1. Heard learned advocates for the parties.
2. The petitioner, State of Gujarat and opponent in Recovery Application No.74 of 2009 through Range Forest Officer, in Labour Court, Bhavnagar has approached this Court under Articles 226 and 227 of the Constitution of India, challenging the order passed by the Labour Court on 01/02/2011 accepting the Recovery Application and directing payment of Rs.76,018.97 ps. admissible from 16/12/2009 with 9% interest to be paid within 30 days for the reasons stated thereunder.
3. The facts in brief leading to filing of this petition deserves to be set out as under :
3.1 The respondentworkman had to raise dispute as his services were terminated without following the due procedure of law. The said dispute was referred to the Competent Court, where under it was marked as Reference (LCB) No.213 of 1989. The said reference was partly allowed vide order and award dated 31st January, 2008, where under, it was declared that the order of termination was illegal and therefore, reinstatement with continuity of service and 25% of back wages was granted. This award was not challenged and it attained its finality. This award was published on 28/03/2008. The respondent workman issued a notice on 26/05/2008 calling upon the petitioner to comply with the order of reinstatement. However, as per submission, there was some dispute and ultimately the workman came to be reinstated only on 01/12/2008. The workman had grievances qua wrong calculation of the backwages admissible to him as ordered by the Court as well as nonpayment of the wages as and when workman was entitled to be reinstated and the reinstatement was not offered, the workman filed Recovery Application being Recovery Application No.74 of 2009, wherein the Statepresent petitioner tookup contention that the workman was invited to join the service as could be seen from the notice dated 26/09/2008 and thereafter, the workman did not join and therefore, the workman is not entitled to be given any benefit or Recovery Application may not be allowed. The Court after elaborate reasoning accepted the Recovery Application vide order dated 01/02/2011 as stated hereinabove and ordered payment of the amount mentioned thereunder. Being aggrieved and dissatisfied with the said order, the present petition is preferred under Articles 226 and 227 of the Constitution of India.
4. Learned AGP contended that the workman could not have been said to be entitled to receive the wages with the revised scale nor was the workman entitle to receive the wages for the period on which he did not work despite being requested to join the duties. The recovery was made by the Court and therefore, the order impugned is required to be quashed and set aside and the Court may pass appropriate order as the workman has despite repeated requests not resumed the duties.
5. Learned advocate for the respondentworkman invited this Court's attention to the portion of order made on Recovery Application and impugned in this petition and submitted that the entire controversy qua workman insistence upon being appointed on the post on which he was entitled to be reinstated was at large before the Court and the findings of the facts recorded thereunder may not be now open to be challenged by the State when this petition is filed under Article227 of the Constitution of India.
6. Learned advocate for the respondentworkman also contended that the Recovery Application was justified as the workman could not have been denied the periodical revision in the wages as the continuity is ordered and on that basis the quantum of admissible amount of 25% backwages was required to be calculated. Thus, from any angle the order impugned cannot be said to be illegal and/or contrary to the provision of law and therefore, the petition may be dismissed.
7. It is most important to note that this Court (Coram : Ravi R. Tripathi, J.) on 28/11/2011 passed the following order.
“State of Gujarat through the Range Forest Officer, Social Forestry Range, Sihor, District Bhavnagar is before this Court challenging order dated 1st February 2011 in Recovery Application No.74 of 2009, a copy of which is produced at Annexure 'A'.
On perusal, this Court is prima facie, of the opinion that all untenable contentions were raised before the learned Judge, who was required to consider Recovery Application No.74 of 2009.
2. A responsible officer shall file affidavit before this Court justifying the contentions taken before the learned Judge of the Labour Court in Recovery Application No.74 of 2009, for example one Kanjibhai Nathabhai Chavda, who filed an affidavit as chief examination being Exhibit 55 has stated that the workman is required to be paid last drawn wages on 31st January 2008, which was Rs.20.60 paise per day. On calculation of 100% from 1989 90 to 200809, the amount is calculated to be Rs.1,22,425.80 and that 25% amount is calculated at Rs.30,606, which is paid on 16th January 2010.
