The Port Officer , Gujarat Maritime ... vs Raghubhai Jivabhai Rathod
2025 Latest Caselaw 1231 Guj

Gujarat High Court

The Port Officer , Gujarat Maritime ... vs Raghubhai Jivabhai Rathod on 22 July, 2025

Author: A.S. Supehia

Bench: A.S. Supehia

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                               C/LPA/838/2025                                          ORDER DATED: 22/07/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                         R/LETTERS PATENT APPEAL NO. 838 of 2025
                                      In R/SPECIAL CIVIL APPLICATION NO. 204 of 2025
                                                          With
                                        CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                        In R/LETTERS PATENT APPEAL NO. 838 of 2025
                      ==========================================================
                                  THE PORT OFFICER , GUJARAT MARITIME BOARD & ANR.
                                                         Versus
                                            RAGHUBHAI JIVABHAI RATHOD
                      ==========================================================
                      Appearance:
                      MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1,2
                      MR CHINTAN N DESAI(9940) for the Respondent(s) No. 1
                      ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                               and
                               HONOURABLE MR.JUSTICE R. T. VACHHANI
                                              Date : 22/07/2025
                                              ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The present appeal is arising out of the judgment and order dated 09.04.2025 passed by the learned Single Judge in the captioned writ petition rejecting the writ petition filed by the appellate - Gujarat Maritime Board (GMB), challenging the order passed by the Presiding Officer, Labour Court, Jamnagar in Recovery Application No.13 of 2021, dated 14.11.2024 whereby the GMB was directed to pay an amount of Rs.30,29,574/- to the respondent - employee.

2. The facts, incorporated by the learned Single Judge in Paragraph No.3, 3.1. 3.2 of the said judgment and order, are not disputed. Paragraph nos.3, 3.1 and 3.2 are reproduced as under :-

"3. The gist of case is that the respondent was appointed as a plumber

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on 27.06.1983 with the petitioner Board, and his services were terminated on 01.09.1984 which was challenged before the learned Reference Court by filing the Reference being Reference (IT) No.2082 of 1984 (renumbered as Reference No.248 of 1990) wherein the learned labour Court has awarded the reinstatement without back wages vide order dated 21.09.2000. Pursuant to the said award, the respondent was reinstated in service on 29.07.2001 and was granted the benefit of Government Resolution dated 17.10.1988 on completion of 10 years of service, with effect from 20.03.2012. Subsequently, the respondent raised a claim for regularization of service by filing Reference (IT) No.118 of 2012 before the learned Labour Court, which culminated in an award dated 09.10.2015, directing the petitioner to regularize the services of the respondent on completion of 240 days. The learned Labour Court further observed that the period from 21.07.1983 to 09.10.2015 shall be treated notionally, and no recovery shall be made for the benefits granted under the Government Resolution dated 17.10.1988.

3.1. Challenging the above order, the petition was filed before this Court being Special Civil Application No.941 of 2016 by the workman to the extent of denial of back wages, which came to be rejected by this Court vide order dated 25.06.2018.Thereafter, the employer also filed a petition being Special Civil Application No.13300 of 2020, after dismissal of the workman's petition, which too came to be rejected by this Court vide order dated 28.10.2020 with costs of Rs.10,000/-.

3.2. Challenging the order passed in writ petition, the employer- petitioner has filed an intra-court appeal being Letters Patent Appeal No.211 of 2021, which also came to be rejected by this Court on 14.07.2022. Thereafter, the petitioner has approached to the Apex Court by filing the Special Leave Petition being No.7685 of 2023, which too was rejected on 27.03.2023. Despite the conclusion of the aforementioned litigation, the benefits awarded in favour of the respondent-workman were not released. Consequently, Criminal Case No.137 of 2020 was filed for breach of the order, wherein the Criminal Court held the petitioner guilty and imposed punishment of imprisonment till the rising of the Court along with a fine of Rs.20,000/- on 13.09.2024. Despite the same, the benefits arising out of the award dated 09.10.2015 have not been released in favour of the respondent. Hence, an application under Section 33C(2) of the Industrial Disputes Act, 1948 ('the I.D. Act' hereinafter) came to be filed before the learned Labour Court, which was allowed in favour of the respondent on 14.11.2024, which is subject matter of challenge before this Court."

3. Ms.Sejal Mandavia, learned advocate appearing for the appellant-GMB submitted that the learned Single Judge has erred in rejecting the writ petition challenging the order passed

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by the Labour Court in Recovery Application No.13 of 2021 since the respondent - employee who was appointed as a 'Plumber' on 27.06.1983, has not worked till 2001 when he was reinstated in service, and hence, this period cannot be considered for granting the benefits, as directed by the Labour Court. It is submitted that the respondent - employee, who was terminated on 01.09.1984 filed the reference proceedings after six years from the date of termination and he had only worked for one and half years, thus, he is not entitled to any benefits, as directed by the Labour Court. She has submitted that the aforesaid period may be deleted and the benefits can be confined from 2001 onwards, as the employee is already granted the benefits of the Government Resolution dated 17.10.1988. No further submissions are made.

