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SCA/7466/2003 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7466 of 2003
With
SPECIAL
CIVIL APPLICATION No. 132 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
GUJARAT
STATE LAND DEVELOPMENT CORPORATION LTD - Petitioner(s)
Versus
GANDABHAI
KACHRABHAI THAKORE & 1 - Respondent(s)
=========================================
Appearance
:
MR HS
MUNSHAW for
Petitioner(s) : 1,
MR AMIT C NANAVATI for Respondent(s) : 1 -
2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 01/09/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 227 of the Constitution of India,
petitioner Gujarat
State Land Development Corporation Limited has preferred Special
Civil Application No.7466/2003 challenging the impugned judgment and
award passed by the learned Labour Court, Kalol dated 27.12.2002
passed in Reference LCK No.241/1990, by which the learned Labour
Court has partly allowed the said reference by directing the
petitioner to reinstate the respondents with 30% back wages.
Special
Civil Application No.132/2004 has been preferred by the workman
challenging the aforesaid judgment and award passed by the learned
Labour Court, Kalol in denying 70% back wages.
2. It
is not in dispute that respondents of Special Civil Application
No.7466/2003 were admittedly appointed as daily wagers on stop gap
arrangement till the regularly selected candidates are available. In
the appointment order itself, it has been specifically provided that
the respective respondents shall be relieved on availability of the
regular selected candidates. It is not in dispute that on
availability of the regularly selected candidates, respective
respondents came to be relieved. Being aggrieved and dissatisfied
with the aforesaid, the respondents raised industrial dispute which
was numbered as Reference LCK No.241/1990 and the learned Labour
Court by impugned judgment and award partly allowed the same
directing the petitioner to reinstate the respondents with 30% back
wages.
3. Shri
Munshaw, learned advocate appearing on behalf of the petitioner has
vehemently submitted that as such, as the appointment of the
respective respondents were as daily wager on stop gap arrangement
and till regularly selected candidates are available, Section
2(oo)(bb) of the Industrial Disputes Act would be applicable and
therefore, the learned Labour Court has materially erred in directing
the petitioner to reinstate the respondents with 30% back wages. It
is further submitted that as the post on which the respective
respondents were working on stop gap arrangement, to be filled by
regularly selected candidates, no post was available and therefore,
there cannot be any reinstatement on the post, which is not vacant.
It is further submitted that as such in the appointment order itself,
it was provided that respective respondents shall
be relieved as soon as the regularly selected candidates are
available and therefore, as soon as the regularly selected candidates
are available and were appointed, the respective respondents were
relieved. Therefore, it is submitted that there was no retrenchment
and/or termination at all. Under the circumstances, it is requested
to allow the present Special Civil Application.
4. Shri
Bipin Mehta, learned advocate appearing on behalf of the respective
respondents has tried to support the impugned judgment and award
passed by the learned Labour Court by submitting that this is
petition under Article 227 of the Constitution of India and
considering the fact that when the learned Labour Court found that
the termination of the respective respondents was in violation of the
provisions of 25-F of the Industrial Disputes Act, learned Labour
Court has not committed any error in directing the petitioner to
reinstate the respondents that too with 30% back wages. It is
further submitted by him that in fact the Labour Court ought to have
awarded full back wages. Therefore, it is requested to allow even
the Special Civil Application No.132/2004.
5. Having
heard learned advocates appearing on behalf of respective parties and
considering the aforesaid undisputed fact that when respective
respondents were appointed, they were appointed as daily wager and as
a stop gap arrangement till the regularly selected candidates are
available and considering the fact that in the order of appointment
itself, it was specifically provided that as soon as the regularly
selected candidates are available and appointed, respective
respondents shall be relieved, the Labour Court has materially erred
in partly allowing the said Reference by directing the petitioner to
reinstate the respondents. As such there is no retrenchment and/or
termination at all. It is also required to be noted that even when
the respective respondents were appointed as daily wagers, no
selection procedure was followed. As rightly submitted by Shri
Munshaw, learned advocate appearing on behalf of the petitioner, when
there is no vacant post, there is no question of reinstatement on the
post which is not vacant. Considering the aforesaid over all facts
and circumstances of the case, impugned judgment and award passed by
the learned Labour Court directing the petitioner to reinstatement
the respondents, deserves to be quashed and set aside and is,
accordingly, quashed and set aside. At this stage, Shri Mehta,
learned advocate appearing on behalf of the respondents has stated
that there are two posts available at other places and therefore, as
and when the concerned respondents apply, their case may be
considered in accordance with law.
6. In
view of the above and for the reasons stated above, Special Civil
Application No.7466/2003 is allowed. Impugned Judgment and award
dated 27.12.2002 passed by the learned Labour Court, Kalol in
Reference LCK No.241/1990 is hereby quashed and set aside. Rule is
made absolute to the aforesaid extent in Special Civil Application
No.7466/2003. So far as Special Civil Application No.132/2004 is
concerned, the same is dismissed. Rule is discharged.
7. However,
it is observed that as and when the concerned respondents apply for
the appointment on the vacant post, their case may be considered in
accordance with law for which this Court has not expressed any
opinion on merits. No costs.
(M.R.
Shah, J.)
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