Gujarat High Court Case Information System
Print
SCA/14002/2003 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14002 of 2003
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 ?
=========================================
SURENDRA
DISTRICT PANCHAYAT - Petitioner(s)
Versus
PARMABHAI
KANABHAI MAKWANA - Respondent(s)
=========================================
Appearance :
MR
HS MUNSHAW for
Petitioner(s) : 1,
MR KR KOSHTI for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 11/10/2010
ORAL
JUDGMENT
1. By
way of this petition under Articles 226 and 227 of the Constitution
of India the petitioner-Surendranagar District Panchayat has prayed
for an appropriate writ, order or direction quashing and setting
aside the impugned judgement and award dated 10/01/2003 passed by the
learned Presiding Officer, Labour Court, Surendranagar in Reference
(L.C.S.) No. 8/1997 by which the Labour Court has allowed the
Reference ex parte directing the petitioner to reinstate the
respondent to his original post with full back wages and continuity
in service.
2 The
respondent was appointed as part time peon on purely temporary and ad
hoc basis in the Primary Health Center run by the petitioner and he
was offered the work as and when work was available. However, he
was relieved in the year 1996, for which the respondent raised an
industrial dispute, which was referred to the Labour Court,
Surendranagar, which was numbered as Reference (L.C.S) No. 8/1997.
It appears that though served, for whatever reason and in view of
usual negligence on the part of the Officer of the
petitioner-Panchayat, nobody filed reply and contested the said
Reference and, therefore, accepting whatever was submitted by the
respondent in the statement of claim and his deposition, the Labour
Court vide impugned judgement and award dated 10/01/2003 held that
there was breach of Sections 25 F and H of the Industrial Disputes
Act and consequently allowed the Reference directing the petitioner
to reinstate the respondent to his original post with full back
wages.
3. Having
heard the learned advocates appearing on behalf of the respective
parties and considering the nature of appointment of the respondent
as part time peon and considering the affidavit filed on behalf of
the petitioner dated 22/04/2004 it appears to the Court that merely
because of the negligence on the part of the Officer of the
petitioner-Panchayat, the Panchayat should not be made to suffer as
ultimately whatever is required to be paid by the Panchayat would be
from the public exchequer, and, therefore, in the facts and
circumstances of the case, this Court is of the opinion that if the
matter is remanded to the Labour Court for deciding the same afresh
giving one additional opportunity to decide the Reference and to lead
the evidence on imposing reasonable cost and on continuing to pay the
wages under Section 17B of the Industrial Disputes Act to the
respondent, which is being paid to him till final disposal of the
Reference, it will meet the ends of justice and no prejudice shall be
caused to the respondent.
4. Shri
Koshti, learned advocate appearing on behalf of the respondent has
submitted that as such there is an absolute negligence on the part of
the Officer of the petitioner-Panchayat and, therefore, no
irregularity has been committed by the Labour Court and whatever was
produced on that basis the Labour Court has passed the impugned
order. It is further submitted by Shri Koshti, learned advocate
appearing on behalf of the respondent that if this Court is of the
opinion that the matter be remanded to the Labour Court the same may
be remanded but without any liberty in favour of the petitioner to
lead fresh evidence.
5. Having
heard the learned advocates appearing on behalf of the respective
parties and considering the impugned judgement and award and the
additional affidavit filed by the petitioner and the nature of
appointment of the respondent as part time employee initially for
three hours a day and thereafter for six hours a day that too as and
when work was available he was offered the work, this Court is of the
opinion that despite the negligence on the part of the Officer of the
petitioner-Panchayat and so as to give one additional opportunity to
the petitioner to defend the Reference by leading evidence, if the
matter is remanded to the Labour Court on imposing reasonable cost
and on continuing to pay the award under Section 17B of the
Industrial Disputes Act to the respondent till final disposal of the
Reference, it will sub-serve the ends of justice and no prejudice
shall be caused to the respondent as in the meantime he will be
getting the award under Section 17B of the Industrial Disputes Act.
The submission on behalf of Shri Koshti, learned advocate appearing
on behalf of the respondent that the matter can be remanded but
without reserving any liberty in favour of the petitioner to lead the
evidence cannot be accepted. If such a liberty is not reserved the
purpose for which the matter is to be remanded will be frustrated.
This Court is of the opinion that for the negligence on the part of
the Officer of the petitioner-Panchayat, the Panchayat should not be
made to suffer as ultimately whatever amount the Panchayat is to pay
the burden would be upon the public exchequer and, therefore, to
strike the balance, if the aforesaid course is adopted it will meet
the ends of justice.
6. In
view of the above and for the reasons stated hereinabove, the
impugned judgement and order dated 10/01/2003 passed by the learned
Presiding Officer, Labour Court, Surendranagar in Reference (L.C.S)
No. 8/1997 is hereby quashed and set aside and the matter is remanded
to the Labour Court, Surendranagar for deciding the same afresh in
accordance with law on its own merits and on payment of cost by the
petitioner to the respondent, which is quantified at Rs. 15,000/-, to
be deposited by the petitioner with the Labour Court, Surendranagar
within a period of eight weeks from today and without prejudice to
the rights and contentions of the respective parties subject to the
ultimate outcome of the Reference, on remand, the respondent is
continued to be paid whatever the wages is being paid under Section
17B of the Industrial Disputes Act till final disposal of the
Reference. It will be open for the respective parties to lead the
evidence afresh and the Labour Court to pass an appropriate order in
accordance with law on its merits and on appreciation of the evidence
that may be led. Rule is made absolute to the aforesaid extent. No
cost.
(M.R.
SHAH, J.)
siji
Top