{"id":30144,"date":"2011-08-02T00:00:00","date_gmt":"2011-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lathi-vs-natubhai-on-2-august-2011"},"modified":"2018-06-12T03:55:11","modified_gmt":"2018-06-11T22:25:11","slug":"lathi-vs-natubhai-on-2-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lathi-vs-natubhai-on-2-august-2011","title":{"rendered":"Lathi vs Natubhai on 2 August, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Lathi vs Natubhai on 2 August, 2011<\/div>\n
Author: K.A.Puj,<\/div>\n
  \n Gujarat High Court Case Information System \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\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/8121\/2010\t 15\/ 15\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. 8121 of 2010\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 16623 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.A.PUJ\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\nLATHI\nNAGAR PALIKA - Petitioner(s)\n \n\nVersus\n \n\nNATUBHAI\nBHIKHABHAI BARIYA - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nDEEPAK P SANCHELA for\nPetitioner(s) : 1, \nMR VC VAGHELA 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 K.A.PUJ\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 28\/12\/2010  \n \nCOMMON ORAL JUDGMENT<\/pre>\n
\tThe
\n\tpetitioner, Lathi Nagar Palika, through its Chief Officer has filed
\n\tthese two petitions
\n\tunder Articles 226 and 227 of the Constitution of India praying for
\n\tquashing and setting aside the impugned award dated 29.9.2009 passed
\n\tby the Industrial Tribunal at Bhavnagar in a Reference (IT) No.118
\n\tof 1993 as well as award dated 23.3.2010 passed by the Labour Court,
\n\tAmreli in Reference Case No.11 of 2003.\n<\/p>\n
\t This Court has issued
\n\trule on 16.7.2010 and ad-interim relief in terms of para 8(C) of
\n\tSpecial Civil Application No.8121 was granted by virtue of which
\n\timpugned award\/orders were stayed. The Court has, however, made
\n\tclear that the present service condition of the respondent will not
\n\tbe changed by the petitioner without following due procedure under
\n\tthe law.\n<\/p>\n
\tAd-interim
\n\trelief granted earlier was confirmed on 12.8.2010 and the matter was
\n\tfixed for final hearing. On 23.12.2010 when the
\n\tmatter has come up for hearing this Court was of the view that the
\n\tpetitioner should have filed two separate petitions challenging both
\n\tthe awards separately and hence separate one page petition being
\n\tSpecial Civil Application No.16623 of 2010 was filed challenging the
\n\taward passed by the Labour Court on 3.3.2010 in Reference Case No.11
\n\tof 2003.\n<\/p>\n
\t Since rule was commonly
\n\tissued in earlier petition there is no need to issue separate rule
\n\tin one page petition which is subsequently filed by the petitioner.\n<\/p>\n
\t Heard Mr.Deepak P.\n<\/p>\n
\tSanchela, learned advocate appearing for the petitioner and Mr.
\n\tV.C.Vaghela, learned advocate appearing for the respondent in both
\n\tthese petitions.\n<\/p>\n
\tIt
\n\tis the case of the petitioner Nagar Palika that the respondent
\n\tworkman alongwith others
\n\twere working as daily wager in Nagar Palika and had worked for more
\n\tthan 240 days. The respondent workman was working as part time
\n\twireman and dispute was raised through the Union, namely, Amreli
\n\tDistrict Mazdoor Sangh before the Industrial Tribunal at Rajkot
\n\twhere it was registered as Reference (IT) No.135 of 1991.  However,
\n\ton constitution of Bhavnagar Tribunal, the said reference was
\n\ttransferred to the Bhavnagar and it was registered as Reference (IT)
\n\tNo.118 of 1993.\n<\/p>\n
\tThe
\n\trespondent workman has filed his statement of claim in which he has
\n\tsubmitted that he was working in different post but he was not made
\n\tpermanent nor he was given the benefit of permanent employee and
\n\tsince he has completed 240 days he was required to be made
\n\tpermanent. The petitioner Nagar Palika in its Written Statement has
\n\tspecifically stated that the respondent workman was working
\n\tas a daily wager and on adhoc basis. It is further stated that the
\n\trespondent workman and similarly situated other persons were
\n\trequired only when there was work. It is further stated that there
\n\tis no provisions under the Industrial Disputes Act which cast an
\n\tobligation on the employer to make permanent. After considering the
\n\tstatement of claim as well as Written Statement and the arguments of
\n\tthe learned counsels appearing for the parties the Industrial
\n\tTribunal directed the petitioner Nagar Palika to absorb the
\n\trespondent workman as a regular employee and to pay the arrears with
\n\teffect from 1.1.1997 on 27.12.2000.\n<\/p>\n
\t Being
\n\taggrieved by the said award passed by the Industrial Tribunal the
\n\tpetitioner challenged the said award before this Court in Special
\n\tCivil Application No.4327 of 2002. This Court vide its order dated
\n\t13.12.2005 set aside the said award and remanded the matter
\n\tback to the Tribunal for deciding it afresh.\n<\/p>\n
\t It is also the case of
\n\tthe petitioner that somewhere in 2001 one Mr.Sureshkumar Dodia has
\n\tfiled Special Civil Application No.7 of 2001 seeking benefit of the
\n\tGovernment Resolution dated 7.10.1988. The said petition came to be
\n\tdismissed on the ground of an alternative remedy. The petitioner
\n\tNagar Palika, thereafter, after following due procedure of law
\n\tterminated the services of the respondent employee and hence the
\n\tdispute was raised by the respondent workman before the Labour Court
\n\tin Reference No.11 of 2003 for reinstatement in service. Thus, two
\n\tdifferent proceedings were going on before two different forums i.e.
\n\tIndustrial Tribunal as well as Labour Court.\n<\/p>\n
\tThe
\n\tReference No.118 of 1993 pending before the Industrial Tribunal came
\n\tto be decided on 29.9.2009
\n\tand the petitioner was directed to regularize the respondent
\n\tworkman. Likewise, the Reference No.11 of 2003 pending before the
\n\tLabour Court also came to be decided on 23.3.2010 and the order of
\n\ttermination was cancelled by the Labour Court.\n<\/p>\n
\t It is these two orders
\n\tpassed by the Labour Court as well as Industrial Tribunal which are
\n\tchallenged in the present petitions.\n<\/p>\n
\tMr.Sanchela,
\n\tlearned advocate appearing for the petitioner has submitted that the
\n\tIndustrial Tribunal has erred in passing an award directing the
\n\tpetitioner Nagar Palika to regularize service of the respondent
\n\tworkman. The Tribunal has not taken into consideration the
\n\tprovisions of Gujarat Municipalities Act, the policy decision taken
\n\tby the Government with regard to recruitment, and the qualification
\n\tas well as procedure required to be followed for filling up the
\n\tregular
\n\tpost. He has further submitted that the directions given by the
\n\tIndustrial Tribunal to regularize services of the respondent workman
\n\tand to pay scale as well as benefit is absolutely illegal and
\n\tcontrary to law laid down by this Court as well as Apex Court. He
\n\thas further submitted that the Director of Municipalities has
\n\tclearly issued directions to all Municipalities, more particularly
\n\tpetitioner Nagar Palika that they should not keep the daily wager
\n\tmore than 10% of total number of sanctioned posts. He has further
\n\tsubmitted that the petitioner Nagar Palika is governed by the
\n\tprovisions of the Act and the set up of the staff pattern and the
\n\tpost are being fixed by the Director of Municipalities. When there
\n\tis no regular vacant post available no such direction could have
\n\tbeen issued. He has, therefore, submitted that the directions issued
\n\tby the Industrial Tribunal are absolutely improper and unjustified
\n\tand hence the impugned award deserves
\n\tto be quashed and set aside.\n<\/p>\n
\t While challenging the
\n\taward passed by the Labour Court Mr.Sanchela submitted that the
\n\tservices of the respondent workman were terminated after following
\n\tdue procedure of law and hence the Labour Court is not justified in
\n\tsetting aside the said termination order.\n<\/p>\n
\tMr.V.C.Vaghela,
\n\tlearned advocate appearing for the respondent workman in both these
\n\tmatters, on the other hand, have supported the award passed by the
\n\tIndustrial Tribunal as well as Labour Court. He has further
\n\tsubmitted that the Industrial Tribunal as well as Labour Court has
\n\tdecided the respective references, after considering the evidence –
\n\toral as well as documentary  on record and after applying its mind
\n\tto the provisions of the Act as well as the facts on record and
\n\thence the same should not be disturbed
\n\tby this Court while exercising its writ jurisdiction under Articles
\n\t226 and 227 of the Constitution of India.\n<\/p>\n
Mr.\n<\/p>\n
\tVaghela has further submitted that alongwith the respondent workman,
\n\tthere are other 15 workmen, out of whom many are junior to the
\n\trespondent and they have been confirmed whereas the respondent was
\n\tdenied the benefit of permanency. He has further submitted that the
\n\tpetitioner has put up 7 years service at the time when other 15
\n\tpersons were made permanent. He has, therefore, submitted that there
\n\tshould not be any discrimination amongst the workmen, who have
\n\tworked as daily wagers. The action of the petitioner Nagar Palika
\n\tis, therefore, in violation of Articles 14 and 16 of the
\n\tConstitution of India. The Industrial Tribunal has considered all
\n\tthese points and issued directions to make the respondent workman
\n\tpermanent and hence the challenge to the
\n\tsaid award should not be entertained by this Court.\n<\/p>\n
\tSo far as reference
\n\tbefore the Labour Court is concerned, the Labour Court has quashed
\n\tand set aside the termination order passed by the Nagar Palika and
\n\tthe petitioner Nagar Palika was directed to reinstate the workman on
\n\this original post within 30 days with 50% back wages. The Labour
\n\tCourt has specifically come to the conclusion that the termination
\n\tof service of the workman is in violation of provisions of
\n\tIndustrial Disputes Act and hence the workman was entitled to
\n\treinstatement.\n<\/p>\n
\tIn
\n\tsupport of his submission, Mr. Vaghela relied on the decision of the
\n\tApex Court in the case of  Harjinder Singh Vs.
\n\tPunjab State Warehousing Corporation, reported in (2010) 3 SCC 192,
\n\twherein the Court after discussing the entire case law on the
\n\tsubject has held that if a man is deprived of his livelihood, he
\n\tis deprived of all his fundamental and constitutional rights and for
\n\thim the goal of social and economic justice, equality of status and
\n\tof opportunity, the freedoms enshrined in the Constitution remain
\n\tillusory. Therefore, the approach of the Courts must be compatible
\n\twith the constitutional philosophy of which the directive principles
\n\tof State policy constitute an integral part and justice due to the
\n\tworkman should not be denied by entertaining the specious and
\n\tuntenable grounds put forward by the employer – public or
\n\tprivate. The Apex Court, therefor, allowed the petition filed by the
\n\tworkman and the impugned order of the High Court was set aside and
\n\tthe award passed by the Labour Court was restored. He has,
\n\ttherefore, submitted that the facts being almost identical, the
\n\torder quashing and setting aside the services of the respondent
\n\tworkman with 50% back wages should not be disturbed by
\n\tthe Court and the directions with regard to regularization should
\n\thave also been implemented by the Nagar Palika.\n<\/p>\n
\tHaving
\n\theard the learned counsels appearing for the parties and having
\n\tconsidered their rival submissions in light of the impugned awards
\n\tpassed by the Industrial Tribunal as well as Labour Court and having
\n\tfurther considered the authorities cited before the Court, the Court
\n\tis of the view that the Industrial Tribunal has clearly erred in
\n\tissuing directions for regularization of the services of the
\n\trespondent workman. It is settled position in law and in number of
\n\tdecisions, this Court as well as Apex Court have held that the Court
\n\thas no power to issue direction for regularization of the service of
\n\tthe workman. The Court cannot create any new post, which is not
\n\tthere. The issuance of direction of regularization of the respondent
\n\tworkman in the present case, amounts
\n\tto creation of new post, which is barred under the law.\n<\/p>\n
\tThe ground of challenge
\n\tagainst termination raised by Mr. Vaghela has also no substance. The
\n\trespondent workman was wireman and he was not on sanctioned post.
