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2014 DIGILAW 101 (GUJ)

DISTRICT PANCHAYAT v. MALEK SIKANDARKHAN KAMUBHA

2014-01-23

JAYANT PATEL

body2014
ORAL JUDGMENT 1. The present petition is directed against the judgement and award passed by the Labour Court in Reference (LCS) No.151 of 2005, whereby the Labour Court has passed the award for reinstatement without back-wages 2. The short facts of the case are that as per the respondent workman he had worked from 1976 to 1986 with the petitioner, whereas as per the petitioner, only in the year 1978 the respondent had worked for 31 days and thereafter, in the year 1984, the respondent had worked for 16 days, in the year 1985 he had worked for 22 days and in the year 1986, he had worked for 13 days. In any event, in the year 1986, the engagement of the respondent was not continued. Until 1993, no disputes whatsoever was raised by the respondent and for the first time, in the year 1993 the dispute was raised against the so-called termination by the respondent. The said dispute came to be referred to the Labour Court for adjudication being Reference (LCS) No.228 of 1993. The Labo0ur Court, since nobody represented the case on behalf of the petitioner, proceeded ex parte and the Labour Court passed the award on 26.8.1997, whereby the reinstatement in service was ordered with 25% back-wages The petitioner carried the matter before this Court by preferring Special Civil Application No.2484 of 1998 and this Court, vide judgement dated 27.7.2005 set aside the ex parte award and directed the Labour Court to give opportunity to both the sides and to pass a fresh order. It appears that before the Labour Court, additional statement of claim and additional written statement were filed. The evidence was led, including that of cross-examination of the witnesses. The Labour Court thereafter found that as no documents of muster roll or register etc., were produced by the petitioner, in spite of the order below Exh. 24, it was to be accepted that the workman had completed 240 days and as no retrenchment compensation was paid and another employees were also engaged, it was a case for violation of Section 25F and Section 25H of Industrial Disputes Act (hereinafter referred to as ‘ID Act’). The Labour Court, thereafter found that the back-wages were not required to be awarded and the Labour Court passed the impugned award, whereby the reinstatement is ordered without back-wages It is under these circumstances, the present petition before this Court. The Labour Court, thereafter found that the back-wages were not required to be awarded and the Labour Court passed the impugned award, whereby the reinstatement is ordered without back-wages It is under these circumstances, the present petition before this Court. 3.I have heard Mr.G.H. Bhatt, learned Counsel for the petitioner and Mr.Rupera, learned Counsel for the respondent. 4. As such, if the evidence produced on behalf of the petitioner is considered, one may say that the respondent did not continuously worked during the period from 1976 to 1986 in any respective year for the period of not less than 240 days. However, the Labour Court, while appreciating the evidence, has taken note of the fact that on behalf of the workman, an application Exh. 24 was submitted calling upon the petitioner to produce the muster roll and the Court had passed the order to produce those documents or to submit reply, in response thereto, no action whatsoever was taken by the petitioner and, therefore, the Labour Court had drawn the adverse inference and found that there was violation of Section 25F of the ID Act. It further appears that on the aspect of violation of Section 25G and Section 25H of ID Act, the Labour Court found that the work was still going on and the other persons were also engaged and, therefore, there was violation of Section 25G and Section 25H of ID Act. The evidence produced on record, if considered, it cannot be said that in view of the aforesaid facts and circumstances that direction to produce the record and no action whatsoever, either of production of record or submission of reply stating that the record is not in existence or otherwise, the inference drawn by the Labour Court was perverse, nor can it be said as error apparent on the face of record, which may call for interference. It appears that the Labour Court, having found that the termination was illegal and the work was also available and other employees were also engaged, the exercise of judicial discretion for reinstatement in service could not be said to be by committing error of jurisdiction or by committing error of exercise of sound judicial discretion. It appears that the Labour Court, having found that the termination was illegal and the work was also available and other employees were also engaged, the exercise of judicial discretion for reinstatement in service could not be said to be by committing error of jurisdiction or by committing error of exercise of sound judicial discretion. It may be recorded that the award was passed on 18.7.2006, whereas, pending the petition, this Court observed for refusal of interim stay and had further observed that reinstatement of the workman shall be subject to the result of the petition. 5. It has been stated that thereafter the workman was not reinstated immediately, but was reinstated in the year 2007, after the order was passed by this Court in Civil Application No.5933 of 2007. 6. The learned Counsel for the respondent submitted that the respondent would be entitled to the wages as if reinstated from the expiry of the period of one month from the date of award and until the actual reinstatement. 7. In my view, if the award of reinstatement is maintained without back-wages, the salary from the date on which the award became effective until actual reinstatement would be available to the respondent. 8. Mr. Bhatt, learned Counsel appearing for the petitioner submitted that continuity in service is not ordered by the Labour Court in the impugned award. However, it appears that by through oversight vide order dated 7.5.2007, this Court in Civil Application No.5933 of 2007 ordered for reinstatement with continuity of service and, therefore, it was submitted that the said aspect may be clarified. 9. As such, in the award there is no specific order for reinstatement with continuity in service. Therefore, naturally the interim order would not travel beyond the award itself, more particularly because the workman has not challenged the award for not granting continuity in service or for not awarding back-wages But if the continuity is granted by the interim order of this Court and the salary is actually paid pursuant to the order passed by this Court dated 7.5.2007, the difference, if any, shall not be recovered from the respondent. 10. In view of the aforesaid observations and discussion, the award passed by the Labour Court for reinstatement in service without back-wages does not deserve to be interfered with. 10. In view of the aforesaid observations and discussion, the award passed by the Labour Court for reinstatement in service without back-wages does not deserve to be interfered with. However, since the situation to some extent has arisen on account of the interim order passed by this Court, clarification as observed by this Court in the present order would remain. 11. Subject to the aforesaid observations, the petition is dismissed. Rule is discharged. Considering the facts and circumstances, no order as to costs.