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2024 DIGILAW 412 (GUJ)

Kishorsinh Patubha Jadeja v. Executive Engineer

2024-03-01

BIREN VAISHNAV, PRANAV TRIVEDI

body2024
JUDGMENT : PRANAV TRIVEDI, J. 1. ADMIT. Learned advocates appearing for the respective parties waives service of notice of admission on behalf of the respondent. With consent of learned advocates for the respective parties, the matter is taken up for final hearing. 2. Both these Letters Patent Appeals are filed under Clause 15 of the Letters Patent assailing the order passed by the learned Single Judge dated 04.05.2023 in Special Civil Application No. 9170 of 2013. Therefore, with joint request of learned advocates appearing for the respective parties, both the appeals are taken up together for hearing. 3. Letters Patent Appeal No. 211 of 2024 is filed by the original petitioner who had preferred writ petition, namely, Special Civil Application No. 9170 of 2013, inter-alia praying for issuance of appropriate writ, order or direction quashing and setting aside the impugned award dated 18.02.2013 passed by the learned Labour Court, Surendranagar in Reference (LCS) No. 131 of 2007 and further to reinstate the petitioner. 4. The learned Single Judge after hearing both the parties partly allowed the writ petition, wherein it was observed by the learned Single Judge that there was a breach of Section 25(F) of the Industrial Disputes Act, 1947 (hereinafter referred as to “the Act”). However, the Unit in which the respondent was working was shutdown. Therefore, there cannot be an order of reinstatement. In that circumstances, it was observed by the learned Single Judge that original respondent has worked for a period of 19 years and was having future service of 17 years. Therefore, the lump-sum compensation, as awarded by the learned Labour Court of Rs. 20,000/- was to meager and the lump-sum compensation was enhanced to Rs. 5,00,000/- from Rs. 20,000/-. It was further observed that if such amount is not paid within a period of 12 weeks from the date of receipt of the order, then the same shall be paid with an interest at the rate of 6% per annum till the date of actual payment. Original petitioner has preferred Letters Patent Appeal No. 211 of 2024 challenging non-granting of reinstatement, whereas the State Government has preferred another Letters Patent Appeal No. 101 of 2024 challenging the enhancement of compensation from Rs. 20,000/- to Rs. 5,00,000/- and these are the directions, which are challenge in both the Letters Patent Appeals. 5. Original petitioner has preferred Letters Patent Appeal No. 211 of 2024 challenging non-granting of reinstatement, whereas the State Government has preferred another Letters Patent Appeal No. 101 of 2024 challenging the enhancement of compensation from Rs. 20,000/- to Rs. 5,00,000/- and these are the directions, which are challenge in both the Letters Patent Appeals. 5. The factual matrix which gave to rise of the present Letters Patent Appeals is that the original petitioner was working as Office Clerk in the office of the original respondent No. 2 from 01.12.1988 and was drawing salary of Rs. 2,000/- per month. It was alleged that original petitioner was terminated from the services on 01.05.2007 after 19 years of worked and the respondent had not followed the mandatory provisions of Section 25(F) of the Act. In this context, the petitioner had served demand notice to the respondents and filed complaint and raised industrial disputes before the conciliation officer, but the issue was not resolved between the parties and therefore, it was referred to the learned Labour Court, Surendranagar being Reference (LCS) No. 131 of 2007. After hearing both the parties, the learned Labour Court observed that there was a breach of Section 25 (F), (G) and (H) of the Act. However, as the Unit is actually closed, there cannot be question of reinstatement. 6. We have heard learned advocate Mr. U.T. Mishra for the appellant-original petitioner in Letters Patent Appeal No. 211 of 2024 and learned Assistant Government Pleader Ms. Roshni Patel for the appellant-original respondent in Letters Patent Appeal No. 101 of 2024. 7. Learned advocate Mr. U.T. Mishra has contended that there is clear case of breach of Section 25 (F), (G) and (H) of the Act and therefore, reinstatement is the only relief. The learned Single Judge has enhanced the compensation by not appreciating the fact that the original petitioner would have been reinstated as the respondent has pursuant to termination of petitioner engaged new daily-wagers. It was further argued that the petitioner had completed more than 19 years of service at the time of his illegal termination of services. learned advocate Mr. Mishra further contended that the Government Resolution dated 17.10.1988 is applicable to the respondent and if any daily-wager completes 10 years of service, then such daily-wager is required to be extended all the benefits at par with permanent employees. learned advocate Mr. Mishra further contended that the Government Resolution dated 17.10.1988 is applicable to the respondent and if any daily-wager completes 10 years of service, then such daily-wager is required to be extended all the benefits at par with permanent employees. Therefore, if there is a breach of Section 25(F) of the Act, then the relief of reinstatement cannot be denied. Therefore, learned advocate Mr. Mishra has urged to allow the appeal and quash and set aside the order passed by the learned Single Judge as well as the award passed by the learned Reference Court and further prayed to reinstate the appellant. 