Bipinkumar Bhikhabhai Solanki vs Executive Engineer
2023 Latest Caselaw 2295 Guj

     C/SCA/16712/2019                              ORDER DATED: 16/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16712 of 2019

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                        BIPINKUMAR BHIKHABHAI SOLANKI
                                    Versus
                              EXECUTIVE ENGINEER
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Appearance:
MR MUKESH H RATHOD(2432) for the Petitioner(s) No. 1
MR NIRAJ SHARMA, AGP GOVERNMENT PLEADER for the Respondent(s)
No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 16/03/2023

                               ORAL ORDER

1. This petition is filed against the judgment and

award dated 08.05.2018 passed by the Labour Court,

Mehsana in Reference (LCM) No.09 of 2013 wherein the

Labour Court has partly allowed the reference and directed

the respondent to pay Rs.25,000/- as lump sum compensation

in lieu of reinstatement with continuity of service and back

wages of interim period and to pay Rs.5,000/- as cost of

reference.

2. The facts of petition are mentioned as under:

C/SCA/16712/2019 ORDER DATED: 16/03/2023

2.1 The petitioner herein was appointed as Daily Wager

Labourer with the respondents w.e.f. 21.01.1986 at

Sankheshwar - Becharaji Road Site and he was getting salary

of Rs.21.45/- per day on monthly basis. The petitioner has

worked continuously with respondent for almost two years.

His services were terminated on 30.10.1988 after about

serving for two years. His last drawn wages were Rs.21.45/-

per day. On his termination, a Reference was made to the

Labour Court, Mehsana which was numbered as Reference

(LCM) No.09 of 2013, in which the impugned order dated

08.05.2018 was passed granting reinstatement with continuity

of service, but without back wages, which gave rise to this

petition.

3. Heard learned advocates for the respective parties.

4. Learned advocate for the petitioner submitted that

the Labour Court has erred in passing the impugned award/s

on the basis of the finding of violation of Sections 25F, 25G

and 25H of the Industrial Disputes Act, 1947 ('the I.D. Act' for

C/SCA/16712/2019 ORDER DATED: 16/03/2023

short). He submitted that since the work was taken by

outsourcing, there is no work at present in the municipality

which can be offered to the petitioner herein [respondent -

workman]. Therefore, there is no violation of Section 25G of

the I.D. Act.

5. He submitted that there is no post of labourer in the

regular set-up of the municipality and therefore the

respondents cannot be reinstated in service.

6. He further submitted that the petitioner herein has not

proved that they completed 240 days of continuous service in

a year and therefore, there is no violation of Section 25F of

the I.D.Act.

7. He further submitted that there is no fresh appointment

made in the municipality for the said post on which the

respondents were working and therefore there is no violation

of Section 25H of the I.D.Act.

8. Learned advocate for the petitioner thus submitted that

C/SCA/16712/2019 ORDER DATED: 16/03/2023

when there is no violation of any provisions of the I.D.Act, the

impugned award is not tenable and therefore needs to be

quashed.

9. He fairly submitted that in the alternatively, lump-sum

compensation can be awarded to the petitioner herein

[respondent workman] in lieu of the reinstatement,

backwages and continuity of service.

10. In support of his submissions, he relied on the following

decisions:

1) 2021 Scale 10 page 271 - Ranbir Singh V/s Executive Eng.P.W.D.

2) 2022-JX(Guj)-0-27 - Mansukhbhai Popatlal Vaghela V/s General Manager - State Bank of India.

11. Per contra, learned AGP appearing for the respondent

submitted that the Labour Court has categorically come to the

conclusion that there is a violation of the provisions of

Sections 25(F), 25(G) and 25(H) of the I.D. Act and therefore,

has granted reinstatement with continuity of service. This

finding, arrived at by the Labour Court, was after considering

C/SCA/16712/2019 ORDER DATED: 16/03/2023

the fact that the petitioner was working for more than 240

days continuously and that too, for a period from 21.01.1986

to 30.10.1988 with the respondent authority. Learned AGP

further submitted that the petitioner herein has raised an

industrial dispute after 24 years means the date when he was

terminated from service i.e. 30.10.1988. It is, therefore,

submitted that the impugned award/s of the Labour Court are

just and proper and interference need not be made in the

impugned awards.

