[Cites 13, Cited by 0]
Gujarat High Court
State Of Gujarat vs Dhulabhai Fulabhai Malivad on 27 April, 2026
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C/SCA/12731/2020 ORDER DATED: 27/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12731 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 12731 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 774 of 2021
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STATE OF GUJARAT & ANR.
Versus
DHULABHAI FULABHAI MALIVAD & ANR.
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Appearance: In Special Civil Application No.12731 of 2020
MS SWEETY SAMARA, AGP for the Petitioner(s) No. 1,2
MR PARESH J BRAHMBHATT(9788) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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Appearance: In Special Civil Application No.774 of 2021
MR PARESH J BRAHMBHATT(9788) for the Petitioner(s) No. 1
MS SWEETY SAMARA, AGP for the Petitioner(s) No. 1,2
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 27/04/2026
COMMON ORAL ORDER
1. Both the writ petitions challenge the award dated 04.02.2019
passed in Reference (T) No.349 of 1999, whereby the learned
Labour Court has granted reinstatement to the respondent-workman
with continuity in service and without any back-wages.
2. For the sake of convenience, the parties are referred to as per
the cause title in Special Civil Application No.12731 of 2020.
3. It is the case of the petitioner that the respondent-workman
was appointed on 01.08.1996 as a daily wager watchman on a
monthly pay of Rs.750/-. That the service of the respondent-
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workman came to be terminated on 15.04.1998. That thereafter, the
respondent-workman raised dispute on 23.11.1998 before the
Assistant Labour Commissioner, Godhra, who by communication
dated 03.04.1999 has made the reference to the Labour Court. Both
the parties have led evidence in support of their contentions. It is the
case of the petitioner that the respondent-workman has only worked
for 70 days in the year 1995-1996 and for 122 days in the year 1996-
1997. It is further the case of the petitioner that there was no
continuous service rendered by the respondent-workman during the
said period. It is also further the case of the petitioner that the
respondent-workman was engaged intermittently on a project, which
came to an end once the grant allocation was completed. The learned
Labour Court after appreciating the evidence and the contentions
raised on behalf of the parties, has concluded that the the service of
the respondent-workman came to be terminated on 15.04.1998. The
witness, who has deposed on behalf of the petitioner was not
personally aware of the facts of the case of the respondent-workman
and therefore, could not prove the contention. Accordingly, by the
impugned award, the learned Labour Court has held that the
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termination of the respondent-workman was in contravention of the
provisions of the Industrial Disputes Act, 1947 ("ID Act" for short)
and has thus, granted reinstatement in service with continuity and
without any back-wages.
4. In the present case, the reference was made on 03.04.1999 and
has been decided by the learned Labour Court on 04.02.2019 after a
period of 20 years. Further, the respondent-workman has attained the
age of superannuation in the year 2022 and the impugned award has
also not been implemented.
5. Considering the facts and circumstances of the present case,
the respondent-workman herein has worked from 01.08.1996 till
15.04.1998 i.e. for a period of 1 year and 8 months. The petitioner
thereafter has not been reinstated and has purportedly attained the
age of superannuation in the year 2022.
6. In the case of State of Uttarakhand v. Raj Kumar, (2019) 14
SCC 353, the Apex Court has held thus:-
"9.In our opinion, the case at hand is covered by the two
decisions of this Court rendered in BSNL v. Bhurumal [BSNL v.
Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] and Distt.
Development Officer v. Satish Kantilal Amrelia [Distt.
Development Officer v. Satish Kantilal Amrelia, (2018) 12 SCC
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298 : (2018) 2 SCC (L&S) 276] .
10. It is apposite to reproduce what this Court has held in BSNL
[BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] :
(SCC p. 189, paras 33-35)
"33. It is clear from the reading of the aforesaid judgments
that the ordinary principle of grant of reinstatement with
full back wages, when the termination is found to be illegal
is not applied mechanically in all cases. While that may be
a position where services of a regular/permanent workman
are terminated illegally and/or mala fide and/or by way of
victimisation, unfair labour practice, etc. However, when it
comes to the case of termination of a daily-wage worker
and where the termination is found illegal because of a
procedural defect, namely, in violation of Section 25-F of the
Industrial Disputes Act, this Court is consistent in taking
the view that in such cases reinstatement with back wages
is not automatic and instead the workman should be given
monetary compensation which will meet the ends of justice.
Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement in
such cases are obvious. It is trite law that when the
termination is found to be illegal because of non-payment of
retrenchment compensation and notice pay as mandatorily
required under Section 25-F of the Industrial Disputes Act,
even after reinstatement, it is always open to the
management to terminate the services of that employee by
paying him the retrenchment compensation. Since such a
workman was working on daily-wage basis and even after
he is reinstated, he has no right to seek regularisation [see
State of Karnataka v. Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus
when he cannot claim regularisation and he has no right to
continue even as a daily-wage worker, no useful purpose is
going to be served in reinstating such a workman and he
can be given monetary compensation by the Court itself
inasmuch as if he is terminated again after reinstatement,
he would receive monetary compensation only in the form
of retrenchment compensation and notice pay. In such a
situation, giving the relief of reinstatement, that too after a
long gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There
may be cases where termination of a daily-wage worker is
found to be illegal on the ground that it was resorted to as
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unfair labour practice or in violation of the principle of last
come first go viz. while retrenching such a worker daily
wage juniors to him were retained. There may also be a
situation that persons junior to him were regularised under
some policy but the workman concerned terminated. In
such circumstances, the terminated worker should not be
denied reinstatement unless there are some other weighty
reasons for adopting the course of grant of compensation
instead of reinstatement. In such cases, reinstatement
should be the rule and only in exceptional cases for the
reasons stated to be in writing, such a relief can be
denied."
11. Here is also a case where the respondent claimed to have
worked as daily wager hardly for a period of one year or so in
PWD of the State; secondly, he had no right to claim
regularisation; thirdly, he had no right to continue as daily wager
and lastly, the dispute was raised by the respondent (workman)
almost after 25 years of the alleged termination before the Labour
Court.
12. It is for these reasons, we are of the view that the case of the
respondent would squarely fall in the category of cases discussed
by this Court in para 34 of the judgment rendered in BSNL [BSNL
v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] .
13. In view of the forgoing discussion, we are of the considered
view that it would be just, proper and reasonable to award lump
sum monetary compensation to the respondent in full and final
satisfaction of his claim of reinstatement and other consequential
benefits by taking recourse to the powers under Section 11-A of
the Act and the law laid down by this Court in BSNL case [BSNL
v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] .
14. Having regard to the totality of the facts taken note of supra,
we consider it just and reasonable to award a sum of Rs
1,00,000 (Rupees one lakh) to the respondent in lieu of his right to
claim reinstatement and back wages in full and final satisfaction
of this dispute in place of Rs 30,000 awarded by the Labour
Court. Only to this extent we modify the award of the Labour
Court in quantum of award of compensation by enhancing it from
Rs 30,000 to Rs 1,00,000 (Rupees one lakh)."
7. In the case of Hari Nandan Prasad and another Vs.
Employer I/R to Management of Food Corporation of India and
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another, (2014) 7 SCC 190, the Apex Court has held thus:-
"19. The following passages from the said judgment would reflect
the earlier decisions of this Court on the question of
reinstatement: (BSNL case [BSNL v. Bhurumal, (2014) 7 SCC
177], SCC pp. 187-88, paras 29-30)
"29. The learned counsel for the appellant referred to two
judgments wherein this Court granted compensation instead
of reinstatement. In BSNL v. Man Singh [(2012) 1 SCC 558 :
(2012) 1 SCC (L&S) 207] , this Court has held that when the
termination is set aside because of violation of Section 25-F
of the Industrial Disputes Act, it is not necessary that relief
of reinstatement be also given as a matter of right. In
Incharge Officer v. Shankar Shetty [(2010) 9 SCC 126 :
(2010) 2 SCC (L&S) 733] , it was held that those cases where
the workman had worked on daily-wage basis, and worked
merely for a period of 240 days or 2 to 3 years and where
the termination had taken place many years ago, the recent
trend was to grant compensation in lieu of reinstatement.
