Gujarat High Court
Executive Engineer vs Pravinbhai Somalbhai Boricha on 9 September, 2024
NEUTRAL CITATION
C/SCA/4376/2009 JUDGMENT DATED: 09/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4376 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
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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EXECUTIVE ENGINEER & ORS.
Versus
PRAVINBHAI SOMALBHAI BORICHA
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1,2,3
MRS FALGUNI D PATEL(2053) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/09/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 & 227 of the
Constitution of India, the petitioner - Gujarat Water Supply &
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Sewerage Board has prayed for the following reliefs :
"A. Your Lordships will be pleased to issue a writ of certiorari or any
other writ, order or direction in the nature of certiorari quashing and
setting aside the award passed by the Ld. Labour Court no.2,
Bhavnagar, in ref. L.C.B. no.221 of 1999 dtd. 6/3/2009;
B. Till and pending the hearing and final disposal of the petition,
Your Lordships will be pleased to stay the implementation,
execution and operation of the award passed by the Ld. Labour
Court no.2, Bhavnagar, in ref. L.C.B. no.221 of 1999 dtd. 6/3/2009;
C. Such other and further necessary order, as the Hon'ble Court
thinks just and proper may kindly be passed in the interest of
justice."
2. The brief facts giving rise to the present petition are that,
the respondent-workman was a purely causal rojamdar
Security Guard with daily wages and had put 22-24 days
working in service every month. Even the respondent-workman
had not completed 240 days in a calendar year. He was
working temporarily, paid on voucher. The respondent-
workman alleged to have worked for four years w. e. f.
11/07/1991 and terminated w.e.f. 20/07/1995 with not
following due procedure of law which the petitioner Board had
denied and therefore, the Reference was filed by the
respondent-workman before the Labour Court and that too
after belated period of 2 years and 10 months. It is say of the
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petitioner Board that the respondent-workman was gainfully
employed else where or doing his own business and no juniors
were continued by the petitioner Board. Even at the time of
retrenchment, wages due, notice pay, retrenchment
compensation were paid to respondent-workman by the
petitioner Board. However, the respondent herein vide Ref. No.
L.C.B. No. 221/1999 raised dispute under Industrial Disputes
Act, 1947 before Labour Court no. 2, Bhavnagar alleging inter
alia that his services are terminated by the petitioner, with
following due procedure of law. Retrenchment letter with
cheque of compensation came to be refused by the
respondent-workman. That the Labour Court partly allowed the
reference and passed an award dated 06/03/2009, directing
the petitioner Board to reinstate the respondent-workman with
20% back wages with consequential benefits at his original
place with continuous service, within 30 days of this order with
cost of Rs. 500/-.
2.1 Being aggrieved and dissatisfied with the award dated
06/03/2009 passed by the Labour Court, Bhanvagar, in
Reference (LCB) No.221 of 1999, the petitioner Board has
preferred this petition under Article 226 & 227 of the
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Constitution of India read with the provisions of Industrial
Disputes Act, 1947, with the aforesaid prayers.
3. Heard learned advocate Mr.H.S. Munshaw, appearing on
behalf of the petitioners and learned advocate Mrs.Falguni
Patel, appearing on behalf of the respondent-workman.
4. Learned advocate Mr.Munshaw has submitted that the
respondent-workman has rendered service as a Security Guard
from 1991 to 1995 and from 1995, on account of non-
availability of the work and also the project was completed and
the Office was closed, the respondent-workman was relieved
from the service after following due procedure of law and after
following the provisions of the Industrial Disputes Act, 1947. He
has further submitted that even after terminating the services
of the respondent-workman, the petitioners had not engaged
another security guard in place of the present respondent-
workman. He has further submitted that the Labour Court has
passed the order of reinstatement, which is absolutely illegal,
erroneous and unjust and against the facts of the case, on the
contrary, the Labour Court has considered plethora of
decisions and discussed everything and ultimately, without
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considering he factual submissions made on behalf of the
petitioners, the Labour Court while passing the impugned
award has committed a serious error of law. He has further
submitted that the respondent-workman was appointed purely
on temporary basis as Security Guard for the site where the
goose were lying in the open field and as the project was
completed, the work was also closed and thus the office was
also closed and under such circumstances, the order of
reinstatement is against the fats of the present case. He has
further submitted that so far as the contentions raised by he
petitioner with regard to the provisions of Section 2(oo)(bb)
and Section 25(F)(G) and (H) of the I.D. Act, the Labour Court
as not properly appreciated the said contentions in its true and
proper spirit and therefore, under such circumstances, the
impugned award passed by the Labour Court is erroneous,
illegal and unjust and the same is required to be quashed and
set aside and the present petition be allowed.
