Babubhai Mangalbhai Thakor vs Range Forest Officer
2023 Latest Caselaw 2319 Guj

     C/SCA/7321/2009                                ORDER DATED: 16/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7321 of 2009

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                        BABUBHAI MANGALBHAI THAKOR
                                   Versus
                       RANGE FOREST OFFICER & 1 other(s)
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MR AYAAN PATEL AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                Date : 16/03/2023

                                 ORAL ORDER

1. The present Special Civil Application is filed praying for the following reliefs :-

"(A) This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or certiorary or other appropriate writ, order or direction, declaring the impugned decision of the Labour Court in awarding Rs.30,000/- instead of granting the relief of reinstatement with continuity of service with full back wages as arbitrary, illegal, unjust, violative of Art 14 & 16 of the Constitution of India and be pleased to set aside the same qua not awarding the relief of reinstatement with continuity of service and with full back wages.

(B) Pending admission and final disposal of this petition, be pleased to direct the respondents to reinstate the petitioner workman in service on his original post without prejudice to right and contentions of both the parties.

C. Further be pleased to grant the amount of Rs.30,000/- as per the direction of Labour Court without prejudiced to the rights and contention of both the party.

D. Any other relief which this Hon'ble Court deems fit and proper in interest of justice together with cost."

C/SCA/7321/2009 ORDER DATED: 16/03/2023

2. It is the case of the petitioner that he was working as Class-IV employee (Labourer) from 01.12.1981 with respondent No.1 and his services came to be terminated illegally with effect from 08.11.1995. Therefore, the petitioner raised an industrial dispute and by letter dated 28.05.1996, the Assistant Labour Commissioner made a reference under Section 10(1)(c) of the Industrial Disputes Act to the learned Labour Court, Ahmedabad being Reference (LCA) No.763 of 1996. Notice came to be issued. The parties led the evidence in support of their contentions. By the impugned judgment and award, the learned Labour Court was pleased to hold that the termination of the petitioner workman was illegal, however in lieu of reinstatement, the petitioner was granted a lumpsum compensation of Rs.30,000/-. Aggrieved, the petitioner has challenged the impugned judgment and award dated 29.01.2007 in the present proceedings.

3. Learned advocate Mr. P. H. Pathak appearing on behalf of the petitioner workman submits that the petitioner had put in more than 15 years of service with respondent No.1. He submits that the dispute was also immediately raised with respect to his illegal termination and by the impugned judgment and award, the termination was also held to be illegal. He further submits that once the termination has been held to be illegal, the learned Labour Court ought to have granted the reinstatement with continuity in service looking to the long drawn service put in by the petitioner workman. He, therefore, submits that in the present case, the impugned judgment and award be modified and the petitioner be reinstated with continuity in service.

C/SCA/7321/2009 ORDER DATED: 16/03/2023

4. In rebuttal, learned Assistant Government Pleader Mr. Ayaan Patel appearing on behalf of respondent No.1 submits that the petitioner workman was a daily wager labourer and was being engaged for periodical work in Nursery and Plantation Department of respondent No.1. He submits that the petitioner was engaged purely on temporary basis for a certain period of time only and therefore, he was not in continuous service of respondent No.1. He further submits that only during plantation season, intermittently, the petitioner workman was being called and engaged. He submits that the present impugned judgment and award was also challenged by respondent No.1 by way of preferring Special Civil Application No.23466 of 2007 which came to be disposed of on 12.09.2007 dismissing the same. He submits that in view thereof also, the present impugned judgment and award be confirmed and no interference is called for. He submits that the present Special Civil Application be dismissed.

