Paschim Gujarat Vij Co Ltd vs Dayalal Laxmanbhai Joshi
2024 Latest Caselaw 8660 Guj

Gujarat High Court

Paschim Gujarat Vij Co Ltd vs Dayalal Laxmanbhai Joshi on 13 September, 2024

                                                                                                            NEUTRAL CITATION




                             C/SCA/250/2009                                JUDGMENT DATED: 13/09/2024

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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                 R/SPECIAL CIVIL APPLICATION NO. 250 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 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 ?

                       =======================================
                                      PASCHIM GUJARAT VIJ CO LTD
                                                  Versus
                                       DAYALAL LAXMANBHAI JOSHI
                       =======================================
                       Appearance:
                       MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
                       MR TR MISHRA(483) for the Respondent(s) No. 1
                       =======================================

                           CORAM:HONOURABLE MR. JUSTICE HEMANT M.
                                 PRACHCHHAK

                                                       Date : 13/09/2024

                                                       ORAL JUDGMENT

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C/SCA/250/2009 JUDGMENT DATED: 13/09/2024

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1. Present petition is filed by the petitioner - employer under Article 226 of the Constitution of India for quashing and setting aside the impugned award dated 31.05.2008 passed by Labour Court, Jamnagar in Reference (L.C.J.) No. 327 of 1995 whereby the Labour Court has allowed the reference and directed the employer to reinstate the workman in service with continuity of service and 25% back wages.

2. Facts of the present case are that the workman was engaged as a casual labour / helper for electrification from month to month and at every time he was issued appointment orders for a month beginning from 27.07.1982 to 20.11.1982 and 01.01.1983 to 29.02.1983. The workman went for apprentice training and given less than a month casual employment from 16.10.1987 to 12.11.1987 and as there was no work, the workman, after the said period and after seven years, worked in 1994 for few days. The the workman was never worked continuously. The workman filed the aforesaid reference before the Labour Court.

3. The Labour Court, after hearing the parties and considering the submissions made on behalf of the respective parties, has allowed the reference.

4. Being aggrieved and dissatisfied with the impugned award passed by the Labour Court, the the employer has preferred the present petition.

5. Heard Mr.Dipak Dave, learned counsel appearing for the employer and Mr.T. R. Mishra, learned counsel appearing for the

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workman at length.

6. Mr.Dave, learned counsel appearing for the employer has submitted that it is an undisputed and admitted fact that the workman was selected and appointed as apprentice and after completion of the period of apprenticeship for three years his name was in the waiting list and as and when vacancy arises, the workman be absorbed in the vacant post, however, in the interregnum period as and when the work was available he was called for temporary period and on work charge basis, he has to join the duty. He has submitted that thereafter since the post was not vacant, the workman was not absorbed on regular post, despite of this fact, the Labour Court has passed the impugned award. It is submitted by Mr.Dave, learned counsel that even the said fact was admitted by the workman in his chief-examination recorded before the Labour Court at Exhibit 24 and in the chief- examination, he has admitted that he was initially appointed as apprentice and for three years, he has undergone training as apprentice and, thereafter, from 1994 again he was allocated the work. He has submitted that from 1988 to 1994, as and when the work was available, the workman was allocated the work and he was appointed during that period as work charge employee and the same was purely temporary and since his name was in the waiting list so as and when the vacancy arise, he was absorbed in the company. He has submitted that the basic question was posed before the Labour Court that the apprentice is not fallen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter be referred to as "the Act"), the Labour Court without considering such fact, passed the impugned award. He has submitted that the Labour Court has committed an error of

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facts and law in directing the employer to reinstate the workman in service with 25% back wages. It is submitted by Mr.Dave, learned counsel that at the time of admission of this petition, the Coordinate Bench of this Court vide order dated 27.03.2009 granted ad-interim relief subject to the compliance of Section 17B of the Act. He has submitted that during the pendency of this petition, the workman reached at the age of superannuation and till the age of superannuation, he was paid the wages under the provisions of Section 17-B of the Act. So far as the dispute relating to the provisions of Section 2(s) of the Act i.e. whether the apprentice is fallen under the provisions of Section 2(s) or not and/or whether the workman can be termed as workman under Section 2(s) of the Act is concerned, Mr.Dave, learned counsel has relied upon the decision of this Court in case of Uttar Gujarat Vij Company Limited Vs. Rathod Arunbhai Baldevbhai reported in 2007 (2) GLR 1623 and submitted that the petition deserves to be allowed and the impugned award deserves to be quashed and set aside.

7. Mr.Mishra, learned counsel appearing for the workman has fairly submitted that originally the workman was appointed as apprentice and from 1992 to 1997, he had worked as apprentice for a period of three years and since his name was also in the waiting list and, thereafter, he has worked as work charge. He has submitted that so far as other aspect is concerned, Mr.Mishra, learned counsel has submitted that thereafter also, time and again, the workman was allocated the work in the employer and he has completed 240 days and, therefore, the Labour Court has rightly considered such aspect while passing the impugned award and hence no interference is required to be

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called for. He has submitted that during the pendency of the proceedings, the workman has filed an affidavit for compliance of the provisions of Section 17-B of the Act that he is not gainful employee and at the time of admission this Court granted such benefit under the said provisions and till the age of retirement, it was complied with, but the workman was not reinstated in service. He has submitted that considering the aforesaid facts, the Court may pass appropriate order.

8. This Court has considered the submissions canvassed by the learned counsel appearing for the respective parties and considered the facts of the case and the decision cited at the Bar. This Court has also gone through the material available on record and perused the impugned award passed by the Labour Court. On perusal of the decision of this Court in the case of Rathod Arunbhai Baldevbhai (supra), it appears that in the said decision this Court has decided identical issue and allowed the petition. Considering the service rendered by the workman from 1986 to 1987 and thereafter from 1988 to 1994, this Court is of the opinion that instead of granting reinstatement a lump sum amount as full and final settlement will serve the end of justice.

9. In view of the above and considering the order passed by the Division Bench of this Court in Letters Patent Appeal No.908 of 2023, this Court deems fit it to grant lump sum compensation of Rs.1,50,000/- as full and final settlement in lieu of the reinstatement instead of reinstatement with 25% back wages. Such amount shall to be paid to the workman by the employer after proper verification of the identity and bank

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details through RTGS / NEFT within a period of eight weeks from the date of receipt of the writ of this order.

10. With the aforesaid conclusion, the petition stands allowed in part. The impugned award passed by the Labour Court, Jamnagar is hereby quashed and set aside and the award is modified to the aforesaid extent. Rule is made absolute accordingly. There shall be no order as to costs.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL