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Gujarat High Court
Hon’ble Mr. Justice Ravi R. Tripathi & Hon’ble Mr. Justice R.D. Kothari
Valimamad Jamalbhai Pipalvadia
Versus
Deputy Executive Engineer & Anr.
Letters Patent Appeal No. 1325 of 2013—Decided on 15/01/2014
Letters Patent Appeal — Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Sections 25-F, 25-G and 25-H — Industrial Disputes Gujarat Rules, 1966 — Rule 81 — Non-compliance — Termination — Relief of reinstatement, continuity of service and back wages — Scope of — There is no dispute that workman was working since 1968 till his services came to be terminate in year 1989 and no procedure to under take compliance of the mandatory provision of Law was carried out — The award made by Labour Court was not complied because workman till then had reached to the age of 62 years — In the case Learned Single Judge has failed to appreciate the various pronouncements of the Hon’ble Supreme Court on the subject of grant of compensation instead of reinstatement considering the fact that he has already cross the age of superannuation — Court considering the clear-cut findings of Labour Court held it’s duty to grant moulded relief so as to see that interest of justice is best served — Court therefore modified the award of Learned Single Judge and directed Opponent No. 1 to treat the workman in service till the age of superannuation — However the period from the date of termination till he reached the age of superannuation should be only for the purpose of calculating the notional benefits and be paid retiral benefits.
Held :
This Court finds that the date on which the Labour Court awarded reinstatement, the respondent – workman was more than 62 years of age and therefore the same could not have been implemented. Further, the respondent – workman had approached the Labour Court after 17 years from the alleged date of termination. Though one of the view can be that merely delay in approaching the Labour Court itself should not disentitle the workman from getting relief, however, in the facts of this case, the delay was of about 17 years, coupled with the fact that the award of the Labour Court is unimplementable in view of the fact that the respondent was about 62 years of age, when reinstatement was ordered. [Para 5.1(6)]
The appellant respectfully states that Ld. Single Judge has not properly considered the two judgments of the Hon’ble Supreme Court of India in the case of Senior Superintendent, Telegraph (Traffic), Bhopal vs. Santosh Kumar Seal and Ors. reported in AIR 2010 SC 2140 and Incharge Officer and Another vs. Shankar Shetty reported in 2010 (9) SCC 126 on the subject of grant of compensation instead of reinstatement considering the fact that appellant herein has already crossed the age of superannuation on 15/09/2010. [Para 6(9)]
In view of the aforesaid clear-cut findings recorded by the learned Judge of the Labour Court, it was the duty of this Court to appreciate and grant the moulded relief so as to see that the interest of justice is best served. [Para 7]
So far as the order of reinstatement is concerned, the workman is not able to get any benefit of the same because he has crossed the age of superannuation. But, then what is required to be considered is the period of 20 to 22 years when he was worst-off. He lived life high and dry. This Court is of the opinion that the judgment and order of learned Single Judge is required to be modified to an extent. The Opponent No. 1 is directed to treat the appellant-workman in service till the age of his superannuation. But, the period from the date of his termination till he reached the age of superannuation should be only for the purpose of calculating the notional benefits. The appellant-petitioner will not be entitled to any backwages, which are not granted even by the learned Judge of the Labour Court. He shall be paid retiral dues by treating him to be in service till the age of his superannuation. [Para 7.2]
Law Laid Down :
Even if there is delay in marking reference to Labour Court if it comes to the conclusion that the termination was illegal it could suitably mould the relief to be granted in view of delay.
Ravi R. Tripathi, J.—The appellant- original Respondent No. 1 -workman is before this Court being aggrieved by the judgment and order dated 27.09.2013 passed by the learned Single Judge in Special Civil Application No. 12583 of 2013, whereby, the learned Single Judge was pleased to allow the petition and quash the impugned award of the Labour Court without any order of costs.
2. The facts of the case are that the appellant herein approached the Labour Court with a case that he was serving with the first party i.e. Deputy Executive Engineer, Irrigation Department, Sub- Division, Morbi, District-Rajkot as a labourer. It is the case of the appellant that he was working since 1968, till his services came to be terminated in the year 1989. It is the case of the appellant that he was paid Rs. 1,500/- per month. It is also the case of the appellant that he was not paid any amount towards his rights. He was not served with a notice. He was not paid notice pay nor he was paid retrenchment compensation. The case of the appellant that the action of the opponent herein i.e. the first party is violative of Article 25-F, G and H. It is also the case of the appellant that after his services were terminated, he tried to get job elsewhere, but he could not get. His presence was marked in the muster-roll and he was paid wages, which documents are in possession of the first party.
3. What is important in the case of the workman – appellant is that he was not given any earned leave account card, identity card, wages slip and that in the preceding 12 months from the date of termination of his services, he had worked for 240 days. It was therefore prayed that the action of the opponent – first party be declared to be illegal and he should be ordered to be reinstated on his original post with continuity of service and wages for the intervening period, and the expenses of this Reference be also awarded.
4. The learned Presiding Officer of the Labour Court – 1, Rajkot was pleased to make an award dated 28.01.2013 partly allowing the Reference (LCR) No. 178 of 2006. The learned Presiding Officer was pleased to order that within 30 days’ from the date of publication of the award, the workman should be reinstated on his original post giving continuity of services but without any backwages for the intervening period. The learned Presiding Officer was pleased to order to the first party to pay amount of Rs. 750/- towards costs of the reference case.
5. The Deputy Executive Engineer, Water Supply Sub-Division, aggrieved by that judgment and order, challenged the same before this Court by filing Special Civil Application No. 12583 of 2013 which came up for hearing of the learned Single Judge, who by the order under challenge in this appeal dated 27.09.2013 allowed the petition and quashed the award of the Labour Court.
5.1 Learned advocate Mr. Thakar invited attention of the Court to Paragraph-6 of the judgment and order which reads as under:—
“6.....Having heard learned Advocates for the respective parties and having gone through the material on record, this Court finds that the date on which the Labour Court awarded reinstatement, the respondent – workman was more than 62 years of age and therefore the same could not have been implemented. Further, the respondent – workman had approached the Labour Court after 17 years from the alleged date of termination. Though one of the view can be that merely delay in approaching the Labour Court itself should not disentitle the workman from getting relief, however, in the facts of this case, the delay was of about 17 years, coupled with the fact that the award of the Labour Court is unimplementable in view of the fact that the respondent was about 62 years of age, when reinstatement was ordered. Under these circumstances, the award of the Labour Court needs to be quashed and set aside. In the peculiar facts of this case, more particularly, when there was delay of about 17 years on the part of the respondent – workm
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