SANKALIT BAL VIKAS YOJNA KACHERI v. HANSABEN DHARAMSINHBHAI DEDAKIYA
2022-11-28
A.J.DESAI, NISHA M.THAKORE
body2022
DigiLaw.ai
ORDER : 1. By way of present appeal preferred under Clause 15 of the Letters Patent, the appellant-original petitioner has challenged the oral order dated 23.04.2018 passed by learned Single Judge in captioned writ petition, by which, the learned Single Judge has upheld the judgment and award dated 01.01.2018 passed by learned Labour Court No. 1, Junagadh in Reference (T) No. 5 of 2014, by which, the learned Labour Court has held that the action on the part of the present appellant dismissing the services of the respondent is held illegal, however instead of reinstating her on the post, a lump sum amount of compensation to the tune of Rs. 75,000/- has been awarded. 2. Short facts of the present case are as under: That the respondent was appointed as Anganwadi Worker on 07.08.1998 after due process of selection and continued for a period of 15 years. However, by an order dated 12.08.2013, her services were terminated. Hence, the dispute was raised by the respondent-Anganwadi Worker with a prayer of reinstatement in the service and the same was registered as Reference (T) No. 5 of 2014. The Labour Court after considering the merits and demerits of the case has accepted the reference, however instead of reinstating the workman, lump sum amount of compensation to the tune of Rs. 75,000/- was awarded. The present appellant filed captioned writ petition challenging the said judgment and order. Learned Single Judge dismissed the petition. Hence, this appeal. 3. Learned advocate Mr. J.M. Malkan appearing for the appellant would submit that Labour Court as well as learned Single Judge have committed an error in accepting the reference. He would further submit that as per the decision delivered in the case of Maniben Maganbhai Bhariya vs. District Development Officer Dahod and Others, AIR Online 2022 SC 593, the Authorities has power to terminate the services of Anganwadi Worker. He, therefore, would submit that order passed by learned Single Judge and Labour Court be quashed and set aside and appeal be allowed. 4. We have heard learned advocate appearing for the appellant and perused the reasons assigned by the Labour Court as well as findings recorded by the learned Single Judge. These facts have been considered by learned Single Judge in detail and relevant observations have been made by the learned Single Judge, which are reproduced herein-below: “8.
4. We have heard learned advocate appearing for the appellant and perused the reasons assigned by the Labour Court as well as findings recorded by the learned Single Judge. These facts have been considered by learned Single Judge in detail and relevant observations have been made by the learned Single Judge, which are reproduced herein-below: “8. Having heard learned advocate appearing for the petitioner and having gone through the reasons, which are assigned by the learned Presiding Officer, some of the circumstances are not possible to be ignored by this Court while coming to an ultimate conclusion. 8.1 It is an undisputed fact that right from 07.08.1998 till 12.08.2013 continuously the respondent has worked as Anganwadi worker. 8.2 It is also not in dispute that for a period of 15 years long tenure of service, neither there was any departmental inquiry nor any action is initiated. 8.3 From the testimony of witnesses including the respondent there was some reference with regard to complaint of parents of the children who are studying and the same was submitted before the Surpanch. On the basis of some report, it appears that action is initiated of discontinuing but it is evident from the record that no departmental inquiry is given nor any process has been undertaken to discontinue. On the contrary, it appears that on off-late in the year 2013 only some allegations are levelled with respect to the respondent's work as Anganwadi Work, but to that notice reply has already been given. But it appears further that neither any inquiry is conducted with respect to that nor any step in compliance of principle of natural justice is taken and that allegation appears to be the cause for discontinuance. Since that was found by the learned Presiding Officer looking to the settled proposition of law propounded by series of decisions, some of them have been considered at length and it was found that action of discontinuance on that base is not just and proper.
Since that was found by the learned Presiding Officer looking to the settled proposition of law propounded by series of decisions, some of them have been considered at length and it was found that action of discontinuance on that base is not just and proper. It has also been found from the evidence on record that right from 1998 till 2013 continuously, the respondent has worked and if on account of any mis-conduct or allegations, the services are to be put to an end then atleast bare minimum process of law must have been initiated that has not been found to have been undertaken by the petitioner and as such the action found to be not consonance with law. 9. It is also evident from the testimony at Exh.45 and in cross examination of the witness of the petitioner, it has been found that the base of discontinuance is the complaint which has been received and for that purpose it is admitted that no inquiry has been undertaken nor any statement is recorded by the Child Welfare Hospital. 10. When that be so, discontinuance of 15 years of service on such a position cannot be set at naught. As a result of this, learned Presiding Officer has exercised due discretion in favour of the respondent. 11. It is also evident from the record that the appointment of respondent was for a pretty long period and the initial entry itself is true process of law by validly selecting the respondent through process of recruitment and therefore, it is not the case that she was either at a back door entry or employed on account of some nepotism. Resultantly when that be so, there appears to be no perversity in coming of the conclusion that action of discontinuance is not inconsonance with the procedure established by law. 12. It is also clearly found by the learned Presiding Officer that there is a clear violation of mandatory provision of Industrial Dispute Act and therefore, reinstatement with the consequential benefits deserves to be awarded.
