{"id":24768,"date":"2010-04-27T00:00:00","date_gmt":"2010-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gujarat-vs-kantilal-on-27-april-2010"},"modified":"2016-02-12T14:05:13","modified_gmt":"2016-02-12T08:35:13","slug":"gujarat-vs-kantilal-on-27-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gujarat-vs-kantilal-on-27-april-2010","title":{"rendered":"Gujarat vs Kantilal on 27 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gujarat vs Kantilal on 27 April, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/11125\/2009\t 22\/ 22\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 11125 of 2009\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nGUJARAT\nMARITIME BOARD - Petitioner(s)\n \n\nVersus\n \n\nKANTILAL\nHIRALAL KHARVA - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMS\nSEJAL K MANDAVIA for\nPetitioner(s) : 1, \nNone for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 27\/04\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
Heard
\n\tlearned Advocate Ms. Sejal K.Mandavia for petitioner Gujarat
\n\tMaritime Board through its Port Officer, Mandvi (Kutch).\n<\/p>\n
Petitioner
\n\tBoard has challenged award passed by Labour Court, Kachchh at Bhuj
\n\tin Reference (LCB) No.45 of 2000 Exh. 43 dated 27.3.2009. Labour
\n\tCourt has partly allowed reference and set aside termination of
\n\trespondent workman by holding it as illegal, improper, unjust, ultra
\n\tvires, against principles of natural justice and directed petitioner
\n\t to reinstate respondent workman in service, with continuity of
\n\tservice with 50 per cent back wages for interim period.\n<\/p>\n
Ms.\n<\/p>\n
\tMandavia, learned Advocate appearing for petitioner has raised
\n\tcontention before this court that according to respondent, he was
\n\tserving with petitioner board since 25 years as seaman and on
\n\t18.1.2000, he was illegally retrenched by petitioner without
\n\tfollowing section 25F of ID Act, 1947. It was also pointed out that
\n\tpetitioner has not followed principles of last come first go and
\n\tother juniors were continued in service and, thereby he has prayed
\n\tthat he should be reinstated with full back wages for interim
\n\tperiod. She further submitted that detailed written statement was
\n\tfiled by petitioner contending that it is absolutely wrong fact that
\n\trespondent was working since 25 years and for that, he should
\n\tproduce necessary evidence on record. It was also contended by
\n\tpetitioner before labour court, Bhuj that respondent has not
\n\tcompleted 240 days’ continuous service and he was employed as and
\n\twhen work was required and, therefore, she submitted that labour
\n\tcourt has committed gross error in granting relief in favour of
\n\tpresent respondent workman. She also submitted that it is duty of
\n\tworkman to produce evidence before court and he should establish
\n\tthat he has completed 240 days continuous service but in facts of
\n\tthis case, respondent has not produced anything, however, labour
\n\tcourt has believed that he has completed 240 days continuous service
\n\twhich is not proper. She also submitted that labour court ought to
\n\thave considered deposition of witness Shri Chaturbhai Mohanbhai
\n\tRathod Exh. 27 in which he has categorically mentioned that
\n\trespondent was given work for one year  or two years and respondent
\n\tworkman has not passed selection process. It is also deposed that
\n\trespondent was given work as and when it was available and from 1975
\n\tto 2000, he has not served with petitioner board. She also submitted
\n\tthat labour court has wrongly believed that respondent was working
\n\tsince 1995 with petitioner. Statement which was produced at Exh.
