Gujarat High Court
Gujarat Maritime Board vs Hansraj Tapubhai Solanki on 24 June, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/557/2023 ORDER DATED: 24/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 557 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 17234 of 2019
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GUJARAT MARITIME BOARD
Versus
HANSRAJ TAPUBHAI SOLANKI
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with
MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1
MR MUKESH H RATHOD(2432) 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 : 24/06/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. ADMIT. Learned advocate Mr. Mukesh Rathod waives
service of notice of admission on behalf of respondent.
2. In the present Letters Patent Appeal, the appellant has
assailed the judgment and order dated 28.06.2022 passed in
captioned writ petition whereby, the writ petition filed by the
appellant challenging the award of the Labour Court dated
25.04.2019 allowing the reference proceedings in part by
directing the reinstatement of the respondent - workman
without backwages, has been rejected.
3. Learned Senior Advocate Mr. Shalin Mehta for learned
advocate Ms. Sejal Mandavia for the appellant has submitted
that even if the findings of the Labour Court are upheld at the
most, the Labour Court could have granted compensation to
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the respondent - workman instead of reinstatement without
backwages. He has submitted that the Labour Court has also
fallen in error in granting continuity of service. Learned Senior
Advocate Mr. Mehta has submitted that the respondent -
workman was appointed on 01.12.1996 and it is his case that
he was terminated 04.09.2003 and thereafter, he raised an
Industrial dispute, which culminated into Reference being
Reference (T) No. 397 of 2005 and thereafter, the said
reference was dismissed for default in the year 2011 and
restored in the year 2014 and ultimately, an award came to be
passed in the year 2019. Thus, it is submitted that looking to
the period right from 2003 to 2019, the Labour Court should
have awarded compensation instead of reinstatement without
backwages. In support of his submission, learned Senior
Advocate Mr. Mehta has placed reliance on the judgments of
the Supreme Court in the case of Rashtrasant Tukdoji Maharaj
Technical Education Sanstha, Nagpur V/s. Prashant Manikrao
Kubitkar reported in (2018) 12 SCC 294 and in the case of
Ranbir Singh V/s. Executive Engineer PWD reported in (2021)
14 SCC 815. It is submitted that it is not the rule of law that
on the termination of a workman having been set aside, he is
entitled to be reinstated in service and only in exceptional
cases, the reinstatement can be denied. Thus, it is urged that
the award passed by the Labour Court as well as the order
passed by the learned Single Judge confirming the same may
be set aside.
4. Opposing the submissions advanced by learned Senior
Advocate Mr. Mehta, learned advocate Mr. Mukesh Rathod
appearing for the respondent - workman has submitted that in
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fact, the findings of the Labour Court reflect that there was
unfair labour practice committed by the appellants and in fact,
back date orders were issued showing his appointment on
adhoc basis. He has submitted that in fact, after termination of
the respondent - workman, the witness of the appellant has in
fact admitted in his cross-examination that there were other
various persons, who were appointed to the post of driver.
Thus, it is urged that the award and the order passed by the
learned Single Judge confirming the same may not be
disturbed.
5. In support of his submissions, learned advocate Mr.
Mukesh Rathod for the respondent - workman has placed
reliance on the judgment of Supreme Court in the case of
Bharat Sanchar Nigam Limited vs. Bhurumal reported in (2014)
7 SCC 177.
6. Learned Senior Advocate Mr. Shalin Mehta for the
appellant at this stage has submitted that in fact, the persons
or employees, who are referred by the Labour Court in its
award, were not appointed in the same place but were
appointed at various places by the appellant - Board.
7. We have heard the learned advocates for respective
parties.
8. The issue, which falls for deliberation by us, is that
whether the Labour Court has fallen in error in directing
reinstatement without back wages or the respondent -
workman is entitled for compensation in lieu of reinstatement.
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By the award dated 25.04.2019, passed by the Labour Court,
Ahmedabad in Reference (T) No. 397 of 2005, the appellant -
Board is directed to reinstate the respondent - workman with
continuity of service without back wages.
