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2015 DIGILAW 1296 (GUJ)

Range Forest Officer v. Vitthalbhai Bhaubhai

2015-12-16

JAYANT M.PATEL, VIPUL M.PANCHOLI

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JUDGMENT : Jayant M. Patel, J. 1. Admit. Ms. Megha Jani, learned counsel appearing for the respondent workman by caveat waives notice of admission. With the consent of the learned advocates appearing for both the sides, the appeal is finally heard. 2. The present appeal is directed against the order dated 13.03.2015 passed by the learned Single Judge of this Court in Special Civil Application No. 10736/09, whereby the learned Single Judge, for the reasons recorded in the order, has set aside the award passed by the Labour Court and further directed for reinstatement of the respondent workman original petitioner with continuity in service and backwages to the fullest extent. 3. We have heard Mr. Devnani, learned AGP for the appellant and Ms. Jani, learned counsel appearing for the respondent workman. 4. It is an undisputed position that initially, on 01.04.1990, the respondent workman was terminated from service and he had raised the dispute under the Industrial Disputes Act (hereinafter referred to as the "Act") which was referred to the Labour Court for adjudication being Case No. 48/92. In the said Reference, ultimately, the Labour Court had passed the award for reinstatement with continuity in service and also backwages vide award dated 04.09.1993. It is also an admitted position that thereafter, the workman was not being reinstated and therefore, he had to initiate various proceedings and ultimately, he was reinstated on 18.11.1993. After he was reinstated, once again, on the very ground that he was a daily wager, his services came to be terminated on 17.03.1994. The respondent workman once again had to raise the dispute under the Act which came to be referred to the Labour Court for adjudication being Reference Case No. 174/94. The Labour Court, after adjudication, passed the award for dismissal of the reference on the premise that he had worked for 118 days, i.e., from 18.11.1993 to 17.03.1994 and such period would be less than 240 days and therefore, the termination could not be said to be illegal under section 25F of the Act. The respondent workman being aggrieved by the aforesaid award passed by the Labour Court, for dismissal of the reference, preferred Special Civil Application No. 10763/09. The respondent workman being aggrieved by the aforesaid award passed by the Labour Court, for dismissal of the reference, preferred Special Civil Application No. 10763/09. The learned Single Judge after hearing both the sides, found that the action of again termination on the very ground was not permissible and therefore, he found that the termination could be said to be illegal and directed for reinstatement. However, so far as the backwages are concerned, the learned Single Judge having found that the second time termination was illegal, directed for 100% backwages apart from the continuity in service. Under the circumstances, the present appeal before the Division Bench of this Court. 5. The learned counsel appearing for the appellant contended that it could not be said that the appellant was prevented from terminating the services of the respondent workman on the ground that he was daily wager and he further submitted that no reasons whatsoever are recorded by the learned Single Judge for awarding 100% backwages. 6. As per the learned Assistant Government Pleader, when it was a matter of termination of services of a daily wager and the question of reinstatement was to be considered after about 20 years, the learned Single Judge ought to have awarded lumpsum compensation in lieu of reinstatement even if he found that the termination was illegal. Instead of that, reinstatement has been ordered with full backwages. He submitted that in case of daily wager, no full backwages can be awarded because there is no guarantee that everyday he would be engaged and the workman would be getting wages and therefore, this Court may set aside the order for reinstatement as well as full backwages. 7. Whereas, the learned counsel appearing for the respondent workman contended that second time termination if examined with the past conduct of the appellant, it was nothing but overreaching the judicial process because earlier, termination was on the ground that he was daily wager which was not found legal by the Labour Court and the award was passed in Reference Case No. 48/92. Inspite of the same, he was not reinstated and the workman had to initiate litigation including the petition before this Court and the appellant was compelled to reinstate respondent workman. Inspite of the same, he was not reinstated and the workman had to initiate litigation including the petition before this Court and the appellant was compelled to reinstate respondent workman. Thereafter, allowing him to work for some time, again the termination was effected on the very ground which was rightly found impermissible by the learned Single Judge and this Court may not interfere. The learned counsel for the respondent also submitted that when the termination was illegal, the backwages, if ordered by the learned Single Judge, more particularly considering the facts and circumstances of the case, may not be interfered with in the present appeal. Hence, the discretion has been exercised by the learned Single Judge. She therefore submitted that the appeal may be dismissed. 