\n\t18\/1 is wrongly interpreted by labour court. In short, respondent
\n\thas not completed 240 days continuous service and, therefore,
\n\tquestion of compliance of section 25F of ID Act, 1947 does not
\n\tarise. Labour Court has wrongly relied upon decisions cited by
\n\trespondent which were not applicable to facts of present case. She
\n\talso submitted that labour court has wrongly believed that other
\n\tpersons who are junior to respondent were continued in service. She
\n\tsubmitted that it is important to note that respondent has not given
\n\tnames of such juniors. She submitted that it is duty of respondent
\n\tworkman to give names of the persons, date of joining of such
\n\tpersons and post of said persons. She further submitted that only
\n\tafter said three facts are established, labour court can say that
\n\tthere is violation of section 25G and H of ID Act, 1947. She
\n\tsubmitted that respondent workman has not established breach of
\n\tsection 25G and H of ID Act, 1947. In short, her submission is that
\n\tlabour court has committed error in granting relief of reinstatement
\n\tand 50 per cent back wages for interim period and, therefore,
\n\tinterference of this court is necessary. Except that, no other
\n\tsubmission is made by learned Advocate Ms. Mandavia before this
\n\tCourt and no decision has been cited by her before this Court in
\n\tsupport of submissions recorded herein above.\n<\/p>\n
I
\n\thave considered submissions made by learned Advocate Ms. Mandavia. I
\n\thave also perused impugned award passed by labour court, Bhuj. Award
\n\tis running from page 1 to 52 Exh. 43. Statement of claim was filed
\n\tby workman at Exh.3 against which reply was filed by petitioner at
\n\tExh.13 and thereafter, documentary evidence was produced by employee
\n\tas referred to in para 6. No further documentary evidence is
\n\tproduced from employee side. Opponent   petitioner has not
\n\tproduced any documentary evidence in support of their case before
\n\tlabour court. Before labour court, respondent workman was examined
\n\tat Exh. 15 and on behalf of petitioner, witness Chaturbhai Mohanbhai
\n\tRathod was examined at Exh. 27. Thereafter, submissions were made by
\n\tboth learned advocates before labour court. After considering
\n\tsubmissions made by learned advocates for respective parties, issues
\n\thave been framed by labour court in paragraph 14. Labour Court has
\n\tdiscussed evidence of workman in paragraph 18 which is quoted as
\n\tunder:\n<\/p>\n
 18.\tOn
\n\tthe above submission, the employee has examined himself at Exh.15.
\n\tThe employee has deposed, on oath that he was appointed by the
\n\topponent on dated 01.10.1975 as a seaman labourer and worked as such
\n\ttill dated 18.01.2000 and opponent have retrenched him on dated
\n\t18.01.2010. The employee further deposed, on oath, that from the
\n\tdate of his joining the service till his retrenchment he has
\n\tcompleted more than 240 days in each and every calendar year. The
\n\temployee was cross examined by the learned advocate Shri Desai for
\n\tthe opponent. During the cross examination the employee has denied
\n\tthe suggestion that he was being paid salary for the period for
\n\twhich he used to work and he was being called as and when need
\n\tarises. The employee has admitted that the first appointment order
\n\twas given to him and he has not produced the said appointment order
\n\tbefore this court and for this, he has not explained by deposing
\n\tthat as the appointment order is destroyed in the earthquake he has
\n\tnot produced the same. He has deposed during the cross examination
\n\tthat he has produced the entry permit in the port area for showing
\n\tthat he was the seaman labourer of the opponent. The employee has
\n\tdenied the suggestion that he has never worked as rojamdar or
\n\tpermanent workman with the opponent. Except this nothing fruitful
\n\thas come out from the cross examination of the employee by the
\n\tlearned advocate for the opponent.\n<\/p>\n
Then,
\n\tlabour court also considered oral evidence of witness for
\n\tpetitioner, namely Chaturbhai M. Rathod Exh. 27 in para 19 of award
\n\twhich is quoted as under:\n<\/p>\n
 19.\tOn
\n\tthe other hand, the opponent has examined his witness Shri
\n\tChaturbhai Mohanbhai Rathod at Exh.27. The witness deposed, on oath,
\n\tthat the employee was not permanent employee of the opponent. He
\n\tfurther deposed on oath that the employee was being called as and
\n\twhen work was available. The witness has deposed that the employee
\n\twas entrusted the petty work on hand pavti and upon completion of
\n\tthe said petty work, the workman was automatically relieved from
\n\tservice. He deposed that this work remains in existence for 5 day,
\n\t10 days, one year or for two years. He further deposed that the
\n\tworkman was being taken through the  employment exchange and the
\n\tworkmen were being appointed on temporary basis. He further deposed
\n\tthat his Institution runs as per BCSR Rules. He further deposed that
\n\tthe seniority list is not prepared of the workmen like the employee.
