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Gujarat High Court · body

2025 DIGILAW 422 (GUJ)

Pritiben Farsuram Khatri (Pritibala Farsuram Khatri) v. President/Mantri Shree/Office Superintendent Shree

2025-06-10

M.K.THAKKER

body2025
JUDGMENT : M. K. THAKKER, J. 1. Rule, returnable forthwith. Learned AGP Ms.Pandya waive service of notice of Rule on behalf of the respondents- State and learned advocate Mr.Shah waive service of notice of Rule on behalf of the respondent No.1. 2. This petition is filed under Articles 226 and 227 of the Constitution of India, challenging the award dated 04.02.2022 passed by the learned Labour Court, Ahmedabad, to the extent of granting the lumpsum compensation of Rs.70,000/- to the present petitioner-employee. 3. It is the case of the present petitioner that she was appointed by respondent No.1 to the post of Warden pursuant to an interview held on 28.01.1997 in the presence of an officer of respondent No.4. The petitioner was selected under the Scheduled Caste category, along with one Veenaben Bhanabhai Solanki, who was also selected under the same category. An appointment order was issued on 30.01.1997, and the petitioner’s pay scale was fixed at Rs.1150-25-1500. The petitioner took charge of the post of Warden on 18.02.1997. The appointment was made subject to the condition that necessary sanction would be granted by respondent No.4. However, such sanction was not accorded for a period of 15 months. Therefore, the petitioner filed Civil Suit No.6229 of 1998 before the City Civil Court, Ahmedabad, seeking an injunction against the respondents and a direction to release salary for the said 15-month period. 3.1. It is further the case of the petitioner that a communication dated 29.04.1998 was issued and received by the petitioner on 04.05.1998, wherein the respondent stated that since the petitioner was not willing to wait for the sanction of the appointment by respondent No.4, her services stood terminated with effect from 30.04.1998 after office hours. 3.2. It is further the case of the petitioner that the said order of termination was passed without following the due procedure prescribed under the Act. However, for want of jurisdiction, Civil Suit No.6229 of 1998 came to be rejected vide order dated 12.09.2018. 3.3. During the pendency of the civil suit, an interim order was passed directing payment of arrears of salary for the period from 18.02.1997 to 30.04.1998. The said interim order was challenged before this Court by filing Appeal from Order No.180 of 2000, which came to be dismissed, with a direction to pay the arrears of the salary within a period of 15 days. 4. The said interim order was challenged before this Court by filing Appeal from Order No.180 of 2000, which came to be dismissed, with a direction to pay the arrears of the salary within a period of 15 days. 4. As the Civil Suit came to be dismissed, the petitioner has approached to the Reference Court by filing the Reference (LCA) No.742 of 2019 which came to be decided by the learned labour Court on 04.02.2022 directing the respondent to pay the lumpsum amount of Rs.70,000/- to the petitioner, which is impugned before this Court. 5. Heard the learned advocate Mr.Arpit Patel for the petitioner and learned advocate Mr.I.G.Joshi for the respondent. 6. Learned advocate Mr.Arpit Patel submits that for the 15 months the salary was not paid to the petitioner therefore, the petitioner was constrained to file the Civil Suit before the learned Civil Court, however, as the suit came to be filed before the learned Civil Court keeping grudge in mind the service came to be terminated without following the due procedure under the Act. Learned advocate Mr. Patel submits that although the learned Civil Court had passed an order for payment of salary for the 15-month period, the same was challenged before this Hon’ble Court by filing an Appeal from Order, which came to be dismissed. Pursuant to the direction issued by this Court to pay the arrears within a period of 15 days, the salary was paid on 30.06.2000. 