Gujarat High Court
State Of Gujarat vs Bhavesh Jinabhai Rathod on 13 September, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/1233/2017 JUDGMENT DATED: 13/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1233 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 10831 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
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 ?
==========================================================
STATE OF GUJARAT
Versus
BHAVESH JINABHAI RATHOD & ANR.
==========================================================
Appearance:
MR SAHIL TRIVEDI, AGP for the Appellant(s) No. 1
DELETED for the Respondent(s) No. 2
KHUSHBU D CHHAYA(8093) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/09/2024
ORAL JUDGMENT
(PER: HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
NEUTRAL CITATION
C/LPA/1233/2017 JUDGMENT DATED: 13/09/2024
undefined
1. This appeal under Clause 15 of the Letters Patent, 1865,
is directed against the order dated 13.10.2016 in Special Civil
Application No.10831 of 2015, wherein Learned Single Judge
has rejected the petition filed by the appellant-State.
2. Facts on record are to the effect that the respondent-
workman was engaged with the appellant-department on daily
wage basis since 1994 and terminated in the year 2002. It was
case of the respondent-workman that he worked continuously
from the year 1994 and terminated illegally in the year 2002.
For his termination, he raised dispute before the Labour Court,
Rajkot registered as Reference (LCR) No.37 of 2003. The
Learned Labour Court, Rajkot, upon adjudication, partly
allowed the Reference and by an award dated 12.04.2014,
directed the appellant-state to reinstate the respondent-
workman with continuity of service, without back wages.
Aggrieved by the award dated 12.04.2014, the appellant-state
preferred the captioned writ petition wherein, learned Single
Judge held that no interference is required in the award dated
12.04.2014. Against rejection of petition, the present appeal is
filed by the appellant-State.
3. Heard learned Assistant Government Pleader Mr.Sahil
Trivedi for the appellant-State and Ms.Khushbu Chhaya for the
NEUTRAL CITATION
C/LPA/1233/2017 JUDGMENT DATED: 13/09/2024
undefined
respondent-employee.
4. Learned Assistant Government Pleader Mr.Sahil Trivedi
for the appellant-State submitted that the order of the learned
Single Judge is erroneous since the learned Single Judge has
erred in not appreciating that not a single evidence was
placed on record by the workman to establish that he had
worked with the appellant from 1994 to 2002, and he
completed 240 days in a preceding year. Further, the
respondent-workman being daily wager, finding recorded by
the Labour Court that there was breach of Section 25-F of the
Act, is erroneous. Most importantly, it was held by the Labour
Court that the workman failed in establishing breach of Section
25 G and 25H of the Act. In absence of any breach of Section
25G and 25H of the Act, the workman would not be entitled
to reinstatement with continuity of service, this aspect Learned
Single Judge failed to appreciate.
Further, pursuant to the order dated 31.01.2018 of co-
ordinate bench, implementation and execution of order of
Learned Single Judge dated 13.10.2016, was stayed subject to
payment of wages under section 17-B of the Industrial Disputes
Act. Accordingly, the workman was paid wages under Section
17B of the Act. Thus, there being merit in the Appeal the
same may be allowed.
NEUTRAL CITATION
C/LPA/1233/2017 JUDGMENT DATED: 13/09/2024
undefined
5. On the other hand, learned advocate Ms.Khushbu Chhaya
appearing for the respondent-workman submitted that Labour
Court has rightly held that since the workman was not given
any attendance card or pay slip, the averment made in the
claim statement of his completing 240 days in a year was
correct. Therefore, breach made of section 25-F was
appropriately held by the Labour Court and confirmed by
Learned Single Judge. Since, the workman was terminated
illegally despite having availability of work, the award of
reinstatement with continuity of service being just and legal
no interference is warranted.
6. Considered the submissions and documents on record.
From the record, it is noticed that for termination of the year
2002, the workman raised dispute before Labour Court Rajkot.
Before Labour Court, no contrary documents/evidences were
produced by the Appellant, and therefore, in our opinion the
Labour Court rightly held that completion of 240 days in a
year was established. Further, prior to termination no
procedure was followed and thus there was reach of Section
25-F of the Act, which the Labour Court had rightly held and
confirmed by Learned Single Judge.
7. In relation to breach of Sections 25-G and 25-H of the
Act, it was held by the Labour Court that the workman failed
NEUTRAL CITATION
C/LPA/1233/2017 JUDGMENT DATED: 13/09/2024
undefined
in establishing his case for breach of Section 25-G and 25-H of
the Act. In cross examination, the workman failed in giving
name of a junior workman who were continued in service or
any new person employed in his place. Therefore, the Labour
Court held that there was no breach of Section 25-G and 25-H,
as alleged and the said findings have been confirmed by
Learned Single Judge. We have noticed that the above finding
was based on evidence on record. In absence of breach of
Section 25-G and 25-H of the Act, in our opinion, direction to
reinstate the workman with continuity of service is erroneous.
In view of breach of Section 25-F of the Act, in our opinion,
the workman would be entitled for lump sum compensation.
8. Taking guidance from the order passed by coordinate
bench of this Court in Letters Patent Appeal No.908 of 2023,
wherein, in cases where the workman had worked for 5 to 10
years, lump sum compensation of Rs.3,00,000/- has been
awarded. In this case, the respondent-workman had worked
for 7 years and therefore, in our opinion he would be entitled
to lump sum compensation of Rs.3,00,000/-. Further, pursuant
to the order dated 31.01.2018 the workman was paid wages
under section 17-B of the Act.
9. Thus, the order of learned Single Judge is modified to the
extent that in view of breach of section 25-F of the Act, the
NEUTRAL CITATION
C/LPA/1233/2017 JUDGMENT DATED: 13/09/2024
undefined
respondent-workman would be entitled to Rs.3,00,000/- as
lump sum compensation in lieu of reinstatement with
continuity of service. The appellant state is directed to pay
Rs. 3,00,000/- to the respondent. This appeal is thus, partly
allowed.
sd/-
(A. S. SUPEHIA, J)
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL...
