IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5880 of 2010 With SPECIAL CIVIL APPLICATION No. 10392 of 2010 With CIVIL APPLICATION No. 9554 of 2012 In SPECIAL CIVIL APPLICATION No. 5880 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= DILIPKUMAR NANDLAL PATEL - Petitioner Versus DIRECTOR/MANAGER - Respondent ========================================================= Appearance :
MR MS MANSURI for Petitioner RULE SERVED for Respondent MR MTM HAKIM for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 01/10/2012
COMMON ORAL JUDGMENT
1. This group of matters contain common facts and therefore they were heard together and are being disposed of by this common judgment and order.
2. The petitioner in Special Civil Application No. 5880 of 2010 is workman, whereas, petitioner in Special Civil Application No. 10393 of 2010 is employer. Both these petitioners have challenged by way of these petitions the judgment and award dated 21.11.2009 passed in Complaint Application No. 1 of 1994 (Reference (Demand) No. 9 of 1986) for their respective reasons. The Civil Application No. 9554 of 2012 is taken out by the applicant workman for seeking appropriate directions as the matters was not being heard. The Civil Application was clubbed together and all the matters are being disposed of by this common judgment and order.
3. Facts in brief leading to file these petitions deserve to be set out as under:
The workman was constrained to bring an application in form of Complaint under Section 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the I.D. Act' for short) against the employer i.e. petitioner of Special Civil Application No. 10392 of 2010.
Though through out in the judgment impugned in these petitions, the date of termination appeared to be 31.10.1993 but there exists consensus between the counsel that the date of termination is 30.10.1993 and accordingly hereinafter it was referred as 30.10.1993.
The termination was brought about without due procedure of law as alleged by the workman and hence, it was required to be submitted that the said termination was also brought about during the pendency of the valid reference in form of Reference (Demand) No. 9 of 1986 and therefore, the requisite safeguard in form of Approval Application under I.D. Act ought to have been taken, which was admittedly not taken, which gave rise to challenge to the termination on various ground on the part of workman.
The employer took a stand that though the termination was brought about during the pendency of the Reference (Demand) No. 9 of 1986, when the matter was finally heard i.e. complaint, the Reference was over and workman was in fact retrenched due to his involvement in irregularities and it has been admitted by workman that workman was acting as Corporator also. The Court framed specific issue and passed an order of reinstatement as there was blatant disregard to provisions of law including Section 25F of I.D. Act were recorded to be breached and there was no approval even prayed, the order of termination was therefore, found to be contrary to the provisions of Sections 25F and 33 of the I.D. Act and accordingly, reinstatement with 40% of back wages was to be granted. The impugned order is challenged by the employer so far as it contained direction qua 40% of back wages. As well as order of reinstatement, whereas, same order is challenged by the workman by filing Special Civil Application No. 5880 of 2010 so far as it did not grant complete back wages as declared by the Apex Court in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and others, reported in (2002) 2 SCC 244, as in absence of any approval when the complaint is filed, the resultant order is to the effect that there exists no severance of employee and employer relationship and the employee is treated to have been continued in service and taking that proposition of law into consideration, there cannot have deduction in the wages, as essentially there is no discretion left with the court for deducting any amount of back wages.
4. Learned advocate appearing for the petitioner contended that the document on record of this petition, though are not forming part of the record before the Court, wherein, impugned order was passed, none-the-less be looked into for appreciating that the employer did his best in substantially complying with the provisions of law. The retrenchment compensation is offered, leave wages were offered and there was an agreement that the retrenchment simplicitor was there about so called agreement which amount will not be subject matter of any challenge. The fact that the workman in fact discharged his responsibility as Corporator is also read at large and collective consideration of all these factors may be appreciated by the court so as to do substantial justice as, sustaining the order would amount to give premium to the petitioner workman, admittedly was working as Corporator contrary to service rules and who also admitted irregularities touching upon the financial aspect. Thus, in view of this, the petition of the employer be accepted.
5. The learned counsel appearing for workman contended that in light of the principle laid down by the Apex Court in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra), no room for any discretion is left in the court in a given circumstances so far as no plea with regard to workman being gainfully employed. When there is no plea or the workman has not worked during the interregnum period, then in light of the pronouncement of the Apex Court, the relationship of employer and employee is not snapped and workman is required to be treated as workman to be continued in job, total back wages are required to be ordered and non-ordering of this and exercising discretion, which was not there in the court, the court committed error and hence, 100% back wages should have been awarded.
6. So far as challenge to the direction qua reinstatement is concerned, it was submitted that, the order of termination is suffering from various infirmities which the court has elaborately discussed and after discussing the same, it has been held that termination was illegally brought about and therefore, the order of reinstatement could not have been said to be in any manner suffering from any lacuna or infirmity. In short submission was canvassed that petition filed by workman be allowed and petition filed by employer be dismissed.
7. The Court is of the considered view that in light of the observations of the Apex Court in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra), the indisputable provisions of law prevailing is that the lack of approval in case of Section 33 would amount to workman being treated as continues in service as the relationship of employer and employee was never snapped. In light of this, the court is of the considered view that when the court has recorded finding qua breach of Section 33, the Court did not have much discretion in absence of any specific plea and proof with regard to workman in fact being gainfully employed in the interregnum period, the 100% of back wages were required to be allowed.
8. So far as challenge with regard to reinstatement is concerned, it goes without saying that it is admitted that there was no prayer for approval and no approval was ever obtained and no attempt to prove misconduct was made and no justification for termination being correct was made, then, in these circumstances, before the court there was absolutely no room to hold different than what was held by the court. In short, the employer neither availed an opportunity of justifying its stand by leading evidence qua misconduct nor did the employer took an opportunity of justifying retrenchment, both that aspects in compliance with Section 25 of the I.D. Act, rather the court has recorded that there was a clear breach of Section 25F also. Thus, collective consideration of these aspects would leave no room to use the discretion in favour of employer. The petition of the employer being bereft of merits, deserves rejection and is rejected accordingly. The award is required to be confirmed qua direction of reinstatement is concerned. As it is observed hereinabove, the Labour Court has not given any reason for deducting of 60% of back wages. In absence of any plea that the workman was gainfully employed, the direction of giving 40% of back wages would also in my view is not sustainable and same would warrant interference. Accordingly, same is modified and instead of 40% of back wages, the workman shall be entitled to receive 100% of back wages.
9. With these observations, both the petitions are disposed of. Rule in Special Civil Application No. 5880 of 2010 is made absolute. Rule in Special Civil Application No. 10392 of 2010 is discharged. There shall be no order as to costs.
10. In view of the order passed in Special Civil Application No. 5880 of 2010, no order in Civil Application No. 9554 of 2012 and same is disposed of accordingly.
(S.R.BRAHMBHATT, J.) pallav