On the face of it, this stand of the authority is found to be not legal. The question of that amount having been paid on 16th January 2010 is required to be separately examined in light of the fact that the award was dated 31st January 2008. The learned Judge of the Labour Court while allowing the reference in part had ordered reinstatement with 25% backwages for the intervening period, providing for implementation of the award within 30 days from the date of publication. This Court is of the opinion that it will be in fitness of things if the present petitioner is directed to deposit the amount which is ordered by the learned Judge of the Labour Court by order dated 1st February 2011 in Recovery Application No.74 of 2009. The petitioner shall deposit this amount on or before 12th December 2011. Adjourned to 13th December 2011.
A copy of this order be made available to learned Assistant Government Pleader Mr.R.A. Rindani for its onward communication for compliance.”
8. Further, this Court (Coram : K.M.Thaker, J.) on 14/12/2011 has passed the following order : “In pursuance of the order dated 28.11.2011, the petitioner has deposited Rs.89,646/ on 6.12.2011, however, whether it is in full compliance or part compliance of the said order is not clear. As per the award passed by the Labour Court, the petitioner was directed to pay Rs.76,018.97 ps and interest at the rate of 9% from 16.12.2009. It, prima facie, appears that the calculation appears to be in consonance with the direction. Therefore, for the present, the said deposit is accepted as compliance of the order dated 28.11.2011.
In view of the observations made by the Court (Coram: Hon'ble Mr. Justice Ravi R. Tripathi) in the said order dated 28.11.2011, it now appears appropriate to issue notice to the respondent since the petitioner has already deposited the amount in question. Hence, notice returnable on 13th January, 2012.”
9. However, it is also important to note that this Court (Coram : K.S.Jhaveri, J.) on 23/03/2012 has passed the following order : “Rule. Expedited.
The order dated 01.02.2011 passed by the Labour Court, Bhavnagar in Recovery Application No. 74 of 2009 below Exh. 57 is hereby stayed on condition that the petitioner shall deposit the entire amount as directed by the authority/court below before this Court within a period of six weeks from today.
The same shall be invested by the Registry of this Court by way of Fixed Deposit with a nationalized bank initially for a period of three years and on maturity shall be renewed by one year at a time without any further orders in this regard till the disposal of the main petition. The Fixed Deposit Receipt shall be kept with the Nazir of this Court.
The periodical interest that may be accrued on the said deposit shall be paid to the concerned respondentworkman quarterly.”
10. This Court is of the considered view that the petition is required to be dismissed for the following reasons.
(i) The Recovery Application was warranted on account of the workman's entitlement to receive the monetary reliefs, which were granted by the Court on the first instance namely the Labour Court in award dated 31st January, 2008. The employer could not have succeeded in its attempt to deviate from the direction issued by the Court unless and until the said award or direction is either modified and/or set at naught by the Competent Court. In the instant case, it is required to be noted that the award has attained finality as the learned AGP has not pointed out anywhere that the said award in any manner required to be modified and/or is not in existence. When the award dated 31st January, 2008 is attained finality then the monetary benefits flowing therefrom have to be paid as a matter of course. The monetary benefit would also include the wages, which would become payable to the workman when the order of reinstatement is made. The attempt of the State to raise controversy qua workman's denying to resume his duty is being negatived by the Court and not accepted, this Court while examining and entertaining this petition under Article 227 of the Constitution of India, would not go beyond the recording of the facts. The petition is though
filed under Article 226 of the Constitution of India the same is not maintainable under that Article, as the Court passing the order on Recovery Application is not joined as a party, this requirement is arisen on account of law laid down by the Full Bench of this Court in case of The Bhagyodaya Cooperative Bank Limited V/s. Natvarlal K. Patel and Anr., reported in 2011 (3) GLH (FB) 89. Therefore, this petition is required to be viewed as one having been filed only under Article227 of the Constitution of India.
11. Bearing the purview of scrutiny of challenge under Article 227 of the Constitution of India in mind, this Court is of the considered view that the detailed order passed by the Recovery Court cannot be said to have resulted into any miscarriage of justice in any manner nor suffering from any perversity and therefore, in my view the petition is required to be dismissed as stated hereinabove.
12. The findings recorded qua workman's entitlement to receive the benefits based upon the award cannot be assailed by the employer petitioner in absence of any material indicating that the same could not have been arrived at. In view of this discussion, the petition is bereft of merits and deserves rejection and accordingly it is rejected. However, there should be no order as to costs. The amount, which has been deposited by the authorities under order of this Court shall be paid to the respondentworkman along with interest accrued therein by way of Account Payee Cheque after due verification. Rule discharge.
Rathod...
[S.R.BRAHMBHATT, J.]