Gujarat High Court
Balvantbhai Kalubhai Bariya vs Gujarat State Road Transport ... on 25 June, 2024
Author: A. S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/176/2022 JUDGMENT DATED: 25/06/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 176 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 29531 of 2007
With
R/LETTERS PATENT APPEAL NO. 182 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 29531 of 2007
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 182 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 29531 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
BALVANTBHAI KALUBHAI BARIYA
Versus
GUJARAT STATE ROAD TRANSPORT CORPORATION & ANR.
==========================================================
Appearance:
MR PARESH J BRAHMBHATT(9788) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 25/06/2024
ORAL JUDGMENT
NEUTRAL CITATION
C/LPA/176/2022 JUDGMENT DATED: 25/06/2024
undefined
(PER: HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. Captioned cross-appeals under Clause 15 of the Letters
Patent, 1865 are filed challenging the judgment dated
21.11.2019 in Special Civil Application No.29531 of 2007,
wherein the learned Single Judge directed the employer
corporation (original respondent) to reinstate the workman
(original petitioner) with continuity and also granted 25% back
wages. The learned Single Judge also held that since the
workman (original petitioner) had reached the age of
superannuation, he shall be paid all the benefits till the date
of superannuation.
2. Letters Patent Appeal No.176 of 2022 is filed by the
workman (original petitioner) challenging the restriction of
back wages to the extent of 25%. It is his case that since the
termination was held illegal, the workman would be entitled to
100% back wages. Whereas, Letters Patent Appeal No.182 of
2023 is filed by the employer - Corporation challenging the
directions of reinstatement with continuity and 25% back
wages.
3. Heard Mr.Paresh Brahmbhatt, learned advocate for the
workman and Mr.H.S.Munshaw, learned advocate for
Corporation. Since both these appeals are filed challenging the
judgment dated 21.11.2019 rendered by the learned Single
NEUTRAL CITATION
C/LPA/176/2022 JUDGMENT DATED: 25/06/2024
undefined
Judge in Special Civil Application No.29531 of 2007, with the
consent of the parties they are heard and decided together by
this common judgment.
4. Mr.Brahmbhatt, learned advocate for the appellant-
workman submitted that the judgment of the learned Single
Judge in restricting the back wages to the extent of 25% is
erroneous since when termination of the workman was held to
be illegal, as a necessary consequence, he would be entitled
for 100% back wages. Inviting attention of this court to the
facts, he submitted that the workman joined the service of
respondent - Corporation as Wireman Helper with the Office
of Executive Engineer, Godhra in the year 1984 and continued
there for more than 12 years. Despite serving for more than
12 years, since he was not made permanent, he raised a
dispute before the Industrial Tribunal, Vadodara, registered as
Reference (IT) No.162 of 1995. The respondent-Corporation
participated in the said proceedings. However, during pendency
of the above reference, the service of the workman was
terminated w.e.f. 01.09.1997. The workman therefore filed
Complaint (IT) No.68 of 1997, in pending Reference (IT)
No.162 of 1995. The said complaint was rejected by an order
dated 17.03.2007. Aggrieved by the order dated 17.03.2007,
the workman preferred Special Civil Application No.29531 of
2007, wherein this Court, while partly allowing the writ
NEUTRAL CITATION
C/LPA/176/2022 JUDGMENT DATED: 25/06/2024
undefined
petition, held that there is an employer-employee relationship
between the petitioner and the respondent and since the
termination was done during pendency of Reference (IT)
No.162 of 1995 without seeking prior approval, the same is
bad in law. Despite that, the learned Single Judge directed
the respondent - Corporation to reinstate the petitioner -
employee with continuity and only 25% back wages. Learned
advocate submitted that since the termination is held to be
illegal and reinstatement is awarded, the workman would be
entitled for 100% back wages and, therefore, the order of the
learned Single Judge deserves to be modified accordingly. More
so, as held, there was breach of Section 25F of the Industrial
Disputes Act, 1947 (the ID Act) and, therefore, once the
termination is illegal, the learned Single Judge ought to have
awarded 100% back wages.