4. Per contra, learned advocate Mr.Chintan Desai, appearing for the respondent has submitted that at this stage, after the entire proceedings, which have culminated in favour of the respondent

- employee, the benefits, as directed by the Labour Court, may not be diluted. It is urged that the learned Single Judge has considered all the orders passed in favour of the respondent - employee right from 1990 onwards and the appellate - GMB has failed in all the proceedings. So far as the ground for delay is concerned, learned advocate Mr.Chintan Desai has submitted that the same is futile at this stage, since it is not open for the GMB to contend that the initial reference proceedings challenging the termination in the year 1984, were belated as the illegal termination, which has been set aside by the Labour

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court, has already become final in the former proceedings. Thus, it is urged that the order passed by the learned Single Judge may not be interfered.

5. There is chequered history to the present litigation. The respondent - employee, who was serving as a 'Plumber' in the appellant - GMB, was appointed on 27.06.1983 and he was terminated on 01.09.1984.

6. The said termination culminated into the reference proceedings being Reference (IT) No. 248 of 1990 wherein the Labour Court has awarded reinstatement of the respondent - employee without back wages vide award dated 21.09.2000. On a bare perusal of the said award, the facts, as noted therein, manifest that there is no delay on the part of the respondent -employee in challenging his termination. He immediately raised a dispute and ultimately, by the award dated 21.09.2000, the Labour Court, Jamnagar allowed the reference in favour of the respondent - employee and directed the GMB to reinstate him in service, however no back wages were awarded.

7. Accordingly, the respondent - employee was reinstated in service on 29.07.2001 and he was granted the benefits arising from the Government Resolution dated 17.10.1988 for completion of 10 years of service on 20.03.2012.

8. Thereafter, the respondent - employee raised a demand of regularization of service upon completion of 240 days. The same culminated into Reference (IT) No. 118 of 2012. The

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Labour Court, vide award dated 09.10.2015 passed in the Reference (IT) No. 118 of 2012 , directed the appellant - GMB to regularize the employee upon completion of 240 days. Further, a clarification was issued by the Labour Court that the period from 21.06.1983 till 09.10.2015 shall be treated as notional and no recovery, pursuant to the benefits of Government Resolution dated 17.10.1988 shall be made. The respondent - employee challenged the aforesaid award to the extent of treating the period as notional by filing a writ petition being Special Civil Application No.941 of 2016. The said writ petition was rejected by this Court vide order dated 25.06. 2018. The appellant - GMB also challenged the same award by filing writ petition being Special Civil Application No. 13300 of 2020, which came to be rejected by the order dated 28.10.2020 with a cost of Rs.10,000/-. The appellate - GMB challenged the order of learned Single Judge by filing Letters Patent Appeal No.211 of 2021, which was also rejected by the order dated 14.07.2022.

9. Special Leave to Petition No.7685 of 2023 filed by the appellant

- GMB before the Supreme Court was also rejected on 27.03.2022. It is pertinent to note that the respondent - employee filed Criminal Case No. 137 of 2020 for breach of award and by the order dated 13.09.2024, the GMB was held guilty and imposed a punishment till rising of the Court and fine of Rs.20,000/-. It appears that during the intervening period, the respondent - employee filed Recovery Application No.13 of 2021 under Section 33 C (2) of the Industrial Disputes Act,

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1947 claiming the resultant monetary benefits, which has been allowed by the Labour Court by award/order dated 14.11.2022. The aforesaid award/order dated 14.11.2022 was challenged by the GMB before this Court by filing Special Civil Application No.204 of 2025. Learned Single Judge has rejected the aforesaid writ petition filed by the appellant - GMB by observing in paragraph nos.7.3 7.4. 7.6, 7.7, 8, and 9 as under :-

"7.3 Before the learned Labour Court, in the recovery proceedings initiated under Section 33C(2) of the I.D. Act, the admission made by the present petitioner is required to be referred, which is reproduced hereinbelow:

It is true that as per the award passed in Reference (IT) No.118 of 2012 no order is passed regularizing the workman and no any pay fixation was done and nor it is paid. In the petitioner institute there are two types of employees one is regular employee and another is the beneficiary of G.R. dated 17.10.1988. It is admitted that till the retirement of the workman the higher pay scale is not given. It is also admitted that according to mark 4/1 which is the communication of the petitioner institute, 240 days of the workman has completed in the month of August 1984. As per mark 4/27 which is the guidelines issued by the government wherein the pay-scale of Plumber is figured at serial no.88 which suggests that the pay scale is 4000-6000 and after 6th pay commission 5200-23200. It is admitted that till the retirement of the employee the pay scale of 5200-23200 is not paid by the petitioner neither any benefits of the regular employee was given however, the benefits of G.R. dated 17.10.1988 has been released in favour of the respondent.

