Gujarat High Court
State Of Gujarat vs Jagdish Dahyabhai Parmar on 10 September, 2024
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C/SCA/9619/2023 JUDGMENT DATED: 10/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9619 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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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 copyNo
of the judgment ?
4 Whether this case involves a substantial questionNo
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
JAGDISH DAHYABHAI PARMAR
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Appearance:
MS SURBHI BHATI AGP for the Petitioner(s) No. 1
JEET Y RAJYAGURU(8039) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 10/09/2024
ORAL JUDGMENT
1. RULE. Mr.Jeet Rajyaguru, learned Counsel waives
service of notice of rule on behalf of the respondent. With
consent of the parties, the petition is taken up for final
disposal today.
2. The petitioner has preferred present petition under
Articles 226 and 227 of the Constitution of India read
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with the provision of the Industrial Disputes Act, 1947
challenging the impugned award dated 5.11.2022 passed
by the Labour Court, Rajkot in Reference (LCR) Case
No.52 of 2009 with below mentioned relief/s:-
"(A) This Hon'ble Court may be pleased to admit this
Special Civil Application.
(B) This Hon'ble Court may be pleased to quash and set
aside the Judgment and Award dated 05.11.2022 passed
by the Ld. Labour Court at Rajkot in Reference (LCR)
Case No. 52 of 2009. At Annex "A".
(C) This Hon'ble Court may be pleased to stay the
implementation of the Judgment and Award dated
05.11.2022 passed by the Ld. Labour Court at Rajkot in
Reference (LCR) Case No. 52 of 2009. At Annx "A"
(D) Grant such other and further relief/s as may be
deemed jus and proper in the circumstances of the
case."
3. Ms. Surbhi Bhati, learned Assistant Government
Pleader for the petitioner has submitted that there was no
oral or documentary evidence in support of say of the
workman that he has completed 240 days. She has
further submitted that the petitioner has produced
documentary evidence before the Labour Court however,
the Labour Court has rejected the contention of the
present petitioner and allowed the reference in part and
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directed the petitioner to reinstate the workman without
backwages, which is illegal and against the facts of the
present case.
3.1 Ms. Surbhi Bhati, learned Assistant Government
Pleader for the petitioner has also submitted that from
the documentary evidence produced by the petitioner, it
reveals that the respondent workman has not completed
240 days in any calendar year from 1996 to 1998,
however, without considering that fact, the labour Court
has passed the impugned award. She has further
submitted that from the copy of the muster-roll produced
before the Labour Court, it transpires that the respondent
has not completed 240 days in calendar year.
3.2 It is also submitted by Ms. Bhati, learned Assistant
Government Pleader that the reference was filed before
the Labour Court after period of almost 9 years from the
date of termination and hence, delay in preferring the
proceedings has come into play and therefore, the
petition deserves to be allowed. She has further
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submitted that the said fact was not considered by the
labour Court in its true and proper spirit. She has
submitted that there are settled legal principles and the
judgments of the Hon'ble Apex Court and without
referring or relying upon the or without discussing the
legal settled principles of the Hon'ble Apex Court, the
labour Court has passed the impugned award, whereby
labour Court has directed the petitioner to reinstate the
concerned workman without backwages, which is illegal
and unjust.
3.3 Ms. Surbhi Bhati, learned Assistant Government
Pleader for the petitioner has relied upon the decision of
the Hon'ble Apex Court in the case of Prabhakar vs.
Joint Director Sericulture Department and Ors.
reported in (2015) 15 SCC 1.
3.4 Ms. Surbhi Bhati, learned Assistant Government
Pleader for the petitioner has also relied upon the
decision of the Hon'ble Apex Court in the case of Krishi
Utpadan Mandi Samity vs. Pahal Singh reported in
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(2007) 12 SCC 19,3 wherein the Hon'ble Apex Court
has observed as under:-
"11. It is now well-settled principle of law that "delay
defeats equity".
12. The Labour Court exercises its wide jurisdiction
under Section 11A of the Industrial Disputes Act, but
such jurisdiction must be exercised judiciously. A relief
of re-instatement with all back wages is not to be given
without considering the relevant factors therefor, only
because it would be lawful to do so. As noticed
hereinbefore, in this case, even the basic requirements
for grant of any relief had not been found by Labour
Court."