5. On the other hand, Mr.H.S.Munshaw, learned advocate
for the respondent - Corporation submitted that undisputedly
the date of birth of the petitioner-workman is 01.10.1955 and
he retired upon attaining the age of superannuation on
30.10.2013. Thus, when the reinstatement was directed by
learned Single Judge vide judgment dated 21.11.2019 in
Special Civil Application No.29531 of 2007, the petitioner -
workman was not in service and, therefore, the award of
reinstatement is erroneous. Further, learned Single Judge erred
NEUTRAL CITATION
C/LPA/176/2022 JUDGMENT DATED: 25/06/2024
undefined
in not appreciating that, the petitioner was appointed as
Wireman Helper and was paid on vouchers. He was not a
regular employee of the corporation and, therefore, learned
Single Judge erred in not appreciating that the petitioner was
not a "workman" within the meaning of Section 2(s) of the ID
Act. He would not be entitled for continuity and back wages.
He thus, submitted that the order of learned Single Judge
directing reinstatement with 25% back wages deserves to be
quashed and set aside.
6. Considering the submissions, it is noticed that the
appellant-workman (original petitioner) was appointed as
Wireman Helper in the office of Executive Engineer of the
respondent-Corporation at Godhra in the year 1984. He retired
upon attaining the age of superannuation on 30.10.2013. It is
not in dispute that he continued on the same position for more
than 12 years and after serving for more than 12 years, he
raised a dispute before the Industrial Tribunal Vadodara,
registered as Reference (IT) No.162 of 1995 seeking
regularisation. His services came to be terminated during
pendency of the said reference without prior approval and
without following the provisions of the ID Act. Therefore, in
our opinion, the termination is rightly held to be illegal and
thus, the findings of the learned Single Judge holding the
termination as illegal and contrary to the provisions of the ID
NEUTRAL CITATION
C/LPA/176/2022 JUDGMENT DATED: 25/06/2024
undefined
Act are appropriate and deserve no interference. In relation to
the grant of reinstatement, it is noticed that the workman
retired upon attending the age of superannuation on
30.10.2013. Thus, when the judgment dated 21.11.2019 was
passed in Special Civil Application No.29531 of 2007 the
petitioner-workman was not in service and, therefore, the
order of reinstatement is erroneous and deserves to be quashed
and set aside.
7. We therefore modify the order of the learned Single
Judge to the extent that the appellant-workman (original
petitioner) would not be entitled for reinstatement. So far as
continuity and back wages to the tune of 25% is concerned, it
cannot be ignored that the appellant - workman worked with
the respondent - Corporation from 1984 to 1997 (more than
12 years). Since termination was rightly held illegal, the order
of learned Single Judge granting continuity of service with 25%
back wages, does not call for interference. Considering the fact
that the workman had not worked from the date of
termination till the age of superannuation, the contention of
the appellant-workman for grant of 100% back wages does not
merit acceptance.
8. In view of the above, the order of learned Single Judge
in relation to reinstatement is hereby quashed and set aside.
NEUTRAL CITATION
C/LPA/176/2022 JUDGMENT DATED: 25/06/2024
undefined
Rest of the directions dated 21.11.2019 in Special Civil
Application No.29531 of 2007 of learned Single Judge are
upheld. The respondent - Corporation is directed to grant
continuity of service with 25% of back wages with all
consequential benefits within a period of 08 (eight) weeks from
the date of receipt of this order, failing which, the same shall
be paid with interest @ 6%, after a period of eight weeks.
9. In view of the above, Letters Patent Appeal No.176 of
2022 preferred by the appellant-workman (original petitioner)
is rejected.
10. Letters Patent Appeal No.182 of 2023 preferred by the
employer - Corporation (original respondents) is partly allowed.
11. Consequentially, the Civil Application also stands disposed
of.
(A. S. SUPEHIA, J)
(MAUNA M. BHATT,J)
NAIR SMITA V./52
