Gujarat High Court
Dave Girishbhai Vallabhbhai vs The State Of Gujarat on 15 February, 2024
Author: N.V.Anjaria
Bench: N.V.Anjaria
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1482 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 16565 of 2015
With
R/LETTERS PATENT APPEAL NO. 1483 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 16750 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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DAVE GIRISHBHAI VALLABHBHAI
Versus
THE STATE OF GUJARAT
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Appearance:
MR BJ TRIVEDI(921) for the Appellant(s) No. 1
MR JT TRIVEDI(931) for the Appellant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Appellant(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 15/02/2024
Page 1 of 19
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CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr. B.J. Trivedi for
the appellants workmen and learned Assistant
Government Pleader Ms.Shruti Dhruve for the
respondent State, in both the appeals.
2. Both these Letters Patent Appeals preferred by
the workmen arise from common judgment and order
dated 10.04.2018 in respective Special Civil
Applications passed by learned Single Judge. Since
the impugned judgment is common and similar facts
are involved and identical issues, both the appeals
were heard together to be treated for final
disposal by this judgment.
2.1 Before learned Single Judge, in Special Civil
Application No.16565 of 2015, relatable to Letters
Patent Appeal No. 1482 of 2018, what was under
challenge was judgment and award dated 25.03.2015
passed by the Labour Court, Bhavnagar in Reference
(LCB) No. 167 of 2005.
2.2 In the same way, it was the judgment and order
of even date in Reference (LCB) No. 166 of 2005,
which was challenged before learned Single Judge in
Special Civil Application No. 16750 of 2015, from
which Letters Patent Appeal No. 1483 of 2018 has
arisen.
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2.3 In the respective judgment and awards, the
Labour set aside the termination of the workman
concerned and directed their reinstatement with
continuity of service from the date of the
termination till the reinstatement with 30%
backwages.
3. Noticing the facts relating to Reference (LCB)
No. 167 of 2005, which has culminated into Letters
Patent Appeal No. 1482 of 2018, it was the case of
the workman in his Statement of Claim (Exhibit 6)
that he was in service since 6 years at Lakhanka
Dam as Wireless Operator/Site Supervisor. It was
the grievance that from 01.01.1996, without any
reason, by oral order, the workman was driven out
of service without following the mandatory
provisions of the Industrial Disputes Act, 1947.
It was the case that juniors were continued and new
were employed in place of the petitioner. It was
stated that at that time, the salary of the workman
was Rs.600/- per month and he was engaged in the
work for 8 hrs. The breach of Section 25F, 25G and
25H of the Industrial Disputes Act was alleged.
4.1 In the second case, the grievance of the
workman in his Statement of Claim (Exhibit 6) was
on similar lines. He was engaged since last six
years at the same Lakhanka Dam as Wireless Operator
and his services came to be orally terminated with
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effect from 01.01.1994. He was also receiving Rs.
600/- as monthly salary and in termination of his
service, breach of Section 25F, 25G and 25H of the
Industrial Disputes Act was alleged.
3.2 In both the cases, the first employer filed
his written statement (Exhibit 8) to deny the case
of the workmen for reinstatement with backwages on
the original post by contending that they were only
rojamdars and it was denied that they were
illegally terminated by oral order.
3.3 It was denied that any juniors were retained
in service. It was submitted that there was no
question of maintaining the seniority list. It was
the case that since the workmen were only
rojamdars, the question of any retrenchment
compensation was not to arise. It was contended
that it was only because of administrative
exigencies that they were paid monthly salary,
however, the status of the workmen was daily-rated
only.
3.4 At the end of the appreciation of the evidence
before it, the Labour Court in both the cases
partially allowed the Reference as above.
4. Learned Single Judge took the view that the
findings of the Labour Court regarding breach of
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Section 25F of the Industrial Disputes Act, was not
justified inasmuch as they were not based on any
cogent evidence and that there was only assertion
by the workmen that they had worked continuously.
4.1 About breach of Section 25G and 25H of the
Act, learned Single Judge took the view that said
aspect was also not proved as it was not shown that
the retainment of junior or fresh appointments of
the workman was in the same category to apply the
provisions of Section 25G and 25H of the Act.
According to learned Single Judge, the findings
were perverse and suffered from non-application of
mind.
5. As far as the case of both the workmen about
breach of mandatory provisions of section 25F of
the Act was concerned, the workmen deposed at
Exhibit 11 in both the cases. The evidence
supported their case put forth in the Statement of
Claim. They produced copy of the Demand Notice
dated 05.05.2005 given to the employer. The
acknowledgment thereof, they asserted their case
that the had been in service under the first party
employer since last six years continuously.
5.1 It was stated that they were given monthly
salary, yet they were treated as Rojamdar. It was
stated that the work was available. It was stated
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that they were not being given any presence card,
salary slip or identity card by the first party
employer to avoid incur legal obligations and that
they were exploited.