\n\tDuring cross examination by the learned Advocate Shri SD Rathod, for
\n\tthe employee, the witness has admitted that employee used to work as
\n\tlabourer and the Pass Exh.6 was issued by his Institution. The
\n\twitness further admitted that in the said pass the designation of
\n\tthe employee is shown as  SEAMAN   The witness deposed that in
\n\tthe year 1975, the employee may have worked on hand pavti but then
\n\the has deposed that the employee has not produced that he worked in
\n\tthe year 1975 and onwards. He further deposed that the hand pavti is
\n\tnot in their possession. He deposed that the seamen are 2 to 3 but
\n\the deposed that on completion of the work the employee was
\n\tautomatically relieved. The witness deposed that the work done on
\n\thandpavti with effect from 1975 to 2000  is not being counted as
\n\tservice. He deposed that the seniority list is prepared of permanent
\n\temployees but not of pavtiwala. The witness deposed that the
\n\temployee has not worked for 240 days in any of the calendar years
\n\tand there is no proof about the same. From the cross examination of
\n\tthe witness of the opponent by the learned advocate Shri SD Rathod,
\n\tit has come out that the employee was serving as seaman with the
\n\topponent and to that effect the Port Pass Exh. 6 was issued by the
\n\tInstitution. The Port Pass was issued on 30.12.1995. Thus, from the
\n\tcross examination of the opponent witness it is sufficiently proved
\n\tthat since 1995 the employee was working as Seaman of the opponent.
\n\tIn support of this there is statement of attendance produced at Exh.
\n\t18\/1. Now, as it has come on record by way of evidence of the
\n\twitness of the opponent that this statement was given by the
\n\topponent to the employee. On going through the said statement it
\n\tappears that in the year  1995, the employee had worked for 250
\n\tdays. In the year 1996, the employee had worked for 327 days. He has
\n\talso worked for 332 days in the year 1997. He has also worked for
\n\t307 days in the year 1998 and that in the year 1999 he has worked
\n\tfor 345 days. At the last in the year 2000 upto he was retrenched,
\n\the has worked 17 days only. Thus, from this statement, it is
\n\tsufficient proved that right from 1995 upto 2000 the employee had
\n\tworked for more than 240 days. This statement is supported by the
\n\tattendance registers produced at Exh.42 by the learned advocate Shri
\n\tSD Rathod. However, as it has come out from the deposition of the
\n\twitness of the opponent that prior to 1995 the employee may have
\n\tworked on handpavti and the period of work done on hand pavti is not
\n\tbeing counted. The witness has not denied that the employee has not
\n\tworked from 1975 upto 1995. Thus, when the opponent is in possession
\n\tof those hand pavtis and when they have shown their inability to
\n\tproduce the said handpavtis, this court is inclined to observe that
\n\thad the opponent produced the said handpavti then from the said
\n\thandpavti it would have been proved that the employee had worked for
\n\tmore than 240 days in each and every calendar year. Therefore,
\n\twithout any hesitation  this court raises a presumption that the
\n\temployee had worked for more than 240 days in each calendar year
\n\tright from 1975 upto 2000 the date of retrenchment of the employee.\n<\/p>\n
Aforesaid
\n\tparagraph is very much relevant and on that basis, labour court has
\n\tcome to conclusion that concerned workman has worked for more than
\n\t240 days in each calendar year right from 1975 upto 2000, till date
\n\tof retrenchment of employee. Before labour court, Port Pass issued
\n\tby institution dated 30.12.1995 was produced at Exh. 6. In cross
\n\texamination of opponent’s witness, it is sufficiently proved that
\n\tsince 1995, employee was working as seaman of opponents. In support
\n\tof this, there is statement of attendance produced at Exh. 18\/1
\n\twhich has come on record by way of evidence of witness for opponent
\n\tmeans present petitioner that this statement was given by petitioner
\n\tto employee concerned. Going through the said statement which was
\n\tgiven by petitioner to concerned employee, it appears, as considered
\n\tby labour court,  that in the year
\n\t1995, the employee had worked for 250 days, in the year 1996, the
\n\temployee had worked for 327 days. He has also worked for 332 days in
\n\tthe year 1997. He has also worked for 307 days in the year 1998 and
\n\tthat in the year 1999 he has worked for 345 days. At the last in the
\n\tyear 2000 upto he was retrenched, he has worked 17 days only.