8. Having considered the aforesaid contention and after considering the reasons recorded by the learned Single Judge, it appears that if the termination second time was found to be illegal, the learned Single Judge could not be said as having committed any error in reaching to the conclusion that the reinstatement was required to be considered and awarded. We also find that the approach on the part of the Labour Court in calculating only 118 days in service by ignoring the fact that earlier termination was found to be illegal and continuity in service was granted as per the earlier award in Reference Case No. 48/92 coupled with the aspect that termination of workman was on the same ground which was found as illegal, it can be said that the Labour Court had committed ex facie error which was required to be interfered with by the learned Single Judge while exercising the power under Article 226/227 of the Constitution. 9. However, the matter does not end there. This Court while exercising the power under Articles 226 and 227 of the Constitution, when finds that there is error committed apparent on the face of record, it may have discretion to remand the matter to the Labour Court for reconsideration in light of the observations made by this Court or in the alternative, considering the peculiar facts and circumstances of the case, Court may not remand the matter and may grant the relief in the event the remand may result into miscarriage of justice or may cause great undue hardship to the parties to the proceedings. 10. 10. If the facts of the present case are considered, it cannot be said that the learned Single Judge committed error in exercising the discretion for grant of relief of reinstatement when the termination was 20 years back and the workman was pursuing litigation and awaiting justice in accordance with law since last 20 years. But, at the same time, so far as backwages are concerned, it is by now well settled that backwages are not as a matter of course even if the termination is found to be illegal and the reinstatement is to be ordered. Having found that the termination is illegal and the reinstatement was required to be ordered, it may require further examination about the burden discharged by the workman for claiming backwages and thereafter, court may exercise the sound discretion. No reasons whatsoever are recorded in the impugned order for awarding of backwages except that the action on the part of the appellant herein who was respondent before the learned Single Judge was not found to be proper. We may mention that conduct on the part of the employer would be relevant for the purpose of deciding the matter as to whether the action of termination is legal or illegal. But so far as backwages is concerned, the matter may require further examination of the evidence before the Labour Court. In the examination in chief, the workman has mentioned that he used to get labour for 12 to 13 days in a month and he was getting wages of Rs. 15/- per day. If the aforesaid aspect is considered, one can say that the matter could be considered for awarding of backwages to the extent of 50%. But such may be the case not of a daily wager, but of a regular employee whose employment is assured for the whole of the month. In the present case, the respondent workman was daily wager and there was no clear evidence to show that he was to be engaged every month on continuous basis. In our view, when the question is to be considered of backwages for a daily wager, it will be of lesser pedestal in comparison to a person getting monthly salary. Under these circumstances, we find that it was appropriate if backwages was awarded at 25%. In our view, when the question is to be considered of backwages for a daily wager, it will be of lesser pedestal in comparison to a person getting monthly salary. Under these circumstances, we find that it was appropriate if backwages was awarded at 25%. Since the aforesaid aspect is not considered in the manner as observed by us and no reasons are recorded in the impugned order, we find that the order passed by the learned Single Judge deserves to be modified to that extent. 11. In view of the aforesaid observations and discussions, the impugned order passed by the learned Single Judge for reinstatement in service and for continuity in service is not interfered with. However, so far as the order for backwages is concerned, the same is modified to the extent that the respondent workman would be entitled to 25% backwages. In order to avoid controversy of the quantum of wages to be calculated, it is observed that the backwages shall be calculated on the basis of daily wage prevailing from time to time which in any case shall not be less than minimum wage prescribed at the relevant point of time and after having calculated the said amount, 25% of the backwages shall be paid to the workman concerned. So far as the regular wages after the expiry of one month from the date of the order of the learned Single Judge, the workman would be in any case entitled to the full amount until he is actually reinstated in service. The appellant shall calculate the amount and shall make the payment within eight weeks from today to the workman concerned. As the reinstatement is already made, no further direction is required. The appeal is partly allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.