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2016 DIGILAW 190 (GUJ)

Executive Engineer v. Baldevji Bavabhai Thakor

2016-01-27

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Hasurkar, learned advocate for the petitioner and Ms. Kamani, learned advocate for Mr. Pathak, learned advocate for the respondent workman. 2. In present petition, the petitioner has challenged an award dated 28.6.2005 passed by the learned Labour Court, Kalol in Reference (LCK) No. 27 of 1988 whereby the learned Labour Court directed the petitioner to reinstate the respondent and to pay 20% backwages. 3. The Court admitted the petition vide order dated 14.2.2006. As regards the interim relief, the Court passed following order: "Rule. By way of ad interim relief the award of the Labour Court qua back wages and continuity of service is stayed. Reinstatement will be subject to result of the petition. It will be open to the petitioner to give any other equivalent work to the respondent on the same terms. Notice as to interim relief returnable on 13th April 2006." 4. Today, when the petition is called out and taken up for hearing, Ms. Kamani, learned advocate for the respondent fairly submitted that out of group of four petitions, wherein similar facts and circumstances are involved and the similar award came to be passed, three petitions, i.e. Special Civil Applications No. 2014/2006, 2066/2006 and 2067/2006 came to be decided by the Court vide judgment dated 23.2.2015. 5. Learned advocate for the respondent relied on the said decision and submitted that similar order in case of present respondent may be also be passed. 6. She clarified that this petition was segregated and could not be decided along with other three similar petitions because at the relevant time it was brought to the notice that the respondent died during pendency of the petition. 7. She submitted that after the petition was segregated until now she has not been able to get details of the heirs/legal representatives of the deceased workman and therefore, amendment so as to implead the heirs/legal representatives is not prayed for or carried out. 8. She, however, submitted that in these circumstances, the petition can be disposed of with similar order as judgment dated 23.2.2015 in the said three petitions. 9. Before proceeding further and before considering the request by learned advocate for the respondent, it is necessary and appropriate to take note of the submissions by Mr. Hasurkar, learned advocate for the petitioner. 10. Mr. 9. Before proceeding further and before considering the request by learned advocate for the respondent, it is necessary and appropriate to take note of the submissions by Mr. Hasurkar, learned advocate for the petitioner. 10. Mr. Hasurkar, learned advocate for the petitioner submitted, on the basis of the written instructions given to him by the petitioner company, that since by order dated 14.2.2006, the Court did not grant any interim relief qua reinstatement and in view of the fact that the interim relief was granted only with regard to backwages and continuity of service, the respondent was reinstated and the award directing the reinstatement was complied after the interim order dated 14.2.2006 passed in present petition. He also submitted that the respondent was actually reinstated w.e.f. 28.6.2006 and he was assigned the Divisional Store at Kalol. 11. In view of the said submission by learned advocate for the petitioner, it emerges that the direction with regard to reinstatement stands complied w.e.f. 28.6.2006. This leaves behind the relief for backwages granted by the learned Labour Court. 12. In the judgment dated 23.2.2015 in three petitions, i.e. Special Civil Applications No. 2014/2006, 2066/2006 and 2067/2006, the Court has observed, inter alia, that: "10. The only aspect which may be required to be considered now in the present petition would be of maintaining the continuity in service already awarded by the Labour Court and the back-wages to the extent of 20%. As regards, continuity in service is concerned, in normal course if it is found by the Labour Court that the reinstatement deserves to be given, the continuity in service may be granted, unless any specific evidence is led on behalf of the employer that the continuity in service cannot be granted on valid ground. Further, at the same time, continuity in service would be available only if there is regular set up or that the persons working as NMR employees by virtue of any scheme are absorbed in the regular cadre. If the status NMR Employees has continued as it was even at the time of reinstatement, the continuity in service may not have any further consequence, except for the revision of the wages as prevailing from time to time. Under these circumstances, I find that the direction given for continuity in service by exercise of discretion by the Labour Court subject to the aforesaid would not call for any interference. 11. Under these circumstances, I find that the direction given for continuity in service by exercise of discretion by the Labour Court subject to the aforesaid would not call for any interference. 11. On the aspect of back-wages, it appears that the Labour Court has committed ex facie error on the face of record, inasmuch as primarily, it is the duty of the workmen to lead evidence for showing that they had made attempts to get another employment, but they failed. It is thereafter, the burden would shift upon the employer to prove by producing evidence or otherwise that there was gainful employment or attempts stated by the workmen to get another employment is false or contrary to the record. In the impugned judgement, the Labour Court has taken reverse approach, inasmuch as the Labour Court has proceeded on the basis that the burden is upon the employer and not upon the workmen. Such approach on the part of the Labour Court cannot be countenanced. 12. Further no evidence is brought on record by the concerned workmen that sincere attempts were made to get another employment or job, but they failed. Unless primary burden was discharged by the concerned workmen, the question may not arise for evidence to be led by the employer in this regard. Hence, it can be said that the Labour Court has committed error apparent on the face of record. 13. Under these circumstances, the award passed by the Labour Court so far as it relates to the payment of back-wages to the extent of 20% cannot be sustained in the eye of law. Hence, the same deserves to be quashed and set aside. 14. In view of the aforesaid observations and discussion, the award passed by the Labour Court so far as it relates to the reinstatement and continuity in service is not interfered with, but the award of the Labour Court for grant of 20% back-wages is quashed and set aside. The award passed by the Labour Court shall stand modified accordingly. 15. The petitions are allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, no order as to costs. 16. The award passed by the Labour Court shall stand modified accordingly. 15. The petitions are allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, no order as to costs. 16. It is clarified that in respect of one of the employees namely; Baldevbhai Babaji Thakore, since he has expired and his legal heirs are not joined as parties and the matter is segregated from the present group, the rights and contentions of both the sides in the said petition, as may be available in law, shall remain open." 13. Thus, it emerges that this Court has, after examining similar award in respect of other three workmen, set aside the direction qua the backwages. 14. In view of the fact that learned advocate for the respondent fairly submitted that the order similar to the judgment dated 23.2.2015 may be passed in present petition because this petition involves similar facts and the award is also similar as in other three cases, the said direction qua the backwages is, in view of the said judgment dated 23.2.2015, hereby set aside. 15. Accordingly, the petition is partly allowed. The direction qua backwages is set aside in light of the judgment dated 23.2.2015. 16. In view of the fact that the reasons for setting aside the said direction are recorded in the judgment dated 23.2.2015 on which reliance is placed by the respondent and this Court has followed the same reasons for setting aside the direction for backwages, the reasons are not reiterated for the sake of brevity. The direction qua backwages is not disturbed. The said direction is confirmed, however, in view of the fact that the learned advocate for the petitioner submitted that the reinstatement was implemented w.e.f. 28.6.2006, any direction for reinstatement is not passed. Any specific direction with regard to reinstatement is not passed also because the workman has died. 17. It is clarified that if any claim for wages for the period for the date of award until the date of reinstatement arises or it remains pending, then it will be open to the heirs/legal representatives of the respondent workman to take out appropriate proceeding in accordance with the law before appropriate forum. 18. 17. It is clarified that if any claim for wages for the period for the date of award until the date of reinstatement arises or it remains pending, then it will be open to the heirs/legal representatives of the respondent workman to take out appropriate proceeding in accordance with the law before appropriate forum. 18. However, the petitioner would do well in considering the claim for wages for the period from the date of award until the reinstatement and take necessary steps for payment of such wages to the heirs/legal representatives, expeditiously, in accordance with the law. With the aforesaid clarifications and directions, the petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.