\n\tTherefore, on the basis of
\n\taforesaid statement which was given by petitioner to workman,
\n\tcompletion of 240 days has been established by way of documentary
\n\tevidence before labour court, therefore, in light of these facts,
\n\taccording to my opinion, labour court has rightly come to conclusion
\n\tthat 240days continuous service has been completed by respondent
\n\tworkman and at the time of retrenchment or termination of service of
\n\tworkman, section 25F of ID Act, 1947 has not been complied with by
\n\tpetitioner and, therefore, labour court has rightly held that the
\n\torder of termination\/retrenchment is void ab initio.\n<\/p>\n
\tIn
\n\trespect to contention about 25G and 25H of ID Act, 1947, labour
\n\tcourt has given reasoning in para 24 and 25 of impugned award.
\n\tTherefore, para 24 and 25 of impugned award are quoted as under:\n<\/p>\n
 24.\tThe
\n\tlearned advocate Shri SD Rathod has vehemently submitted that when
\n\tthe junior to the employee are continued in service and the work
\n\twhich the employee was doing before his retrenchment is continued
\n\tthe employee cannot be retrenched therefore the retrenchment is
\n\tillegal and the employee should be reinstated in service with
\n\tretrenchment compensation and other benefits also. It is further
\n\tsubmitted that before retrenchment the provisions of section 25F of
\n\tID Act are mandatory and non compliance with said provisions is
\n\tillegal. The learned advocate Shri Rathod has submitted that the
\n\topponent has not given any chance to the employee but has kept new
\n\tworkmen, which is illegal, therefore, the order of retrenchment
\n\tshould be set aside and the employee should be reinstated with full
\n\tback wages. The learned advocate has also argued that the opponent
\n\thas not followed the principle of Last come First Go
\n\tand has retrenched the employee without any default. In support of
\n\this case the employee has deposed in his deposition Exh. 15 that he
\n\twas illegally retrenched. This fact is not rebutted by the opponent.
\n\tThe opponent has examined one witness at Exh. 27 but from the
\n\tevidence of the said witness particularly from the cross
\n\texamination, nothing fruitful has come out. Therefore, the say of
\n\tthe employee in his deposition coupled with cross examination is
\n\trequired to be believed. Thus, from the record of the case, it has
\n\tcome out that the opponent has illegally retrenched the employee
\n\tbecause the work which the employee was doing, is still going on. It
\n\tis also the case of the employee that after his retrenchment also,
\n\tpersons are taken in service and the employee is not called for the
\n\tsame, therefore, his retrenchment is is illegal. In views of the
\n\tabove circumstances, when the opponent has not rebutted
\n\tthe say of the employee on oath, in that case, it can be said that
\n\tthe opponent has not followed the provisions of the principle  Last
\n\tCome First Go . In view of
\n\tthe above circumstances, the opponent has violating the mandatory
\n\tprovisions of Section 25-G of ID Act by retrenching the employee
\n\tbecause in the ordinary course the opponent should have retrenched
\n\tthe workman who was the last person employed in that category and if
\n\tthe employer has retrenched the employee instead of last person
\n\temployed in that category, in that case the employer should have
\n\tgiven reasons for doing so. When the employer has not given notice
\n\trecording reasons for retrenching the employee instead of the
\n\temployee last employed nor the employer has given notice pay to the
\n\temployee because employee has completed 25 years continuous service
\n\twith the opponent. It has also come on record that the employer has
\n\talso not paid compensation for retrenchment for every completed year
\n\tof continuous service or any part thereof, therefore the employer
\n\thas not followed the mandatory provisions of Section 25-F of I.D.
