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LPA/2718/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2718 of 2010
In
SPECIAL
CIVIL APPLICATION No. 17819 of 2003
=========================================================
HASMUKHBHAI
BABUBHAI RATHOD - Appellant(s)
Versus
BHAVNAGAR
DISTRICT PANCHAYAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
PRABHAKAR UPADYAY for
Appellant(s) : 1,
None for Respondent(s) : 1 - 2.
MR HS MUNSHAW
for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 24/01/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present appeal arises against the order dated 07.07.2010 passed by
the learned Single Judge of this Court in Special Civil Application
No.17819/03, whereby the petition has been allowed to the extent
that the Award of the Labour Court for backwages and in continuity
in service is set aside and the reinstatement awarded by the Labour
Court is not interfered with.
Heard
Mr.Sonagra for Mr.Upadhyay for the appellant and Mr.Munshaw upon
advance copy.
The
contention raised on behalf of the appellant is that once the
termination was found to be illegal, as a necessary consequence, the
backwages and continuity in service are required to be granted.
Since there was a delay of six years, the Labour Court has already
molded the relief. It was submitted that even if it is considered
that the workman would not be entitled for the backwages, it least
he would be entitled to continuity in service which was so ordered
by the Labour Court in the award and ought not to have been set
aside. The learned counsel therefore, submitted that the matter
deserves consideration.
It
appears from the Award passed by the Labour Court that the alleged
termination was of 31.01.2008. Whereas the dispute is raised after
a period of six years. Further, the status of the workman-appellant
was as a daily wager. Under these circumstances, it appears to us
that the learned Single Judge has interfered with the Award passed
by the Labour Court so far as it relates to backwages and continuity
in service are concerned.
In
a case of daily wager, once reinstatement is maintained and the
award so far as it relates to backwages and continuity in service is
set aside, the power exercised cannot be said to be arbitrary, more
particularly, in view of the direction issued by the learned Single
Judge that the earlier period of the respondent, i.e, before
retrenchment be taken into consideration for the purpose of reaching
the age of superannuation as well as pension and the retiral dues
and not for any increment or for any other purpose. It is further
clarified by the learned Single Judge that the said period may not
be treated as any break in service and the service be considered as
continues one.
We
find that there is no case for interference and hence, the appeal is
dismissed.
(JAYANT
PATEL, J.)
(J.C.
UPADHYAYA, J.)
*bjoy
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