9 SCC 353 (2007) 1 SCC 575 (2007) 9 SCC 748 (2008) 5 SCC 75 (2006) 11 SCC 684 Ashok Kumar & Anr.7 and Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr.8).

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7. In a recent judgment authored by one of us (R.M. Lodha, J.) in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr.9, the aforesaid decisions were noticed and it was stated :

"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow.

However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been

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found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee".

5.3. The Hon'ble Apex Court in the Case of Tapash Paul Vs. BSNL and Another reported in 2016 (1) Scale 92 has observed and held as under :-

"5. It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz. (I) where the industry is closed;

(ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and / or (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation.

5.4. The Hon'ble Apex Court in the case of BSNL Vs. Bhurumal, reported in 2014 (7) SCC 177 has observed and held as under:-

              "Reasons      for     denying        the         relief          of




  C/SCA/12958/2013                           CAV JUDGMENT DATED: 27/06/2023

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."

5.5. In view of the aforesaid and considering the decision in the case of Senior Superintendent Telegraph (Traffic) Bhopal relying on which, the Labour Court has passed the award and considering the judgment of the Apex Court in the case of Tapash Paul Vs. BSNL and Another reported in 2016 (1) Scale 92 and BSNL Vs. Bhurumal, reported in 2014 (7) SCC 177, this Court is of the considered view that in the facts of this case granting of relief of reinstatement after a gap of more than 18 years, no useful purpose will be

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served. At the same time, this Court is of the considered view that the lump sum amount of Rs.20,001/- cannot said to be an amount adequate enough to meet with the ends of justice. This Court is of the considered opinion that instead of Rs.20,001/- if the workman is ordered to be paid lump sum amount of Rs.1,50,000/- in lieu of the reinstatement, then, the ends of justice would be met appropriately. This Court deems fit to order grant of compensation of Rs.1,50,000/- as full and final settlement of the claim in lieu of the reinstatement. Such amount is needed to be paid to the workman by the respondent - employer after proper verification of the identity by an account payee cheque / pay order within a period of three months from the date of receipt of this order, failing which the workman will be entitled to claim interest at the rate of 9% from today till the date of actual realization.

6. 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