\n\tAct but has violated the provisions of the said section. The
\n\temployer has also violated the mandatory provisions of Section 25H
\n\tof ID Act because he has employed other employees after retrenchment
\n\tof the employee and the work on which the employee was working was
\n\tstill continued even after retrenchment of the employee. Not only
\n\tthis, the employer has not given any opportunity in the manner
\n\tprescribed in Section 25-H to offer himself for reemployment because
\n\tas per provisions the employee shall have preference over other
\n\tpersons. Meaning thereby, before taking into his employ any persons,
\n\tthe employer should have first given opportunity to the employee on
\n\tthe said post and thereafter he may have employed other persons. As
\n\tthe employer has employed other persons without taking the employee
\n\tas his workman, the employer has violated the mandatory provisions
\n\tof the ID Act. In view of the above circumstances, the employee is
\n\tentitled for reinstatement on his original post with continuity of
\n\tservice along with back wages.\n<\/p>\n
25.\tThe
\n\tlearned Advocate for the employee has vehemently submitted that the
\n\temployee has not published  the seniority list on the notice board
\n\tin conspicuous place in the premises of the industrial establishment
\n\tat least seven days before the actual date of retrenchment but has
\n\tdirectly retrenched the employee from service and thereby the
\n\temployer has violated the mandatory provisions of section
\n\t81 of the Industrial Disputes (Gujarat) Rules, 1966 nor the employer
\n\thas shown the seniority list to the employee before his
\n\tretrenchment. This Court has gone through the record of the case and
\n\tthere is substance in the submission of the learned advocate for the
\n\temployee, therefore, this Court holds that the employer has violated
\n\tthe mandatory provisions of section 81 of the ID Rules, 1966. Not
\n\tonly this, the employer has not included the employee in the
\n\tseniority list and to explain this the employer has examined his
\n\twitness at Exh. 27 who  deposed that as the employee has not
\n\tcompleted 240 days in any of the years of his service his name is
\n\tnot included in the seniority. As held above, while deciding point
\n\tNO. 1, the employee has completed 240 days in each and every year.
\n\tMoreover, when the employee has been in continuous service for 25
\n\tyears under the opponent, he cannot be retrenched from service
\n\twithout giving notice in writing assigning the reasons because the
\n\topponent has not followed the Principle of  Last Come
\n\tFirst Go  Therefore this
\n\texplanation given by the witness of the opponent cannot be accepted.
