Gujarat High Court Case Information System
Print
SCA/4069/2008 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4069 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
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 ?
=========================================================
RAMJIBHAI
BABUBHAI VALAND - Petitioner(s)
Versus
DEPUTY
EXECUTIVE ENGINEER & 2 - Respondent(s)
=========================================================
Appearance
:
MR
NILESH M SHAH for
Petitioner(s) : 1,
MR HG MAZMUDAR for Respondent(s) : 1 - 3.
MR
RAJU K KOTHARI for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 27/08/2008
ORAL
JUDGMENT
1. In
this petition, the petitioner has challenged judgment and order dated
9.10.2007 passed by the Labour Court in Recovery Application No.1 of
1998, whereby the Labour Court partly rejected present of
petitioner’s claim for wages for the period from 1.5.1997 to
30.9.1997 and allowed the claim only for the period from 1.10.1997 to
31.12.1997 on the ground that in the order passed by the High Court
in Letters Patent Appeal No.592 of 1997, there is no direction for
payment of wages for the period from 1.5.1997 to the date of order
i.e. 9.9.1997. The petitioner is aggrieved by the said partial
rejection of Recovery Application No.1 of 1998 passed by Labour
Court, Surendranagar.
2. So
as to appreciate the contentions, it is necessary to take into
account certain relevant dates. It is the case of the petitioner that
he was terminated on 21.10.1989. Aggrieved by the said termination,
the petitioner raised an industrial dispute which culminated into
Reference (LCS) No.300 of 1991. After adjudication of the said
Reference, the Labour Court passed an award dated 24.1.1994 and
directed the present respondent to reinstate the petitioner without
back-wages. The petitioner claimed that the said award was challenged
by the respondent by way of Special Civil Application No.3591 of 1994
and the said petition was dismissed by this Court by an order dated
2.4.2007. The petitioner has also asserted that aggrieved by the
rejection of the petition, the respondent herein preferred Letters
Patent Appeal being No.592 of 1997 and by an order dated 9.9.1997,
the said Letters Patent Appeal was also rejected. As per the claim of
the petitioner, after the Letters Patent Appeal was rejected, the
petitioner came to be reinstated on 12.12.1998.
3.
According to the petitioner’s claim, he is entitled for wages for
the period from 24.1.1994 i.e. the date on which the award in the
aforesaid Reference came to be passed to 12.12.1998 i.e. when the
petitioner came to be reinstated. In other words, the dispute between
the parties pertains to the petitioner’s claim for wages for the
?Spost-award?? period.
4. It
appears that initially the petitioner filed writ petition being
Special Civil Application No.9394 of 1997, praying for direction for
the payment of wages for the aforesaid period, however, the
petitioner was relegated to the Labour Court, so as to file
appropriate proceedings. The petitioner, therefore, filed Recovery
Application No.199 of 1997 claiming the wages for the period from
24.1.1994 to 31.3.1997.
5. The
Labour Court rejected the said claim for wages for the period from
24.1.1994 to 31.3.1997 and thereby rejected the said Recovery
Application No.199 of 1997on the ground that there was no direction
given by the High Court, while rejecting the petition and/or while
rejecting Letters Patent Appeal regarding payment of wages for post
award period. Aggrieved by the said direction, the petitioner has
filed petition being Special Civil application No.4068 of 2008.
6. Sometime
after filing the aforesaid Recovery Application No.199 of 1997, the
petitioner had preferred another Recovery Application No.1 of 1998.
the said Recovery Application No.1 of 1998 was preferred to claim
wages for the subsequent unpaid period i.e. for the period from
1.5.1997 to 31.12.1997. The Labour Court rejected, though only
partly, the said claim and the Recovery Application No.1 of 1998 on
the same ground on which the Recovery Application No.199 of 1997 was
rejected. The subsequent Recovery Application No.1 of 1998 came to be
partly rejected and only partly granted inasmuch as the claim for the
period from 1.10.1997 to 31.12.1997 i.e. 69 days only came to be
allowed. The reason for granting the claim for the said limited
period, is that even after the judgment in L.P.A. No.592 of 1997, the
petitioner was not reinstated and since the judgment was rendered on
9.9.1997, the Labour Court allowed the claim only for the period
subsequent to 9.9.1997. The petitioner has preferred present petition
against the said partial rejection of the claim for wages for the
balance period i.e. from 1.5.1997 to 30.9.1997 in Recovery
Application.
