Gujarat High Court
Ramanbhai Shankerbhai Bhoi vs Deputy Executive Engineer on 3 March, 2023
Bench: Biren Vaishnav
C/SCA/24564/2007 JUDGMENT DATED: 03/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 24564 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAMANBHAI SHANKERBHAI BHOI
Versus
DEPUTY EXECUTIVE ENGINEER
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Appearance:
MR YOGEN N PANDYA(5766) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 03/03/2023
ORAL JUDGMENT
1. Heard Mr. Yogen N. Pandya, learned counsel for the
petitioner and Mr. Sahil Trivedi, learned AGP for the
C/SCA/24564/2007 JUDGMENT DATED: 03/03/2023
respondents.
2. Challenge in this petition is to the judgment and award
passed by the Labour Court, Anand dated 28.12.2006
whereby the Presiding Officer of the Labour Court
allowed the Reference. However, by so allowing the
Reference, the Labour Court denied reinstatement but
awarded retrenchment compensation in accordance with
the provisions of Section 25(F) with 6% interest.
3. Mr. Yogen Pandya, learned advocate for the petitioner
submitted that having worked for approximately three
years of service and when the Labour Court having found
that breach of the provisions of Sections 25(F), 25(G) and
25(H) of the Industrial Disputes Act, 1947, the Labour
Court ought to have granted reinstatement. Taking the
Court through the evidence on record of the employer,
Mr.Pandya would submit that it has come on record that
C/SCA/24564/2007 JUDGMENT DATED: 03/03/2023
the work was still available and was continued by
engaging contractual workmen. He would also rely on the
statement of the number of days which indicated that he
had worked for 309 days preceding the date of
retrenchment which automatically prove violation of 25(F)
and, therefore reinstatement ought to have followed.
3.1. Alternatively, he would submit that in light of
the decision of the Hon'ble Supreme Court in the case of
Madhya Bharat Gramin Bank v. Panchamlal Yadav
reported in 2021 Law Suit(SC), 960, the Hon'ble
Supreme Court held that awarding of compensation of
Rs.5,00,000/- for tenure of three years of service.
4. Mr. Sahil Trivedi, learned AGP for the respondent would
support the award of the Labour Court and submit that
since the petitioner was a Daily Wager, the Labour Court
in its discretion rightly held that the compensation
C/SCA/24564/2007 JUDGMENT DATED: 03/03/2023
awarded is just and proper in the facts and circumstances
of the case and it need not be enhanced.
5. Perusal of the award of the Labour Court under challenge
would indicate that petitioner was working as a Daily
Wage driver. It was his case that he was engaged as a
Daily Wager with effect from 21.4.1982 and retrenched on
21.1.1985. That would suggest that as a Daily Wage
Driver, the petitioner had worked for approximately two
and half years. Perusal of the award of the Labour Court
would also indicate that it had come to the conclusion that
it was not in dispute that the petitioner had worked for 240
days preceding his retrenchment.
6. The Labour Court while discussing the aspect of whether
the petitioner deserved to be reinstate, found that taking
into consideration the fact that the petitioner was a Daily
Wage and was not engaged through the regular mode of
C/SCA/24564/2007 JUDGMENT DATED: 03/03/2023
recruitment, the relief that can only be granted in such a
case was that of compensation in lieu of reinstatement.
7. Hon'ble Supreme Court in the case of Bharat Sanchar
Nigam Limited v. Burumal reported in 2014(7) SCC,
177 in para 33 held as under:
"33. It is clear from the reading of the aforesaid
judgments that the ordinary principle of grant of
reinstatement with full back wages, when the
termination is found to be illegal is not applied
mechanically in all cases. While that may be a
position where services of a regular/permanent
workman are terminated illegally and/or malafide
and/or by way of victimization, unfair labour
practice etc. However, when it comes to the case of
termination of a daily wage worker and where the
termination is found illegal because of procedural
defect, namely in violation of Section 25-F of the
Industrial Disputes Act, this Court is consistent in
taking the view in such cases reinstatement with
back wages is not automatic and instead the
workman should be given monetary compensation
which will meet the ends of justice. Rationale for
shifting in this direction is obvious."
8. On the aspect of the compensation since reliance is placed
by the learned counsel for the petitioner in the case of
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Madhya Bharat Gramin Bank (Supra) where the
Hon'ble Supreme Court awarded Rs.5,00,000/- as
compensation, referring to the decision in the case of
Burumal (Supra) in the case State of Uttarakhand v.
Raj Kumar reported in 2019(14) SCC 353, the Hon'ble
Supreme Court awarded compensation of Rs.1,00,000/- in
lieu of reinstatement.
9. The amount of compensation that can be awarded cannot
be a subject matter of straight jacket formula which taken
on the facts and circumstances of each case.
10. In view of above, the writ petition is partly allowed. The
amount of compensation is enhanced that of Rs.1,00,000/-.
In addition thereto, cost of Rs.15,000/- is also awarded.
Thereby, in toto Rs.1,15,000/- is ordered to be awarded to
the petitioner within a period of eight weeks from the date
of receipt of copy of this judgment.
C/SCA/24564/2007 JUDGMENT DATED: 03/03/2023
11. Rule is made absolute to the aforesaid extent. Direct
Service is permitted. No order as to costs.
(BIREN VAISHNAV, J)
VATSAL