5.2 In the first case, it was the case that the
workman had worked since 1990 till 1996, whereas in
the second case of Letters Patent Appeal No. 1483
of 2018, the workman worked from 1990 to 1994 and
that in each year, 240 days were completed. This
was clearly set out in the evidence of the workmen.
The denial of the employer was only on the ground
that they were daily-rated workmen. The total
period of service rendered by each of the workman
could not be disputed by the first party employer.
5.3 Noticeably, the workmen had given production
application Exhibit 9 before the Labour Court,
seeking to produce the register of presence, salary
slips and other documents relating to their
services. It was the case that these documents
were under control and custody of the employer and
by exploiting their status, they were not given any
service related proof and even the salary slips
were not prepared to their injustice. In response,
the first employer could make certain
clarifications.
5.4 The Labour Court on appreciation of evidence,
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recorded the finding that the termination of
services of the petitioners were in breach of
Section 25F of the Act. It was recorded that in
the first case, the services rendered by the
workman was 6 years, which was continuous.
Similarly, in the second case, continuous 4 years
of service was rendered by the workman.
5.5 It was held that in the facts and
circumstances of the case, 30% backwages were
liable to be given when the Reference was delayed.
The findings of breach of Section 25F in both the
cases was after appreciation of evidence by the
Labour Court. The production application Exhibit
12 was given by the workmen which was not
adequately responded to. The deprived class of
Rojamdars cannot be expected to have complete
documentary details about his service. Daily-rated
workmen are always at disadvantage on this count as
they are not given pay-slip as done in the present
case and the register of presence may also not have
been accurately maintained. In any case, they
would not have the complete details of such
register.
5.6 Therefore, when daily-rated workmen asserts
his case on the Statement of Claim before the
Labour Court, which prima facie show the length of
service, which is not denied by the employer, it
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could be said that initial burden to show about the
continuous nature of his service is to be
discharged by the workman. Rest of the details and
the proof thereof would be the onus of proof
shifted on the employer.
5.7 In view of the totality of facts, when the
evidence was appreciated by the Labour Court, there
was no good reason for the learned Single Judge to
re-appreciate the evidence to come to the
conclusion that the Labour Court was not right. No
unreasonableness was found in the approach of the
Labour Court. The finding of the Labour Court
about breach of Section 25F was not required to be
interfered with by learned Single Judge.
5.8 Once the conclusion is to be reached that
Section 25F is breached, the breach or otherwise of
the other provisions under Section 25G and 25H
would render not of insignificance. The relief
could be given to the workman only on the count of
violation of Section 25F. Therefore, since this
Court finds it proper to accept and reaffirm the
findings of the Labour Court about breach of
Section 25F of the Act, the merits of the findings
about breach of section 25G and 25H are not
adverted to.
6. The law is however now well settled that even if
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finding of breach of Section 25F of the Act is
recorded, it would not automatically entail relief
of reinstatement for the workman. The relief of
reinstatement and grant of backwages may not follow
as a matter of course. It is an aspect to be
independently assessed and addressed. This
principle is especially applicable when it comes to
the grant of relief of reinstatement and award of
backwages to the daily rated workmen, who by virtue
of their status cannot claim the reinstatement as a
matter of rule, nor can claim the right to be
reinstated.
6.1 In Jagbir Singh Vs. Haryana State Agriculture
Mktg. Board [(2009) 15 SCC 327], the Supreme Court
held,
"It is true that the earlier view of this
Court articulated in many decisions reflected
the legal position that if the termination of
an employee was found to be illegal, the
relief of reinstatement with full back wages
would ordinarily follow. However, in recent
past, there has been a shift in the legal
position and in a long line of cases, this
Court has consistently taken the view that
relief by way of reinstatement with back wages
is not automatic and may be wholly
inappropriate in a given fact situation even
though the termination of an employee is in
contravention of the prescribed procedure.
Compensation instead of reinstatement has been
held to meet the ends of justice."
(para 7)
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6.1.1 It was further observed,
"It would be, thus, seen that by a catena of
decisions in recent time, this Court has
clearly laid down that an order of
retrenchment passed in violation of Section
25-F although may be set aside but an award of
reinstatement should not, however, be
automatically passed. The award of
reinstatement with full back wages in a case
where the workman has completed 240 days of
work in a year preceding the date of
termination, particularly, daily wagers has
not been found to be proper by this Court and
instead compensation has been awarded. This
Court has distinguished between a daily wager
who does not hold a post and a permanent
employee."
(para 14)
6.2 In Bhopal Vs. Santosh Kumar Seal [(2010) 6 SCC
773], relying on Jagbir Singh (supra) the Supreme
Court observed about the shift in the approach of
the court in granting the relief of payment of
lump-sum compensation.