7.4. On considering the cross examination of the witness of the petitioner and in absence of any contrary evidence adduced to establish the calculation placed by the respondent is erroneous, the learned Reference Court has directed the petitioner to pay the amount of Rs.30,29,574/-. On refering the calculation, which is the part of the reply, it reveals that total entitlement of respondent was Rs.49,64,287/- however, by granting the benefit of G.R. dated 17.10.1988 the payment of Rs.19,29,713/- was done and therefore, difference amount of Rs.30,29,574/- was ordered to pay to the respondent.

7.6. To test the above submission, this Court has examined the reasoning assigned by the learned Labour Court in Reference (IT) No.118 of 2000, wherein it was specifically observed that the respondent is entitled to the benefit of regularization upon completion of 240 days from the date of initial appointment, and that he is required to be paid the benefits accordingly. It is observed by the learned Reference Court that when the termination was held illegal, unless continuity of service had been specifically denied, the benefit of continuity of service is required to be granted in favour of the respondent as if the same is not granted and workman would be relegated to the same position as was held by him at the time of termination of service. Learned labour Court while observing the

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above, has relied on the decision rendered by this Court in the case of Vasantika R. Dalia vs. Baroda Municipal Corporation, reported in CLR 1998 32.

7.7. As the above order passed by the learned labour Court dated 09.10.2015 is affirmed upto Hon'ble Supreme Court,it is not open for the petitioner at this stage to contend before this Court that the benefit of regularization is not required to be granted from the completion of 240 days from the initial date of appointment, and that the same ought to be granted only from the date of reinstatement. Even if, the argument made by the petitioner is accepting then also it is not the case of the petitioner that benefits were released in favour of the respondent on completion of 240 days from 2001. The only contention is that as they had been given the benefit of G.R. dated 17.10.1988, no other claim can be made. This is nothing but flouting the order passed by this Court, affirmed by the Apex Court and this Court is of the view that no one can be permitted to take proceedings of the Court as a leisure-rich.

8. This Court has referred the decision rendered by the Apex Court in the case of Board of Directors of the South Arcot Electricity Distribution Co. Ltd.

Vs.N.K.Mohammed Khan, etc., reported in (1969) 1 SCC 192 and M.Selvaraj Daniel Versus Management Of State Bank Of India, reported in (1964) 3 SCR 275 wherein it is held that the learned labour Court has jurisdiction to determine the question, whether the right existed and if existence of the right is established then to compute the benefit flowing there from into money and on its decision the recovery proceedings can start.

9. This Court is of the opinion that the liability arises from an award and a mere denial of the right by the employer may not be sufficient to negative the claim made under section 33C(2) of the I.D.Act before the learned labour Court and same could not take away the jurisdiction of the learned labour Court. Jurisdiction of the learned labour Court is not confined to the admitted claims and existing right does not mean an admitted right. It only means that the right to claim exists and vest in the workman."

10. We are in complete agreement with the observations recorded by the learned Single Judge. As recorded by the learned Single Judge hereinabove in paragraph No.7.3, it is an admitted fact that the appellant - GMB has not paid any benefits of higher pay-scale, pay-fixation, 6th Pay-Scale etc., which arise from the award, as mentioned inabove. In light of the specific admission in the cross-examination of the witness of the appellant - GMB about non-payment of the benefits of pay-scale, as mentioned above, we do not find any infirmity in the order passed by the

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Labour Court. The learned Single Judge, after threadbare examination of the facts, more particularly, in wake of the fact that the appellant - GMB has failed in every stage right from the award of reinstatement till the order of regularization, the consequential benefits arising from such proceedings are required to be paid by the GMB to the respondent - employee. Hence, we do not find any convincing reason to interfere either with the order passed by the Labour Court or with the order passed by the learned Single Judge. The writ petition fails. Hence, the same is rejected. The directions issued by the learned Single Judge, to pay the amount of Rs.30,29,574/- within a period of 45 days from the date of receipt of a copy of the judgment, failing which, an interest of 6% shall be paid on the amount of Rs.30,29,574/-, is confirmed and as precisely observed by the learned Single Judge, the amount of interest shall be recovered from the salary of the erring officer, on whose part the delay is caused.

(A. S. SUPEHIA, J)

(R. T. VACHHANI, J) MOHMMEDSHAHID/21