Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Guj) 471

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIPUL M. PANCHOLI, HEMANT M. PRACHCHHAK, JJ.
Jayesh s. Joshi – Appellant
Versus
Umreth Municipality & others – Respondent
R/LETTERS PATENT APPEAL NO. 405 of 2014 In R/SPECIAL CIVIL APPLICATION NO. 14200 of 2007 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2014
Decided on : 01-03-2023

Advocates:
Advocate Appeared:
For the Appellant : MR MANAN A SHAH
For the Respondent: MR DEEPAK P SANCHELA, MR JAYNEEL PARIKH

In cases of wrongful termination, reinstatement with continuity of service and backwages is the normal rule, and the employer should not be relieved of the burden to pay the employee's dues.

Headnote:
Industrial Disputes Act - Termination of Service - Section 25-F, Section 25-G, Section 25-H
Fact of the Case:

The appellant, a Daily Wager Octroi Clerk, was terminated without following the mandatory provisions of the Industrial Disputes Act. The Labour Court dismissed the reference, stating that the service cannot be regularized but awarded retrenchment compensation. The Single Judge upheld the dismissal, stating no violation of the Act.
Finding of the Court:

The Court found that there was a violation of Section 25-F, Section 25-G, and Section 25-H of the Industrial Disputes Act, and the petitioner's juniors were retained by the respondent municipality. The Single Judge's findings were deemed contrary to the record.
Issues: Violation of mandatory provisions of the Industrial Disputes Act, wrongful termination, and entitlement to reinstatement and backwages.
Ratio Decidendi: In cases of wrongful termination, reinstatement with continuity of service and backwages is the normal rule. The wrongdoer, the employer, should not be relieved of the burden to pay the employee's dues. The delay in the judicial process should not punish the employee. The employer must give similar treatment to the terminated employee as given to the retained juniors.
Final Decision: The impugned order was quashed and set aside, and the respondent municipality was directed to reinstate the petitioner within 8 weeks with continuity of service in another department. The appeal was allowed, and the deposited amount was to be refunded to the respondent municipality.

JUDGMENT :

VIPUL M. PANCHOLI, J.

1. Present appeal has been filed by the appellant original petitioner against order dated 7.12.2012 passed by the learned Single Judge in Special Civil Application No. 14200 of 2007, whereby the learned Single Judge has dismissed the petition filed by the petitioner.

2. The brief facts giving rise to present appeal are as under:-

2.1 The present appellant - original petitioner was recruited as Daily Wager Octroi Clerk on sanctioned vacant post of the establishment set-up of respondent municipality on 14.10.1990. It is the case of the petitioner that the respondent municipality without following mandatory provision contained in the Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act") retrenched the services of the petitioner on 1.5.2001 by oral order. It is specific case of the petitioner that the juniors to the petitioner were absorbed in other departments of the respondent municipality. The petitioner challenged his illegal termination by raising a dispute which was referred to the Labour Court, Anand where the same was registered as Reference (LCA) No. 103 of 2001. Before the Labour Court, reply was filed by the respondent municipality. The deposition of the petitioner was recorded vide Exh.13. The petitioner also produced documentary evidence before the Labour Court. Before the Labour Court, it was specifically contended by the petitioner that the respondent has violated the mandatory provision contained in Section 25-F, Section 25-G and Section 25-H of the I.D. Act. The Labour Court vide award dated 6.3.2007 dismissed the reference by observing that the service of the petitioner cannot be regularized. The specific finding was also recorded that the respondent municipality has violated the provision contained in Section 25-F of I.D. Act. However, after recording the aforesaid findings, reference was rejected by observing that the petitioner is not entitled to be reinstated and in lieu of reinstatement, retrenchment compensation can be awarded to the petitioner with 6% interest.

2.2 The petitioner, therefore, filed captioned petition before this Court. The learned Single Judge vide order dated 7.12.2012 dismissed the said petition. While dismissing the petition, learned Single Judge has made an observation that there is no violation of provision of Section 25-G and Section 25-H of the I.D. Act and even there is no breach of Section 25-F of I.D. Act. The petitioner has therefore, preferred present Letters Patent Appeal challenging the order of the learned Single Judge.

3. Heard Mr. G.M. Joshi, learned Senior Counsel assisted by Mr. Manan Shah, learned Counsel for the petitioner and Mr. Deepak Sanchela, learned Counsel for the respondent Municipality.

4. Learned Senior Counsel for the appellant has referred the impugned award rendered by the concerned Labour Court. It is submitted that from the documentary as well as oral evidence produced before the Labour Court, the petitioner could establish that there is violation of provisions contained in Section 25-F, Section 25-G and Section 25-H of I.D. Act. Despite of that the Labour Court has wrongly rejected the reference. It is submitted that the Labour Court has observed that even if there is violation of mandatory provision of I.D. Act, in lieu of reinstatement, retrenchment compensation can be granted and thereby, the respondent herein is directed to pay the retrenchment compensation with 6% interest. It is submitted that the aforesaid observation made by Labour Court are not in accordance with the provisions contained in Section 25-F, Section 25-G and Section 25-H of the I.D. Act.

5. At this stage, learned Senior Counsel has referred the interim order dated 19.7.2021 passed by this Court in the present proceedings. It is observed by this Court in the said order that "Admittedly, there was a violation of Section 25-F conditions and also the violation of Section 25-G and Section 25-H of the Act and the petitioner has never been eithe