(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. Present Letters Patent Appeal has been directed against order dated 16/03/2011, passed by the learned Single Judge of this Court in Special Civil Application No. 3439 of 2011, whereby, the learned Single Judge was pleased to dismissed the petition and award dated 20/01/2011, passed by the Labour Court, Bhavnagar in Reference (LCB) No. 93 of 1999 was confirmed, by which it was ordered that the services of deceased Pratapbhai Maganbhai Sarvaiya from 01/11/1997 be treated as continued and his legal heirs be paid the due salary and consequential benefits, as admissible, within 30 days from the date of publication of the award.
2. The brief facts of the present case are that deceased Pratapbhai Maganbhai Sarvaiya was born on 25/10/1939; he joined the services of erstwhile Bhavnagar Municipality on 23/04/1966; he was made permanent on 29/04/1970 and superannuated on 31/10/1997 at the age of 58 years. At that time he was working as a ClassIII employee – Electric Inspector, in the payscale of Rs.32004750/. He approached the Labour Court at Bhavnagar by filing the aforesaid Reference claiming that he was wrongfully superannuated at the age of 58 years and that, he was entitled to work till 60 years' of age and that, he should be given all benefits including salary. The said Reference was allowed by order dated 20/01/2011. Against that order, the appellant moved the High Court by way of Special Civil Application No. 3439 of 2011, which came to be dismissed by learned Single Judge of this Court by impugned order dated 16/03/2011. The said order is challenged in the present appeal.
3. The appeal is admitted on 13/05/2011 and by way of adinterim relief, the effect and operation of order dated 16/03/2011 passed by the learned Single Judge in Special Civil Application No. 3439 of 2011 and award dated 20/01/2011 passed in Reference (LCB) No. 73 of 1999 were ordered to be stayed. The said adinterim relief was later confirmed by order dated 23/09/2011 in Civil Application No. 5548 of 2011.
4. We have heard learned counsel for the parties and perused the impugned order dated 16/03/2011 passed by the learned Single Judge in Special Civil Application No. 3439 of 2011 and award dated 20/01/2011 passed in Reference (LCB) No. 73 of 1999 by Labour Court, Bhavnagar. The learned Single Judge has taken all pains and has considered all the aspects of the matter. Paras 5, 9, 10, 11, 12, 13, 14, 15 and 16 are relevant, which are reproduced as under:
“5. The workman has relied upon decision of Labour Court given in favour of other Electrical Inspectors, those who have been granted benefit of retirement at the age of 60 years in case of Dhirubhai Raghubhai Gohel, Shantibhai Chhaganbhai Dave and Gunvantbhai N. Vora wherein they all were retired by Corporation after completion of 60 years of age. On that basis, dispute has been raised by workman that he was entitled to remain in service upto completion of 60 years. The Labour Court has considered award passed in case of Shantibhai Chhaganbhai Dave in Reference (LCR) No.138 of 1981 decided by Labour Court on 13.8.1982. The Labour Court, Bhavnagar has considered Para.7 from aforesaid award in respect to Shri Shantibhai Chhaganbhai Dave and also award passed in Reference (LCR) No.113 of 1983 in case of Gunvantbhai Vora decided on 18.10.1986 in Para.5, which are quoted as under :
“5. The workman has produced certified copies of the award passed in Ref. No.551/81, 138/81, at Ex.14 and 15. In the award Ex.14 the question of incorrect birth date was also raised and so the question as to whether retirement of the Electrical Inspector is 58 years or 60 years was kept open. However in the award Ex.15 it was clearly held that the age of retirement of the Electrical Inspector is 60 years. Even other Electrical Inspectors have retired at the age of 60 years even after they were placed in class III. Thus the retirement of the workman at the age of 58 amounts to retrenchment and so it is illegal. However by this time the workman has already completed age of 60 years and the question of reinstatement does not arise, but he is entitled to claim all benefits as if he was retire at the age of 60 years. I therefore pass the following order.
7. It is not in dispute that the Roshini Inspectors used to be made to retire on attaining the age of 60 years. The workman is the only person who has been made to retire on his attaining the age of 58 years. It has been argued on behalf of the nagarpalika that as per award passed in Ref. 210/75 the Roshini Inspectors have been considered as SemiClerks and therefore the age of superannuation in their case would be 58 years. But no record has been produced by the Nagarpalika in support of that intention. In the circumstances I believe that there was no reason for the Nagarpalika to curtail the age of superannuation of the present workman. In my opinion, therefore, the workman has been illegally made to retire on his completing the age of 58 years service.
The workman has already completed 60 years and so he is not entitled to reinstatement. I therefore order to pass the award as under.”
9. This aspect has been examined by Labour Court and come to conclusion that provisions of Order 22 Rule 3 of CPC is not made applicable to the proceedings of Labour Court under the provisions of I.D.Act,1947. The Labour Court has also come to conclusion that reference is not to be abated because of death of workman. In crossexamination of witness of petitioner, Shri R.M.Gohel vide Exh.35, has in terms admitted the fact that in respect of three persons, those who was working in the post of Electrical Inspector and copy of award in Reference (LCR) No.551 of 1981, Exh.37, dated 20.5.1982 was produced on record and on that basis, facts have been admitted by witness that aforesaid award has not been challenged by petitioner before higher authority and all the three awards passed in favour of Electrical Inspector have been fully implemented by petitioner. There is no denial made by petitioner in written statement. Even there was no defence raised by petitioner before Labour Court. Therefore, Labour Court has rightly appreciated oral evidence of witness of petitioner vide Exh.35 and rejected the contentions raised by advocate of petitioner.