5. Per contra, learned advocate Mrs.Falguni Patel, appearing
on behalf of the respondent-workman, has submitted that after
considering the submissions and after considering the
judgments of the Hon'ble Apex Court as well as this Court, the
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Labour Court has rightly passed the impugned award and no
interference is required to be called for. She has further
submitted that the respondent-workman was paid very meager
amount of retrenchment compensation and therefore, the
Labour Court has rightly considered the submissions of the
respondent-workman and passed the impugned award of
reinstatement with 20% back wages. She has further
submitted that as it was observed by the Labour Court that so
far as the provisions of Section 2(oo)(bb) read with Section
25(F)(G) and (H) are concerned, the Labour Court has
considered that since the respondent-workman has completed
240 days and as the petitioner Board has paid the amount of
retrenchment compensation, it is prima facie proved before
the Labour Court that the respondent-workman had completed
240 days and therefore, under such circumstances, the
impugned award passed by the Labour Court is in consonance
with the provisions of law and in consonance with the
judgments of the Hon'ble Apex Court as well as this Court
which are referred and relied upon by the Labour Court and
therefore, the impugned award passed by the Labour Court be
confirmed and the present petition be dismissed.
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6. I have heard the learned advocates appearing for the
respective parties and perused the material placed on record.
It appears that the respondent-workman was appointed in
1991 for the specific project as a Security Guard and it was not
a permanent post and since the project came to be completed
in 1995, the respondent-workman was relieved from the
service after following due procedure of law by paying the
amount of retrenchment compensation and other benefits and
under such circumstances, the Labour Court has committed an
error by passing the award granting reinstatement alongwith
20% back wages. It is also an undisputed fact that the post for
Security Guard was for specific project and therefore, after
following due procedure the petitioner Board had relieved the
respondent-workman after paying the amount of retrenchment
compensation. Considering the fact that the respondent-
workman was appointed as a Security Guard as a daily wager
and he was paid daily wage @ Rs.41/-. Even as per the say of
the respondent-workman that the amount of retrenchment
compensation was very less, meaning thereby, it was agreed
that he was paid and after following due procedure of law he
was relieved from the service, however, at the same time, the
Labour Court has committed a serious error while passing the
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impugned award of reinstatement with 20% back wages.
Considering the facts of the case and considering the ratio laid
down by the Division Bench of this Court in Letters Patent
Appeal No.908 of 2023, this Court deems it just and proper to
award lumpsum compensation since the order of
reinstatement was passed almost before 29 years and
therefore, under such circumstances, this Court is of the
opinion that if the impugned award is modified by granting
lumpsum compensation to the respondent-workman to the
tune of Rs.3 Lakhs in lieu of reinstatement with 20% back
wages towards full and final settlement of the dispute, it would
sub-serve the interest of justice.
7. Accordingly, the present petition is partly allowed. The
impugned award dated 06/03/2009 passed by the Labour
Court, Bhanvagar, in Reference (LCB) No.221 of 1999 is
modified to the extent that, the petitioner Board is hereby
directed to pay lumpsum compensation to the tune of Rs.3
Lakhs in lieu of reinstatement with 20% back wages to the
respondent-workman towards full and final settlement. The
same is to be paid directly to the respondent-workman after
verifying the Bank details and after following due procedure of
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law through RTGS/NEFT or any other appropriate mode, within
a period of 8 weeks from the date of receipt of order of this
Court. Rule is made absolute to the aforesaid extent.
(HEMANT M. PRACHCHHAK,J)
Dolly
