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SCA/2420/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2420 of 2009
With
SPECIAL
CIVIL APPLICATION No. 11316 of 2009
=========================================================
MAKWANA
KULDIPBHAI DEVJIBHAI - Petitioner(s)
Versus
GUJARAT
AMBUJA COTSIN LTD - Respondent(s)
=========================================================
Appearance :
in
SCA No.2420/2009 :
MR
MINESH C DAVE for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1,
MR
PRABHAKAR UPADYAY for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/07/2010
ORAL
ORDER
1. Heard
learned counsel Mr. Minesh C. Dave, appearing on behalf of the
workman and Mr. Prabhakar Upadyay, appearing on behalf of the
Company.
2. Learned
counsel for the respective parties have pressed for interim relief.
3. The
workman has preferred this petition only for the limited purpose of
directing the Company to pay him full back wages instead of 25% back
wages, which has been awarded by the lower appellate Court.
4. On
the other hand, it has been contented by Mr. Upadyay for the Company
that the lower appellate Court has failed to appreciate the fact that
the workman was terminated from service by passing an order of
termination dated 17.09.2001. It has been submitted that the said
order of termination dated 17.09.2001 has not been challenged by the
workman under the provisions of the Bombay Industrial Relations Act,
1946. Therefore, the lower appellate Court ought not to have granted
the relief of reinstatement with 25% back wages.
5. The
lower appellate Court directed the Company to reinstate the workman
in service with continuity of service and 25% back wages. It is by
now well-settled that a workman is not entitled for back wages as a
matter of right. Therefore, in my opinion, the order of the lower
appellate Court granting 25% back wages to the workman deserves to be
stayed until the final disposal of the petition.
6. However,
so far as the aspect of reinstatement is concerned, the lower
appellate Court has recorded the finding that the action of the
Company of terminating the services of the workman was illegal and
improper. The Company has passed the order of termination dated
17.09.2001 on the basis of some misconduct alleged to have been
committed by the workman way back on 07.11.2000. At this juncture, it
is required to be noted that had the workman actually committed any
misconduct in November 2000, as has been alleged, then the Company
would not have waited for a period of more than nine months for
taking appropriate disciplinary action against the workman. Moreover,
the alleged misconduct appears to be of a criminal nature as well.
However, no criminal proceedings were initiated against the workman.
Further, the inquiry proceedings were also vitiated in view of the
fact that there is nothing on record from which it could be concluded
that the proceedings were held in accordance with the procedure
prescribed by law. In view of the above, the lower appellate Court
has rightly directed the Company to reinstate the workman in service
with continuity of service.
7. Now,
when the order of termination has been held to be illegal by the
lower appellate Court, it does not make any difference whether the
workman has challenged the said order or not. In my view, if the
order granting reinstatement with continuity of service is stayed,
then it would amount to staying the order of the lower appellate
Court without any adjudication and such stay would also amount to
depriving the workman of his legitimate rights. Further, the
employer-Company is also not ready to pay any lump-sum compensation
to the workman in lieu of the order of reinstatement with continuity
of service.
8. In
view of the above, there shall be interim stay of the impugned order
of the lower appellate Court granting 25% back wages to the workman.
The direction qua reinstatement with continuity of service is not
stayed.
[[K.
S. JHAVERI, J.]
Pravin/*
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