"In the last few years it has been
consistently held by this Court that relief by
way of reinstatement with back wages is not
automatic even if termination of an employee
is found to be illegal or is in contravention
of the prescribed procedure and that monetary
compensation in lieu of reinstatement and back
wages in cases of such nature may be
appropriate. (See U.P. State Brassware Corpn.
Ltd. v. Uday Narain Pandey [2006 (1) SCC 479],
Uttaranchal Forest Development Corpn. v. M.C.
Joshi [2007 (9) SCC 353], State of M.P. v.
Lalit Kumar Verma [2007 (1) SCC 575], M.P.
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Admn. v. Tribhuban [2007 (9) SCC 748], Sita
Ram v. Moti Lal Nehru Farmers Training
Institute [2008 (5) SCC 75], Jaipur
Development Authority v. Ramsahai [2006 (11)
SCC 684], GDA v. Ashok Kumar [2008 (4) SCC
261] and Mahboob Deepak v. Nagar Panchayat,
Gajraula [2008 (1) SCC 575].)"
(para 9)
6.3 In subsequent decision in Rajasthan
Development Corpn. v. Gitam Singh [(2013) 5 SCC
136], the above position was highlighted with
elaboration, and it was held,
"From the long line of cases indicated above,
it can be said without any fear of
contradiction that this Court has not held as
an absolute proposition that in cases of
wrongful dismissal, the dismissed employee is
entitled to reinstatement in all situations.
It has always been the view of this Court that
there could be circumstance(s) in a case which
may make it inexpedient to order
reinstatement. Therefore, the normal rule that
the dismissed employee is entitled to
reinstatement in cases of wrongful dismissal
has been held to be not without exception.
Insofar as wrongful termination of daily-rated
workers is concerned, this Court has laid down
that consequential relief would depend on host
of factors, namely, manner and method of
appointment, nature of employment and length
of service. Where the length of engagement as
daily wager has not been long, award of
reinstatement should not follow and rather
compensation should be directed to be paid. A
distinction has been drawn between a daily
wager and an employee holding the regular post
for the purposes of consequential relief."
(Para 22)
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6.4 In Uttaranchal Forest Development Corporation
Vs. M.C. Joshi [(2007)9 SCC 353], the Supreme Court
inter alia stated that on the question of grant of
compensation instead of reinstatement, one of the
relevant factor was whether appointment in question
was made in terms of statutory rules. Again
decision in Ghaziabad Development Authority Vs.
Ashok Kumar [(2008)4 SCC 261] deserves a reference.
"The first respondent was admittedly appointed
on a daily wage of Rs 17 per day. He worked
for a bit more than two years. It has not been
disputed before us that sanction of the State
of U.P. was necessary for creation of posts.
The contention of the appellant before the
Labour Court that the post was not sanctioned
after 31- 3-1990 by the State was not denied
or disputed. If there did not exist any post,
in our opinion, the Labour Court should not
have directed reinstatement of the first
respondent in service."
(para 18)
6.4.1 The Court proceeded to state,
"A statutory authority is obligated to make
recruitments only upon compliance with the
equality clause contained in Articles 14 and
16 of the Constitution of India. Any
appointment in violation of the said
constitutional scheme as also the statutory
recruitment rules, if any, would be void.
These facts were required to be kept in mind
by the Labour Court before passing an award of
reinstatement."
(para 19)
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6.4.2 It was thus stated also,
"Furthermore, public interest would not be
subserved if after such a long lapse of time,
the first respondent is directed to be
reinstated in service."
(para 20)
6.4.3 The Supreme Court finally expressed,
"We are, therefore, of the opinion that the
appellant should be directed to pay
compensation to the first respondent in stead
and in place of the relief of reinstatement in
service."
6.5 B.S.N.L. Vs Bhurumal being Civil Appeal
No.10957 of 2013 decided on 11th December, 2013, is
a more recent decision, in which the Supreme Court
surveyed the various decisions and enunciated to
re-emphasise the principles in the following words.
"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
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be given monetary compensation which will meet
the ends of justice. Rationale for shifting in
this direction is obvious."
(para 23)
6.5.1 Reiterating that a daily-waged workman cannot
claim reinstatement as of right, the Court said,
"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
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."
(para 24)
6.6 In Shankar Shetty (supra), the Supreme Court
referred to Jagbir Singh (supra) and other
judgments on the aspect. In that case the
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respondent was engaged in dailywager in 1978 and
worked intermittently for seven years till his
retrenchment which was about twenty-five years
back. It was held that the relief of reinstatement
was not justified. Awarding compensation of Rs.1
lac, the Apex Court observed,
"If the principles stated in Jagbir
Singh(supra) and the decisions of this Court
referred to therein are kept in mind, it will
be found that the High Court erred in granting
relief of reinstatement to the respondent. The
respondent was engaged as daily wager in 1978
and his engagement continued for about 7 years
intermittently upto September 6, 1985 i.e.
about 25 years back. In a case such as the
present one, it appears to us that relief of
reinstatement cannot be justified and instead
monetary compensation would meet the ends of
justice."
