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SCA/4094/2001 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4094 of 2001
With
SPECIAL
CIVIL APPLICATION No. 3918 of 2001
With
SPECIAL
CIVIL APPLICATION No. 3925 of 2001
HONOURABLE
MR.JUSTICE KS JHAVERI
======================================
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
NAVGHANBHAI
GEDABHAI & 1 - Respondent(s)
======================================
Appearance :
MRS CM SHAH,
AGP, for Petitioner(s) : 1,
RULE SERVED for
Respondent(s) : 1 - 2.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 12/07/2010
ORAL
JUDGMENT
1. Special
Civil Application No.4094 of 2001 is directed directed against the
judgment and award passed by learned Presiding Officer, Labour Court,
Surendranagar in Recovery Application Nos.113 and 114 of 1990 on 16th
November 2000. The case of the workmen therein was that they were
paid less amount than minimum wages and therefore they claimed the
difference amount.
2. In
Special Civil Application No.3918 of 2001 the challenge is against
the judgement and award of the Labour Court, Surendranagar on 8th
August 2000 in Reference (LCS) No.212 of 1998 whereby the petitioner
was directed to reinstate the respondent workman to his original post
with 30% back wages.
3. In
Special Civil Application No.3925 of 2001 the challenge is against
the judgment and award dated 4th August 2000 passed by
Labour Court, Surendranagar, in Reference (LCS) No.326 of 1992
whereby the petitioner was directed to reinstate the respondent with
20% back wages.
4. The
above referred Special Civil Applications were directed to be heard
along with Special Civil Application No.3919 of 2001 and other allied
matters. This Court vide judgement dated 16th September
2005 disposed of the said Special Civil Application with detailed
reasons. The operative part of the aforesaid order reads as under:
“28.
Another aspect of this matter is also required to be noted. In his
deposition recorded at Exh. 9 before the labour court, workman has
deposed in clear terms that after termination of his service, one
Shri Jagabhai was engaged by the establishment; fresh persons have
been engaged.; while engaging them, he was not offered job. This
evidence of the workman has also remained unchallenged and
uncontroverted and not denied by the petitioner. No rebuttal evidence
was produced by the petitioner before the labour court. Respondent
workman was not offered job before employing fresh hands. Therefore,
petitioner has also committed breach of section 25-H of the
Industrial Disputes Act, 1947. In view of that also, respondent
workman is entitled for reinstatement because it is independent
section and not linked with section 25-B or 25-F of the ID Act, 1947.
Legal right of re-employment is independent right irrespective of the
fact whether workman had completed 240 days continuous service or
not. Moment retrenchment of workman is established, section 25-H of
the ID Act would apply as independent section. Moment it is
established that new persons were engaged without first offering to
those who were retrenched earlier, such retrenchment would be
rendered illegal for want of compliance of section 25-H. When new
employee is recruited or engaged by the employer in place of
respondent, then, there is no justification for the petitioner to
terminate the services of the respondent. It is the duty of the
petitioner to satisfy the labour court that the retrenchment of
respondent is legal and justified but in this case, petitioner has
not been able to establish that the retrenchment of the respondent is
legal and/or justified. Thus, looking from this angle also, award of
reinstatement is doing substantial justice between the parties.
Before this Court also, no submissions have been made by Ms. Mita
Panchal on this aspect of subsequent engagement of new person/s after
retrenchment of the workman. Thus, on two counts, respondent is
entitled for reinstatement. One for want of compliance of section
25-F of the ID Act, 1947 and also for want of breach of section 25-H
of the ID Act, 1947 and, therefore, in either way, award of
reinstatement of the workman cannot be interfered with by this Court.
29.
It is true that this Court has very limited jurisdiction under
Article 227 of Constitution and this Court cannot act as an appellate
authority. This Court even cannot re-appreciate evidence as
appreciated by Labour Court and award passed by Labour Court based on
facts, being a fact finding authority. This Court also cannot disturb
such findings of facts which are arrived at by Labour Court on basis
of evidence led before it. Even if two views are possible, this Court
cannot interfere with th same while exercising powers under Article
227 of the Constitution. Hence, according to my opinion, there is no
substance in this petition. Therefore, petition is dismissed. Rule is
discharged. Ad. Interim relief, if any, shall stand vacated.
30
Ordinarily, this Court may not pass any order against petitioner in
petition filed by petitioner. However, looking to peculiar facts of
this case, on the basis of record and in absence of respondent, this
Court has thought it fit to pass appropriate orders for
implementation of award in question. Ad-interim relief granted by
this Court on 11.6.2001 has come to an end on 6.9.2001. Therefore,
Range Forest Officer, Extension Range, Kheradi Road, Surendranagar,
is directed to reinstate respondent-workman in service within a
period of one month from date of receipt of copy of this order.
Petitioner – Range Forest Officer, Extension Range, Kheradi Road,
Surendranagar, is further directed to pay 20% back wages to
respondent-workman from 15.6.92 to 5.8.2000 within a period of six
weeks from date of receipt of copy of this order. The petitioner –
Range Forest Officer, Extension Range, Kheradi Road, Surendranagar is
further directed to pay full back wages to respondent-workman with
effect from date of award, i.e. 5.8.2000 till date of his actual
reinstatement, within a period of eight weeks from date of receipt of
copy of this order. This Court, considering the facts of this case,
is compelled to pass such orders which normally this Court does not
pass.”
5. The
present petitions involve similar facts and questions of law and
therefore the ratio laid down in the aforesaid judgement is squarely
applicable to the present matters. In that view of the matter, for
the reasons set out in the aforesaid judgement, the present petitions
are dismissed. Rule is discharged with no order as to costs. Interim
releif, if any, shall stand vacated.
6. The
concerned petitioner shall implement the judgments and awards of the
Labour Court in these petitions within a period of six weeks from the
date of receipt of copy of this order.
[K.S.
JHAVERI, J.]
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