\n\tThe employer has also violated the provisions by not including the
\n\temployee in seniority list when the juniors to him are included in
\n\tthe said seniority list. In view of the above detailed discussion
\n\tthe retrenchment of employee is illegal. Therefore, the opponent has
\n\tviolated the mandatory provisions of section 25F, 25G, 25H of ID Act
\n\tand Rule 81 of ID Rules. The employer has also violated the
\n\tprovisions of Section 82 of ID Rules because as per said section the
\n\temployer has not given the notice in writing by registered post  to
\n\tthe retrenched workman employee at his last known address  for
\n\tfilling the vacancies. The employee has also not informed, under
\n\tsub Rule (1) of Rule 82 of ID Rules, the trade union or unions of
\n\tworkmen connected with the industrial establishment  for the
\n\tvacancies to be filled in, giving details, therefore, the employer
\n\thas also violated the mandatory provisions of the said rules. In
\n\tthis respect reference may be made to the decision of Division Bench
\n\tof Hon’ble Gujarat High Court reported in  2001(3) GLR
\n\tPage 2734.\n<\/p>\n
\tIn the said case the employee was governed by Industrial Disputes
\n\t(Central)Rules, 1957.Juniors to the employee were reemployed and no
\n\tintimation was given to the employee about vacancy by Registered
\n\tPost at the address given by him. Therefore, the Hon’ble High Court
\n\tof Gujarat has held that there was violation of section 25-H and
\n\tRule 78.In the present case
\n\talso, the employer has not given intimation to the employee about
\n\tfilling of the vacancy. Therefore, the said decision is applicable
\n\tto the facts of the present case.\n<\/p>\n
\tLabour
\n\tCourt has considered various decisions in respect to subject. For
\n\tthat, labour court has rightly considered relevant facts which are
\n\ton record and also relevant decisions which are applicable to facts
\n\tof present case and for that, labour court has not committed any
\n\terror which would require interference of this court. Labour Court
\n\thas also considered question of back wages in paragraph which is
\n\tquoted as under:\n<\/p>\n
 33.\tFrom
\n\tthe above detailed discussion, this Court comes to the final
\n\tconclusion that the employee has sufficiently proved that he has
\n\tcompleted 240 days in each and every calendar year during the course
\n\tof his service and that he was illegally retrenched by the opponent
\n\tfrom service, without giving him notice, notice pay or retrenchment
\n\tcompensation. When such is the situation, this Court thinks it just
\n\tand proper, in the interest of justice to hold that the employee is
\n\tentitled to be reinstated on his original post along with 50 per
\n\tcent back wages. In view of the above detailed discussion, the
\n\tfollowing final order is passed. –\n<\/p>\n
\tIt
\n\tis necessary to note that the date of termination is 18th
\n\tJanuary, 2000 and dispute raised by workman was referred for
\n\tadjudication on 9th March, 2000 and reference came to be
\n\tdecided on 27th March, 2009. Duration in deciding
\n\treference is exactly about 9 years. Pendency is not because of
\n\tlethargic approach of concerned workman. While considering question
\n\tof back wages, labour court has considered relevant aspect and mere
\n\tlong pendency of litigation in Court is not a ground to deny relief
\n\tof back wages to concerned employee, otherwise, employee would
\n\tsuffer double jeopardy of losing back wages and also delay in
\n\tgetting reinstatement. As per recent decision of apex court in case
\n\tof M\/s. PVK Distillery Ltd. v. Mahendra Ram,<\/a> 2009 AIR SCW page
\n\t2904, question of relief of
\n\tback wages has been considered while considering long pendency of
\n\tlitigation in Courts and it was held that it is not ground to deny
\n\trelief,otherwise, employee would suffer double jeopardy of losing
\n\tback wages and also delay in getting reinstatement. Relevant
\n\tparagraph 20,21,22 and 23 are reproduced as under:\n<\/p>\n
 20.\tIn the instant
\ncase, the notice had been issued limiting the question to the payment
\nof 50% of the total back wages. This does not mean that the
\nrespondent is not entitled to further relief. The point that his
\nservices were terminated in the year 1985 and since then the case is
\npending for the last two decades in different courts also has no
