Gujarat High Court
Divisional Manager vs Nareshbhai Kalubhai Parmar on 11 June, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1021 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 14096 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DIVISIONAL MANAGER
Versus
NARESHBHAI KALUBHAI PARMAR
=============================================
Appearance:
MR JV JAPEE(358) for the Appellant(s) No. 1
MR SAMIR B GOHIL(5718) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 11/06/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present Letters Patent Appeal is filed under Clause
15 of the Letters Patent, directed against the judgment and
order dated 01.12.2016 passed by the learned Single Judge in
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Special Civil Application No.14096 of 2007, wherein and
whereby, the learned Single Judge has allowed the writ petition
by setting aside the award passed by the Labour Court,
Bhavnagar in Reference (LCB) No.238 of 1998 to the effect of
payment of compensation, and directing the reinstatement to
the respondent-workman on his original post with continuity of
service and 30% back wages.
2. The short issue which falls for deliberation in the present
Letters Patent Appeal is that whether after the termination of
the workman is held to be illegal by the Labour Court, he could
have been ordered to reinstate on his original post with
continuity of service along with the back wages or he would be
entitled to compensation.
3. The respondent - original petitioner of Special Civil
Application No.14096 of 2007 was terminated by the appellant
on 26.02.1998, which was subject matter of challenge before
the Labour Court, Bhavnagar in Reference (LCB) No.238 of
1998 and the Labour Court has partly allowed the Reference
holding the termination of the respondent as illegal and in
breach of statutory provisions and awarded a lump-sum
compensation of Rs.40,000/-.
4. The facts suggest that the respondent was appointed as
Dock-man in the year 1995 on probation basis @ salary of
Rs.2,048/-, whereas it was contended that by the appellant
that the respondent was engaged as a Junior Inspector w.e.f.
01.09.1997 on probation for six months and his monthly salary
was fixed at Rs.1,775/- and conveyance allowance of Rs.450/-.
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He was discharged / terminated with effect from 26.02.1998.
There was a dispute before the Labour Court with regard to his
actual date of appointment. The respondent asserted that he
was appointed in the year 1995, whereas the appellant
asserted that he was appointed on probation basis with effect
from 01.09.1997. The Labour Court categorically recorded
that appellant has tried to suppress that the respondent -
workman was in service before 01.09.1997. In fact, it was
believed that the respondent was discharging his services with
effect from 1995 on the basis of evidence, which was produced
before the Labour Court. The Labour Court has believed that
the appellant had deliberately relieved the respondent from
the service so that he could not have been made permanent
and it is recorded that he was relieved from service two days in
advance without following any procedure and such discharge /
termination was made with a mala fide intention and it was
nothing but an unfair labour practice. After recording such
facts and holding the termination as illegal, the Labour Court
directed the appellant to pay lump- cum compensation of
Rs.40,000/-. It is not in dispute that the appellant has accepted
the award passed by the Labour Court.
5. Learned advocate Mr.J.V. Japee, appearing for appellant
has submitted that the respondent - workman filed a writ
petition challenging the award of the Labour Court to the effect
that he was entitled to reinstatement instead of compensation
and the learned Single Judge has fell in error in directing the
appellant to reinstate the workman instead of paying him the
compensation. He has submitted that in fact, the respondent -
workman accepted the sum of compensation and thereafter,
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he claimed reinstatement on any other post. While inviting the
attention of this Court to the findings recorded by the Labour
Court on the issue No.2, he has submitted that before the
Labour Court, it was established that the Branch, in which, the
respondent was serving was closed and hence, there was no
question of reinstating him and the Labour Court has precisely
ordered the grant of compensation instated of reinstatement.
6. Learned advocate Mr.Japee, in support of his submission
has placed reliance on the judgment of the Supreme Court in
the case of Bhavnagar Municipal Corporation Vs. Jadeja
Govubha Chhanubha and Another, [AIR 2015 SC 609], and
has submitted that as held by the Supreme Court that if the
department, in which, the workman was serving is closed, then
there is no question of reinstatement and the compensation
was appropriate. Thus, it is urged that after the award was
passed, the respondent approached the Corporation to give
him appointment or reinstate him in an alternative branch or
any other department, which is impermissible, since the
Labour Court has categorically given a finding that the
establishment was closed and hence, he is not entitled for
reinstatement. Hence, it is urged that the present appeal may
be allowed.
7. In response to the aforesaid submissions, learned
advocate Mr. Samir B. Gohil, while inviting the attention to the
observations made by the learned Single Judge in the
impugned judgment and order, has submitted that in fact, the
Corporation has suppressed the fact and misled the Labour
Court by saying that the entire establishment was closed and
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in fact, only one branch, in which, the respondent was working,
was closed and the other department and branches were
functioning and hence, the Labour Court should have ordered
reinstatement instead of granting compensation. It is
submitted by him that as recorded by the Labour Court, the
respondent was a victim of unfair labour practice and it is not a
simple case of retrenchment and hence, in such scenario, he is
entitled for reinstatement, which is precisely ordered by the
learned Single Judge. It is urged that the present Letters Patent
Appeal may be dismissed.
8. We have heard the learned advocates appearing for the
respective parties. We have also perused the judgment and
order passed by the learned Single Judge as well as by the
Labour Court.