12. It is also clearly found by the learned Presiding Officer that there is a clear violation of mandatory provision of Industrial Dispute Act and therefore, reinstatement with the consequential benefits deserves to be awarded. In fact when there is a specific violation of Section 25F of the Act, natural consequence is to award reinstatement and back-wages, however keeping in view the interest of petitioner establishment also since the discontinuance has taken place in the year 2013, the learned Presiding Officer has thought it fit to award the lump-sum compensation in lieu of reinstatement and back-wages and that too only amount of Rs. 75000/- which can not be said to be unreasonable, in any manner. 13. On the contrary, the Court found that when a clear violation of Section 25F is visualized, the action is to be treated as void, invalid and therefore natural consequence must follow. But here is the case in which, there is no cross petition filed by the respondent workmen. Resultantly, Court can not travel beyond limit and therefore whatever amount is awarded can not be said to be unjust or arbitrary. On the contrary, looking to the recent trend by awarding lump-sum compensation in lieu of reinstatement, this discretion, which has been exercised can not be said to be unjust or perverse in nay manner. On the contrary for a pretty longer period of service of 15 years, if Rs. 75,000/- is awarded in lump-sum as full and final settlement, this order, in no case, can be said to be unreasonable, illegal, arbitrary or perverse. The findings which are arrived at by the learned Presiding Officer are in close proximity with the evidence on record and as such the exercise of jurisdiction can not be said to be perverse. As a result of this, keeping in view the scope of extraordinary jurisdiction, the Court is of the considered opinion that this is not the case, in which, any interference is called for. To arrive at this conclusion one of such decisions, on the issue of exercise of extraordinary jurisdiction, reported in Sameer Suresh Gupta vs. Rahul Kumar Agarwal, (2013) 9 SCC 374 Court found that no case is made out by the petitioner.
To arrive at this conclusion one of such decisions, on the issue of exercise of extraordinary jurisdiction, reported in Sameer Suresh Gupta vs. Rahul Kumar Agarwal, (2013) 9 SCC 374 Court found that no case is made out by the petitioner. Since the said decision is relied upon the following observations deserve to be quoted hereinafter and the relevant abstracts of the Paras 6 and 7 of the said decision read as under: 6. Mr. Pranav G. Desai, learned advocate appearing for the petitioner Corporation has submitted that there is a gross delay of more than 10 years in raising an industrial dispute for claiming employment on compassionate basis and, therefore, the claim is barred by principle of delay and laches. It has also been contended that after considering the policy prevailing in the Corporation twice the request of respondent herein came to be considered and rejected and, therefore, there is no just reason to now consider the case repeatatively once having been already decided and conveyed. It has also been contended by Mr. Desai, learned advocate that a Circular which is tried to be pressed into service dated 16.12.1991 which is part of the record at Exh.14/2, clause - (iv) a relevant clause is not meeting with the contingency for which the claim is generated by the respondent and, therefore, when the Circular itself is not applicable in a situation in which the claim was based before the Corporation, the findings arrived at by the learned Presiding Officer are perverse. Even on merits also the respondent is not fulfilling any eligibility criteria to claim the services by way of compassionate basis and, therefore, no case is made out which ought to have been considered by the learned Presiding Officer and having not considered the same the decision delivered by the learned Presiding Officer is not just and proper. It has also been contended by Mr.
It has also been contended by Mr. Desai that by now law is amply clear on the issue of compassionate appointment with the basic object is to provide immediate relief to the family which is suddenly placed into precarious position and therefore compassionate appointment cannot be claimed as a matter of right even otherwise the same would violate basic principle of Article 14 of the Constitution of India which would also deprive other eligible candidate, who are waiting in queue for employment and here in the present case as per the say of Mr. Desai, learned advocate for the Corporation the rules are not permitting to consider the case of the respondent and therefore, rightly rejected in past which was also communicated to the respondent. It has also been contended by Mr. Desai, learned advocate that even when this Court in the year 2009 has observed to consider the case since the proposal was extended from the respondent the same was considered in its true perspective and ultimately found not possible to be accepted and, therefore, no relief by way of writ can be granted in favour of respondent. It has also been pointed out that the father of the respondent claimant was no doubt a permanent employee but he retired by way of normal circumstance on reaching age of superannuation. Since both sons of employee were working so some how an application is generated from the respondent claim who was married at the relevant point of time and was not even depending upon the father. The application was also grossly at a belated stage and, therefore since case does not fall within peripheral limit and condition of the agreement dated 07.07.1992 and other circular on record and relevant policy the Corporation has rightly not considered the case, and, therefore, when rules are not permitting to consider the claim the writ of mandamus cannot be issued as there is no legal right in favour of respondent to claim as a matter of right. There is no fundamental right or legal right is infringed by the Corporation which necessitates the Court to issue a writ of mandamus. 6.1 Mr.
There is no fundamental right or legal right is infringed by the Corporation which necessitates the Court to issue a writ of mandamus. 6.1 Mr. Desai, learned advocate for the petitioner Corporation has submitted that ultimately here is a claimant where despite no legal right has approached this Court to seek writ of mandamus which is otherwise not amenable in which the award passed by the learned Presiding Officer deserves to be interfered with. 7. In addition thereto Mr. Desai, learned advocate has submitted that record of the case and the averments contained in the claim statement coupled with the reply filed by Corporation if to be looked into in correction with the policy of the Corporation no case is made out by the respondent in the Court below and the findings arrived at while passing the award are not based upon true interpretation of evidence on record and is on the basis of misreading of the evidence, this is a fit case in which such perverse findings which have been arrived at deserve to be interfered with in exercise of extra ordinary jurisdiction. Mr. Desai, learned advocate has submitted that this Court has ample power to interfere even in extra ordinary jurisdiction especially when reasons are not germane and the findings are perverse and there appears to be a clear manifest error in passing the award and hence requests the Court to accept the petition and grant relief as prayed for in the petition.” 5. It is also pertinent to note the respondent has discharged her duties for 15 years and only Rs. 75,000/- has been awarded. Hence, no interference is required. 6. In view of the above facts, we are in agreement with the findings recorded by learned Single Judge. The appeal is devoid of merits and we do not find any reason to entertain this appeal. Accordingly, present appeal is dismissed.