\nrelevance, since he had approached the court within a reasonable
\ntime. It is not his fault that the case is still pending before the
\ncourt. These grounds could not be held against him for denying the
\nrelief of back wages otherwise he would suffer double jeopardy of
\nlosing back wages and delay in getting the reinstatement for no fault
\nof his. Therefore, it would have been more enlightening, had the High
\nCourt reasoned out as to why the appellant should reinstate the
\nrespondent with full employment benefits and should pay full back
\nwages to him for nothing in return from him in terms of work,
\nproduction etc.<\/p>\n
21)Giving
\na realistic approach to the matter and in spite of all these
\ncircumstances we are restricting ourselves to the question of 50% of
\nthe total back wages. Although services of the respondent have been
\nterminated unjustifiably and illegally, it itself does not create a
\nright of reinstatement with full employment benefits and full back
\nwages. The notice was issued with a view that the appellant s
\nfactory has been taken over by a new management altogether and by
\nasking the appellant to pay full back wages for the long interregnum
\nwould be unfair and unjust. The workman has not entered appearance to
\njustify the award passed by the Labour Court. Therefore, in our view,
\nit would be unreasonable to put a huge burden on the appellant by
\ndirecting them to reinstate respondent with continuity of service and
\nwith full back wages, because the appellant s factory had been
\ndeclared sick and remained closed for many years and has been
\nassigned to a new management led by its Chief Executive Director, Sri
\nM.K. Pilania in order to rehabilitate\/reconstruct it.\n<\/p>\n
22)In
\nview of the above discussion, we are of the opinion that it would be
\nfair and reasonable to direct the employer to deposit 50% of back
\nwages by way of arrears of back wages, instead of full wages awarded
\nby the Labour Court.\n<\/p>\n
23)Accordingly,
\nthe judgment and order of the Labour Court and the High Court are set
\naside and it is declared that the respondent herein shall be entitled
\nto 50% of the total back wages payable during the aforesaid period in
\nterms
\nof Section 6-N of the U.P. Industrial Disputes Act.\n<\/p>\n
\tIt
\n\tis necessary to note that in aforesaid reported decision, apex court
\n\thas also considered 50 per cent back wages for interim period being
\n\treasonable amount because termination is found to be unjustified and
\n\tillegal. Looking to facts which are on record in present case also
\n\tsquarely covers reasoning given by apex court in aforesaid
\n\tparagraph, therefore, according to my opinion, labour court has not
\n\tcommitted any error which would require interference in granting 50
\n\tper cent back wages for interim period because order of termination
\n\tis found to be void ab initio because of violation of mandatory
\n\tprovisions of section 25F of ID Act, 1947 and, therefore,
\n\tcontentions raised by learned Advocate Ms.Mandavia in this regard
\n\tcannot be accepted. Same are, therefore, rejected.\n<\/p>\n
\tEntire
\n\tfindings given by labour court are based on appreciation of evidence
\n\ton record and labour court has appreciated oral as well as
\n\tdocumentary evidence and has recorded finding of fact. Such findings
\n\tof fact recorded by court below normally cannot be disturbed by this
\n\tcourt while exercising powers under Article 227 of Constitution of
\n\tIndia as per recent decision of apex court in case of State
\n\tof Haryana v. Manoj Kumar<\/a>
\n\treported in 2010 AIR SCW 1990
\n\tdecided on 9th
\n\tMarch 2010. The relevant
\n\tPara 22 to 29
\n\tare quoted as under:\n<\/p>\n
\t\t 22.\t\tThe
\n\t\tappellants urged that the jurisdiction of the High Court under
\n\t\tArticle 227 is very limited and the High Court, while exercising
\n\t\tthe jurisdiction under Article 227, has to ensure that the courts
\n\t\tbelow work within the bounds of their authority.\n<\/p>\n
\t\t23.
\n\t\t   More than half a century ago, the Constitution Bench of this
\n\t\tcourt in   Nagendra  Nath  Bora  and  Another v. Commissioner of
\n\t\tHills Division and Appeals, Assam & Others AIR<\/a> 1958 SC 398
\n\t\tsettled that power under Article 227 is limited to seeing that the
\n\t\tcourts below function within the limit of its authority or
\n\t\tjurisdiction.\n<\/p>\n
\t\t24.
