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2018 DIGILAW 349 (GUJ)

Sardar Sarovar Narmada Nigam Ltd. v. Ashwin S Gosai

2018-02-01

A.J.DESAI

body2018
JUDGMENT : 1. Rule. Mr. Ravi B. Shah as well as Mrs. Krishna G. Rawal, learned advocates appearing for the respondent No.1 in both the petitions waive service of rule. With the consent of learned advocates appearing for the respective parties, the matters are taken up for final hearing. 2. In these two writ petitions, the petitioner – Sardar Sarovar Narmada Nigam Limited has challenged order dated 14.10.2016 passed by Commissioner for Workmen Compensation Act and Judge, Labour Court, Gandhidham, Kutch in Recovery Application No.13 of 2010 as well as order dated 14.10.2016 passed by Commissioner for Workmen Compensation Act and Judge, Labour Court, Gandhidham, Kutch in Recovery Application No.12 of 2010 by which the Labour Court directed the petitioner to pay certain amounts towards salary with interest @ 6% within a period of 30 days from the date of the order. 3. The brief facts arise from the records are as under :- 4. That the respondents - employees were working with the present petitioner - Sardar Sarovar Narmada Nigam Ltd. as daily wagers in the year 1990. Their services came to be retrenched in the year 1991. Being aggrieved with the same, they raised an industrial dispute and ultimately the case was referred to the competent Court. The said references were allowed in part by judgment and award dated 20-11-2017. By the said award, the Labour Court directed the petitioner to reinstate the respondents employees, however without back wages. 5. The said decision was challenged by the present petitioner by way of filing writ petitions being Special Civil Application No.11591 of 2008 and Special Civil Application No.11993 of 2008. The said petitions were dismissed by this Court on 17.9.2008 and 25.11.2008 respectively and the award passed by the Labour Court were upheld. However, the respondents were not reinstated and only on 18-08-2009, they were reinstated. 6. Though the order of reinstatement was passed on 20-11-2007 and the respondents came to be reinstated only on 18-08-2009, the respondents filed an application under Section 33 of the Industrial Disputes Act, 1947 being Recovery Applications No.13 of 2010 and 12 of 2010. The said applications were opposed by the petitioner. By the impugned orders, the applications were allowed and the present petitioner has been directed to pay the wages from 20-11-2007 to 18-08-2009. Hence these petitions. 7. The said applications were opposed by the petitioner. By the impugned orders, the applications were allowed and the present petitioner has been directed to pay the wages from 20-11-2007 to 18-08-2009. Hence these petitions. 7. Pursuant to the notices issued by this Court, the respondents have appeared through learned Advocates and has filed reply and produced relevant documents. 8. Mr. H. S. Munshaw, learned advocate appearing for the petitioner would submit that the Labour Court has committed an error in accepting the applications in toto and has granted the difference of wages up to 2010 that is the date of joining the services by the respondents employees. He would submit that on 18-08-2009, the respondents - employees by written communication were asked to join at Ghandhidham which is sub-division of the petitioner. However, the respondents – employees did not join and insisted for a particular place which they are not entitled. He, therefore, would submit that the petitions may be allowed. 9. On the other hand, learned advocates appearing for the respondents would submit that the award came to be passed way back on 20.11.2007 and thereafter, the writ petitions filed by the petitioner also came to be dismissed by this Court. Thereafter, the employees wrote a letter to the authority on 29-12-2008 and requested to comply with the award passed by the Labour Court and confirmed by this Court. However, they were not reinstated. Thereafter, legal notice was issued by the employee through their advocates for compliance of the award. However, the respondents were not reinstated by the petitioner. They would further submit that only in the year 2010, the respondents were reinstated and, therefore, no interference required with the impugned orders passed by the Labour Court and hence, the petitions may be dismissed. 10. I have heard learned advocates appearing for the respective parties. It is an undisputed fact that the award which was passed on 20-11-2007 has became final in the year 2008 when the writ petitions filed at the instance of the petitioner were dismissed by this Court. It is pertinent to note that there was no stay granted by this Court with regard to the execution and operation of the award. It also appears that the respondents employees by written communication dated 29-12-2008 requested the petitioner to permit them to join the service. However, the employees were not permitted to join the service. It is pertinent to note that there was no stay granted by this Court with regard to the execution and operation of the award. It also appears that the respondents employees by written communication dated 29-12-2008 requested the petitioner to permit them to join the service. However, the employees were not permitted to join the service. Similarly, legal notice has also been issued through lawyer at the instance of the employees. 11. It appears from the record that finally, the petitioner wrote a due communication on 18-08-2009 asking the respondents to join the services at Ghandhidham which the respondents did not join and ultimately they joined in the year 2010 at Adipur. Therefore, in my opinion the Labour Court ought to have considered the fact that reinstatement was offered by the petitioner to the respondents on 18-08-2009 and, therefore, in absence of any other orders, the employees would be entitled for wages from 20-11-2007 (i.e. the date of the award) to 18-08-2009 (when the petitioner had offered reinstatement to the respondents – employees). Accordingly, the petitions are allowed in part. The order impugned dated 14.10.2016 passed by Commissioner for Workmen Compensation Act and Judge, Labour Court, Gandhidham, Kutch in Recovery Application No.13 of 2010 as well as order dated 14.10.2016 passed by Commissioner for Workmen Compensation Act and Judge, Labour Court, Gandhidham, Kutch in Recovery Application No.12 of 2010 are modified to the following extent. It is hereby declared that the respondents would be entitled for the salary from 20-11-2007 to 18-08-2009 with simple interest as the rate of 6%. The said amount shall be paid by the petitioner to the respondents employees within a period of 6 weeks from the date of receipt of this order. If the amount is not paid within the aforesaid time limit, the petitioner shall pay simple interest at the rate of 9%. Rule is made absolute to the above extent. Direct service is permitted.