The High Court upheld the Labour Court's award of reinstatement but quashed the 25% back wages order. The court substituted the award with a lump sum compensation of Rs.55,000/-.
Employer directed to pay lump sum compensation of Rs.55,000/- as full and final settlement for back wages.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/540/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 540 of 2010 With R/SPECIAL CIVIL APPLICATION NO. 10377 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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| 1 | Whether Reporters of Local Papers may be allowed to see the judgment ? |
No |
|---|---|---|
| 2 | To be referred to the Reporter or not ? | Yes |
| 3 | Whether their Lordships wish to see the fair copy of the judgment ? |
No |
| 4 | Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? |
No |
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KARSAN SHIVAJI SANGHAR
Versus
ASHAPURA MINES CHEM LIMITED
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Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1 MR MB GANDHI(326) for the Petitioner(s) No. 1 MR MUKESH H RATHOD(2432) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 13/01/2021
ORAL JUDGMENT
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that he was working on daily rated basis and in that view of the matter, when work was not available with the employer, automatically he is discharged from the work. It is also contended by the employer that when there is no work, it cannot be treated the industrial dispute. It is also contended by the employer that it is an contractual obligation, the Industrial Disputes Act is not applicable to the case of the workman. It is contended by the employer that various issues has been raised in the written statement filed before the Labour Court, but the Labour Court has not considered in its proper perspective. It is further contended by the employer that the evidence on record has not been properly appreciated by the Labour Court. It is also contended that without any evidence, regarding four years of continuous service of the workman, the Labour Court has granted award in favour of the workman. It is also contended by the employer that the workman has not worked in regular post and he was only daily rated labourer. While relying upon the decision in the case of Himanshu Vidhyarthi, AIR 1997 SC 3657 , it is submitted that the law of retrenchment cannot be made applicable to the daily rated labourer. It is contended by the employer that the workman has not resumed his duty. According to the employer, the impugned award is not based on any material on record and the finding of fact is erroneous and the impugned award is not sustainable in the eyes of law.
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8.1 Mr.Chinmay Gandhi, learned advocate for the petitioner has relied upon the decision in the case of Talwara Cooperative Credit and Service Society Limited v. Sushil Kumar reported in (2008) 9 SCC 486 , wherein the Supreme Court has held as under:-
“8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this
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nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment, viz., whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned etc., should be taken into consideration.
9. For the purpose of grant of back wages; one of the relevant factors would indisputably be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service. Some of the other relevant factors in this behalf have been noticed by this Court in G.M.Haryana Roadways v. Rudhan Singh, [(2005) 5 SCC 591], stating:
“8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrong fully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where thetotal length of service rendered by a workman is very small, the award of back wages for the complete period i.e.
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from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year.”
8.2 He has also relied upon decision in the case of Executive Engineer v. Ayubhai Ladharbhai reported in 2010 (2) GLH 700, wherein it is held as under:-
“6. The above conclusions are equally applicable in the facts of the present case in so far as neither any evidence of actual gainful employment of the respondents could be placed on record by the appellant nor could there be any presumption about receipt of adequate remuneration by the respondents when the mandatory provisions of Section 17-B clearly require proof to the satisfaction of the High Court that the workman concerned has been employed and has been receiving adequate remuneration during the relevant period. Therefore, in absence of the necessary evidence and in view of the affidavits filed by the respondents about their unemployment, the respondents were entitled, as a matter of right, to full wages last drawn by them, during the pendency of the proceedings before this Court. .”
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the workman was not entitled to reinstate with continuous service. Therefore, according to him, the impugned award is required to be set aside.
9.1 Mr.Rathod has relied upon the decision in the case of General Manager, Haryana Roadways v. Rudhan Singh reported in (2005) 5 SCC 591, wherein it is observed as under:-
“7. In our opinion certain factors, which are relevant for forming an opinion regarding award of back wages, have been completely ignored and, therefore, the award on this point is vitiated. The list of dates given in the Special Leave Petition, which have not been controverted, show that though according to the own case of the respondent his services had been terminated on 18.2.1989, yet he served a demand notice praying for reinstatement in service after two and half years on 24.8.1991. The State Government made reference to the Industrial Tribunal-cum-Labour Court in the year 1997, which means eight years after the termination of service. Normally, a reference should not be made after lapse of a long period. A labour dispute should be resolved expeditiously and there is no justification for the State Government to sleep over the matter and make a reference after a long period of time at its sweet will. It causes prejudice both to the workman and also to the employer. It is not possible for an employer to retain all the documents for a long period and then to produce evidence, whether oral or documentary, after years as the officers, who may have dealt with the matter, might have left the establishment on account of superannuation or any other reason. The employer is not at fault if the reference is not made expeditiously by the State Government, but it is saddled with an award directing payment of back wages without having taken any work from the concerned workman. The plight of the workman who is thrown out of employment is equally bad as it is a question of survival for his family and he should not be left in a state of uncertainty for a long period.
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8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period, i.e., from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year.”
9.2 He has also relied upon decision in the case of U.P.State Brassware Corpn. Ltd. And Another v. Uday Narain Pandey reported in (2006) 1 SCC 479, wherein it is held as under:-
“22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act.
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42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of its significance.”
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witness that since entry of the workman in the service till he was relieved, he has continuously worked in the institution. Thus, considering the evidence on record, there is no error of facts and/or law committed by Labour Court in granting relief of reinstatement.
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Sd/- (DR. A. P. THAKER, J)
V.R. PANCHAL
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2 issues framed by the court
Whether a lump sum compensation or back wages should be awarded for wrongful termination when reinstatement has been granted.
Whether the Industrial Disputes Act applies to daily-rated labourers regarding retrenchment.
Colour shows how this judgement treated each authority
Talwara Cooperative Credit and Service Society Limited v. Sushil KumarFollowed¶35
(2008) 9 SCC 486 · Who else cites this
Executive Engineer v. Ayubhai LadharbhaiReferred¶44
2010 (2) GLH 700
General Manager, Haryana Roadways v. Rudhan SinghDistinguished¶50
(2005) 5 SCC 591 · Who else cites this
U.P. State Brassware Corpn. Ltd. And Another v. Uday Narain PandeyFollowed¶55
(2006) 1 SCC 479 · Who else cites this
1 provisions across 1 enactments
Karsan Shivar
Ashapura Mines Chem Limited
A. P. Thaker
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
