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2021 DIGILAW 918 (GUJ)

VIJAY VAMANRAY BHATTI v. STATE OF GUJARAT

2021-10-08

NIRZAR S.DESAI, R.M.CHHAYA

body2021
JUDGMENT : NIRZAR S. DESAI, J. 1. By way of the present Letters Patent Appeals under Clause 15 of the Letters Patent Act, the present appellants – original workmen have challenged the even orders dated 27.06.2018 passed by the learned Single Judge in Special Civil Application No.1605 of 2016 and in Special Civil Application No.1460 of 2016. The learned Single Judge, disposed of the petition i.e. Special Civil Application No.1605 of 2016 by partly setting aside and modifying the award impugned passed by the Labour Court, Jamnagar in Reference (T) No.85 of 2010 wherein vide award dated 13.10.2015 the learned Labour Judge partly allowed the Reference preferred by the workman and directed the employer to reinstate the workman with 10% back-wages and continuity of service. Similarly, the learned Single Judge, disposed of the petition i.e. Special Civil Application No.1460 of 2016 by partly setting aside and modifying the award impugned passed by the Labour Court, Jamnagar in Reference (T) and 86 of 2010 wherein vide award dated 13.10.2015 the learned Labour Judge partly allowed the Reference preferred by the workman and directed the employer to reinstate the workman with 10% back-wages and continuity of service. The learned Single Judge by modifying the aforesaid award impugned, in both the writ petitions, granted lumpsum compensation of Rs.45,000/- and Rs.25,000/- respectively to the workmen in lieu of reinstatement with continuity of their services and 10% back-wages and directed the respondent herein – original petitioner to pay the amount of lumpsum compensation, within a period of four weeks from the date of receipt of the certified copy of the orders. 2. Being aggrieved and feeling dissatisfied with the aforesaid even order dated 27.06.2018, both the workmen – original respondents preferred these Letters Patent Appeals challenging the order passed by the learned Single Judge dated 27.06.2018. 3. On 29.07.2021, this Court passed the following order in both the writ petitions being Special Civil Application No.1460 of 2016 and Special Civil Application No.1605 of 2016. “Heard Mr.Yogen Pandya, learned advocate for the appellant. Mr. Pandya, learned advocate submits that he restricts the prayer only to the extent of enhancement of lumpsum compensation. In view of the aforesaid statement of Mr. “Heard Mr.Yogen Pandya, learned advocate for the appellant. Mr. Pandya, learned advocate submits that he restricts the prayer only to the extent of enhancement of lumpsum compensation. In view of the aforesaid statement of Mr. Pandya, issue Notice to the respondents returnable on 18.08.2021.” 3.1 Since the Notice was issued, in both the appeals, only for the purpose of enhancement of lumpsum compensation by consent of the parties the matters were heard finally and the same were considered only for the purpose of enhancement of lumpsum compensation awarded by the learned Single Judge. 4. The brief facts leading to the filing of the present appeals are stated as under: FACTS OF LETTERS PATENT APPEAL NO.654 OF 2021 : 4.1 The workman was serving under present Respondent No.2 as Peon on a monthly salary of Rs.1350/- and as per his say he was serving since five years and worked for more than 240 days in each year at the time of his termination. His services came to be terminated without following due procedure as prescribed under the law with effect from 31.03.2006 orally. In view of his oral termination, after four years he preferred Reference Case (T) No.85 of 2010. In the said Reference, the learned Judge, Labour Court, Jamnagar held that conditions of sections 25(f), 25(g) and 25(h) of the Industrial Disputes Act, 1947 (‘ID Act’, for short) are breached and accordingly the learned Labour Judge passed award directing the present respondent to reinstate the workman (present appellant) with continuity of services and with 10% back-wages. 4.2 Being aggrieved by the aforesaid award, the present respondent preferred Special Civil Application No.1605 of 2016 before the learned Single Judge. FACTS OF LETTERS PATENT APPEAL NO.656 OF 2021 : 4.3 The workman was serving under present Respondent No.2 as Sweeper on a monthly salary of Rs.450/- and as per his say he was serving since three years and worked for more than 240 days in each year at the time of his termination. His services came to be terminated without following due procedure as prescribed under the law with effect from 31.03.2006 orally. In view of his oral termination, after four years he preferred Reference Case (T) No.86 of 2010. His services came to be terminated without following due procedure as prescribed under the law with effect from 31.03.2006 orally. In view of his oral termination, after four years he preferred Reference Case (T) No.86 of 2010. In the said References, the learned Judge, Labour Court, Jamnagar held that conditions of sections 25(f), 25(g) and 25(h) of the Industrial Disputes Act, 1947 (‘ID Act’, for short) are breached and accordingly the learned Labour Judge passed awards directing the present respondents to reinstate the workmen (present appellants) with continuity of services and with 10% back-wages. 4.4 Being aggrieved by the aforesaid award, the present respondents preferred Special Civil Application No.1460 of 2016 before the learned Single Judge. 4.5 In both the above writ petitions, vide even order dated 27.06.2018, the learned Single Judge held that findings of the Labour Court in respect of breach of sections 25(g) and 25(h) were not sustainable in view of the facts of each case. However, the learned Single Judge held that the learned Labour Judge was justified in holding that the present respondent – employer has committed breach of section 25(f) of ‘ID Act’. The learned Single, after taking into consideration the fact that the claimants were engaged without following due procedure, has considered the aspects that (i) their appointment was intermittently and on ad hoc and daily basis (ii) they were engaged only for 6 hours per day on part-time basis and (iii) on each occasion, they were engaged by virtue of specific order with specific conditions regarding part-time work, narration of work and specific period for which they were engaged. 