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SCA/11089/2010 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11089 of 2010
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 ?
=========================================
MANAGING
DIRECTOR,GUJARAT STATE ROAD TRANSPORT CORPORATION - Petitioner(s)
Versus
MANGABHAI
CHANABHAI MERIYA & 1 - Respondent(s)
=========================================
Appearance
:
MR HARDIK C
RAWAL for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 17/09/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 227 of the Constitution of India,
petitioner has prayed for an appropriate writ, direction or order
quashing and setting aside the impugned judgment and award dated
04.12.2009 passed by the Presiding Officer, Labour Court No.3, Rajkot
in Reference (LCR) No.112/2007, by which the Labour Court has partly
allowed the said reference by quashing and setting aside the order
passed by the petitioner dated 27.11.2003 in superannuating the
respondent with retrospective date i.e. 31.01.2000 and further
directing the petitioner to reinstate the respondent to his original
post with 40% back wages only.
2. Learned
advocate appearing on behalf of the petitioner has vehemently
submitted that as the order superannuating the respondent was passed
on 27.11.2003 and the dispute was raised after the period of four
years, the Labour Court ought not to have passed the order of
reinstatement. It is further submitted that even the respondent was
aware about his date of birth mentioned as 24.01.1942 in the service
book, still no objection was raised by him. Therefore, it is
requested to allow the present petition.
3. Having
heard learned advocates appearing on behalf of the petitioner and
considering the impugned judgment and award passed by the Labour
Court, it appears that no illegality has been committed by the Labour
Court in partly allowing the said reference and quashing and setting
aside the action of the petitioner in superannuating the respondent
vide order dated 27.11.2003 with retrospective dated i.e. 31.01.2000.
On appreciation of evidence, it has been specifically found that
date of birth of the respondent was 05.06.1952 and while
superannuating the respondent, petitioner considered the service book
of some other employee and the particulars of the birth date of one
another employee and thereby the learned Labour Court on appreciation
of evidence found that considering his oral date of birth dated
05.06.1952, he would be retiring on 05.06.2010 and therefore, no
illegality has been committed by the Labour Court in quashing and
setting aside action of the petitioner dated 27.11.2003
superannuating the respondent with retrospective dated i.e.
31.01.2000.
It
is also required to be noted that as such respondent was already
dismissed from service on misconduct for which industrial dispute was
raised being Reference (LCR) No.136/2000 and by judgment and award
dated 15.05.2002, the Labour Court, Rajkot set aside the action of
termination of the respondent and the Labour Court directed the
petitioner to reinstate the respondent workman in service with
continuity of service with 50% back wages for the intervening period.
It appears that the said judgment and award passed by the Labour
Court, Rajkot was challenged by the petitioner before this Court by
way of Special Civil Application No.10787/2002 and by judgment and
order dated 08.04.2003, the learned Single Judge remanded the matter
to the Labour Court and it appears that on remand, Labour Court
passed a judgment and award dated 29.09.2003 directing the petitioner
to reinstate the respondent workman and only thereafter the
petitioner passed the order dated 27.11.2003 superannuate the
respondent with retrospective dated i.e. 31.01.2000. At no point of
time earlier, either before this Court in Special Civil Application
No.136/2000, it was pointed out by the petitioner that he has
attained the age of superannuation in the year 2000. As stated
above, only after the aforesaid decision of remand by the Labour
Court, when the petitioner was directed to reinstate the respondent,
the aforesaid action was taken. In any case, no illegality has been
committed by the Labour Court in passing the impugned judgment and
award.
4. Now,
so far as contention on behalf of the petitioner that the dispute was
raised after four years and therefore, Labour Court ought not to have
passed the impugned judgment and award is concerned, it is to be
noted that for delay in approaching the Labour Court and/or delay in
raising the industrial dispute, respondent is already punished as the
Labour Court has denied 60% of the back wages and only awarded 40% of
the back wages.
5. In
view of the above and for the reasons stated above, the present
petition deserves to be dismissed and is, accordingly, dismissed.
(M.R.
Shah, J.)
*menon
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