Gujarat High Court
Jayesh S. Joshi vs Umreth Municipality on 1 March, 2023
Bench: Hemant M. Prachchhak
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 405 of 2014
In
R/SPECIAL CIVIL APPLICATION NO. 14200 of 2007
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2014
In
R/LETTERS PATENT APPEAL NO. 405 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK 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 ?
================================================================
JAYESH S. JOSHI
Versus
UMRETH MUNICIPALITY & 1 other(s)
================================================================
Appearance:
MR MANAN A SHAH(5412) for the Appellant(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 1
MR JAYNEEL PARIKH AGP for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Page 1 of 16
Downloaded on : Tue Mar 07 20:32:00 IST 2023
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
Date : 01/03/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. Present appeal has been filed by the appellant original
petitioner against order dated 7.12.2012 passed by the
learned Single Judge in Special Civil Application No.
14200 of 2007, whereby the learned Single Judge has
dismissed the petition filed by the petitioner.
2. The brief facts giving rise to present appeal are as
under:-
2.1 The present appellant - original petitioner was
recruited as Daily Wager Octroi Clerk on sanctioned
vacant post of the establishment set-up of respondent
municipality on 14.10.1990. It is the case of the petitioner
that the respondent municipality without following
mandatory provision contained in the Industrial Disputes
Act, 1947 (hereinafter referred to as the "I.D. Act")
retrenched the services of the petitioner on 1.5.2001 by
oral order. It is specific case of the petitioner that the
juniors to the petitioner were absorbed in other
departments of the respondent municipality. The
petitioner challenged his illegal termination by raising a
dispute which was referred to the Labour Court, Anand
where the same was registered as Reference (LCA) No.
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
103 of 2001. Before the Labour Court, reply was filed by
the respondent municipality. The deposition of the
petitioner was recorded vide Exh.13. The petitioner also
produced documentary evidence before the Labour Court.
Before the Labour Court, it was specifically contended by
the petitioner that the respondent has violated the
mandatory provision contained in Section 25-F, Section
25-G and Section 25-H of the I.D. Act. The Labour Court
vide award dated 6.3.2007 dismissed the reference by
observing that the service of the petitioner cannot be
regularized. The specific finding was also recorded that
the respondent municipality has violated the provision
contained in Section 25-F of I.D. Act. However, after
recording the aforesaid findings, reference was rejected
by observing that the petitioner is not entitled to be
reinstated and in lieu of reinstatement, retrenchment
compensation can be awarded to the petitioner with 6%
interest.
2.2 The petitioner, therefore, filed captioned petition
before this Court. The learned Single Judge vide order
dated 7.12.2012 dismissed the said petition. While
dismissing the petition, learned Single Judge has made an
observation that there is no violation of provision of
Section 25-G and Section 25-H of the I.D. Act and even
there is no breach of Section 25-F of I.D. Act. The
petitioner has therefore, preferred present Letters Patent
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
Appeal challenging the order of the learned Single Judge.
3. Heard Mr. G.M. Joshi, learned Senior Counsel
assisted by Mr. Manan Shah, learned Counsel for the
petitioner and Mr. Deepak Sanchela, learned Counsel for
the respondent Municipality.
4. Learned Senior Counsel for the appellant has
referred the impugned award rendered by the concerned
Labour Court. It is submitted that from the documentary
as well as oral evidence produced before the Labour
Court, the petitioner could establish that there is violation
of provisions contained in Section 25-F, Section 25-G and
Section 25-H of I.D. Act. Despite of that the Labour Court
has wrongly rejected the reference. It is submitted that
the Labour Court has observed that even if there is
violation of mandatory provision of I.D. Act, in lieu of
reinstatement, retrenchment compensation can be
granted and thereby, the respondent herein is directed to
pay the retrenchment compensation with 6% interest. It
is submitted that the aforesaid observation made by
Labour Court are not in accordance with the provisions
contained in Section 25-F, Section 25-G and Section 25-H
of the I.D. Act.
5. At this stage, learned Senior Counsel has referred
the interim order dated 19.7.2021 passed by this Court in
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
the present proceedings. It is observed by this Court in
the said order that "Admittedly, there was a violation of
Section 25-F conditions and also the violation of Section
25-G and Section 25-H of the Act and the petitioner has
never been either reinstated nor any retrenchment
compensation was paid to him." Learned Senior Counsel
therefore, urged that when the petitioner has specifically
established before Labour Court that after the petitioner
was terminated from the service, his juniors were
retained by the respondent municipality, it was the duty
of the Labour Court to pass an order of reinstatement of
the petitioner. It is also contended that other juniors were
accommodated / absorbed in the other departments of the
respondent municipality and therefore similar type of
treatment ought to have been given to the petitioner.