7. Heard
Mr. Nilesh Shah, learned advocate for the petitioner and Mr. Raju K.
Kothari for the respondent.
8. It
is not in dispute that the petitioner was terminated w.e.f. 20.6.1990
and the award in Reference questing the termination, came to be
passed on 24.1.1994. The challenge against the said award by the
present respondent has failed before the learned Single Judge and
before the Hon’ble Division Bench inasmuch as the petition being
Special Civil Application NO.9394 of 1997 and Letters Patent Appeal
NO.592 of 1997 have been rejected. Even if it is taken into account
that during the pendency of the writ petition and/or Letters Patel
Appeal any interim relief by way of stay against the implementation
of the award was operating then also, the same would come to an end
upon rejection of the petition and Letters Patent Appeals. Hence,
when the Letters Patent Appeal came to be rejected, the petitioner
would become entitle for reinstatement in accordance with the
direction given by the Labour Court in the Award dated 24.1.1994 in
Reference No.300 of 1991. Upon entitlement for reinstatement the
petitioner would become entitle for wages also for the post-award
period i.e. for the period after 24.1.1994, except for the period
where the employee is in default (i.e. does not report for work
despite being invited). In the present case, neither it was the
defence of the respondent that despite being invited, the petitioner
had not reported for work nor the Labour Court has rejected the
petitioner’s claim on such ground.
9. The
only ground on which the claim is rejected by the Labour Court is
that the High Court has not given any specific direction for payment
of wages for the post award period and that therefore, the respondent
is not justified in claiming the wages that the ?Spost-award??
period from on 24.1.1994 till the date of actual reinstatement.
10. The
said reasoning given by the Labour Court while rejecting Recovery
Application is erroneous and not sustainable. Hence, the same is set
aside.
11.
It would be, however, an altogether different matter to also hold
that the petitioner is justified in claiming the amount, towards
wages for the aforesaid period, in absence of any evidence which
would establish that the petitioner was not at fault in not reporting
for work during the period in question and that he was ready, able
and willing to report for work during the said period. It is neither
proper and practicable for this Court to decide about the
petitioner’s claim and/or to quantify the same and it would also be
necessary for petitioner to establish the rate of wages prevailing
during the relevant period and also necessary to establish that he
was ready and willing to report for work, had he been allowed to
report for work. Equally so, it would be open for the respondent to
establish before the Labour Court that it was the petitioner, who
was at fault and therefore, he is not entitled for the amount claimed
by him.
12. Thus,
there can be number of reasons in support of the petitioner or in
support of the respondent, which will have to be examined by the
Labour Court before granting or declaring the relief prayed for by
petitioner. Unfortunately, the Labour Court has not examined any of
these aspects and rejected the claim in and the Recovery Applications
only on the ground that the High Court has not given any specific
direction for payment of wages in order to rejection of the petition
nor in Letters Patent Appeal. The claim of the petitioner could not
have been rejected on such ground. The reason assigned by the Labour
Court while rejecting the application is erroneous and it is required
to be set aside. However, aforesaid aspect shall have to be examined
by the Labour Court and this Court would not entertain a petition,
which requires such investigation of facts.
13. In
the facts of the case, the order passed by Labour Court is set aside
and for the purpose of conducting aforesaid inquiry the case is
remanded to the Labour Court, where the parties can establish their
respective claim and defence. Thus, the following order is passed.
The impugned common order dated
9.10.2007 in Recovery Application No.199 of 1997 (actually the
said order dated 9.10.2007 is common order in Recovery Application
No.199/97 and Recovery Application No.1 of 1998, however, since
the separate petitions are filed in connection with the Recovery
Application No.199 of 1997 and Recovery Application No.1 of 1998,
separate orders are passed by this Court) is set aside and the
matter is remanded to the Labour Court for deciding the same
afresh on merits after affording opportunity of hearing and
leading evidence to both the sides. The Labour Court shall keep in
focus that the reason on which recovery application was rejected
by it earlier has been set aside by this Court.
14. With
the aforesaid clarifications and directions, the petition is partly
allowed. Rule is made absolute to the aforesaid extent. No order as
to costs.
(JAYANT
PATEL, J.)
ynvyas
Top