\n\tThe Director of Municipalities has specifically issued direction not
\n\tto engage daily wagers more than 10% of the permanent employees. The
\n\trespondent workman, therefore, cannot be made permanent. In that
\n\tview of the matter award passed by the Tribunal issuing direction to
\n\tthe petitioner Nagar Palika to make the respondent workman permanent
\n\tand to pay him pay-scale is quashed and set aside.\n<\/p>\n
So
\n\tfar as award passed by the Labour Court is concerned, it is true
\n\tthat services of the respondent workman were terminated on 5.5.2001.
\n\tAt the time of termination of his services provisions of Section 25F
\n\thave not been
\n\tcomplied with and he was neither issued notice nor paid notice pay
\n\tor retrenchment compensation. However, the Court has, of late, taken
\n\tthe decisions that when the services of the respondent workmen are
\n\tnot by way of regular mode, their initial appointments are not in
\n\taccordance with law and it is by way of back door entry. If they
\n\thave got the employment in an establishment in this manner, in that
\n\tcase the provisions of Section 25F are not required to be complied
\n\twith. At the most in such cases the concerned workman is entitled to
\n\tsome reasonable compensation. Reliance is placed before the Court on
\n\tthe decision of the Apex Court in the case of  Senior
\n\tSuperintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal
\n\tand others, reported in (2010) 6 SCC 773,
\n\twherein it is held that it has been consistently held by the Supreme
\n\tCourt that relief by way of reinstatement with back wages is not
\n\tautomatic even if termination of an
\n\temployee is found to be illegal or is in contravention of the
\n\tprescribed procedure and that monetary compensation in lieu of
\n\treinstatement and back wages in cases of such nature may be
\n\tappropriate. The Court further held that in view of the aforesaid
\n\tlegal position and the  fact that the workmen were engaged as daily
\n\twagers for about 25 years back and they worked hardly for 2 or 3
\n\tyears, relief of reinstatement and back wages to them cannot be said
\n\tto be justified and instead monetary compensation would subserve the
\n\tends of justice.\n<\/p>\n
\tThe
\n\tlearned Single Judge of this Court in the case of  Amreli
\n\tMunicipality Vs. Timaniya Maganbhai Gordhanbhai (Special Civil
\n\tApplication No.10712 of 2010 decided on 12.10.2010)
\n\thas taken the view that in case of daily wager, order of
\n\treinstatement and back wages cannot be passed and in case if it is
\n\tfound that there was breach of Section 25(F),
\n\t25(G) and 25(H) of the Industrial Disputes Act, the concerned
\n\tworkman can be compensated by way of lump-sum monetary compensation.
\n\tThe Court has accordingly directed the petitioner Nagar Palika in
\n\tthat case to pay an amount of Rs.40,000\/- to the respondent workman
\n\tby way of lump-sum monetary compensation within the period of eight
\n\tweeks from the date of said decision.\n<\/p>\n
\t Considering the above
\n\tlegal position and facts of the present case, the Court is of the
\n\tview that award passed by the Labour Court of reinstatement with 50%
\n\tback wages is required to be modified by awarding compensation of
\n\tRs.75,000\/- to the respondent workman which shall be paid within two
\n\tmonths from today. It is made clear that acceptance of this amount
\n\tby the respondent workman would be considered as the acceptance of
\n\tthe decision by the respondent workman.\n<\/p>\n
\t Subject to the above
\n\tdirections and observations these petitions are allowed. Rule is
\n\tmade absolute to the above extent without any order as to costs.\n<\/p>\n
\t                              (K.\n<\/p>\n
\tA. PUJ, J.)<\/p>\n
kks <\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Lathi vs Natubhai on 2 August, 2011 Author: K.A.Puj, Gujarat High Court Case Information System Print SCA\/8121\/2010 15\/ 15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8121 of 2010 With SPECIAL CIVIL APPLICATION No. 16623 of 2010 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 […]<\/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-30144","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nLathi vs Natubhai on 2 August, 2011 - 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\/lathi-vs-natubhai-on-2-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lathi vs Natubhai on 2 August, 2011 - 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