4.6 Ultimately, the learned Single Judge modified the award passed by the learned Labour Judge, Jamnagar and passed the orders to pay lumpsum compensation of Rs.45,000/- and Rs.25,000/- to be paid to the claimants workmen (appellants of Letters Patent Appeal No.654 of 2021 and Letters Patent Appeal No.656 of 2021 respectively) in lieu of reinstatement, without continuity of service and 10% back-wages. 5. The present appellants being the workmen, who were respondent in the writ petitions, being aggrieved and feeling dissatisfied with the said orders, challenged the aforesaid orders by way of present appeals. 6. Heard learned advocate Mr.Yogen Pandya for the appellants (workmen) – original respondents and learned Assistant Government Pleader Mr.Tirthraj Pandya for the State – respondent herein. 7. 5. The present appellants being the workmen, who were respondent in the writ petitions, being aggrieved and feeling dissatisfied with the said orders, challenged the aforesaid orders by way of present appeals. 6. Heard learned advocate Mr.Yogen Pandya for the appellants (workmen) – original respondents and learned Assistant Government Pleader Mr.Tirthraj Pandya for the State – respondent herein. 7. Since the present appeals are confined only in respect of enhancement of lumpsum compensation, learned advocate Mr.Yogen Pandya pointed out from the record and submitted that the present appellants workmen had worked for five years as Peon and for three years as Sweeper respectively under the respondent – employer. Considering their length of service, lumpsum compensation awarded by the learned Single Judge is too meager amount and, therefore, he prayed that in view of the judgment of the Hon’ble Supreme Court of India in the case of Bhavnagar Municipal Corporation and others vs. Jadeja Govubha Chhanubha and another reported in 2014 (16) SCC 130 wherein the workman had worked for 18 months and yet lumpsum compensation of Rs.2,50,000/- was awarded by Honourable the Supreme Court, present appellants also may be paid some more lumpsum compensation to the tune of Rs.2,50,000/-. 8. Per contra, learned Assistant Government Pleader Mr.Tirthraj Pandya pointed out from the record that the present appellants were appointed and were well aware at the time when they were engaged that their appointment would be for the limited and specific period and the said arrangement would come to an end on expiry of period of work for which they were engaged. He further submitted that it is the say of the appellants that they have worked continuously for five years and three years but there is no cogent evidence on this ground. He also pointed out from the order of the learned Single Judge that even the learned Single Judge has also observed the aforesaid facts in the order. He further submitted that according to the present appellants their services were terminated in March, 2006 whereas the Reference was preferred in the year 2010, after delay of four years, and therefore also considering the aforesaid aspects the learned Single Judge has rightly awarded lumpsum compensation of Rs.45,000/- to the appellant who was working as Peon and Rs.25,000/- to the appellant who was working as Sweeper, in lieu of reinstatement and he prayed for dismissal of the present appeals. No other and further submissions were made by either sides. 9. We have perused the record of the present appeals and have gone through the orders of the learned Single Judge impugned in this appeals. We have also perused the entire set of papers of both the writ petitions i.e. Special Civil Application No.1605 of 2016 and Special Civil Application No.1460 of 2016 and relevant record of proceedings before the Labour Court, as provided in both the writ petitions as the same is not disputed by either side. 9.1 Considering the fact that the present appellants - workmen though have claimed to work for five years and three years, under the respondent, as observed by the learned Single Judge in the order that there is no cogent evidence about whether the workmen had served for five years and three years or not. Furthermore, we have noticed the fact that the posts on which appellants were working was part-time post and they were required to work only six hours in a day. Therefore, considering the overall circumstances and also considering the judgment of Bhavnagar Municipal Corporation (supra) pressed into service by learned advocate Mr.Yogen Pandya, we are of the view that the lumpsum compensation awarded by the learned Single Judge to the tune of Rs.45,000/- and Rs.25,000/- is required to be enhanced. We accordingly enhance the lumpsum compensation to Rs.1,00,000/- and Rs.50,000/- respectively to be paid to the workmen keeping in mind the fact that in the case cited by the learned advocate for the appellants, the workman was in full-time service whereas in the present case the workmen were in part-time service. Furthermore, under the facts and circumstances of the case, breach of Section 25(f) of the ‘ID Act’ only is proved and the learned Single Judge has taken a view that breach of Sections 25(h) and 25(g) of the ‘ID Act’ are not sustainable and, therefore, in view of above, we deem it appropriate to enhance the lumpsum compensation as stated above. The order of the learned Single Judge stands modified to the aforesaid extent. 10. With the above observations and directions, both the present appeals are partly allowed. No costs. 11. In view of the dismissal of both the main appeals, connected civil applications would not survive. They are disposed of accordingly.