Anilkumar Mohanlal Solanki vs State Of Gujarat
2024 Latest Caselaw 209 Guj

Gujarat High Court

Anilkumar Mohanlal Solanki vs State Of Gujarat on 9 January, 2024

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       C/SCA/4814/2019                                      ORDER DATED: 09/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4814 of 2019

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                         ANILKUMAR MOHANLAL SOLANKI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3,4,5,6
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     CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                Date : 09/01/2024

                                  ORAL ORDER

1. Rule returnable forthwith. Learned Assistant Government Pleader Ms. Surbhi Bhati waives service of notice of rule on behalf of the respondent - State.

2. Workman has filed this petition seeking following prayers:-

"(a) YOUR LORDSHIP be pleased to issue writ of mandamus, or any other writ, order or direction, declaring the communication dated 24.05.2018 issued by the respondent no. 6 asking the petitioner to work on piece rate basis as illegal, improper, arbitrary and contrary to the directions issued by the learned Labour Court and further pleased to

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quash and set aside the same.

(b) YOUR LORDSHIP be pleased to issue writ of mandamus, or any other writ, order or direction, directing the respondent nos. 1 to 3 to take prompt action against the respondent no. 5 & 6 for non-compliance of the mandatory directions issued by the learned Labour Court under the provisions of the Industrial Disputes Act, 1947.

(c) Pending admission, hearing and final disposal of the petition, YOUR LORDSHIP be pleased to restrain the respondent form changing the service conditions of the petitioner and be further pleased to direct the respondent no. 5 & 6 to reinstate the petitioner on his original post as a Daily wager and not on a piece rate basis.

(d) YOUR LORDSHIP be pleased to grant such other and further relief as may be deemed fit in the interest of justice."

3. The facts in brief referred in the petition are as under: -

The petitioner is a workman and for his termination from service in the year 1999, he raised a dispute before Labour Court, Godhara. The Labour Court, Godhara vide award dated 21.11.2017 directed the respondent - State to reinstate the

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petitioner to his original post with continuity of service. The Labour Court in the award dated 21.11.2017 had not awarded backwages. Costs of Rs.4,000/- was also awarded. It is case of the petitioner that despite award dated 21.11.2017 directing the respondent - State to reinstate the petitioner to his original post with continuity of service, the respondent failed in executing the said order.

3.1 It is case of the petitioner that for non-execution of the award, the workman preferred complaint dated 09.03.2018, before the Government Labour Officer, despite that no action was taken. Subsequent to that an order/communication dated 24.05.2018 was served to the petitioner wherein the petitioner was called upon to join duties, with the alteration in service conditions. Aggrieved by the order/communication dated 24.05.2018, present petition is filed.

4. Heard learned advocate Mr. P. C. Chaudhari for the petitioner and learned Assistant Government Pleader Ms. Surbhi Bhati for the respondent - State.

5. Learned advocate Mr. P. C. Chaudhari for the petitioner submitted that the order/communication dated 24.05.2018 is erroneous because though vide award dated 21.11.2017, the Labour Court directed to reinstate workman on his original post with continuity of service, the petitioner was called to join duties with change in service condition and not to his original post. Placing reliance on Clause 4 of the said order Learned Advocate submitted that the workman was called to join duties on piece rate basis as unskilled labourer, as and

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when the work was available. He submitted that the order/communication dated 24.05.2018 is contrary to the directions of Labour Court award dated 21.11.2017 and therefore, the same deserves to be quashed and set aside.

5.1 In support of his submissions, he relied upon the CAV judgment dated 05.11.2020 in Special Civil Application No. 2767 of 2018 and allied matters and order dated 15.09.2021 in Special Civil Application No. 4191 of 2019. He submitted that in similar facts situation this Court has quashed and set aside the order/communication wherein the petitioner was reinstated with alteration in service conditions. Further, the judgment in Special Civil Application No. 2767 of 2017, was challenged by the State by filing Letters Patent Appeal and the Letters Patent Appeal was also dismissed.

5.2 Most importantly, the award dated 21.11.2017, having not been challenged by the respondent - State, it is not open for the respondent - State to change the service conditions of the petitioner. He therefore submitted that the order dated 24.05.2018 may be quashed and set aside and respondents may be directed to reinstate the workman to his original post.

