Gujarat High Court

Surendranagar District Panchayat vs Nanduben Ramasangbhai on 26 June, 2024

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    C/SCA/10266/2007                           JUDGMENT DATED: 26/06/2024

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 10266 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1    Whether Reporters of Local Papers may be                        No
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                         No

3    Whether their Lordships wish to see the fair                    No
     copy of the judgment ?

4    Whether this case involves a substantial                        No
     question of law as to the interpretation of the
     Constitution of India or any order made
     thereunder ?

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           SURENDRANAGAR DISTRICT PANCHAYAT
                         Versus
                NANDUBEN RAMASANGBHAI
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR MUKESH H RATHOD(2432) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
        PRACHCHHAK

                        Date : 26/06/2024

                        ORAL JUDGMENT

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1. Present petition is filed by the petitioner - Surendranagar

District Panchayat under Articles 226 and 227 of the Constitution

of India and under the provisions of the Industrial Disputes Act

for the following reliefs.

(A) Be pleased to admit the present Special Civil Application;

(B) Be pleased to allow this Special Civil Application by way of issuing appropriate writ, mandamus order or directions quashing and setting aside the impugned award dated 29/11/2006 passed by the Labour Court at Surendranagar through which the petitioner is directed to reinstate the respondent in service without back wages by way of holding that the impugned award is illegal, unjust, arbitrary and contrary to the facts on record as well as the provisions of Industrial Disputes Act 1947 and further be pleased to hold that the respondent is not eligible and entitled to any relief as awarded by the Labour Court.

(C) Pending the admission, final hearing and final disposal of the present Special Civil Application be pleased to stay implementation, execution and operation of the award dated 29/11/2006 passed by the Labour Court at Surendranagar in Reference (LCS) No. 193 of 1993.

(D) Be pleased to pass such other and further orders as the nature of the case may be required and the Honourable Court may deem thought fit to pass such order.

2. Short facts of the present case, in nutshell, are that the

respondent workman was provided the work as daily wager in

repairs and maintenance work undertaken by the District

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Panchayat. The workman was paid the wages out of contingency

fund and she had worked for 24 days in the year 1980, 70 days

in the year 1981, 114 days in the year 1984 and 54 days in the

year 1985. It is the case of the petitioner that the respondent

had abandoned the work at her own and after 8 years she had

approached the Labour Court at Surendranagar by way of filing a

statement of claim praying for reinstatement in service with

continuity and back wages and the petitioner had filed written

statement and written arguments. It is further the case of the

petitioner that the relevant muster roll was also placed before

the Labour Court and the workman was permitted to examine

the same and to peruse other record. However, ignoring the oral

as well as documentary evidence and various contentions, the

Labour Court relying upon the oral evidence of the workman, on

conjecture and surmises, awarded reinstatement of the

respondent in service without back wages through award dated

29.11.2006.

3. After completion of evidence, the Labour Court passed the

award dated 29.11.2006 in Reference (LCR) No.193 of 1993 and

directed the petitioner to reinstate the workman on her original

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post with continuity of service and also directed to pay salary,

with continuity of the services.

4. Being aggrieved and dissatisfied with the impugned award

passed by the Labour Court, the petitioner - Corporation has

preferred the present petition.

5. Heard Mr.H. S. Munshaw, learned counsel appearing for the

petitioner - Panchayat and Mr. Mukesh Rathod, learned counsel

appearing for the respondent - Workman. Perused the material

placed on record.

6. Mr.Munshaw, learned counsel appearing for the petitioner

has vehemently submitted that the respondent - workman was

working as daily wager and the work was not of permanent in

nature. He has submitted that the workman has not completed

240 days in a calendar year. He has submitted that the workman

was never appointed on regular basis and she was daily wager.

According to him, the workman has also admitted that she was

working on daily wager. According to the learned counsel for the

petitioner, if the version of the workman that she was relieved in

the year 1988 is believed, even then, there is huge delay in filing

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the alleged reference which has been filed in the year 1993.