(para 7)
6.7 Similarly in Bhavnagar Municipal Corporation
(supra), the Supreme Court while holding the
termination to be illegal on account of non payment
of retrenchment compensation, it was held that it
would not automatically result into reinstatement
of the workmen. Looking to the age of the workmen
and the fact that the termination was three decades
back, the Supreme Court awarded lump-sum
Rs.2,50,000/- as compensation. Following was
observed by the Supreme Court,
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"The case at hand, in our opinion, is one such
case where reinstatement must give way to
award of compensation. We say so because
looking to the totality of the circumstances,
the reinstatement of the respondent in service
does not appear to be an acceptable option.
Monetary compensation, keeping in view the
length of service rendered by the respondent,
the wages that he was receiving during that
period which according to the evidence was
around Rs.24.75 per day should sufficiently
meet the ends of justice. Keeping in view all
the facts and circumstances, we are of the
view that award of a sum of Rs.2,50,000/-
(Rupees Two Lacs Fifty Thousand only) should
meet the ends of justice."
(para 16)
6.8 Same principle was laid down by the Supreme
Court in the State of Madhya Pradesh (supra) and in
Vice Chancellor Lucknow University, Lucknow, Uttar
Pradesh Vs. Akhileshkumar Khare [(2016) 1 SCC 521].
Several judgments including to referred to above
were considered by single Judge of this court in
Bantva Municipality Vs. Amritlal Darji Chauhan
being Special Civil Application No.9135 of 2013
decided on 31.3.2014.
6.9 The various judgments on the issue are
indicative of various relevant factors which may
weigh with the court while opting for relief of
grant of lump-sum compensation instead of
reinstatement. Enlisting such factors without being
exhaustive, the status of the workmen that he is
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daily rated and not permanently employed, nature of
the employment, span of service, manner and method
of his appointment, whether he was back door
entrant, delay in raising the reference, the time
gap from the date of termination till the juncture
when the relief is to be granted and any other
special features attendant to the facts of the
given case.
6.9.1 One of the consideration is the time gap
which may have intertwined between the termination
till date. In Gaziabad Development Authority
(supra), it was observed that giving reinstatement
after long lapse of time may not sub serve public
purpose. In Shankar Shetty (supra) the Supreme
Court noticed that there was gap of twenty five
years since the date of termination. In Bhavnagar
University (supra) the termination had taken place
before three decades. Similarly on the facts of the
case on hand, the workmen was terminated on
25.5.2008, that is almost one-and-half decade ago.
The other relevant factors to be noticed in the
present case are that the workmen were daily rated
and they were getting Rs.35/-. Furthermore it is
specific stand on the part of the University that
there cannot exists work to be offered to the
workmen concerned and that the University had
adopted the contract system for employing the
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manpower.
6.9.2 In the present case, applying the above
principles, the Court finds it proper that instead
of granting relief of reinstatement, lumpsum
compensation in lieu would sub-serve the ends of
justice. Services of both the workmen were
terminated in the year 1996 and 1994 respectively.
More than three decades have passed from the
juncture when the actual relief is to be granted.
6.9.3 The workmen were wireless operators-site
supervisors at the time when they were getting
Rs.600/- per month and were on duty for minimum 8
hours everyday. All these aspects would be the
determinants for arriving at quantum of
compensation. While assessing compensation, further
aspect which is present in this case is that the
Reference was made after a gap of 9 years, which is
to be counted.
6.9.4 Having regard to all the above aspects,
while setting aside the judgment and order of
learned Single Judge, denying the relief of
reinstatement to the workmen, the workmen are held
entitled to grant of lumpsum compensation in lieu
of relief of reinstatement. Furthermore, as per
the directions given by learned Single Judge, the
petitioner has been regularly paid the benefit of
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salary as contemplated under Section 17B of the
Industrial Disputes Act, for which there is no
dispute.
6.9.5 It is held and provided that the workman
Dave Girishbhai Vallabhbhai of Letters Patent
Appeal No. 1482 of 2018 would be entitled to
lumpsum compensation of Rs.4,00,000/-, whereas the
workman Jadeja Pravinsinh Nanbha in the second
Letters Patent Appeal would be entitled to lumpsum
compensation of Rs. 3,00,000/-. The amount shall
be paid to the respective appellants within six
weeks from today.
7. Both the appeals are allowed to the aforesaid
extent and in the aforesaid terms.
(N.V.ANJARIA, J)
(PRANAV TRIVEDI,J)
BIJOY B. PILLAI