Learned Single Judge also failed to appreciate the
aforesaid important aspect and therefore, the impugned
award passed by the Labour Court be quashed and set
aside as well as the order passed by learned Single Judge
be set aside and thereby the direction be issued to
respondent municipality to reinstate the petitioner with
continuity of service. However, learned Senior Counsel,
after taking instructions has submitted that he is not
pressing for the backwages. Learned Senior Counsel has
placed reliance upon the decision rendered by the
Hon'ble Supreme Court in the case of Deepali Gundu
Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
(D.ED) and others reported in (2013) 10 SCC 324.
Learned Senior Counse has more particularly referred
paragraph No. 38 of the said decision. Learned Senior
Counsel for the petitioner thereafter has placed reliance
upon the decision rendered by Hon'ble Supreme Court in
the case of Jeetubha Khansangji Jadeja vs. Kutchh
District Panchayat reported in 2022 SCC Online SC
1284. Learned Senior Counsel has more particularly
referred paragraph No. 14 of the said decision. In view of
the aforesaid, learned Senior Counsel, therefore, urged
that present appeal be allowed and appropriate direction
be issued to the respondent municipality.
6. On the other hand Mr. Deepak Sanchela, learned
Counsel for the respondent Municipality has opposed this
appeal. At the outset it is contended that present appeal
itself is not maintainable. Learned Counsel for the
respondent has referred the relief prayed for by the
petitioner before Labour Court, where the petitioner has
prayed for reinstatement and the backwages, whereas in
the petition filed before this Court, the petitioner has
prayed that the award / order of the Labour Court be
modified and thereby appropriate direction be issued to
the respondent municipality to absorb the petitioner in
vacant post in other department. Thus, when the
aforesaid relief is prayed for by the petitioner before this
Court, learned Single Judge was justified in not
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
entertaining the petition and thereby learned Single
Judge has not committed any error. Learned Counsel,
therefore, urged that the present appeal be dismissed.
Learned Counsel for the respondent also referred the
interim order dated 19.7.2021 passed by this Court in the
present proceedings. It is submitted that as per direction
given by this Court, the respondent Municipality has
deposited Rs. 3,00,000/- towards the retrenchment
compensation with the registry of this Court and the
respondent is also ready and willing to deposit interest @
6% i.e. Rs.3,41,640/- before the registry of this Court.
Learned Counsel therefore, urged that when the
respondent municipality is ready and willing to deposit
the retrenchment compensation as directed by the
Labour Court, the present appeal may not be entertained.
7. We have considered the submissions canvassed by
both the sides. We have also perused the material placed
on record. It would emerge from the record that the
petitioner was appointed as Daily Wager Octroi Clerk on
the sanctioned vacant post on 14.10.1990. He had worked
on the said post upto 1.5.2001. On 1.5.2001, by way of
oral order the petitioner's service came to be terminated.
The petitioner, therefore, raised the dispute which was
referred to the Labour Court. Before the Labour Court,
the petitioner had produced documentary evidence at
Exh.22. From the said document, it is revealed that the
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
petitioner was working with the respondent municipality
as Octoi Clerk from 14.10.1990 and initially he was
getting Rs.18 per day and when his service was
terminated, he was getting Rs.73 per day. He had also
completed 240 days of service preceding the date of his
retrenchment. The deposition of petitioner was recorded
vide Exh.13, wherein also he has specifically stated that
after the service of the petitioner was terminated, his
juniors were retained by the respondent municipality. It
was a specific case of the petitioner, on the basis of the
documentary as well oral evidence that the respondent
municipality has violated the mandatory provision
contained in Section 25-F, Section 25-G and Section 25-H
of the I.D. Act. However surprisingly, the Labour Court
has made an observation in the impugned award that the
service of the petitioner is not required to be regularized
on the ground that the petitioner was not appointed after
following due procedure of law. The Labour Court has
also observed that if there is a violation of mandatory
provision of I.D. Act, in lieu of regularization,
retrenchment compensation can be awarded and thereby
the Labour Court directed the respondent municipality to
pay the retrenchment compensation and pay interest @
6%. The petitioner, therefore, filed captioned petition
before this Court.
8. We have gone through the impugned order passed
by the learned Single Judge. The learned Single Judge has
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
dismissed the petition by observing that there is no
breach of Section 25-F of the I.D. Act. We are of the view
that the aforesaid findings recorded by the learned Single
Judge is contrary to the record.
