Partly allowed

Pushpaben Jyotishbhai Vaghela v. Shri Sadguna C U Shah Ladies Hospital and Nursing Home

Gujarat HC23 Aug 2022SCA/7822/2019

Case brief

AI extract

What is this about?

The High Court of Gujarat modified a Labour Court award in a termination dispute. The Court reduced the back wages grant from 50% to 25% due to the respondent's failure to accept a reinstatement offer and lack of proof regarding continuous employment.

What did the court decide?

The impugned award granting 50% back wages was modified; the applicant Petitioner got 25% back wages granted, and Petitioner Special Civil Application No.7822 of 2019 was dismissed.

Pushpaben Jyotishbhai Vaghela Vs Shri Sadguna… — Labour and Industrial Disputes | Gujarat HC (2022)

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C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 5130 of 2018

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With

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R/SPECIAL CIVIL APPLICATION NO. 7822 of 2019

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FOR APPROVAL AND SIGNATURE:

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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

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================================================================ SMT .SADGUNA C U SHAH MATERNITY HOSPITAL

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Versus

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PUSHPABEN JYOTISHBHAI VAGHELA

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================================================================ 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

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Appearance-SCA No.7822 of 2019

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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

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================================================================

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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

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Date : 23/08/2022

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ORAL JUDGMENT

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Page 1 of 6

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C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022

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RULE . Learned Advocate Mr.P.C.Chaudhari waives service of Rule on behalf of the respondent No.1 in Special Civil Application No.5130 of 2018 and learned Advocate Mr.Uday Joshi waives service of Rule on behalf of respondent No.1 in Special Civil Application No.7822 of 2019.

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These two petitions are arising from the same award of the Labour Court. Special Civil Application No.5130 of 2018 is filed by the employer with prayer as under:-

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“(B) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or any other writ, order or direction quashing and setting aside the award dated 13.12.2017 passed by the Presiding Officer, Labour Court of Surendranagar dated 13.12.2017 in Ref LCS NO.15 of 2013.”

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2.1 The workman has filed Special Civil Application No.7822 of 2019 praying as under:-

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“(a) YOUR LORDSHIP be pleased to issue writ of mandamus, or writ of certiorari of any other writ, order or direction, directing the award and order dated 13.12.2017 passed by the learned Labour court, Surendranagar, in Reference (L.C.S.) No.15/13, denying full back wages and not mentioning the word continuity of service on operative part of the Award is illegal, improper, arbitrary and contrary to the settled propositions of law and be further pleased to modify the same.

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Learned Advocate for the petitioner-employer submitted that the Labour Court has committed an error in

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Page 2 of 6

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C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022

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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.

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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.

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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.

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Page 3 of 6

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C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022

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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.

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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.

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As against this, learned Advocate for the respondentworkman submitted that the respondent was working with the petitioner for more than 8 years prior to date of termination. The respondent was receiving salary of Rs.3,000/- per month. The respondent was illegally terminated from services with effect from 01.07.2013.

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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.

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4.2 It is submitted that the Labour court has categorically held that the respondent has proved that she has completed 240

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Page 4 of 6

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C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022

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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.

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Having heard learned Advocates for the parties and having perused documents on record, it appears that the petitioner-Smt. Sadguna C.U.Shah Maternity Hospital is a women dispensary and maternity home located at Wadhwan, Surendranagar and is administered and managed by a Charitable Trust. The Trust has employed 7 persons, out of which 2 employees are attending the office, 3 women employees are “Aayas”, 1 is sweeper and 1 is nurse. The respondent-workman was a part time temporary worker and was drawing salary of Rs.3,000/- per month on daily wage basis.

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Over and above, the stand of the petitioner-employer that the respondent had stopped attending her duties, will have to be looked along with evidence Exh.30, wherein the respondentworkman has accepted to have worked with one Shri Hari Maternity Home as Matron. However, she deposed that it was fur temporary period. This is not considered by the Labour Court.

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Page 5 of 6

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C/SCA/5130/2018 JUDGMENT DATED: 23/08/2022

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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:-

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“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.”

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6.1 Such a stand is uncontroverted. Hence, the Court is inclined to limit the extent of back wages.

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The Court, for the aforesaid reasons, modifies the impugned award of the Labour court granting back wages of 50% to grant of 25% back wages. Special Civil Application No.5130 of 2018 stands partly allowed. Rule is made absolute to the aforesaid extent. Special Civil Application No.7822 of 2019 stands dismissed. Rule is discharged. No order as to costs.

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Sd/(A.Y. KOGJE, J)

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SHITOLE MANISH P.

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Page 6 of 6

Pushpaben Jyotishbhai Vaghela v. Shri Sadguna C U Shah Ladies Hospital and Nursing Home

Case brief

What is this about?

What did the court decide?

Pushpaben Jyotishbhai Vaghela v. Shri Sadguna C U Shah Ladies Hospital and Nursing Home

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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