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

6. It is now well settled principle of law that if the petition filed by the employer is rejected, it will not affect the right of the workman to challenge the validity of the order passed by the Lower Court. The Division Bench of this Court [Coram : A. P. Ravani, J. M. Panchal, JJ] in case of Dahyalal Mohanlal Divan vs. Shri Parajitsingh Bhatia reported in 1993 (2) GLH 485, observed as under :-

"12. simply because petition filed by the mill company has been rejected by this court, the petitioner workman does not lose his right to challenge the legality and validity of order of punishment impose upon by the Industrial Court. It is not

C/SCA/7321/2009 ORDER DATED: 16/03/2023

correct to say that while rejecting the petition filed by the mill company, this court has confirmed the judgment and order passed by the Industrial Court. It may be noted that the petition has been rejected summarily. All that can be said is that this court has refused to interfere with the order passed by the Industrial Court. This court did not call upon the workman to show cause as to whether he felt aggrieved by the judgment rendered by the Industrial Court and as to whether he was desires to challenge the legality and validity of the same. When this Court refuse to exercise the power under Article 227 of Constitution of India, in the petition filed by the mill company as per the order dated August 1992, this court did not any way adversely effect the right of workman to challenge the legality and validity of the order passed by the Industrial Court. Even if the mill company preferred SLP before the Supreme Court against the order passed by this Court in SCA filed by it, that circumstances also not take away the right of the workman to challenge the legality and validity of the judgment and order passed by the Industrial Court".

7. In the present case, it is not disputed that the petitioner was working with respondent No.1 from 01.12.1981 till his termination on 08.11.1995. Even the learned Labour Court, after perusing the evidence brought on record by respondent No.1, has come to conclusion that the petitioner was engaged for work from 01.12.1981.

8. Learned AGP Mr. Patel has submitted that in the present case, respondent No.1 had preferred Special Civil Application No.23466 of 2007 in this Court. This Court, on 12.09.2007 in Special Civil Application No.23466 of 2007, passed the following order:-

"1. Heard learned Assistant Government Pleader Mr.Vinay Pandya on behalf of the petitioner.

2. The petitioner has challenged the award dated 29th January 2007 passed by the Labour Court, Ahmedabad, in Reference No.763 of 1996. The Labour Court has not granted reinstatement and back wages for interim period, but granted some ad hoc amount of Rs.30,000=00 in favour of the respondent.

C/SCA/7321/2009 ORDER DATED: 16/03/2023

3. Learned Assistant Government Pleader appearing for the petitioner-State submitted that the Labour Court has committed gross error in granting lump sum amount in favour of the respondent. He has also submitted that the Labour Court has not appreciated the oral evidence as well as the documentary evidence produced by the respective parties. He has submitted that the finding given by the Labour Court is contrary to the record. Therefore, interference is required by this Court.

4. I have considered the submissions advanced by the learned Assistant Government Pleader. I have also perused the award passed by the Labour Court in the aforesaid reference. The Labour Court has come to the conclusion at Page 23 that as per the seniority list, which was published by the petitioner in the year 1993 produced at Exhibit 82, the respondent workman was appointed on 1st December 1981 and at Exhibits 21 to 81, the wage slips of the respondent were produced by the petitioner. On 8th November 1995, services of the respondent was terminated by the petitioner. Considering the wage slips at Exhibits 60 to 71 from November 1994 to October 1995, the Labour Court has calculated the working days, which come to 305 days. These preceding 12 months had taken into account from the date of termination. This finding given by the Labour Court is based on record produced by the petitioner. These working days have been calculated by the Labour Court on the basis of Exhibits 60 to 71, i.e. wage slips produced by the petitioner. It is not the case of the petitioner before the Labour Court that at the time of terminating services of the respondent, Section 25F is followed by the petitioner. Therefore, once 240 days continuance service is proved by the employee and while terminating services Section 25F is not followed, then order of termination becomes ab initio void. The Labour Court has considered total 17 years' period and also violation of Section 25F and the fact that the respondent was not regularly appointed being ad hoc employee or temporary. Therefore, he should not have been reinstated in service as per the decision of the Apex Court in the case of Haryana State Electronics Division Corporation vs. Mamani, 2006 L.L.R. 667. The Labour Court has also considered the fact that gainful employment is not proved by the petitioner. Therefore, though the respondent is not entitled to reinstatement and back wages, but the Labour Court has not granted the same and in lieu thereof, awarded a lump sum amount of Rs.30,000=00 in favour of the respondent-workman.

