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SCA/7980/2004 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7980 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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
WATER SUPPLY AND SEWAGE BOARD - Petitioner(s)
Versus
HARIGAR
BHIMGAR GUSAI - Respondent(s)
=========================================================
Appearance :
MR
HS MUNSHAW for Petitioner(s) : 1,
MR CL SONI
for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 09/09/2008
ORAL
JUDGMENT
Heard
learned advocates for the parties.
Petitioner,
Gujarat Water Supply and Sewage Board, hereinafter referred to as
the Board for the sake of bravity, challenges impugned award dated
8-1-2004 passed by Labour Court, Gandhidham in Reference No.166 of
2001 whereunder the respondent-workman has been ordered to be
reinstated with continuity of service with full back wages.
The
facts, in brief, deserve to be set out as under :
Respondent
workman was terminated on 16-11-96. He was in the employment of the
Board from 1-6-1990. The termination of the respondent workman was
required to be seen in view of the stand taken by the Board in its
written statement before the Labour Court. The concerned workman
raised industrial dispute and ultimately it came to be referred to
competent Court being Labour Court, Gandhidham, which came to be
numbered as Reference Case No.166 of 2001. The Labour Court after
appreciating evidence led by both the sides, came to the conclusion
that the workman deserves to be reinstated with full back wages and
continuity of services and passed order on 8-1-2004. The same is
impugned as stated herein above.
Mr.
Munshaw has submitted that impugned award deserves to be quashed and
set aside as the workman appears to have been not vigilant and
interested in persuing his remedy and, therefore, he approached the
Court belatedly and it itself is sufficient to come to the
conclusion that the workman was not interested in serving the Board.
He submitted that fact remains to be noted that workman was in
employment of the Board since 1-6-90 and services were put to an end
on 16-11-96. He approached belatedly and raised industrial dispute
only after period of four years as can be seen as Reference, which
was filed in the year 2001. Delay itself is indicative of workman
not interested in persuing his remedy. Mr. Munshaw, however, could
not point out any compliance of mandatory provision of the
Industrial Dispute Act before the services of workman came to be
terminated.
Mr.
Soni appearing for respondent-workman in presence of workman
concerned and under the instruction of concerned workman, submits
that respondent workman is prepared to give up entire amount of back
wages as granted by the order of Labour Court and submits that
reinstatement be ordered within stipulated period. This concession
is given under the instruction of respondent workman who is present
in the Court. Shri Soni further submitted that in identicle matters
of other workmen, this Court rejected the petition filed by the
Board being Special Civil Application No.7836 of 2004 to 7844 of
2004, though in that case workmen were not granted back wages.
Present workman is on better footing in as much as he had put in
five years services before the unfortunate termination came into
being. Therefore, he is entitled to be treated with those who are
covered by the earlier award so far back wages is concerned.
This
Court has heard parties, and perused papers. Labour Court has in
unequivocal terms recorded clear finding that there was absolutely
no compliance with mandatory provision of Sec.25(F) of the
Industrial Dispute Act. It is not in dispute that workman was
serving with the Board since 1-6-90 to 16-9-1996. Non-compliance
with mandatory provision leaves no room for any other view but that
the impugned termination was bad and to quash the action which was
per se illegal and, therefore, there cannot be any manner of doubt
that the action of termination was contrary to the mandatory
provision of law rendering the same absolutely unsustainable.
The
aspect of belatedly raising industrial dispute deserves
consideration. Mr. Soni relied upon decision of this Court in the
case of Deputy Executive Engineer, Panchayat Sub-Division-2 vs.
Jitgendrakumar Ranchhodbhai Bhatt, reported in 2002(3) G L H 434,
which is applicable to the present case so far as belatedly
reference is concerned. The plea can be taken care in view of the
concession given by the workman concerned, and therefore, the
petition deserves to be allowed partly and the awrd deserves to be
modified to the extent that the workman is not entitled to any back
wages as he has given up expressly before this Court. The order
impugned shall be modified only to that extent.
The
petition, therefore, partly allowed. Rule is made absolute to the
aforesaid extent only. No order as to costs.
The
order has been confirmed so far as reinstatement is concerned. The
petitioner is directed to reinstate the concerned workman within a
period of four weeks from the date of receipt of this order.
Direct
service permitted.
(S.R.BRAHMBHATT,
J.)
vijay*
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