12. In support of the submissions, the following decisions

are relied upon:

1) 2021(1) CLR 325 - Junagadh Municipal Corporation V/s Dipakbhai Pratapbhai Karmata

2) 2020 JX (Guj) 644 - State of Gujarat V/s Manharbhai Hemabhai Bariya

3) 2022 JX (Guj) 804 - State of Gujarat V/s Ashokbhai Kanabhai Parmar

4) 2022 JX (Guj) 677 - Rameshbhai Bhatibhai Pagi V/s Deputy Executive Engineer

C/SCA/16712/2019 ORDER DATED: 16/03/2023

5) 2016(1) LLH 93 - Executive Engineer, Gujarat Water Supply and Sewerage V/s Keyur Shankarlal Vyas

6) 2016(1) CLR 188 - Gujarat State Civil Supplies Corporation Limited V/s Nazirbhai S/o Dhanabhai Mir

13. However, learned advocate for the petitioner herein has

also fairly submitted for alternative submission made by the

learned advocate for the petitioner municipality that in lieu of

the award/s of the Labour Court, if appropriate lump-sum

compensation is awarded, that would suffice the purpose in

facts of the present case.

14. I have considered the rival submissions and perused the

material on record. It transpires from the record that on one

hand, there is a fact that the petitioner herein worked for

more than 240 days continuous service and that too, for two

years with the respondent authority and suddenly, they have

been terminated and on the other hand, there is another fact

that there is no post of labourer in the regular set-up of the

respondent department where the petitioner herein

[respondent workman] can be reinstated/accommodated.

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Thus, this Court is of the view that in view of the above fact

situation, without entering into the further merits of the

matter, if lump-sum compensation is awarded to the petitioner

herein [respondent workman] in lieu of the award passed by

the Labour Court, then the ends of justice would be met.

15. At this juncture, a reference deserves to be made to the

recent decision of the Apex Court in the case of Pravinbhai

Nanjibhai Bharadava V/s The State of Gujarat, in Civil Appeal

No.221 of 2023 dated 9.1.2023 relied on by the learned

advocate appearing for petitioner, wherein the Apex Court

was considering similar fact situation and came to the

conclusion that interest of justice would be met if the lump-

sum amount of compensation is awarded.

16. It is also relevant to reproduce relevant paragraphs of

order passed in Special Civil Application No.2711 of 2023 and

allied matters on 23.2.2023, which read as under:

"3. Considering the submissions made by learned Advocate Mr.Joshi, it would appear that in case of similarly situated persons, whose reference had been

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rejected by the learned Labour Court on the ground of delay and which decision had been upheld by learned Single Judge, the learned Division Bench relying upon decision of the Hon'ble Apex Court in case of B.S.N.L. vs Bhurumal reported in 2014(7) SCC page No.177 had directed grant of compensation at the rate of Rs.50,000/- to the appellants therein.

3.1 It also appears that relying upon the law laid down by the Hon'ble Division Bench, a learned Co- ordinate Bench of this Court in Special Civil Application No.4630 of 2022 and allied matters had directed grant of compensation at the rate of Rs.25,000/- per year of service. It would also appear that while the petitioners of Special Civil Application No.2711 of 2023 and Special Civil Application No.2712 of 2023 have put in 4 years of service, petitioner of SCA No.2776 of 2023 has put in 5 years of service."

17. In view of the above and considering the nature of work

done by petitioner-workman, the petition is partly allowed.

18. The impugned awards stand modified to the extent the

respondent authority shall pay an amount of Rs.75,000/-

[Rupees Seventy Five Thousand Only] a lump-sum

compensation in lieu of the award passed by learned trial

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Court to the petitioner herein [respondent workman] i.e.

Bipinkumar Bhikhabhai Solanki.

19. This petition is disposed of accordingly.

(SANDEEP N. BHATT,J) A. B. VAGHELA