Vijay Chandulal Sitapra vs State Of Gujarat
2024 Latest Caselaw 23 Guj

Gujarat High Court

Vijay Chandulal Sitapra vs State Of Gujarat on 2 January, 2024

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     C/SCA/21879/2023                                     ORDER DATED: 02/01/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 21879 of 2023

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                           VIJAY CHANDULAL SITAPRA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR YOGEN N PANDYA(5766) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MS MEGHA CHITALIYA, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                 Date : 02/01/2024

                                  ORAL ORDER

1. This petition is filed challenging the award dated 31.03.2023, by the learned Presiding Officer, Labour Court No. 1, Jamnagar in Reference (T) Case No. 106 of 2019, whereby lumpsum compensation of Rs.20,000/- has been awarded to the petitioner.

2. The facts in brief are as under:-

The petitioner joined the service of the respondent - State in the Health and Family Welfare Department in the year 2000 and worked till 20.10.2005. It is the case of the petitioner that, because he was terminated from service without following due procedure under the provisions of the Act, he filed reference application before the Labour Court, Jamnagar seeking reinstatement with back wages and continuity of service. The Labour Court, Jamnagar under order dated 31.03.2023, in Reference (T) Case No.106 of 2019,

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granted lumpsum compensation of Rs.20,000/- to be paid within a period of 3 months from the date of receipt of the order. It is further directed that if the amount is not paid within period of 3 months, then it is to follow with interest @ 9% p.a. Aggrieved by the award dated 31.03.2023, present petition is filed.

3. Heard learned advocate Mr.Yogen Pandya for the petitioner. He submitted that the petitioner upon joining the service in the year 2000 had continuously worked till his termination on 20.10.2005. His services came to be terminated without putting him to notice and without following the due procedure under law and hence there is breach of Section 25 (F), (G) and (H) of the Industrial Disputes Act, 1947 (for short 'the Act'). Learned Advocate submitted that the Labour Court erred in not considering that the petitioner had worked for 240 days a year. Further, similarly situated workmen who were working with the petitioner were awarded reinstatement whereas the petitioner was awarded with lumpsum compensation of Rs.20,000/-. In relation to delay in preferring reference, he submitted in view of breach of Section 25(F) and 25(G), of the Act, the delay occasioned is to be ignored.

(i) On the aspect of delay, learned advocate relied upon following decisions: -

* Rashtrasant Tukdoji Maharaj Technical Education Sanstha, Nagpur V/s. Prashant Manikrao Kubitkar reported in 2017 AIR(SC) 2482

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* Order dated 07.06.2022 of this Court in Letters Patent Appeal No. 729 of 2022 and allied matters.

* Order dated 01.05.2018 of this Court in Miscellaneous Civil Application No. 1 of 2017 in Letters Patent Appeal No. 906 of 2016.

(ii) Learned Advocate for the petitioner submitted that this Court after 16 years from the date of termination has considered the cases and granted appropriate directions.

Further, as held by the Hon'ble Supreme Court, in the cases of breach of Section 25(F) and (G) of the Act, the delay is not to be considered.

(iii) On merits he submitted that the workman is not required to establish completion of 240 days. In this case, the Labour Court, Jamnagar had shifted the burden of proving the completion of 240 days in a year, on the petitioner and therefore the impugned order dated 31.03.2023 is erroneous.

(iv) Further, restricting his contentions to the quantum of compensation awarded, he submitted that it requires enhancement.

4. On the other hand, learned Assistant Government Pleader for the respondent - State relying upon the findings of the Labour Court, Jamnagar submitted that admittedly there was delay of more than 13 years 10 months in approaching the labour court. Further, it is rightly observed by Labour Court that no justification has been provided for delay. Moreover,

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competition of 240 days a year could not be established. The petitioner failed in proving completion of 240 days a year in cross-examination too. Nothing on record to prove that he had worked for more than 240 days a year. As observed by the Labour Court there is no violation or breach of Section 25(G), (H) and (F) of the Act and therefore there was no illegal termination. Considering the period of only 3 years for which the petitioner had worked, the compensation awarded by the Labour Court, Jamnagar is appropriate.

(ii) Learned Assistant Government Pleader in support of his arguments, relied upon the following decisions: -

* Prabhakar V/s. Joint Director Sericulture Department and Ors reported in AIR 2016 SC 2984.

* B.S.N.L. V/s. Bhurumal reported in (2014) 7 SCC

5. Having heard learned advocates for the respective parties and having perused the award of the Labour Court it is noticed that there is delay of more than 13 years in preferring the Reference Application before the Labour Court. No justification was provided for such belated filing of the application. Most importantly, the petitioner failed in proving competition of 240 days a year, even after cross-examination. Further, the oral termination could not be established by leading the evidence and therefore in the opinion of this Court, there is no error committed by the Labour Court, Jamnagar in holding that there is no breach of condition of

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Section 25(F), (G) and (H) of the Act.

6. In the decision of Hon'ble Supreme Court of India in the case of Prabhakar [Supra], it is held as under: -

"36) It is now a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".

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42) To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the 'appropriate Government' to consider whether it is expedient or not to make the reference. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be

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generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry."

7. In relation to lumpsum compensation, the Hon'ble Supreme Court in the case of B.S.N.L. [Supra], has held as under: -

"23. 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 be given monetary compensation which will meet the ends of justice. Rationale for

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shifting in this direction is obvious.

24. 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 nonpayment 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."

8. The decisions relied upon by learned advocate for the petitioner, in Letters Patent Appeal No. 729 of 2022 and allied matters in case of Deputy Executive Engineer V/s. Babubhai Lakhmanbhai Sankavara, and decision in Letters Patent Appeal

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No. 906 of 2016, in case of Danjibhai Bhanabhai Maru V/s. State of Gujarat, in the opinion of this court, would not be applicable, as both the decisions are different on facts. In one case the delay was justified because the application was pending before conciliation officer and the completion of 240 days was also established. In another case, the respondent failed in circulating the seniority list, which resulted in to delay. In this case there is no justification for delay. Moreover, considering the period for which the petitioner had worked i.e. from 2000 to 2005 and as there was no proof of completion of 240 days in a year, the Labour Court awarded only lumpsum compensation. In the opinion of this Court, the same is appropriate and no interference is required.

9. In view of above, the petition is rejected.

(MAUNA M. BHATT,J)

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