Bhavnagar Municipal Corporation vs Dharmendra B. Vegad

J.C. Upadhyaya, J.—The challenge in this Letters Patent Appeal is to the order dated 21.4.2010 of learned single Judge of this Court rendered in Special Civil Application No. 11156 of 2009 wherein the Appellant had challenged the award passed by labour Court in Reference No. 294 of 2005 on 25.5.2009. The labour Court had granted reinstatement with continuity of service w.e.f. 27.11.1993 of the Respondent with consequential benefits with 10% back wages of interim period, on original post. Examining the papers annexed with the petition and considering the submissions of both sides, learned single Judge observed that the award of the labour Court so far as the reinstatement of the Respondent was concerned, was appropriate and legal. However, the award of the labour Court was modified and the direction, which has been given by the labour Court with continuity of service with 10% back wages and consequential benefits was held to be erroneous and came to be quashed and set-aside.

Learned Counsel, Mr. H.S. Munshaw, for the Appellant submitted that, admittedly, the Respondent raised the dispute after 12 years and on that count alone, learned single Judge interfered with the award of the labour Court so far as the grant of 10% back wages with continuity of service was concerned. It is, therefore, submitted that on the same line, the order ofrein statement should have been quashed and set-aside.

Considering the oral order of learned single Judge, it appears that the same contention was raised on behalf of the Appellant/Petitioner before the learned single Judge and learned single Judge examining the record of the labour Court, upheld the finding of the labour Court that there was clear violation of Section 25H of the Industrial Disputes Act. Consequently, it was observed that when there is clear violation of Section 25H, the workman is entitled to relief of reinstatement as reemployment and the continuity of service which has been granted with back wages, cannot be allowed by the labour Court. In the case of Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, the Hon''ble Apex Court observed that the provisions of Article 137 of the Schedule to Limitation Act, 1967 are not applicable to the proceedings under the ID Act, and the relief under it cannot be denied to the workman, merely on the ground of delay. Even in a case where delay is shown to be existing, the tribunal, labour Court or board, dealing with the case, can appropriately mould the relief by declining to grant back wages to the workman till the date he raises the demand regarding his illegal retrenchment/termination or dismissal. In the instant case, there is concurrent finding that provisions of Section 25H of the ID Act have been violated, as nine employees, those who were appointed or engaged along with the Respondent, were subsequently engaged by the Appellant Corporation. In almost identical situation, in the case of Agriculture Produce Market Committee Vs. Kanubhai Laxmanbhai Patel, , this Court directed to reinstate retrenched workman when junior in service was given priority and Section 25H was thereby contravened.

Learned Counsel, Mr. Munshaw, for the Appellant submitted that in the instant case, the labour Court ought not to have ordered reinstatement and order for payment of compensation could have served the ends of justice. It was submitted that recent trend of the judgments of Hon''ble Supreme Court was indicative of the policy of not awarding reinstatement as a necessary relief or as automatic consequence of violation of provisions of ID Act. In this respect, having considered the facts of the instant case, it is clear that the labour Court passed the award for reinstatement, in exercise of the jurisdiction conferred upon it, especially when the breach of Section 25H was established. Learned single Judge upheld that part of the award. However, in the facts and circumstances of the case, learned single Judge has interfered with the award of the labour Court so far as the grant of 10% back wages with continuity was concerned and that part of the impugned order has not been challenged by the Respondent by preferring any Letters Patent Appeal. We, therefore, do not find any justifiable ground to interfere with the impugned order of learned single Judge and the appeal is devoid of any merits.

For the foregoing reasons, the appeal along with civil application is dismissed.