6.1. Learned advocate Mr. Patel submits that the petitioner was placed under severe hardship due to non-payment of salary, and upon raising a demand for the same, her services were terminated. Learned advocate Mr. Patel further submits that in the case of an identically situated employee, namely Veenaben, who was appointed along with the petitioner, the requisite sanction was granted within five to six months. Consequently, Veenaben continued in service and, upon her superannuation, received terminal benefits exceeding Rs.38 lakhs. Learned advocate Mr. Patel submits that due to the failure of the respondent Trust in according sanction, the petitioner was deprived of an opportunity to continue in service. Since her termination was illegal, she is entitled to receive similar terminal benefits. Consequently, Veenaben continued in service and, upon her superannuation, received terminal benefits exceeding Rs.38 lakhs. Learned advocate Mr. Patel submits that due to the failure of the respondent Trust in according sanction, the petitioner was deprived of an opportunity to continue in service. Since her termination was illegal, she is entitled to receive similar terminal benefits. Learned advocate Mr.Patel, therefore, submits that the meager amount of Rs.70,000/- awarded by the learned Labour Court is liable to be enhanced, and the petitioner should be granted the same amount as was paid to her co-employee, Veenaben. 6.2. In view of the above submissions, learned advocate Mr. Patel submits that the present petition may be allowed by directing the respondent to pay the same amount to the petitioner as was paid to Veenaben. 7. Per contra, learned advocate Mr. Joshi, appearing for the respondent, submits that at the time of appointment, the petitioner was made aware that the appointment was subject to sanction being accorded by respondent No.4. Despite several communications addressed by respondent No.1–Trust, no such sanction was granted by respondent No.4. Learned advocate Mr. Joshi further submits that the petitioner was fully aware of the appointment procedure and the time generally taken for such sanction at the initial stage. Therefore, the bald allegations made against respondent No.1, suggesting that no efforts were made to obtain the sanction, are misconceived. 7.1. Learned advocate Mr. Joshi submits that from the material placed before the learned Labour Court, it clearly emerges that sincere efforts were made to obtain sanction from respondent No.4; however, no such sanction has been granted till date. Learned advocate Mr. Joshi further submits that pursuant to the order passed by this Hon’ble Court directing payment of arrears of salary, the Trustees personally paid the amount from their own resources in compliance with the said order. Learned advocate Mr. Joshi also submits that the respondent has not challenged the award passed by the learned Labour Court and has already paid the amount of Rs.70,000/- along with interest to the petitioner on 22.04.2024, in compliance with the directions issued by this Court. 7.2. Learned advocate Mr. Joshi submits that since the petitioner had served for only 15 months, the learned Labour Court appropriately awarded lumpsum compensation of Rs.70,000/-, which has already been paid along with interest. Therefore, no interference is warranted, and the petition deserves to be dismissed. 8. 7.2. Learned advocate Mr. Joshi submits that since the petitioner had served for only 15 months, the learned Labour Court appropriately awarded lumpsum compensation of Rs.70,000/-, which has already been paid along with interest. Therefore, no interference is warranted, and the petition deserves to be dismissed. 8. Having considered the arguments advanced by the learned advocates for the respective parties, it emerges that the petitioner was appointed to the post of Warden on 30.01.1997. During the interview process, an officer from respondent No.4 was also present. As per the established procedure of the Trust, such appointments are subject to sanction being accorded by respondent No.4, upon which the appointment is regularized and payment of wages is commenced. This condition was duly explained to the petitioner at the time of appointment, and she accepted it without any protest. Though sincere efforts were made by respondent No.1 to obtain the necessary sanction from respondent No.4, no such sanction was granted for a period of 15 months. Consequently, as the petitioner did not receive salary for that period, she was constrained to file Civil Suit No.6229 of 1998 before the learned Civil Court, seeking a direction for payment of arrears of salary and also praying for an injunction. The learned Civil Court, vide order dated 06.03.2000 passed below Exhibits 6 and 22, directed respondent No.4 to pay the petitioner’s salary for the period from 18.02.1997 to 30.04.1998 in accordance with the appointment order dated 30.01.1997. 