22 Jun 2022 6:20 AM GMT
The Gujarat High Court has said that where the service of a workman is terminated in violation of the procedure for Retrenchment & Re-Employment provided under Sections 25(G) and 25(H) of the Industrial Disputes Act, an order of reinstatement ought to follow. Holding thus, Justice Biren Vaishnav set aside the order of the Labour Court which granted backwages worth Rs. 72,000 to...
The Gujarat High Court has said that where the service of a workman is terminated in violation of the procedure for Retrenchment & Re-Employment provided under Sections 25(G) and 25(H) of the Industrial Disputes Act, an order of reinstatement ought to follow.
Holding thus, Justice Biren Vaishnav set aside the order of the Labour Court which granted backwages worth Rs. 72,000 to the terminated workmen, and directed their reinstatement in service, with continuity of service. It said,
"Compensation in lieu of reinstatement will be detrimental to the petitioners who have worked for over a period of 20 years."
The brief facts of the case are that the Petitioners were engaged by the Respondent on a wage of Rs. 30 per day and during the course of the month they would work for a period of 22-25 days for which no appointment orders were issued although attendance sheets were maintained.
The Petitioners claimed that they were removed from employment without compensation and due process. The Labour Court found that the termination was indeed in violation of the statutory provisions and consequently, it was confronted with the issue of either awarding compensation or backwages to the Petitioners. It was also observed that there was a delay of three years in raising the dispute by the Petitioners. Noting that the Petitioners had worked for over a period of 240 days, a compensation of Rs. 72,000 was awarded by relying on Gujarat State Civil Supplies Corporation Ltd vs. Abdul Kadar Ibrahim Bakali and other precedents.
In the instant special civil application, similarly situated Petitioners averred that the compensation of Rs. 72,000 was meagre and in light of bad termination, reinstatement should have been awarded.
Per contra, the AGP supported the award of the Labour Court on the ground that there was a delay in raising the dispute and the work at the canal would have been outsourced and therefore, reinstatement was not possible.
While relying on Gauri Shanker vs. State of Rajasthan., 2015 (12) SCC, the High Court observed:
"The Labour Court has rightly followed the normal rule of reinstatement of the workman in his original post as it has found that the order of termination is void ab-initio in law for non compliance with the mandatory provisions of the Act referred to supra (Sections 25F, 25G and 25H of the Act)."
It also noted the Supreme Court's decision in Director, Fisheries Terminal Division vs. Bhikubhai Meghjibhai Chavda, AIR 2010 SC 1236, where it was held that once the Labour Court had come to the conclusion of violation of Sec 25(F), (G) and (H) of the Industrial Disputes Act, reinstatement ought to have followed.
The Single Judge also referred to the order of Co-ordinate Bench of the Gujarat High Court in SCA No. 10316 of 2020 that the Petitioner should be granted reinstatement in place of backwages. The Court admitted the petition with the following direction:
"The respondents are directed to reinstate the workmen in service with continuity of service. However, it is clarified that they will not be entitled to any backwages as they have given up their claims. After their reinstatement, it will be open for the petitioners – workmen to file a representation claiming the benefits of Government Resolution dated 17.10.1988."
For Petitioners in SCA No. 45 of 2021 and SCA No. 82 of 2021, the Bench found that the Petitioners had attained the age of superannuation and therefore, they were to be entitled to reinstatement till the date of superannuation with continuity of service. They were also entitled to the retirement benefits on the strength of the modified award within 12 weeks.
Case Title: GEMALBHAI MOTIBHAI SOLANKI v/s DEPUTY EXECUTIVE ENGINEER
Citation: 2022 LiveLaw (Guj) 235
Click Here To Read/Download Judgment