3.5 Ms. Surbhi Bhati, learned Assistant Government
Pleader has further relied upon the decision of the
Hon'ble Apex Court in the case of Assistant Engineer,
CAD, Kota vs. Dhan Kunwar reported in (2006) 5
SCC 481, wherein Hon'ble Apex Court has held as
under:-
"6. However, certain observations made by this Court
need to be noted. In Nedungadi Bank Ltd. v. K.P.
Madhavankutty and Ors. (2000 (2) SCC 455) it was
noted at paragraph 6 as follows:
"6. Law does not prescribe any time-limit for the
appropriate Government to exercise its powers
under Section 10 of the Act. It is not that this
power can be exercised at any point of time and to
revive matters which had since heel) settled.
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Power is to be exercised reasonably and in a
rational manner. There appears to us to be no
rational basis on which the Central Government
has exercised powers in this case after a lapse of
about seven years of the order dismissing the
respondent from service. At the time reference was
made no industrial dispute existed or could be even
said to have been apprehended. A dispute which is
stale could not be the subject-matter of reference
under Section 10 of the Act. As to when a dispute
can be said to be stale would depend on the facts
and circumstances of each case. When the matter
has become final, it appears to us to be rather
incongruous that the reference be made
under Section 10 of the Act in the circumstances
like the present one. In fact it could be said that
there was no dispute pending at the time when the
reference in question was made. The only ground
advanced by the respondent was that two other
employees who were dismissed from service were
reinstated. Under what circumstances they were
dismissed and subsequently reinstated is nowhere
mentioned. Demand raised by the respondent for
raising an industrial dispute was ex-facie bad and
incompetent."
3.6 In view of the above observations, Ms. Bhati, learned
Assistant Government Pleader for the petitioner has
submitted that the delay in preferring the proceedings is
proved to be fatal and therefore, the concerned workman
is not entitled to get any relief. She has further submitted
that on the same line, present case may also be decided
and the petition may be allowed and the impugned order
may be quashed and set aside.
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4. On the other hand, Mr. Rajyaguru, learned Counsel for
the respondent has submitted that in the deposition, the
witness on behalf of the petitioner, has specifically states
on oath before the Labour Court that the petitioner has,
after reliving the present respondent has appointed other
labourer and they are still working with the petitioner
and therefore, there is a clear breach of the provision of
Sections 25G and H of the I.D. Act. He has further
submitted that under such circumstances, the delay is not
proved to be fatal and therefore, the delay cannot come in
the way of the present petitioner to challenge the
impugned illegality.
4.1 Mr.Rajyaguru, learned Counsel for the respondent
urges before the Court that present petition may be
dismissed and the impugned order passed by the Labour
Court may be upheld.
5. I have considered the material and relevant
documents produced on record. I have also gone through
the award passed by the labour Court along with relevant
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papers appended thereto.
6. It transpires from the record that the Labour Court has
on page 17 of the award has referred the deposition and
cross examination of the concerned witness, wherein it
was specifically observed that after reliving the present
respondent, the petitioner has engaged so many persons
and they are working since last 10 years and therefore,
under such circumstances, it is required to be noted here
in that it is a clear violation of Section 25G and H of the
I.D. Act.
7. In view of the facts and circumstances of the case, this
Court is of the opinion that the petition does not deserve
to be entertained and the same deserves to be dismissed.
However, considering the fact that from 1999, the
respondent is out of job and now almost 25 years have
already been passed, it is deemed just and proper that
instead of reinstatement and other consequential relief,
the amount of lumpsum compensation towards the full
and final settlement can be awarded in favour of the
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respondent workman.
8. Hence, the petitioner is hereby directed to pay
Rs.2,50,000/- to the concerned workman towards the
lumpsum compensation for full and final settlement. The
same shall be paid to the concerned workman, after
verifying the bank details through RTGS/NEFT, within
period of 8 weeks from the date of receipt of copy of writ
of present order
9. The impugned award dated 5.11.2022 passed by the
Labour Court, Rajkot in Reference (LCR) Case No.52 of
2009 is hereby modified to the aforesaid extent. The
petition is partly allowed. Rule is made absolute to the
aforesaid extent.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
