IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2322 of 2004 For Approval and Signature:
HONOURABLE MR.JUSTICE N.V. ANJARIA ======================================================== 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 ?
Whether this case involves a substantial 4 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 ?
========================================================= SARPANCH - Petitioner(s) Versus RANCHHODBHAI NATHUDAS PATEL – Respondent(s) ========================================================= Appearance :
MR BHARAT JANI for Petitioner(s) : 1, MR MAHENDRA K PATEL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 17/07/2012
ORAL JUDGEMNT
The petitioner Panchayat represented through its Sarpanch filed the present writ petition under Article 227 of the Constitution, against judgment and award dated 27th May 2003 passed in Reference (LCK) No.
315 of 1990, by the Labour Court, Kalol, whereby the Labour Court directed reinstatement of the respondent-workman on the original post with 45% of backwages.
2. According to the case in the statement of claim of the respondent- workman, he was working as Bore-operator since last 14 years under the petitioner Panchayat and his services were terminated orally with effect from 01.11.1989 without following any procedure. It was his contention that the termination was in contravention of the relevant provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act'). He therefore, invoked the jurisdiction of Labour Court praying for declaration that his termination was illegal and for relief of reinstatement with back wages.
2.1 The Panchayat in its reply contended inter-alia that the workman was negligent in discharge of his duties; that he used to attend another bore of a private person, and had been earning by rendering services there. The Panchayat therefore had given show cause notice dated 15.11.1989 to him, to which he did not reply. According to the petitioner, the workman did not report on duty and had voluntarily abandoned the services.
3. It may be mentioned at the outset that admittedly the workman retired on 02.01.1999 on reaching age of superannuation, even before passing of the impugned judgment and award of the Labour Court. It appears that this fact was not pointed out to the Labour Court by either side. In the present petition, therefore, only question remains to be denied is about the backwages.
4. Heard learned advocate Mr. B.G. Jani for the petitioner, and Mr.
Mahendra K. Patel for the respondent.
4.1 Learned advocate for the petitioner by placing reliance on the evidence of the witnesses of first party employer examined at Exhibit 20 and Exhibit 29 and on the basis of the certificate at Mark 7/1, submitted that the workman had left services on his own. The witnesses had stated that the respondent workman had been working at another place on private bore. The certificate mentioned that he was serving elsewhere. At the same time, the evidence on record before the Labour Court further showed that the panchayat had given a show cause notice to the workman. As the workman did not submit his explanation, the body of the panchayat passed a resolution dispensing with the services of the workman, and under the same resolution, another person came to be appointed in place of the respondent. Thus having regard to the evidence before it, the Labour Court was justified in coming to the conclusion that there was no voluntary abandonment of service, but it was employer's act of terminating the services without any show cause notice or following any procedure whatsoever.
4.2 The evidence was therefore clear that there was an overt act on part of the employer putting an end to the services of the respondent. Once by an express resolution passed in black and white, the services were terminated and another man was appointed, it amounted to retrenchment within the meaning of Section 2 (oo) of the Industrial Disputes Act 1947 requiring compliance of section 25F of the Act. In that view, when the termination was found to be illegal, no fault can be said to have committed by the Labour Court as such in awarding 45% backwages.
5. It was, however submitted by learned advocate for the petitioner that granting of 45% backwages was not justified. He submitted that considering the fact that the workman had retired in the year 1999, and that fact was not known to the Labour Court when it passed the award on 27th May 2003 and, further considering the aspect employer is a panchayat which is body of local-self government, even if the petition is to be dismissed, the court may balance the claim with regard to question of payment of backwages. At the same time, learned advocate for the respondent Mr.Mahendra K. Patel made a fair statement on the basis of instructions from the respondent that his client would be satisfied if 25% back wages is granted in place of 45%, awarded by the Labour Court.
6. In the light of above, and having regard to the concessional statement made by learned advocate Mr. Patel as recorded above the judgment and award dated 27th May 2003 passed by the Labour Court in Reference (LCK) No.315 of 1990, is modified to the extent that the petitioner Panchayat shall be liable to pay 25% of back wages to the respondent workman instead of 45% backwages awarded by the Labour Court from the date of termination till the date when the workman reached the age of superannuation. As requested by the learned advocate for the petitioner, the petitioner Panchayat shall pay 25% of backwages within eight weeks from the date of receipt of certified copy of this order. The judgment and award of the Labour Court shall stand modified to the above extent as regards the backwages.
7. Subject to above modification and directions, the Rule is discharged.
No costs.
(N.V. ANJARIA, J.) deepak