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SCA/8295/1999 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8295 of 1999
HONOURABLE
MR.JUSTICE KS JHAVERI
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
DEPUTY
EXECUTIVE ENGINEER - Petitioner(s)
Versus
JIVRAJBHAI
JASABHAI & 3 - Respondent(s)
=========================================
Appearance :
MR
PV HATHI for
Petitioner(s) : 1,
MR DM THAKKAR for Respondent(s) : 1 - 4.
MR
MUKESH H RATHOD for Respondent(s) : 1 - 2, 2.2.2, 2.2.3,2.2.4
BHAVIK
J PANDYA for Respondent(s) : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 29/07/2010
ORAL
JUDGMENT
1. This
petition is directed against judgement and award dated 23rd
June 1999 passed by the Labour Court, Junagadh in Reference (LCJ)
No.1067 of 1990 to 1070 of 1990 whereby the Labour Court ordered the
petitioner to reinstate the workmen in service with 70% back wages.
2. The
respondents were employed as daily wage labourers for the public
works carried on under the supervision of the petitioner. The
workmen were continued so long as there was work and they were served
with notice on 29th September 1987 wherein it was stated
that as there was not enough work with the Department they were to be
relieved from 31st October 1987 and were relieved in
accordance with the seniority of such daily wagers and were also
instructed to collect retrenchment compensation, notice pay, etc. on
7th November 1987 from the office of the petitioner.
According to the petitioner the respondent workmen did not accept the
notice and refused to receive compensation. They thereafter raised a
dispute which was referred to Labour Court and numbered as Reference
(LCR) Nos.605 to 608 of 1988. On formation of Labour Court at
Junagadh the said cases were transferred to Junagadh Court where
they were registered as Reference (LCJ) Nos.1067 to 1070 of 1990.
After adjudicating the matter the Labour Court allowed the
References and ordered the petitioner to reinstate the workmen in
service with 70% back wages. It is against said award that the
present petition has been passed.
3. Learned
Advocate for the petitioner submitted that the respondents were daily
wagers and therefore they were not entitled invoke the provisions of
Industrial Disputes Act and that disengagement of daily wagers cannot
be termed as retrenchment and therefore there was no question of
compliance of section 25F of the Act.
4. According
to him, even if the Act applies, there was substantial compliance of
section 25F as they were given notice and offered retrenchment
compensation. He further submitted that even if it is termed as
retrenchment, the respondent workmen failed to prove that they had
completed 240 days prior to their termination. He lastly submitted
that in any case the respondent workmen should not have been
reinstated as there was prohibition imposed by State Government on
employment of daily wagers. He lastly submitted that there was no
justification for grant of back wages.
5. Learned
Advocate for the respondents submitted that the Labour Court has
considered all the aspects of the matter and the petitioner has not
pointed out any reason to set aside the same.
6. As
a result of hearing and perusal of the record certain aspects are not
disputed. The respondent workmen were working under the petitioner.
The petitioner has issued a notice to them and they were also offered
retrenchment compensation. This action on the part of the petitioner
itself shows that the respondent workmen had completed 240 days and
there is no substance in the contention that they were daily wagers
and they were not entitled to resort to the provisions of Industrial
Disputes Act. There is a clear finding of the Labour Court that there
is violation of provisions of section 25-F of the Act. Learned
Advocate for the petitioner is not able to controvert the findings of
the Labour Court in this regard on any count. Once the finding is
that there is violation of provisions of 25F of the Act, it is not
open to the petitioner to contend that there is prohibition by the
State Government on employment of daily wagers, especially the
petitioner is a Panchayat which is a government establishment.
7. However,
there is substance in the contention that the Labour Court ought not
to have granted back wages. There was no plea nor evidence or proof
to show that from the alleged date of dismissal of their service till
the date of the award the respondents were not in gainful employment.
In any case in many cases the Apex Court held that when the workman
actually did not work on the post, back wages should not normally be
granted. I am therefore of the view that the Labour Court was not
justified in granting back wages to the respondents.
8. In
the premises aforesaid, the judgement and award impugned herein is
quashed and set aside qua back wags. The rest of the award is
confirmed. The respondents shall be given benefits from the date of
reference i.e. 29th February 1988. The petitioner may also
consider the case of respondents sympathetically as and when
permanent vacancy arises. Rule is made absolute to the aforesaid
extent with no order as to costs.
[K.S.
JHAVERI, J.]
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