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SCA/10039/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10039 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 ?
=========================================
STATE
OF GUJARAT - Petitioner(s)
Versus
HIRBAI
KORSHI - Respondent(s)
=========================================
Appearance
:
GOVERNMENT
PLEADER for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 12/10/2010
ORAL
JUDGMENT
By
way of this petition under Article 227 of the Constitution of India,
petitioner State of Gujarat has prayed for an appropriate writ,
direction or order quashing and setting aside the impugned judgment
and award dated 12.04.2010
passed by the Labour Court, Kutch-Bhuj in Reference (LCB) No.13/2005,
by which the Labour Court has partly allowed the said reference by
directing the petitioner to reinstate the respondent to his original
post with 20% back wages and continuity of service.
It
appears that the respondent was serving as a daily rated labourer
from 02.06.1988 and it is the case on behalf of the petitioner that
thereafter he himself abandoned the work and did not resume the duty
on and from 13.02.1990. It appears that thereafter the respondent
raised industrial dispute challenging his alleged termination/
retrenchment contending inter-alia that his services has been
terminated/retrenched without any notice and without any reason, as
required under the provisions of Industrial Disputes Act, 1947, more
particularly, Sections 25F, 25G and 25H of the Industrial Disputes
Act. Though it was pointed out that between January 1989 to December
1989, the respondent worked for only 147.5 days and between January
1990 to December 1990 for 201.5 days, the learned Labour Court held
that the respondent has completed 240 days in the last preceding year
and on non-production of the seniority list, the Labour Court drawn
adverse inference and consequently held that there is a breach of
Sections 25F and 25G of the Industrial Disputes Act, 1947 and
consequently directed the petitioner to reinstate the respondent to
his original post with 20% back wages and with continuity of service.
Being aggrieved and dissatisfied with the impugned judgment and
award passed by the Labour Court, petitioner State of Gujarat
preferred the present Special Civil Application under Article 227 of
the Constitution of India.
Though
served, nobody appears on behalf of respondent.
Shri
Neeraj Soni, learned Assistant Government Pleader appearing on behalf
of the petitioner has submitted that in facts and circumstances of
the case, when the respondent worked only for 147.5 days in the year
1989 and 201.5 days in the year 1990, Labour Court has materially
erred in holding that the alleged termination/retrenchment is in
breach of Sections 25F of the Industrial Disputes Act, 1947. It is
submitted that as such there was no retrenchment and/or termination
at all and in fact the respondent himself stopped going to work and
he abandoned the work. It is submitted that even otherwise and
assuming that there was breach of Sections 25F, 25G and 25H of the
Industrial Disputes Act, 1947 and the fact that respondent worked for
only two years as a daily wager, it is requested to consider the
recent decision of the Hon’ble Supreme Court in the case of Senior
Superintendent Telegraph, Bhopal Vs. Santosh Kumal Seal and others
reported in (2010) 6 SCC 773 and to award monetary
compensation in lieu of the reinstatement and back wages and
continuity of service.
Having
heard the learned Assistant Government Pleader and considering the
impugned judgment and award and the facts stated herein above, it
appears that the Labour Court has as such not considered the case on
behalf of the petitioner that it is the respondent who himself
abandoned the work. Solely on the ground that if the respondent would
have abandoned the work, in that case, departmental inquiry would
have been initiated and/or he would have been issued show cause
notice. Be that as it may, considering the fact that respondent
worked only for less than two years and approximately between June
1988 to February 1990 as a daily wage labourer, considering the
recent decision of the Hon’ble Supreme Court rendered in the case of
Senior Superintendent Telegraph, Bhopal (Supra),
it appears to the Court that if a lump sum monetary compensation of
Rs.20,000/- is awarded to the respondent in lieu of reinstatement and
back wages and continuity of service, it would sub-serve the ends of
justice. In para 9 and 10, the Hon’ble Supreme Court has observed as
under:
9. In last few
years it has been consistently held by this Court that relief by way
of reinstatement with back wages is not automatic even if termination
of an employee is found to be illegal or is in contravention of the
prescribed procedure and that monetary compensation in lieu of
reinstatement and back wages in cases of such nature may be
appropriate, (See U.P. State Brassware Corpn. Ltd. & Anr. v. Uday
Narain Pandey1;Uttaranchal Forest Development Corpn. v. M.C. Joshi2;
State of M.P. & Ors. v. Lalit Kumar Verma3; Madhya Pradesh
Administration v. Tribhuban4; Sita Ram & Ors. v. Moti Lal Nehru
Farmers Training Institute5; Jaipur Development Authority v. Ramsahai
& Anr.6; Ghaziabad Development Authority & Anr. v. Ashok
Kumar & Anr.7 and Mahboob Deepak v. Nagar Panchayat, Gajraula &
Anr.).
10. In a recent
judgment authored by one of us (R.M.Lodha, J.) in the case of Jagbir
Singh v. Haryana State Agriculture Marketing Board and Anr.9, the
aforesaid decisions were noticed and it was stated :
7. It is
true that the earlier view of this Court articulated in many
decisions reflected the legal position that if the termination of an
employee was found to be illegal, the relief of reinstatement with
full back wages would ordinarily follow. However, in recent past,
there has been a shift in the legal position and in a long line of
cases, this Court has consistently taken the view that relief by way
of reinstatement with back wages is not automatic and may be wholly
inappropriate in a given fact situation even though the termination
of an employee is in contravention of the prescribed procedure.
Compensation instead of reinstatement has been held to meet the ends
of justice.
* * * * * * * *
* *
14. It would
be, thus, seen that by a catena of decisions in recent time, this
Court has clearly laid down that an order of retrenchment passed in
violation of Section 25-F although may be set aside but an award of
reinstatement should not, however, be automatically passed. The award
of reinstatement with full back wages in a case where the workman has
completed 240 days of work in a year preceding the date of
termination, particularly, daily wagers has not been found to be
proper by this Court and instead compensation has been awarded. This
Court has distinguished between a daily wager who does not hold a
post and a permanent employee .
In
view of the above and for the reasons stated above, the present
petition succeeds in part and the impugned judgment and award passed
by the Labour Court, Kutch-Bhuj dated 12.04.2010 passed in Reference
(LCB) No.13/2005 is hereby modified to the extent that instead of
reinstatement with 20% back wages and continuity of service,
petitioner to pay a sum of Rs.20,000/- to the respondent By way of
this petition under Articles 226 and 227 of the Constitution of
India, petitioner herein of lump sum monetary compensation in lieu
of the reinstatement and back wages and continuity of services. As
and when the respondent approaches the petitioner, the same shall be
paid to him by Account payee cheque. Rule is made absolute to the
aforesaid extent. No costs.
(M.R.
Shah, J.)
*menon
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