Manager , Oswal Industries Ltd vs Omprakash Shyamlal Jayswal & Anr

Hemant M. Prachchhak, J

Rule returnable forthwith. Ms. Sweety Samara, learned AGP waives service of notice of rule on behalf of the respondent No.2 and Ms. Dipmala S. Desai, learned counsel waives service of notice of rule on behalf of respondent No.1.

Present petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India r/w the provisions of Industrial Disputes Act challenging the impugned award dated 6.5.2023 in Reference T(LC) No. 24 of 2018 passed by the Labour Court, Kalol, whereby the Labour Court has partly allowed the reference in favour of the workman and granted reinstatement with 50% of wages of his last drawn wages as backwages.

Facts of the case are that the respondent workman was working in the Furnace department of the petitioner. He was getting Rs.432/- per day. He was not paid for his overtime work. On 3.10.2017, his service came to be terminated by the petitioner.

3.1 Being aggrieved with the said termination, the workman raised an industrial dispute before the Labour Court being Reference T(LC) No.24 of 2018 and the Labour Court, vide order dated 6.5.2023 partly allowed the said reference and awarded aforementioned relief.

3.2 Being aggrieved by the award passed by the Labour Court, the petitioner has preferred present petition.

Heard learned counsel appearing for the respective parties.

Ms. Hina Desai, learned counsel for the petitioner, has reiterated the facts as narrated in the memo of the petition and submitted that the Labour Court has committed a grave error in passing the impugned award. She has contended that the petitioner never terminated the services of the respondent–workman and that, in fact, the respondent had abandoned the service on his own. She has further submitted that there were complaints against the respondent from co- staff members during the course of duty. It is also submitted that a warning letter was issued to the respondent for remaining unauthorizedly absent from 04.10.2017, and that these material aspects have not been properly appreciated by the Labour Court. She has, therefore, prayed that the present petition be allowed and the impugned award passed by the Labour Court be quashed and set aside.

On the other hand, Ms. Dipmala Desai, learned counsel for the respondent–workman, and Ms. Samara, learned AGP, have opposed the petition and submitted that the Labour Court has not committed any error in passing the impugned judgment.

6.1 Ms. Dipmala Desai, learned counsel for the respondent– workman, has submitted that respondent No.1 had issued a notice through the Union on 04.10.2017 seeking reinstatement; however, the petitioner failed to reinstate him. She has further submitted that respondent No.1 had also approached the Labour Commissioner, but the petitioner neither remained present before the authority nor took any steps to reinstate respondent No.1. It is, therefore, submitted that the contention of the petitioner that respondent No.1 remained absent from duty and was not terminated is wholly meritless.

6.2 Ms. Desai, learned counsel for the respondent workman has further submitted that the cross-examination of the Senior Executive (HR), produced at Exhibit 16, clearly establishes that respondent No.1 had been working with the petitioner for more than six years. It is also brought on record that attempts were made to resolve the dispute through conciliation proceedings; however, the petitioner did not remain present. She has submitted that whenever respondent No.1 attempted to resume duty, the petitioner did not cooperate, and due to the continuous non-cooperation on the part of the petitioner, the respondent–workman could not rejoin service. She has further submitted that the Labour Court has rightly appreciated the evidence on record and has recorded a finding that the respondent was terminated without compliance with the mandatory provisions of Section 25F of the Industrial Disputes Act.

6.3 It is further submitted that in exercise of powers under Articles 226 and 227 of the Constitution of India, this Court cannot interfere with an award passed by the Tribunal by re-appreciating the evidence already considered and examined by it, unless the findings are shown to be perverse or based on no evidence whatsoever. According to her, the impugned award is in consonance with the settled principles of law and, therefore, the present petition deserves to be rejected.