\n\t\t  This court placed reliance on Nagendra Nath’s case in a
\n\t\tsubsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu
\n\t\tAIR<\/a> 1963 SC 1895. The court observed that jurisdiction conferred
\n\t\tunder Article 227 is not by any means appellate in its nature for
\n\t\tcorrecting errors in the decisions of subordinate courts or
\n\t\ttribunals but is merely a power of superintendence to be used to
\n\t\tkeep them within the bounds of their authority.\n<\/p>\n
\t\t25.
\n\t\t  This court had an occasion to examine this aspect of the matter
\n\t\tin the case of Mohd. Yunus v. Mohd. Mustaqim & Others<\/a> (1983) 4
\n\t\tSCC 566 . The court observed as under:-\n<\/p>\n
“The
\nsupervisory jurisdiction conferred on the High Courts under Article
\n227 of the Constitution is limited “to seeing that an inferior
\nCourt or Tribunal functions within the limits of its authority,”
\nand not to correct an error apparent on the face of the record, much
\nless an error of law. for this case there was, in our opinion, no
\nerror of law much less an error apparent on the face of the record.
\nThere was no failure on the part of the learned Subordinate Judge to
\nexercise jurisdiction nor did he act in disregard of principles of
\nnatural justice. Nor was the procedure adopted by him not in
\nconsonance with the procedure established by law. In exercising the
\nsupervisory power under Article 227, the High Court does not act as
\nan Appellate Court or Tribunal. It will not review or reweigh the
\nevidence upon which the determination of the inferior court or
\ntribunal purports to be based or to correct errors of law in the
\ndecision.”\n<\/p>\n
\tThis
\n\tcourt again clearly reiterated the legal position in Laxmikant
\n\tRevchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi<\/a>
\n\t(1995) 6 SCC 576. The court again cautioned that the High Court
\n\tunder Article 227 of the Constitution cannot assume unlimited
\n\tprerogative to correct all species of hardship or wrong decisions.
\n\tIt must be restricted to cases of grave dereliction of duty and
\n\tflagrant abuse of fundamental principles of law or justice, where
\n\tgrave injustice would be done unless the
\n\tHigh Court interferes.\n<\/p>\n
\t  A three-Judge Bench of
\n\tthis court in Rena Drego (Mrs.) v. Lalchand Soni & Others<\/a> (1998)
\n\t3 SCC 341 again abundantly made it clear that the High Court cannot
\n\tinterfere with the findings of fact recorded by the subordinate
\n\tcourt or the tribunal while exercising its jurisdiction under
\n\tArticle 227. Its function is limited to seeing that the subordinate
\n\tcourt or the tribunal functions within the limits of its authority.
\n\tIt cannot correct mere errors of fact by examining the evidence and
\n\tre-appreciating it.\n<\/p>\n
\tIn
\n\tVirendra Kashinath Ravat & Another v. Vinayak N. Joshi &
\n\tOthers<\/a> (1999) 1 SCC 47 this court held that the limited power under
\n\tArticle 227 cannot be invoked except for ensuring that the
\n\tsubordinate courts function within its limits.\n<\/p>\n
\t29.
\n\t  This court over 50 years has been consistently observing that
\n\tlimited jurisdiction of the High Court under Article 227 cannot be
\n\texercised by interfering with the findings of fact and set aside the
\n\tjudgments of the courts below on merit.\n<\/p>\n
\tTherefore,
\n\tin view of above discussion and decision of apex court as referred
\n\tabove, there is no substance in this petition and same is required
\n\tto be dismissed.\n<\/p>\n
\tTherefore,
\n\tin result, this petition is dismissed accordingly.\n<\/p>\n
(H.K.\n<\/p>\n
Rathod,J.)<\/p>\n
Vyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gujarat vs Kantilal on 27 April, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/11125\/2009 22\/ 22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11125 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-24768","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGujarat vs Kantilal on 27 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gujarat-vs-kantilal-on-27-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gujarat vs Kantilal on 27 April, 2010 - 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