9. The facts, which are not in dispute, are that the
respondent - workman was appointed as a driver on
01.09.1996 in a basic pay of Rs.950 - 1500/-. He was
thereafter, terminated on 04.09.2003 without any reason. He
assailed the same before the Labour Court, after raising an
Industrial dispute, which culminated into Reference (T) No.
397 of 2005. The said reference proceedings were dismissed for
default in the year 2011 and thereafter, came to be restored in
the year 2014. Ultimately, the reference proceedings have been
allowed by the aforesaid award dated 25.04.2019.
10. We may refer to the findings recorded by the Labour
Court with regard to the termination of the respondent -
workman. The Labour Court has categorically, after considering
the entire documentary evidence as well as oral evidence,
concluded that the appellant has committed unfair labour
practice and has issued appointment orders with back date.
Such finding is recorded in Paragraph No. 13 of the award.
While referring to the findings, it is noticed by us that at
Exh.32, the order has been issued on 06.01.1997 for the period
from 01.01.1997 to 29.01.1997. Similarly, at Exh.33 the order
has been issued on 05.02.1997 for the period from 31.09.1997
to 28.02.1997. At Exh.34 the appellant - Board issued
appointment order on 05.03.1997 for the period from
03.03.1997 for 29 days. Similarly, at Exh.35 the order for a
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period from 24.04.1997 to 30.04.1997 has been issued on
09.04.1997. Same is the position with other orders, which have
been issued further appointing the respondent to the post of
Driver. The Labour Court has thereafter, considered the
submissions advanced by the appellant - Board and ultimately,
it is held that all these breaks were artificial breaks and will
amount to unfair labour practice. There is an additional fact,
which has been considered and not denied by the appellant -
Board i.e. after the termination of the respondent - workman,
there were various other persons appointed to the post of
Driver, which are referred in Paragraph No.15. Thus, almost
10 (ten) employees have been appointed to the post of Driver
after 2003 after termination of the respondent - workman.
11. In view of the aforesaid undisputed facts, it would be
apposite to refer to the decision of the Supreme Court in the
case of Bharat Sanchar Nigam Limited (supra). The same is
considered by the Supreme Court in the case of Ranvir Singh
(supra). We may refer to the observations recorded in
Paragraph Nos. 33, 34 and 35, which read 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 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
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compensation which will meet the ends of justice.
Rationale for shifting in this direction is obvious.
34. 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.
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."
12. The Supreme Court, after considering the aspect of
reinstatement in lieu of compensation, has categorically held
that there may be cases, where termination of daily wage
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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 i.e. while retrenching such a worker daily wage
juniors to him are retained. It is further held that 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. It is also asserted by the Supreme Court that in
such cases, reinstatement should be the rule and only in
exceptional cases or the reasons stated to be in writing such
relief can be denied.
13. In our considered opinion in wake of the undisputed facts
as narrated above, we affirm the findings and the final
directions issued by the Labour Court directing reinstatement
without back wages. With regard to the contentions raised
before us by the appellant - Board that the respondent -
workman cannot be granted benefit since during the
intervening period, the reference was dismissed for non-
prosecution and the same was restored in the year 2014, the
same does not merit acceptance. It is the case of the appellant
that the reference was dismissed in the year 2011 and
thereafter, was restored in the year 2014 and for such period
the Labour Court has erred in granting the continuity of
service. Such a submission does not merit acceptance since at
the time of restoration of such a reference proceedings, the
appellant - Board should have invited some orders regulating
the intervening period. There is no observation recorded in this
regard clarifying as to whether the reference was dismissed for
non-prosecution due to the fault of either of the parties and in
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case, the same is restored, the intervening period has to be
construed in a particular way.
14. The reference proceedings thereafter, culminated into
award, which has been disposed of on 25.04.2019. Under the
circumstances, the Labour Court has been justified in denying
the back wages to the respondent - workman. The learned
Single Judge by the impugned order dated 28.06.2022 has
confirmed the award passed by the Labour Court and has
precisely rejected the writ petition. We do not find any
convincing reasons to interfere with the award as well as the
order passed by the learned Single Judge.
15. In view of foregoing reasons, the appeal fails and hence,
the same is rejected.
(A. S. SUPEHIA, J)
(MAUNA M. BHATT,J)
SHRIJIT PILLAI/31