8. Per contra, learned Assistant Government Pleader Ms. Roshni Patel has contended that order passed by learned Single Judge not granting reinstatement and confirming the award passed by the learned labour court, to that aspect is completely is justified. However, the order passed by the learned Single Judge to the aspect of enhancing the lump-sum compensation from Rs. 20,000/- to Rs. 5,00,000/- is grossly erroneous. It was further contended that in the cross-examination, the original petitioner has accepted that at present he was working as a Labourer and he was drawing Rs. 100/- per day. It was further contended that the workman has failed to prove that he has worked for more than 240 days of service in any year. It was further contended that there is no evidence has been produced by the original petitioner and that he was hired on regular basis. Therefore, there is no violation of Section 25 (F) (G) and (H) of the Act and there is no question for reinstatement, but the lump-sum compensation is grossly enhanced. In such situation, learned Assistant Government Pleader prayed to allow the appeal preferred by the State and quash and set aside the order passed by the learned Single Judge as far as enhancement of compensation to Rs. 5,00,000/- is concerned. 9. Having gone through the record of the appeal and after hearing learned advocates appearing for the respective parties, certain aspects are not controverted. There is evidence on record showing that the petitioner had joined as Office Clerk as also the number of days he had worked from 1988 till 1991. 5,00,000/- is concerned. 9. Having gone through the record of the appeal and after hearing learned advocates appearing for the respective parties, certain aspects are not controverted. There is evidence on record showing that the petitioner had joined as Office Clerk as also the number of days he had worked from 1988 till 1991. Further, there is production of application made by the petitioner which came to be exhibited at Exhibit-40, wherein, it was prayed to the respondent to produce attendance ledger, salary ledger as well as vouchers. However, the respondent has failed to do so. The onus was therefore on the respondent to ascertain that the petitioner has not worked for more than 240 days. In such circumstance, there is categorical breach and violation of provisions of Section 25(F) of the Act. Further, it is also on record that the unit in which the petitioner was working was closed and shifted to other village and the petitioner would have superannuated by 2024. Therefore, the learned Single Judge was duly justified in granting and enhancing lump-sum compensation instead of granting reinstatement. However, the observations made by the learned Single Judge since are relevant the same are reproduced hereunder: “8. In respect to the relief to be granted to the petitioner-workman, the learned labour Court observed that the office of the respondents, where the petitioner-workman was working, had since been closed and shifted to another town, and therefore, he was not entitled for reinstatement. Further, that the petitioner-workman was also owning 25 bighas of land. 9. Therefore, the learned labour Court held that in lieu of reinstatement, lump-sum compensation be granted. Accordingly, Rs. 20,000/- was granted as lump-sum compensation in lieu of reinstatement and backwages. 10. In the considered opinion of this Court, the lump-sum compensation as awarded by the learned Labour Court is grossly inadequate and disproportionate. The petitioner-workman has placed on record cogent evidence to show that he has worked from the year 01.12.1988 till 01.05.2007 i.e. for a period of 19 years. Further, it is submitted by the learned counsel for the petitioner-workman that he is born in the year 1966 and if he would have been reinstated in service, then he would have retired in the year 2024. The petitioner-workman was orally terminated on 01.05.2007. Further, it is submitted by the learned counsel for the petitioner-workman that he is born in the year 1966 and if he would have been reinstated in service, then he would have retired in the year 2024. The petitioner-workman was orally terminated on 01.05.2007. Record reveals that on the said date, the petitioner-workman had completed service of 19 years and had a future service of 17 years till retirement. 11. In view thereof, looking at the services rendered for a period of 19 years and having future service of 17 years from the date of oral termination, this Court is of the opinion that just and proper compensation in the present case would be Rs. 5,00,000/-.” 10. In view thereof, we find no infirmity with the observation made by the learned Single Judge and as such, there is no reason to interfere with the order passed by the learned Single Judge. Hence, both these appeals are meritless and the same deserve to be dismissed. However, it is observed that the lump-sum compensation if not paid shall be paid within a period of eight (8) weeks from the date of passing this order, failing which, the same shall be paid with interest @ 6% from the date of occurrence. 11. With the above-mentioned observations, both the appeals are dismissed. No order as to costs. 12. Consequently, connected Civil Applications would not survive in view of the disposal of Letters Patent Appeals.