9. At this stage, this Court would like to refer the
provisions contained in Section 25-F, Section 25-G and
Section 25-H of the I.D. Act, as under:-
"25F. Conditions precedent to retrenchment of
workmen:- No workman employed in any industry who
has been in continuous service for not less than one year
under an employer shall be retrenched by that employer
until-
(a) the workman has been given one month's notice in
writing indicating the reasons for retrenchment and the
period of notice has expired, or the workman has been
paid in lieu of such notice, wages for the period of the
notice;
(b) the workman has been paid, at the time of
retrenchment, compensation which shall be equivalent
to fifteen days' average pay 46[for every completed year
of continuous service] or any part thereof in excess of
six months;
and
(c) notice in the prescribed manner is served on the
appropriate Government or such authority as may be
specified by the appropriate Government by notification
in the Official Gazette.
25G. Procedure for retrenchment.- Where any
workman in an industrial establishment, who is a citizen
of India, is to be retrenched and he belongs to a
particular category of workmen in that establishment, in
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
the absence of any agreement between the employer
and the workman in this behalf, the employer shall
ordinarily retrench the workman who was the last
person to be employed in that category, unless for
reasons to be recorded the employer retrenches any
other workman.
25H. Re- employment of retrenched workmen.-
Where any workmen are retrenched, and the employer
proposes to take into his employ any persons, he shall,
in such manner as may be prescribed, give an
opportunity to the retrenched workmen who are citizens
of India to offer themselves for re- employment and such
retrenched workman] who offer themselves for re-
employment shall have preference over other persons.
10. Admittedly, before terminating the services of the
petitioner, the respondent municipality had not complied
with the mandatory requirement of the aforesaid
provision and therefore, this Court has in the present
proceedings observed in interim order dated 19.7.2021
that admittedly there was a violation of Section 25-F
condition as well as the violation of Section 25-G and 2-
5H of the I.D. Act. It is pertinent to note that the
respondent municipality has not challenged the interim
order dated 19.7.2021 passed by this Court before the
higher forum. Thus, the respondent has accepted the said
interim observation made by this Court and on the
contrary, the respondent has complied with the direction
issued by this Court by depositing Rs.3,00,000/- with the
registry of this Court. Thus, We are of the view that it is
not open for the respondent municipality to contend that
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
the present Letters Patent Appeal is not maintainable. It
is also required to be noted that the present appeal has
been admitted in the year 2014 and the same is pending
for final hearing.
11. At this stage, it is also relevant to take in to account
the observations made by the Hon'ble Apex Court in the
case of Deepali Gundu (supra), which read as under:-
"38. The propositions which can be culled out from the
aforementioned judgments are:
38.1 In cases of wrongful termination of service,
reinstatement with continuity of service and back wages
is the normal rule.
38.2 The aforesaid rule is subject to the rider that while
deciding the issue of back wages, the adjudicating
authority or the Court may take into consideration the
length of service of the employee/workman, the nature
of misconduct, if any, found proved against the
employee/workman, the financial condition of the
employer and similar other factors.
38.3 Ordinarily, an employee or workman whose
services are terminated and who is desirous of getting
back wages is required to either plead or at least make a
statement before the adjudicating authority or the Court
of first instance that he/she was not gainfully employed
or was employed on lesser wages. If the employer wants
to avoid payment of full back wages, then it has to plead
and also lead cogent evidence to prove that the
employee/workman was gainfully employed and was
getting wages equal to the wages he/she was drawing
prior to the termination of service. This is so because it
is settled law that the burden of proof of the existence of
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
a particular fact lies on the person who makes a positive
averments about its existence. It is always easier to
prove a positive fact than to prove a negative fact.
Therefore, once the employee shows that he was not
employed, the onus lies on the employer to specifically
plead and prove that the employee was gainfully
employed and was getting the same or substantially
similar emoluments.
38.4 The cases in which the Labour Court/Industrial
Tribunal exercises power under Section 11-A of the
Industrial Disputes Act, 1947 and finds that even though
the enquiry held against the employee/workman is
consistent with the rules of natural justice and / or
certified standing orders, if any, but holds that the
punishment was disproportionate to the misconduct
found proved, then it will have the discretion not to
award full back wages. However, if the Labour
Court/Industrial Tribunal finds that the employee or
workman is not at all guilty of any misconduct or that
the employer had foisted a false charge, then there will
be ample justification for award of full back wages.