9. As recorded hereinabove, the Labour Court has given a
categorical finding that the respondent was a victim of unfair
labour practice and he has been terminated three days before
his probation period was going to be over. This categorical
finding of the Labour Court has not been challenged by the
appellant and has been accepted, thus, it is established that
the respondent was discharged / terminated by adopting unfair
labour practice. It is settled legal precedent that in case the
workman has been terminated by resorting to unfair labour
practice, he would be entitled for reinstatement [vide decisions
in the case of B.S.N.L vs Bhurumal, reported in (2014) 7 SCC
177 and in the case of Hari Nandan Prasad & Anr vs
Employer I/R To Mangmt.Of F.C.I. & Anr reported in (2014)
7 SCC 190). However, the issue in the present case is that the
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Labour Court has awarded the compensation by recording a
findings that "establishment", in which, the respondent was
serving has been closed and when the "institution" has already
been closed, the question of reinstatement does not arise. This
is an erroneous finding of the Labour Court since it is not even
the case of the respondent that the entire establishment or the
institution has been closed, but it was the branch in which the
respondent was serving, has been closed, at the time of
passing the award.
10. At this stage, it would be apposite to incorporate the
findings of the learned Single Judge recorded in the judgment
dated 01.12.2016 -
"14.1 However, at the time of hearing of this
petition, Mr. Mehta, learned advocate for the
petitioner asserted that the company, as such, is not
closed down.
14.2 He also asserted that the company has various
branches including branch at Ahmedabad and one branch
at Gandhidham.
14.3 He also clarified that actually, after sometime
the activities of the Bhavnagar branch were
discontinued by the company at the relevant time.
However, entire company / establishment has never
been closed down and its business activities and
operation have continued all along.
14.4 So as to support his submission, Mr. Mehta,
learned advocate, also relied on document at
Annexure-C, Page 28 of the petition, i.e. letter
dated 11.4.2007 whereby the claimant had forwarded
his request to the company that since the company's
activities are being carried out any other branches,
he may be appointed at any of the branches and he is
ready to render his service at any place where he is
posted. The company never disputed the details
mentioned by the claimant in the communication.
14.5 Even at the time of hearing of this petition,
Mr. Japee, learned advocate for the respondent
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company, could not and did not dispute the submission
by Mr. Mehta, learned advocate for the petitioner
workman, that other branches of the company are still
conducting business activities and the company is not
closed down.
15. What emerges from above mentioned facts is that
complete and correct facts were not disclosed before
the learned Labour Court.
15.1 The learned Labour Court was made to believe
that the company in its entirety i.e. entire
establishment itself is closed down.
15.2 It was not clarified before the learned Labour
Court that only one of the branches is discontinued.
15.3 If the said aspect had been properly clarified
before the learned Labour Court, then, in all
probability, the learned Labour Court would have
granted appropriate relief.
16. Be that as it may, in view of the fact that the
company and its establishment and its
operations/activities are not closed down, then,
there is scope of reinstatement of the workman and
having regard to the fact that termination of the
claimant's service was illegal and also having regard
to the fact that the company has not challenged the
findings and conclusion by learned Labour Court, the
fact remains that the petitioner's service was
illegally terminated.
11. Thus, despite giving ample opportunity to the appellant,
he was unable to dispute that the only one branch was closed,
however the entire establishment and other branches were
functioning. It was the duty of the appellant to disclose the
correct facts before the Labour Court and the Labour Court has
also fell in error in observing that the "entire establishment "
has been closed on the basis of purshis at Exh,17 and hence,
there would not be any question of reinstating the workman.
The acceptance of the compensation by the respondent-
workman cannot scuttle his claim of reinstatement in wake of
the fact that he had accepted the same with objection. While
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accepting the compensation, on the receipt, he made an
endorsement dated 14.05.2007 clarifying that he is accepting
the compensation with an objection since he would be
challenging the award of the labour court before higher forum.
When he came to know that he could have been
accommodated in other branch or department, and the
establishment was still functioning, he immediately made a
representation for accommodating him. The appellant has
accepted before the learned single judge that the other
branches were still conducting business and the Company is
not closed down.
12. In view of the foregoing facts and circumstances of this
case, we are in complete agreement with the direction issued
by the learned Single Judge ordering reinstatement and setting
aside the award passed by the Labour Court to the effect of
payment of the compensation of Rs.40,000/-. It is a clear case
of unfair labour practice and hence, the respondent was
entitled for reinstatement instead of compensation in wake of
the fact that the workman could have been accommodated in
other branch and if such fact was pointed to the Labour Court
by the appellant, probably the Labour Court could have
directed reinstatement in any other branch or department of
the appellant-Company. The judgment, on which, reliance is
placed by the appellant in the case of Bhavnagar Municipal
Corporation (supra), will not apply to the facts of the present
case since in the said case, the termination was not tainted
with unfair labour practice.In the instant case, the appellant-
Company has accepted the finding recorded by the Labour
Court regarding unfair labour practice.
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13. In light of the above, the present Letters Patent Appeal
fails and the same stands rejected accordingly. The appellant
shall reinstate the respondent - workman as directed by the
learned single judge within a period of three months from the
date of receipt of writ of this order. Rule is discharged. Interim
relief if any granted earlier stands vacated.
Sd/- .
(A. S. SUPEHIA, J)
Sd/- .
(MAUNA M. BHATT,J)
MAHESH/30
