Kheda District Panchayat vs Vikaramsinh Mohansingh Chauhan
2023 Latest Caselaw 2234 Guj

      C/SCA/5043/2007                             ORDER DATED: 14/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 5043 of 2007
                                  With
            CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
             In R/SPECIAL CIVIL APPLICATION NO. 5043 of 2007
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 5044 of 2007
                                  With
            CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
             In R/SPECIAL CIVIL APPLICATION NO. 5044 of 2007
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                   KHEDA DISTRICT PANCHAYAT & 1 other(s)
                                  Versus
                    VIKARAMSINH MOHANSINGH CHAUHAN
==========================================================
Appearance:
MR PRADEEP PATEL(642) for the Petitioner(s) No. 1,2
MR AS ASTHAVADI(3698) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                              Date : 14/03/2023

                               ORAL ORDER

1. The present Special Civil Applications impugn the judgment and award dated 19.05.2006 passed in Reference (LCN) No.241 of 1992 and Reference (LCN) No.242 of 1992 by the learned Labour Court, Nadiad.

2. The factual matrix in the present case is as follows :-

2.1 The respondent workmen were appointed as workcharge muster clerks in the scarcity relief work undertaken by the petitioner District Panchayat after calling for the names from the employment exchange and following due procedure. The respondent workman viz. Pravinchandra Manilal Gohel came to be appointed on 21.03.1987 and was terminated on 18.06.1988, whereas the

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another respondent workman viz. Vikramsinh Mohansinh Chauhan came to be appointed on 30.04.1987 and was terminated on 18.02.1988. Aggrieved by their termination, both the respondent workmen raised an industrial dispute. The learned Assistant Labour Commissioner, Nadiad, by letter dated 22.12.1992, made a reference to the learned Labour Court, Nadiad.

2.2 Notice came to be issued to the petitioners. The petitioners filed their written statement. By the impugned judgment and award, the references of the respondent workmen came to be partly allowed. The learned Labour Court directed that the respondent workmen be reinstated on their post along with continuity in service without any back wages. Aggrieved, the petitioners have preferred the present Special Civil Applications.

3. Learned advocate Mr. Pradeep Patel appearing on behalf of the petitioners submits that the learned Labour Court has not appreciated the fact that the appointment of the respondent workmen was purely on ad-hoc basis and was liable to be terminated at any point of time. He submits that due to drought conditions, the petitioner District Panchayat had undertaken the scarcity relief work and the appointment of the respondent workmen was made to supervise the work of the labourers and to maintain their attendance registers, which is clear from the appointment order itself. He further submits that since the appointment was made on drought relief work sites, on account of adequate rainfall in the area, the respondent workmen came to be terminated from their services. He submits that in the present case, the respondent workmen had not completed 240 days in one calendar year and therefore also, they were not entitled to any relief as claimed. He submits that the respondent workmen have also not led any evidence to that effect that they have completed 240 days

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of service in the preceding years. He submits that the petitioners had filed the written statement which was not taken into account and was not appreciated properly while adjudicating the dispute. He therefore submits that the impugned judgment and award be set aside and the termination be upheld.

4. Per contra, learned advocate Mr. A. S. Asthavadi appearing on behalf of the respondent workmen submits that the respondent workmen were duly appointed after following due procedure and calling their names from the employment exchange. He submits that they were appointed as workcharge muster clerks. He further submits that as per their statement of claim, the respondent workman viz. Pravinchandra Manilal Gohel has worked for 404 days from 21.03.1987 till 18.06.1988, whereas the respondent workman viz. Vikramsinh Mohansinh Chauhan has worked for 293 days from 30.04.1987 till 18.02.1988. He submits that the ample opportunity was given to the petitioners to dispute the claim, however the petitioners have not produced any evidence on record to dispute the fact about the number of days the respondent workmen have worked. He submits that the petitioners, for the reasons best known to them, have not disputed the claim of the respondent workmen and therefore, the learned Labour Court was right in concluding that the termination of the respondent workmen was in violation of the provisions of the Industrial Disputes Act. He submits that the termination of the respondent workmen was bad in law and the judgment and award passed by the learned Labour Court is based on cogent evidence brought on record by the respondent workmen. He therefore submits that the present Special Civil Applications be dismissed.

5. Heard learned advocates for the respective parties and perused the documents on record.

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6. At the outset, it is to be noted that despite filing the written statement in the labour Court, the petitioners have not led any documentary or oral evidence in support of their written statement. Therefore, the written statement could not be substantiated in the present case. The learned Labour Court has given the cogent reasons in respect of the finding arrived at in the impugned judgment and award. The respondent workmen have duly proved their case by way of oral evidence. In view thereof, this Court is of the opinion that no interference is called for in the impugned judgment and award and the termination of the respondent workmen is rightly held to be in contravention of the provisions of the Industrial Disputes Act.