38.5 The cases in which the competent Court or Tribunal
finds that the employer has acted in gross violation of
the statutory provisions and/or the principles of natural
justice or is guilty of victimizing the employee or
workman, then the concerned Court or Tribunal will be
fully justified in directing payment of full back wages. In
such cases, the superior Courts should not exercise
power under Article 226 or 136 of the Constitution and
interfere with the award passed by the Labour Court,
etc., merely because there is a possibility of forming a
different opinion on the entitlement of the
employee/workman to get full back wages or the
employer's obligation to pay the same. The Courts must
always be kept in view that in the cases of wrongful /
illegal termination of service, the wrongdoer is the
employer and sufferer is the employee/workman and
there is no justification to give premium to the employer
of his wrongdoings by relieving him of the burden to pay
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
to the employee/workman his dues in the form of full
back wages.
38.6 In a number of cases, the superior Courts have
interfered with the award of the primary adjudicatory
authority on the premise that finalization of litigation
has taken long time ignoring that in majority of cases
the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants
cannot be blamed or penalised. It would amount to
grave injustice to an employee or workman if he is
denied back wages simply because there is long lapse of
time between the termination of his service and finality
given to the order of reinstatement. The Courts should
bear in mind that in most of these cases, the employer is
in an advantageous position vis-à-vis the employee or
workman. He can avail the services of best legal brain
for prolonging the agony of the sufferer, i.e., the
employee or workman, who can ill afford the luxury of
spending money on a lawyer with certain amount of
fame. Therefore, in such cases it would be prudent to
adopt the course suggested in Hindustan Tin Works (P)
Limited v. Employees.
38.7The observation made in J.K. Synthetics Ltd. v. K.P.
Agrawal that on reinstatement the employee/workman
cannot claim continuity of service as of right is contrary
to the ratio of the judgments of three Judge Benches
referred to hereinabove and cannot be treated as good
law. This part of the judgment is also against the very
concept of reinstatement of an employee/workman."
12. From the aforesaid observations made by the
Hon'ble Supreme Court, it is clear that in a case of
wrongful termination of service, reinstatement with
continuity of service and backwages is the normal rule. It
is further clear that the Court must always keep in view
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
that in the cases of wrongful / illegal termination of
service, the wrongdoer is the employer and sufferer is the
employee / workman and there is no justification to give a
premium to the employer of his wrongdoings by relieving
him of the burden to pay to the employee / workman his
dues in the form of full backwages.
13. Thereafter, recently the Hon'ble Supreme Court in
case of Jeetubha Khansangji (supra) in paragraph No.
14 has observed that:-
"14. In the present case, this court finds no perversity
or unreasonableness on the part of the Labour Court
and the single judge in directing the appellant's
reinstatement. Had the respondent management
chosen to accept the verdict, the appellant would have
been spared the agony of waiting for more than 10
years. In such circumstances, the denial of backwages,
has resulted in punishing him, although the delay is
attributable to the judicial process. However, the
respondent management cannot be absolved of the
primary responsibility in its litigative proclivity. In
these circumstances, the appellant shall be entitled to
backwages for a period of two years immediately
preceding, i.e., from 01.01.2020 to 01.01.2022."
14. Thus, in the aforesaid case, the Hon'ble Supreme
Court has granted backwages for a period of two years.
Keeping in view the aforesaid decisions rendered by the
Hon'ble Supreme Court, when the facts of the present
case, as discussed herein above are carefully examined, it
is revealed that the respondent municipality has violated
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
the mandatory provision of Section 25-F, Section 25-G
and Section 25-H of the I.D. Act and therefore, the
Labour Court ought to have passed an award directing
the respondent municipality to reinstate the petitioner
with continuity of service. It has come on record that the
juniors of the petitioner were retained by the respondent
municipality and they have been accommodated /
absorbed in other department and therefore, the
respondent municipality ought to have given the similar
treatment to the present petitioner by absorbing him in
the other department of the respondent municipality.
15. In view of the aforesaid discussion, impugned order
dated 7.12.2022 passed by learned Single Judge is hereby
quashed and set aside. The respondent municipality is
hereby directed to reinstate the petitioner within period
of 8 weeks from the date of receipt of this order. The
respondent municipality shall give the similar treatment
to the petitioner, which is given to the juniors of the
petitioner and the petitioner be accommodated with
continuity of service in other department of the
respondent municipality. Since learned Senior Counsel
for the petitioner does not press for backwages, there is
no need to pass any order with regard to the backwages.
16. Present Letters Patent Appeal is hereby allowed. The
amount of Rs.3,00,000/- deposited by the respondent
C/LPA/405/2014 JUDGMENT DATED: 01/03/2023
municipality before the registry of this Court be refunded
to the respondent municipality.
17. Connected Civil Application, if any, stands disposed
of accordingly.
Sd/-
(VIPUL M. PANCHOLI, J)
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
