Gujarat High Court

Ramilaben Mahendrabhai Jadav vs Manager, Kataria Tele Services ... on 3 November, 2023

Bench: Bhargav D. Karia

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     C/SCA/5621/2020                            ORDER DATED: 03/11/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


             R/SPECIAL CIVIL APPLICATION NO. 5621 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 5768 of 2020
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                  RAMILABEN MAHENDRABHAI JADAV
                               Versus
               MANAGER, KATARIA TELE SERVICES LIMITED
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                           Date : 03/11/2023
                            ORAL ORDER

1. Heard learned advocate Mr. P.C.Chaudhari

for the petitioners and learned advocate

Mr. Dipak Dave for the respondent No.2.

2. By this petition under Article 227 of the

Constitution of India, the petitioner has

prayed for the following reliefs:

"(e) Your Lordship be pleased to issue writ of mandamus, or writ of certiorari or any other writ, order or direction, directing the award and order dated 28.11.2019, passed by the

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learned Labour Court, Ahmedabad, in Reference (T) No. 378/11 is illegal, improper, arbitrary and contrary to the settled propositions of law and be further pleased to modify the same qua denial of relief to reinstate the petitioner on his original post with continuity of service along with all consequential benefits and full backwages.

(f) Your Lordship be pleased to issue writ of mandamus, or writ of certiorari or any other writ, order or direction, directing the respondent to reinstate the petitioner on his original post with continuity of service along with full back wages and consequential benefits.

(g) Your Lordships may be pleased to direct the respondent to deposit the entire amount awarded by the learned Labour Court before this Hon'ble Court for onwards payment to the present petitioner.

(h) Your Lordships be pleased to grant such other and further relief as may be deemed fit in the interest of justice."

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3. Brief facts of the case are as under:

3.1 The petitioners of Special Civil

Applications No. 5621/2020 and 5768/2020

are husband and wife. They are working in

the respondents companies since 2002 as

peons. The workman of Special Civil

Application No. 5621/2020 was paid salary

at the rate of Rs. 1500/- and subsequently

Rs. 1800/- whereas, workman of Special

Civil Application No. 5768/2020 was paid

salary at the rate of Rs. 1500/- and

subsequently Rs. 3500/-.

3.2 It is the case of the petitioners

that they continuously worked as peon till

they came to be terminated on

26.02.2011.The petitioners were neither

being given notice nor any retrenchment

compensation was paid to them. Their

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termination is in violation of section 25

F of Industrial Disputes Act, 1947 ['ID

Act' for short].

3.3 Thereafter, the petitioners raised

an industrial dispute before the Assistant

Labour Commissioner, Ahmedabad. The

Assistant Labour Commissioner, upon

failure conciliation, vide communication

dated 04.01.2011 directed the petitioners

to approach the Labour Court under the

amended provisions of the ID Act.

3.4 Thereafter, the petitioners

approached the Labour Court, Ahmedabad, by

way of reference being Reference (T) No.

378/2011 [Special Civil Application No.

5621/2020] and Reference (T) No. 377/2011

[Special Civil Application No. 5768/2020].

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The Labour Court, vide order dated

28.11.2019, directed the respondents to

pay lumpsum compensation of

Rs. 50,000/- to the workman of Special

Civil Application No. 5621/2020 and Rs.

1 Lakh to the workman of Special Civil

Application No. 5768/2020 within thirty

days from the date of the Award upon

failure of which, 9% simple interest was

awarded. However, the compensation was

awarded without reinstatement and

backwages.

3.5 Aggrieved against the above order,

the petitioners have filed these writ

petitions praying for issue of a writ of

certiorari. The petitioners have

challenged in the writ petitions the

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disallowance by the Labour Court of

reinstatement and backwages.

4. Learned advocate Mr. Chaudhari at the

outset, submitted that considering the

length of service of the petitioners, who

are husband and wife, with the respondent-

companies, the compensation awarded by the

Labour Court is very less. It was

submitted that, if the suitable amount of

compensation is paid to the petitioners,

the petitioners would forgo the claim of

interest at the rate of 9% as awarded by

the Labour Court.

5. On the other hand, learned advocate

Mr. Dipak Dave for the respondent

submitted that the Labour Court has passed

just and proper order considering the fact

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that the petitioners have rendered part-

time service only with the respondents-

Company. It was further submitted that the

respondents companies are closed since

long and therefore, no interference be

made in the impugned Judgement and Award

passed by the Labour Court.

6. The Hon'ble Supreme Court in case of

Bharat Sanchar Nigam Limited vs. Bhurumal

reported in (2014) 7 SCC 177 in respect of

awarding lumpsum compensation has 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

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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.

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 reinstatement, 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 regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC

1). Thus when he cannot claim regularization 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

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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 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 wee regularized under some policy but the concerned workman 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.

36. Applying the aforesaid principles, let us discuss the present case. We find that the respondent was working as a daily wager. Moreover, the

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termination took place more than 11 years ago. No doubt, as per the respondent he had worked for 15 years. However, the fact remains that no direct evidence for working 15 years has been furnished by the respondent and most of his documents are relatable to two years i.e. 2001 and 2002. Therefore, this fact becomes relevant when it comes to giving the relief. Judicial notice can also be taken of the fact that the need of lineman in the telephone department is drastically reduced after the advancement of technology. For all these reasons, we are of the view that ends of justice would be met by granting compensation in lieu of reinstatement.

37. In Man Singh (supra) which was also a case of BSNL, this Court had granted compensation of Rs.2 Lakh to each of the workmen when they had worked for merely 240 days. Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs. 3 lakhs. This compensation should be paid within 2 months failing which the respondent shall also be entitled to interest at the rate of 12% per annum from the date of this judgment. Award of the CGIT is modified to this extent. The appeal is disposed of in the above terms. The respondent shall

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also be entitled to the cost of Rs.15,000/-(Rupees Fifteen Thousand only) in this appeal."

7. Considering the above decision as in the

facts of the present case also, the

petitioners have worked for about more

than ten years, just and proper

compensation in case of Special Civil

Application No. 5621/2020 would be Rs. 1

Lakh instead of Rs. 50,000/- awarded by

the Labour Court whereas, in case of