9. This Court, vide common order dated 03.05.2000, dismissed the Appeal from Order and directed respondent No.1 to pay the arrears of salary within a period of 15 days from the date of the order. It appears that the said direction was complied with by respondent No.4, and the salary was paid on 13.06.2000. It also emerges from the record that, subsequent to the filing of the civil suit by the petitioner, her services came to be terminated by respondent No.1 on 29.04.1998, stating that since she was not willing to wait for the sanction to be accorded, her services stood terminated with effect from 30.04.1998. It was also stated that in the event the sanction was granted, the petitioner would be informed accordingly to resume duty. It is an undisputed fact that no such sanction was ever accorded thereafter, and consequently, the petitioner was never called upon to resume her duties. It was also stated that in the event the sanction was granted, the petitioner would be informed accordingly to resume duty. It is an undisputed fact that no such sanction was ever accorded thereafter, and consequently, the petitioner was never called upon to resume her duties. Since the learned Civil Court did not have jurisdiction to adjudicate the dispute under the provisions of the Industrial Disputes Act, the suit was dismissed, and thereafter, the petitioner filed a Reference before the learned Labour Court. 10. It is also an undisputed fact that, at the time of filing her chief examination, the petitioner had already attained the age of 62 years. Since the proceedings before the learned Civil Court had consumed more than 20 years, the learned Labour Court awarded a lumpsum compensation of Rs.70,000/-. 11. This Court has referred to the decision rendered by the Hon’ble Apex Court in the case of State of Uttarakhand and Another vs. Raj Kumar , reported in (2019) 14 SCC 353 , wherein the Apex Court enhanced the compensation from Rs.30,000/- to Rs.1,00,000/- for a tenure of one year of service, despite the fact that the reference was filed after a delay of 25 years. Relevant observation is reproduced hereinbelow: “10.It is apposite to reproduce what this Court has held in the case of Bharat Sanchar Nigam Limited (supra): "33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non- payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)17]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied." 11. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied." 11. Here is also a case where the respondent claimed to have worked as daily wager hardly for a period of one year or so in PWD of the State; Secondly, he had no right to claim regularization; Thirdly, he had no right to continue as daily wager and lastly, the dispute was raised by the respondent (workman) almost after 25 years of the alleged termination before the Labour Court. 12. It is for these reasons, we are of the view that the case of the respondent would squarely fall in the category of cases discussed by this Court in Para 34 of the judgment rendered in Bharat Sanchar Nigam Ltd. (supra). 13. In view of the forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of re-instatement and other consequential benefits by taking recourse to the powers under Section 11-A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited's case (supra). 14. Having regard to the totality of the facts taken note of supra, we consider it just and reasonable to award a sum of Rs.1,00,000/- (Rs.One lakh) to the respondent in lieu of his right to claim reinstatement and back wages in full and final satisfaction of this dispute in place of Rs.30,000/- awarded by the Labour Court. Only to this extent we modify the award of the Labour Court in quantum of award of compensation by enhancing it from Rs.30,000/- to Rs.1,00,000 (one lakh).” 12. This Court is of the considered view that, as the salary was paid after more than three years and only after the directions issued by this Court in the Appeal from Order, and further, although respondent No.4 was part of the interview process, no sanction has been accorded till date. In the absence of such sanction, respondent No.1 terminated the services of the petitioner without following the due procedure prescribed under the Act. In the absence of such sanction, respondent No.1 terminated the services of the petitioner without following the due procedure prescribed under the Act. In view of the same, it would be just and proper to award an additional amount of Rs.1,00,000/- towards lumpsum compensation, over and above the amount already awarded by the learned Labour Court. Respondent No.4 is directed to pay the said amount within a period of eight weeks from the date of receipt of a copy of this judgment, failing which the said amount shall carry interest at the rate of 9% per annum from the date of default till realization. 13. With the above direction, this petition is partly allowed. Rule is made absolute to the aforesaid extent.