5. The submissions made by the learned Assistant Government Pleader for the petitioner cannot be accepted in the light of the factual aspects appreciated by the Labour Court and finding of facts arrived at by the Labour Court.

      C/SCA/7321/2009                               ORDER DATED: 16/03/2023




      Therefore, the submissions made         by   learned   Assistant
      Government Pleader are rejected.

6. According to my opinion, the Labour Court has rightly appreciated the evidence on record. There is no contrary finding to the original record placed before the Labour Court and the Labour Court, considering the daily wage slips of the respondent, has not granted the reinstatement and back wages and only granted lump sum amount of Rs.30,000=00 in lieu of reinstatement and back wages. This award is not challenged so far by the respondent. Therefore, according to my opinion, the Labour Court has not committed any error, which requires interference by this Court while exercising powers under Article 227 of the Constitution of India.

Hence, there is no substance in the petition and the present petition is dismissed."

9. Hence, the findings arrived at by the learned Labour Court in the present impugned judgment and award came to be confirmed by this Court. It is submitted by learned advocate Mr. P. H. Pathak that the petitioner was illegally terminated on 08.11.1995 and thereafter, the Special Civil Application preferred by respondent No.1 against the impugned judgment and award came to be dismissed on 12.09.2007, however, till date, the amount of lumpsum compensation as awarded by the learned Labour Court has not been paid to the petitioner workman. He further submits that on the date of his termination, the petitioner workman was having service period of around 20 years more and he had already put in around 14 years of service. He submits that the learned Labour Court did not appreciate that had the petitioner been reinstated, he would have got all the financial benefits under various government resolutions including the pension. He therefore submits that the lumpsum compensation as awarded is very less and should be enhanced. There is a force in the submissions of learned advocate for the petitioner.

C/SCA/7321/2009 ORDER DATED: 16/03/2023

10. In the present case, the petitioner was terminated on 08.11.1995 after around 14 years of service. He had another 20 years of service if he would have been reinstated. The learned Labour Court has rendered a categorical finding which is affirmed by this Court that the termination was illegal. Therefore, this Court is of the opinion that the compensation as awarded by the learned Labour Court in lieu of reinstatement is very less and disproportionate to the number of years served by the petitioner workman and number of years he would have worked for respondent No.1, had he been reinstated. Further, despite the impugned judgment and award being confirmed by this Court by order dated 12.09.2007 in Special Civil Application No.23466 of 2007, respondent No.1 has neglected to pay the lumpsum compensation till date, thereby depriving the poor daily wager petitioner labourer for the lumpsum compensation for the last 15 years from the date of the award. In the facts and circumstances of the present case, this Court is of the opinion that the amount of Rs.5,00,000/-[Rupees Five Lacs Only] will be just and proper compensation for the length of service put in by the petitioner workman as well as considering the financial benefits the petitioner would have been entitled for in case of reinstatement and also in view of the fact that he is deprived of lumpsum compensation for a period of more than 15 years. The said lumpsum compensation shall be by way of full and final settlement towards the claim of the petitioner workman.

11. In view thereof, the present Special Civil Application is partly allowed. The impugned judgment and award is modified to the said extent. The lumpsum compensation of Rs.5,00,000/- [Rupees Five Lacs Only] be paid by respondent No.1 to the petitioner workman within a period of eight weeks from the date of receipt of the order,

C/SCA/7321/2009 ORDER DATED: 16/03/2023

failing which, it shall carry interest at the rate of 6% per annum till the date of actual payment.

Disposed of accordingly. No order as to costs.

(ANIRUDDHA P. MAYEE, J.)

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