30. In this judgment of Shankar Shetty [(2010) 9 SCC 126 :
(2010) 2 SCC (L&S) 733] , this trend was reiterated by
referring to various judgments, as is clear from the following
discussion: (SCC pp. 127-28, paras 2-4)
'2. Should an order of reinstatement automatically follow in
a case where the engagement of a daily-wager has been
brought to an end in violation of Section 25-F of the
Industrial Disputes Act, 1947 (for short "the ID Act")? The
course of the decisions of this Court in recent years has been
uniform on the above question.
3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board
[Jagbir Singh v. Haryana State Agriculture Mktg. Board,
(2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] , delivering the
judgment of this Court, one of us (R.M. Lodha, J.) noticed
some of the recent decisions of this Court, namely, U.P. State
Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC
479 : 2006 SCC (L&S) 250], Uttaranchal Forest Development
Corpn. v. M.C. Joshi [(2007) 9 SCC 353 : (2007) 2 SCC (L&S)
813], State of M.P. v. Lalit Kumar Verma [(2007) 1 SCC 575 :
(2007) 1 SCC (L&S) 405], M.P. Admn. v. Tribhuban [(2007) 9
SCC 748 : (2008) 1 SCC (L&S) 264], Sita Ram v. Moti Lal
Nehru Farmers Training Institute [(2008) 5 SCC 75 : (2008) 2
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SCC (L&S) 71], Jaipur Development Authority v. Ramsahai
[(2006) 11 SCC 684 : (2007) 1 SCC (L&S) 518], GDA v. Ashok
Kumar [(2008) 4 SCC 261 : (2008) 1 SCC (L&S) 1016] and
Mahboob Deepak v. Nagar Panchayat, Gajraula [(2008) 1
SCC 575 : (2008) 1 SCC (L&S) 239] and stated as follows:
(Jagbir Singh case [Jagbir Singh v. Haryana State
Agriculture Mktg. Board, (2009) 15 SCC 327 : (2010) 1 SCC
(L&S) 545] , SCC pp. 330 & 335, paras 7 & 14)
"7. It is true that the earlier view of this Court articulated in
many decisions reflected the legal position that if the
termination of an employee was found to be illegal, the relief
of reinstatement with full back wages would ordinarily
follow. However, in recent past, there has been a shift in the
legal position and in a long line of cases, this Court has
consistently taken the view that relief by way of
reinstatement with back wages is not automatic and may be
wholly inappropriate in a given fact situation even though
the termination of an employee is in contravention of the
prescribed procedure. Compensation instead of
reinstatement has been held to meet the ends of justice.
***
14. It would be, thus, seen that by a catena of decisions in
recent time, this Court has clearly laid down that an order
of retrenchment passed in violation of Section 25-F although
may be set aside but an award of reinstatement should not,
however, be automatically passed. The award of
reinstatement with full back wages in a case wherethe
workman has completed 240 days of work in a year
preceding the date of termination, particularly, daily-wagers
has not been found to be proper by this Court and instead
compensation has been awarded. This Court has
distinguished between a daily-wager who does not hold a
post and a permanent employee."
11. In view of the aforesaid legal position and the fact that the
workmen were engaged as daily-wagers about 25 years back
and they worked hardly for 2 or 3 years, relief of reinstatement
and back wages to them cannot be said to be justified and
instead monetary compensation would subserve the ends of
justice.'"
8. In the present case, the respondent-workman has worked for a
period of only around 18 months as a daily wager watchman. He was
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appointed without following any due procedure of law. He had no
right to claim regularization and also no right to continue as a daily
wager. In the considered opinion of this Court, the award dated
04.02.2019 granting reinstatement in service with continuity and
benefit is required to be modified to grant of lump sum
compensation in lieu of reinstatement with continuity in service.
9. Accordingly, the impugned award dated 04.02.2019 stands
modified. The termination of the respondent-workman is held to be
illegal in violation of Section 25F of the ID Act. In lieu of
reinstatement in service, the respondent-workman is awarded lump
sum compensation of Rs.1,50,000/-. The costs as awarded by the
learned Labour Court is confirmed. The present petitions stand
disposed of accordingly. No order as to costs.
10. In view of the disposal of the Special Civil Applications, Civil
Application (for direction) No.1 of 2022 does not survive and is
accordingly, disposed of.
Sd/-
(ANIRUDDHA P. MAYEE, J.)
ABHISHEK/174