7. It is submitted by learned advocates for the parties that both the respondent workmen have since attained the age of superannuation during the pendency of the present Special Civil Applications. It is also submitted that the respondent workmen have been paid the wages under Section 17B of the Industrial Disputes Act from 01.09.2007 till the date of their superannuation. It is further submitted that by learned advocates for the parties that the respondent viz. Pravinchandra Manilal Gohel has since expired on 18.04.2021 and he was paid the excess amount of Rs.31,204/- due to inadvertence even after his date of superannuation.

8. The Hon'ble Supreme Court in number of decisions has held that in all cases of illegal termination of service, reinstatement in service may not be the norm and reasonable compensation in lieu of reinstatement may be granted by the Court depending upon the facts and circumstances of each case. It has been now clearly recognized that the reinstatement is not an automatic consequence of wrongful termination specially when the workman has not

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rendered any services during the pendency of the litigation. In view of this recent jurisprudence which has evolved as per the various judgments of the Hon'ble Supreme Court in respect of the compensation in lieu of reinstatement in the cases of illegal termination of the services, this Court is of the opinion that the ends of justice would be served if the award of reinstatement is modified with monetary compensation in the present case

9. In Allahabad Bank and ors. v. Krishan Pal Singh [SLP(C) No. 19648 of 2019 decided on 20th September 2021], the Hon'ble Supreme Court has held as under:-

"8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent - workman had attained age of superannuation. Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination/ dismissal is found to be not in accordance with procedure prescribed under law. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991, and in the meantime, respondent had attained age of superannuation, we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. We accordingly direct payment of lump sum compensation of Rs.15 lakhs to the respondent, within a period of eight weeks from today. Failing to pay the same within the aforesaid period, the respondent is entitled for interest @ 6% per annum, till payment."

10. Even in Ranbir Singh v. Executive Eng. P. W. D. [Civil Appeal No. 4483/2010, decided on September 2, 2021], the Hon'ble Supreme Court has held as under:-

"6. ....In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy.

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7. In such circumstance, noticing that, though the appellant was reinstated after the award of the Labour Court in 2006, the appellant has not been working since 2009 following the impugned order, and also taking note of the fact that the appellant was, in all likelihood, employed otherwise, also the interest of justice would be best subserved with modifying the impugned order and directing that in place of Rs. 25000/- (Rupees Twenty Five Thousand), as lumpsum compensation, appellant be paid Rs.3.25 lakhs (Rupees Three Lakhs and Twenty Five Thousand), as compensation, taking into consideration also the fact that the appellant had already been paid Rs. 25000/- (Rupees Twenty Five Thousand) as compensation.

11. In K. V. Anil Mithra and anr. vs. Sree Sankaracharya University of Sanskrit and anr. [2021 SCC Online SC 982], the Hon'ble Supreme Court has held as under :-

"31. The consistent view of this Court is that such non-observance has been termed to be void ab initio bad and consequence in the ordinary course has to follow by reinstatement with consequential benefits but it is not held to be automatic and what alternative relief the workman is entitled for on account of nonobservance of mandatory requirement of Section 25Fof the Act 1947 is open to be considered by the Tribunal/Courts in the facts and circumstances of each case.

32. What appropriate relief the workman may be entitled for regarding non-compliance of Section 25Fof the Act 1947 has been considered by this Court in Bharat Sanchar Nigam Limited Vs. Bhurumal. The relevant paras are 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 mala fide and/or by way of victimisation, 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 a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that 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.

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34. The reasons for denying the relief of 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 einstatement, 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 regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1]. Thus when he cannot claim regularisation 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.

35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.

33. It has been further followed in District Development Officer and Another Vs. Satish Kantilal Amralia [(2018) 12 SCC 298]."

12. In view of subsequent developments and the law laid down by the Hon'ble Supreme Court, in the present case, this Court is of the opinion that the impugned judgment and award be modified to award a lumpsum compensation instead of reinstatement with continuity in service. This Court is of the opinion that in the facts and circumstances of the present case, both the respondent workmen be awarded a lumpsum compensation of Rs.1,25,000/- each.

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13. Accordingly, the present Special Civil Applications are partly allowed. The petitioner shall pay a lumpsum compensation of Rs.1,25,000/- each to the the respondent workmen towards full and final settlement of their claim. The amount shall be paid by the petitioner within a period of eight weeks from the date of receipt of the order, failing which, the said amount shall carry interest at the rate of 6% per annum from the expiry of eight weeks till the date of actual payment to the respondent workmen.

14. Both the Special Civil Applications are disposed of accordingly. Rule is made absolute to the aforesaid extent. No order as to costs.

15. In view of the order passed in the Special Civil Applications, the Civil Applications for directions do not survive and the same are disposed of accordingly.

16. Direct service is permitted to the respondents.

(ANIRUDDHA P. MAYEE, J.)

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