10. The Labour Court has also considered award passed in favour of Shir Dhirubhai Raghubhai Gohel in Reference (LCR) No.551 of 1981 which is produced on record vide Exh.37 where award passed by Labour Court on 20.5.1982. Para.7 has been considered by Labour Court, Bhavnagar, which is quoted as under:
“7. The workman, alleges in his deposition that, he has been relieved so as to appoint in his place the soninlaw of Councilor – Raghubha Naranbhai and also because of he was demanding his share as a union worker. As per the deposition of Pravinkumar Chunilal, before the award, the Electrical Inspectors, being ClassIV employees, were being retired after 10 years. However, after the award in Reference No. 210/75, they fall under ClassIII category and retire at an age of 58 years, but, even if they fall in ClassIII category and have to be retired at an age of 58 years, they cannot be retired before 2nd September 1988. In his crossexamination, Pravinkumar admits that Maganlal Ramjibhai and Abdul Raheman Kasammiya were the Electrical Inspectors and they had retired at an age of 60 years, however, it is said that they made to retire before the award. Pravinkumar also admits that one Sardarsinh Rupsinh is appointed in his place after the workman is retired. As per the workman, this Sardarsinh Rupsinh happens to be soninlaw of Councilor Raghubhai Naranbhai and apart the reason of keeping grudge, the order of reinstatement of the workman is just and proper, if he has been retired before the age of superannuation i.e. 58 or 60 years. As per the deposition of the workman, after he was relieved from the services he tried for employment, however, he could not get employment and hence, he deserves full backwages. Hence, I order accordingly as under...”
11. The contention raised by learned advocate Mr.Munshaw that reference is abated. But Labour Court, Bhavnagar as well as advocate of Corporation, who represented the case of Corporation was not aware about the legal provisions made under Section 10(8) of I.D.Act,1947, which is quoted as under:
“10(8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government.”
12. In aforesaid provisions made in I.D.Act,1947, it is provided that no proceedings pending before a Labour Court in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court shall complete such proceedings and submit its award to the appropriate Government. Therefore, contention raised by learned advocate Mr.Munsahw cannot be accepted because in case of death of workman during pendency of reference, reference cannot be lapsed or abated. Therefore, legal heirs and representatives of deceased workman has been rightly brought on record and joined as a party in reference. For that, Labour Court has not committed any error which requires interference by this Court while exercising power under Article 227 of the Constitution of India.
13. The Labour Court has granted full back wages of interim period of about 2 years w.e.f. 1.11.1997 to 1.11.1999 on the basis of evidence given by widow Manjulaben Pratapsinh Sarvaiya, Exh.15, where she deposed that her husband during interim period from date of retirement – 1.11.1997 till his death, made sincere efforts to obtain gainful employment and service. But he remained unemployed and not earning any amount or adequate remuneration for maintaining family and deceased workman was totally remained unemployed and not gainfully employed. For that aspect, no cross examination has been made by advocate of petitioner. Not only that but petitioner – Corporation has not led any oral evidence or produced documentary evidence to establish gainful employment of deceased workman for that interim period.
14. Therefore, in light of evidence led by widow of deceased workman before Labour Court, according to my opinion, Labour Court has rightly granted the benefit for a period of 2 years in favour of respondent. For that, Labour Court has not committed any error which requires interference by this Court while exercising the powers under Article 227 of the Constitution of India.
15. In view of aforesaid observations made by this Court after considering the reasoning given by Labour Court, Bhavnagar, the contentions raised by learned advocate Mr.Munshaw cannot be accepted and same are rejected.
16. I have considered the detail reasoning given by Labour Court, Bhavnagar and also considered three awards passed in favour of 3 Electrical Inspectors where age of retirement is considered as 60 years and respondent – workman who was also working as Electrical Inspector, naturally entitled the benefit of three awards and accordingly, respondent – workman is also entitled to remain in service upto completion of 60 years. But unfortunately petitioner – Corporation has made to retire respondent – workman at the age of completion of 58 years which has rightly decided the industrial dispute referred by appropriate Government for adjudication to Labour Court, Bhavnagar. For that, finding of fact which has been recorded by Labour Court, Bhavnagar cannot be considered to be baseless and perverse. This Court cannot disturb such finding of fact while exercising powers under Article 227 of the Constitution of India. This Court is having limited jurisdiction under Article 227 of the Constitution of India and cannot act as an appellate authority. (See: Harjinder Singh v. Punjab State Warehousing Corporation, reported in 2010 (1) Scale 613, MA Azim v. Maharashtra State Road Transport Corporation, 2011ICLR 283, Para.11 and 12 and in case of Jai Singh & Ors. v. Municipal Corporation of Delhi and Anr. With Municipal Corporation of Delhi v. Sh. Jai Singh and Ors., 2010 AIR SCW pg. 5968. Para.25) Therefore, contentions raised by learned advocate Mr.Munshaw for petitioner cannot be accepted. Same are, therefore, rejected. Hence, there is no substance in this petition and same is required to be dismissed.”
5. In view of the above, we do not find any error committed, either by the learned Single Judge or by the Labour Court at Bhavnagar in passing the award dated 20/01/2011 in Reference (LCB) No. 93 of 1999, which requires interference at the hands of this Court and therefore, present appeal requires to be dismissed and is accordingly dismissed.
[ V. M. Sahai, J. ] [ G. B. Shah, J. ] hiren