Gujarat High Court Case Information System
Print
SCA/11474/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11474 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 ?
=========================================
NEW
AMBIKA SAHKARI MANDALI LTD(I B P DEALERS) - Petitioner(s)
Versus
DHARMENDRASING
OMKARSING RAJPUT - Respondent(s)
=========================================
Appearance :
MR
YOGEN N PANDYA for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 14/10/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 227 of the Constitution of India
the petitioner has prayed for an appropriate writ, order or direction
quashing and setting aside the impugned judgement and award dated
19/05/2010 passed by the Labour Court, Ahmedabad in Reference (L.C.A)
No. 256/1996 by which the Labour Court has partly allowed the
Reference directing the petitioner to reinstate the
respondent-workman with 30% back wages and continuity of service.
2. Shri
Yogen Pandya, learned advocate appearing on behalf of the petitioner
has vehemently submitted that the respondent-workman has failed to
prove that he had worked for more than 240 days in the last preceding
year and as such it appears that the respondent had abandoned the
work. It is submitted that the finding given by the Labour Court
that the respondent-workman has worked for more than one year is
based on no evidence. It is further submitted that assuming that the
respondent-workman had worked for more than 240 days in the last
preceding year, however, considering the fact that the total tenure
of the respondent-workman was 9 ½ months, the Labour Court has
materially erred in directing the petitioner to reinstate the
respondent with 30% back wages as the respondent-workman was
gainfully employed during the interregnum period. Relying upon the
decision of the Hon’ble Supreme Court in the case of SENIOR
SUPERINTENDENT TELEGRAPH (TRAFFIC), BHOPAL Vs. SANTOSH KUMAR SEAL AND
ORS reported in (2010) 6 SCC 773 it is requested to award
lumpsum monetary compensation in lieu of reinstatement and back wages
considering the fact that the respondent-workman had worked for 9 ½
months only.
3. Shri
Gadia, learned advocate appearing on behalf of the respondent has
tried to oppose the present petition, however, he is not in a
position to substantiate and/or justify the finding given by the
Labour Court that the respondent-workman had worked for more than
one year. He is also not in a position to satisfy how the
respondent-workman worked for more than 240 days in the last
preceding year. However, it is submitted that when there is a
finding given by the Labour Court, the same is not required to be
interfered with by this Court under Article 227 of the Constitution
of India.
3.1. It
is submitted that in case this Court inclines to quash and set aside
the impugned judgement and award, in that case, it is requested to
award reasonable monetary compensation in lieu of reinstatement and
back wages.
4. Heard
the learned advocates appearing on behalf of the respective parties
at length. Considering the impugned judgement and award, it prima
facie appears that the finding given by the Labour Court that the
respondent-workman had worked for one year is based on no evidence.
It appears that as such the respondent has failed to establish and
prove that he had worked for more than 240 days in the last preceding
year. However, assuming that the respondent-workman had worked for
more than 240 days in the last preceding year and that there was no
breach of Section 25F of the Industrial Disputes Act, in that case,
considering the total tenure of service of the respondent-workman of
9 ½ months only and considering the fact that the
respondent-workman was gainfully employed during the interregnum
period and considering the recent decision of the Hon’ble Supreme
Court in the case of SENIOR SUPERINTENDENT TELEGRAPH (TRAFFIC),
BHOPAL (supra), the respondent-workman can be compensated in
terms of lumpsum monetary compensation in lieu of reinstatement and
back wages. It appears to the Court that considering the total
service tenure of the respondent of 9 ½ months if Rs. 25,000/-
is awarded by way of lumpsum compensation in lieu of reinstatement
and back wages and continuity of service it would sub-serve the ends
of justice.
5. In
view of the above and for the reasons stated hereinabove, the present
petition succeeds in part and the impugned judgement and award passed
by the Labour Court, Ahmedabad dated 31/05/2010 in Reference (L.C.A)
No. 1605/1996 is modified to the extent that instead of
reinstatement with 30% back wages and continuity in service, the
petitioner to pay a total sum of Rs. 25,000/- to the respondent by
way of lumpsum monetary compensation in lieu of reinstatement, back
wages and continuity of service, which shall be paid by the
petitioner to the respondent by an account payee cheque within a
period of six weeks from today, failing which it shall carry interest
at the rate of 9%. Rule is made absolute accordingly. No cost.
(M.R.
SHAH, J.)
siji
Top