According to him, thus, there is delay of almost 6 years and,

therefore, the award passed by the Labour Court is not factually

and legally tenable. He has submitted that since there is huge

delay, the Labour Court ought to have dismissed the reference

instead of granting reinstatement. He has prayed to allow the

present petition and to quash and set aside the impugned award

passed by the Labour Court.

7. Per contra, Mr.Mukesh Rathod, learned advocate for the

respondent has submitted that the Labour Court has properly

appreciated the evidence on record and has come to the right

conclusion. He has submitted that the workman was working as

a daily wager with the petitioner since five years and she had

worked continuously till orally her termination on 21.09.1988 and

her termination was without following the principles of natural

justice and due procedure of law contemplated under the

Industrial Disputes Act. He has submitted that though there is

delay of 6 years in preferring the reference, the workman is

entitled to get reinstatement as the petitioner has not followed

the legal provisions of the Industrial Disputes Act. He has urged

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to dismiss the present petition and confirm the award passed by

the Labour Court.

8. Having considered the submissions made by learned

advocates for both the sides and the materials placed on record,

it transpires that the workman has raised the dispute on the

ground that she was serving with the petitioner and she had

worked for 240 days in a year and the work allotted to her is

permanent in nature even though her services were terminated

without giving any notice, notice pay or retrenchment

compensation. It also appears that the dispute was initially

considered by the conciliation proceedings but upon failure

thereof, the same was referred to the Labour Court by the

Labour Commissioner for reference wherein the petitioner has

filed reply and has contended that the employee was not

working in the department for whole period and she was being

called as and when the work was available and she has not

completed 240 days in a year. It is contended by the petitioner

that the work assigned to the workman was not permanent in

nature and the activity was being of a daily wager and he was

being paid the daily wage. It is contended by the petitioner that

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after completion of the said work, the daily wager is relieved

from the service.

9. On perusal of the impugned award, it appears that the

Labour Court has dealt with all the issues raised by the both the

side and on the basis of the evidence on record has observed

that there is no dispute between the parties that the workman

was working as daily wager and the same fact has been

supported by the statement. It is also pertinent to note that as

per the discussion made by the Labour Court the workman was

working as daily wager and as per the copy of the muster roll

produced by the petitioner, she was initially worked from 1980 to

1985 and, therefore, this fact clearly establishes that the

workman has worked for five years. It also reveals that the

workman was terminated and, thereafter, she has approached

the Labour Court by way of filing reference and prayed that

without following the due process of law and without paying

retrenchment her services came to be dismissed.

10. Considering the facts and circumstances of the case, this

Court is of the considered opinion that there is a breach of

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Section 25-F of the I.D. Act and as there is a delay of 6 years in

preferring the reference, instead of granting reinstatement a

lump sum amount as full and final settlement will serve the end

of justice.

11. It is worthwhile to refer to the order dated 18.04.2024

passed by the Division Bench of this Court in Letters Patent

Appeal No. 908 of 2023 wherein the Division Bench of this Court

has observed in para-10 as under:-

"10. Having come to the conclusion that the lump sum compensation would be appropriate remedy for the families of the deceased workmen, the other aspects which comes for consideration is quantum of lump sum compensation. Though learned advocate Mr. Bhatt has contended that there was delay in preferring the complaint and the subsequent reference, it can be observed from the pleadings that the averments with regard to delay and laches in preferring the reference were not made before the labour court as well as the learned Single Judge. Therefore, the argument of learned advocate Mr. Bhatt with regard to delay and laches in preferring reference cannot be countenanced and what needs to be seen is that almost all the workmen have put in 16-20 years of service for the respondent and their services were terminated without following due procedure of law. Therefore, the families of the deceased workmen needs to be compensated proportionally as to the number of years of service put in by them. However, in order to balance the equation, we have considered to give effect of delay in preferring the reference while enhancing the amount of compensation. Thus, while calculating the number of years of services, we proposed to deduct the number of years service for which there is delay in preferring reference. After deduction of such number of service, we propose to give compensation in the following tabular form:

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Sr.No. Total no. of years for Amount of lump sum lump sum compensation compensation