In No. 5130 of 2018, the High Court modified a Labour Court award, reducing back wages from 50% to 25% while addressing issues of continuous service and reinstatement conditions. In No. 7822 of 2019, the petition was dismissed.
Back wages reduced to 25%; Special Civil Application No. 7822 of 2019 dismissed.
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/5130/2018 JUDGMENT DATED: 23/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5130 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 7822 of 2019
FOR APPROVAL AND SIGNATURE:
| HO === 1 |
NOURABLE MR. JUSTICE A.Y. KOGJE Sd/- ==================================================== Whether Reporters of Local Papers may be allowed to see the judgment ? |
========= No |
|---|---|---|
| 2 | To be referred to the Reporter or not ? | No |
| 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 |
================================================================ SMT .SADGUNA C U SHAH MATERNITY HOSPITAL
Versus
PUSHPABEN JYOTISHBHAI VAGHELA
================================================================ Appearance-SCA No.5130 of 2018 MR UDAY M JOSHI(380) for the Petitioner(s) No. 1 MR P C CHAUDHARI(5770) for the Respondent(s) No. 1
Appearance-SCA No.7822 of 2019
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1 MR UDAY M JOSHI(380) for the Respondent(s) No. 1 None for Respondent No.2
================================================================
CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 23/08/2022
ORAL JUDGMENT
Page 1 of 6
C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022
2.1 The workman has filed Special Civil Application No.7822 of 2019 praying as under:-
Page 2 of 6
C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022
overlooking that the voucher produced by the respondent-workman establishes that she is temporary part timer daily wager and the payment is made on the basis of daily wage as and when she reports for duty. It is submitted that the respondent is junior to one Josnaben and therefore, there is no question of victimization or violation of the provisions of the Industrial Disputes Act.
3.1 It is submitted that there is no breach of Section 25 of the Act as the respondent has failed to establish that she has worked for 240 days continuously.
3.2 It is submitted that the respondent did not attend the duty from 01.03.2013 and on the very same day, preferred complaint before the Assistant Commissioner of Labour. It is submitted that the respondent was appointed by the petitioner on temporary /ad hoc /part time basis for 3 to 4 hours per day and that she was never appointed as a regular employee. It is submitted that the respondent has never continued her services for more than 240 days, which is necessary for regularization as per the Act. Hence, the adjudicating authority was not right in placing onus on the petitioner without first determining on the basis of cogent evidence that the respondent had not worked for more than 240 days in the year preceding her termination. The respondent has also not lead any evidence to show her continuous service for more than 240 days in the year preceding her termination.
Page 3 of 6
C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022
3.3 It is submitted that the respondent herself had accepted the fact that she was in gainful employment in Shri Hari Maternity Home and therefore, even otherwise, she is not eligible to be reinstated with back wages.
3.4 It is submitted that the petitioner has neither appointed any fresh employee nor transferred or promoted any employee to the vacated post held by the respondent.
4.1 It is submitted that the respondent has produced certain documents before the Labour Court including pay slips and settlement entered into between the petitioner-employer and the respondent-workman in Recovery Application, wherein the respondent had claimed difference of wages as the petitioner had paid salary less than the prescribed minimum wages.
4.2 It is submitted that the Labour court has categorically held that the respondent has proved that she has completed 240
Page 4 of 6
C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022
days with the petitioner-employer. It is submitted that in findings of the Labour Court at internal page No.14, it is observed that the respondent is entitled for reinstatement with continuity of service along with back wages. The Labour Court has also observed that the respondent is entitled for back wages at the rate of 50%. However, in operative portion, the findings are recorded totally in different manner.
Page 5 of 6
C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022
Moreover, in the affidavit dated 04.10.2019 (at page No.87 of SCA No.5130 of 2018), the petitioner-employer has stated on oath as under:-
“I submit that when the matter reached hearing before the learned Single Judge on 18.09.2019, on behalf of the petitioner Hospital, it was submitted that the petitioner Hospital is ready and willing to reinstate the respondent is she approaches the Hospital Trust forthwith. The offer to reinstate was recorded by this Hon’ble Court in the order dated 18.09.2019. Thereafter, till date, the respondent has not approached the Hospital Trust for job. It is sufficient proof that the respondent is employed elsewhere.”
6.1 Such a stand is uncontroverted. Hence, the Court is inclined to limit the extent of back wages.
Sd/(A.Y. KOGJE, J)
SHITOLE MANISH P.
Page 6 of 6
2 issues framed by the court
Whether the impugned Labour Court award granting 50% back wages and continuity of service should be modified given the 240-day continuous service requirement.
Whether the Labour Court erred in placing the onus of proving 240 days of continuous service on the employer without first determining the employee's eligibility based on cogent evidence.
1 provisions across 1 enactments
Smt. Sadguna C.U. Shah Maternity Hospital
Pushhaben Jyotishbhai Vaghela
A.Y. Kogje
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