6. On the other hand, learned Assistant Government Pleader Ms. Surbhi Bhati for the respondent - State submitted that the present reference was filed belatedly which the Labour Court has recorded in the award dated 21.11.2017. Placing reliance on the order/communication dated 24.05.2018, she submitted that the petitioner was called for work but he did not join the duties. Subsequent to the order dated 24.05.2018, one more

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communication dated 26.10.2018 was addressed and despite that the petitioner did not join his duties. Therefore, since the award dated 21.11.2017 is complied with, this petition deserves to be dismissed.

6.1 Upon instructions from Mr. Arpit Bhariya, Range Forest Officer, Santranpur, East Range learned Assistant Government Pleader submitted that the respondents are willing to reinstate workman if he wishes to join duties.

7. Considered the submissions and the decisions relied upon. Upon re-visitation of the facts, it is noticed that for his termination, the reference was raised by the workman before the Labour Court and the same was partly allowed by an award dated 21.11.2017. The Labour Court held the termination as illegal and in violation of Section 25F of the Act, directing respondent - State to reinstate workman to his original post with continuity of service and without backwages. The award dated 21.11.2017 by Labour Court, Godhara was not challenged by the respondent - State.

8. The contention of Learned AGP, of raising the dispute at belated stage, is of no consequences since the said contention was considered by the Labour Court, and therefore now in absence of any challenge to the award it is not open for the state to raise this contention.

9. As it is clear from the order dated 24.05.2018, the petitioner was reinstated as an unskilled piece rated workman. Several other conditions service conditions were also referred

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in the order of reinstatement dated 24.05.2018. Clause 6 refers to the work of doing excavation in the forest range which was not the work done by the workman prior to his termination. It is not the case of the respondents that prior to his termination the workman was working as piece rated workman.

10. In the opinion of this Court, in absence of any challenge to the award, the State is duty bound to execute the same in its entirety. In the decision of this Court dated 15.09.2021 in Special Civil Application No. 4191 of 2019, by placing reliance on the order dated 05.11.2020 in Special Civil Application No. 2764 of 2018 and allied matters, it has been held as under: -

"[8] With regard to the issue of engaging the workman as on Piece Rate wages, this Court is of the considered opinion that such action of the respondent authority would be an unfair labour practice. It is not the case of the respondent authority that before the termination, he was engaged in Piece Rate basis. After his termination is declared as illegal by the Labour Court, it is not open for the respondent authority to change the status of the daily wager to his detriment by engaging the workman on Piece Rate wages. The reinstatement would mean that the daily wager has to be reinstated on his original status by conferring the same status and such alteration of status from daily wager to Piece Rate worker is not permissible under

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the law.

[9] The Coordinate Bench in similar issue vide judgment dated 05.11.2020 passed in Special Civil Application No. 2764 of 2018 has set aside such communication and directed the respondent authorities to reinstate the workman on original post. Thus, the writ petition filed by the workman being Special Civil Application No. 4191 of 2019 is allowed to the extent that the action of the respondent authorities in engaging him on Piece Rate wages vide communication dated 31.01.2019 is held to be illegal and such communication is quashed and set aside. The award of the Labour Court is confirmed and the petition i.e. Special Civil Application No. 1771 of 2020 challenging the said award is rejected. Rule is made absolute to the aforesaid extent only in Special Civil Application No. 4191 of 2019."

11. Considering above referred decisions and the fact that the workman by order/communication dated 24.05.2018, was not reinstated to his original post following order is passed: -

11.1 The order/communication dated 24.05.2018 is held to be illegal and hereby quashed and set aside.

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11.2 The respondents are directed to reinstate the petitioner to his original post with continuity of service as directed in the award dated 21.11.2017, within a period of 4 weeks from the date of receipt of the order.

11.3 The respondents are directed to consider case of the petitioner for payment of post award wages as expeditiously as possible.

12. With the above directions, the petition stands disposed of. Rule is made absolute to the above extent.

(MAUNA M. BHATT,J) SHRIJIT PILLAI