Considering the submissions canvassed by learned counsel appearing for the respective parties and the impugned judgment and award passed by the Labour Court, it appears that the Labour Court has rightly appreciated the evidence while coming to the conclusion and without there being any rebuttal, on the other hand, the Labour Court has awarded aforementioned relief. In view of the decision of the Hon’ble Supreme Court in the case of Maharashtra State Cooperative Marketing Federation Limited Versus Suresh S/o Dadarao Gadge reported in (2015) 4 SCC 542 and the oral order dated 18.04.2024 passed by the Division Bench of this Court in Letters Patent Appeal No. 908 of 2023 and allied appeals more particularly para – 10 and the order dated 18.04.2024 passed by the Division Bench of this Court in Letters Patent Appeal No.1091 of 2023 and allied appeals more particularly paras – 5 and 6, this Court is of the opinion that interest of justice would be subserved, if lump sum compensation is awarded in favour of the workman in lieu of reinstatement and all other consequential benefits.

The relevant para – 10 of the oral order dated 18.04.2024 passed by the Division Bench of this Court in Letters Patent Appeal No. 908 of 2023 and allied appeals reads thus:-

“10. Having come to the conclusion that the lump sum compensation would be appropriate remedy for the families of the deceased workmen, the other aspects which comes for consideration is quantum of lump sum compensation. Though learned advocate Mr. Bhatt has contended that there was delay in preferring the complaint and the subsequent reference, it can be observed from the pleadings that the averments with regard to delay and laches in preferring the reference were not made before the Labour Court as well as the learned Single Judge. Therefore, the argument of learned advocate Mr. Bhatt with regard to delay and laches in preferring reference cannot be countenanced and what needs to be seen is that almost all the workmen have put in 16-20 years of service for the respondent and their services were terminated without following due procedure of law. Therefore, the families of the deceased workmen needs to be compensated proportionally as to the number of years of service put in by them. However, in order to balance the equation, we have considered to give effect of delay in preferring the reference while enhancing the amount of compensation. Thus, while calculating the number of years of services, we proposed to deduct the number of years service for which there is delay in preferring reference. After deduction of such number of service, we propose to give compensation in the following tabular form:

Sr.No.

Total no. of years for lump sum compensation

Amount of lump sum compensation

1

5 to 10 years

Rs.3.00 lacs

2

10-15 years

Rs.5.00 lacs

3

15-20 years

Rs.7.5 lacs

The relevant paras 5 and 6 of the oral order dated 18.04.2024 passed by the Division Bench of this Court in Letters Patent Appeal No. 1091 of 2023 and allied appeals reads thus:-

“5. Therefore, looking to the gap which intervened between the date of termination and the date of granting reinstatement, the approach of the learned Single Judge granting lump sum compensation cannot be faulted with.

Looking to the various aspects and factors which are considered above, like the nature of employment, time gap intervened, length of service, the compensation awarded to the tune could not be said to be unreasonable. Therefore, Letters Patent Appeals preferred by the Municipality on the question of amount of compensation as well as appeals preferred by the workmen seeking reinstatement are liable to be dismissed. However, in one of the matters being Letters Patent Appeal No. 701 of 2023 in Special Civil Application No. 18334 of 2021 in the case of workman being Koli Vairaginiben Ramkumar, we observe that the compensation given by the learned Single Judge is to the tune of Rs.6,25,000/- for 11 years of service. It can be observed from the order passed by the learned Single Judge that such amount is proportionally different from the other set of amounts which are given as compensation. However, for the identical years of work i.e. 11 years of service, the other workmen are granted an amount of Rs.3,25,000/- as lump sum compensation. Thus, we are inclined to modify the amount of lump sum compensation in Letters Patent Appeal No. 701 of 2023 to the tune of Rs.3,25,000/- from Rs.6,25,000/-. Hence, Letters Patent Appeal No. 701 of 2023 is partly allowed to the aforesaid extent, whereas, all the other Letters Patent Appeals stand dismissed as no ground is made out to interfere with the order of the learned Single Judge.”

Now, considering the materials placed on record and the peculiar facts of this case, this Court is of the opinion that instead of granting any other relief, it would be just and proper to pay lump sum compensation of Rs.3,00,000/- to the workman, which will serve the ends of justice.

In view of the above, present petition is partly allowed. The impugned award passed by the Labour Court is hereby quashed and set aside and the award is modified accordingly. An amount of Rs.3,00,000/- as lump sum compensation shall be paid to the workman by the employer after proper verification of the identity and bank details through RTGS within a period of eight weeks from the date of receipt of the writ of this order. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.