SCA/6309/1995 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6309 of 1995 With SPECIAL CIVIL APPLICATION No. 7819 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = GUJ STATE ROAD TRANSPORT CORPN - Petitioner Versus BALKRISHNA MANHARLAL THAKER - Respondent ========================================= = Appearance : MR DIPEN A DESAI for Petitioner(s) : 1, MR GK RATHOD for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/10/2008 COMMON ORAL JUDGMENT Special Civil Application No.6309 of 1995 is preferred by the Gujarat State Road Transport Corporation, SCA/6309/1995 2/7 JUDGMENT assailing the order dated 25/04/1995 passed by the learned Presiding Officer, Labour Court, Bhavnagar in Reference (LCB) No.152 of 1993, ordering reinstatement of the respondent- workman and paying him only 60 % of back wages without any other benefits and awarded cost of Rs.500/-. 2. Special Civil Application No.7819 of 1995 is filed by the workman assailing same very award and parties to the extent it denied full back wages and other benefits. 3. As the award and parties are common, both the petitions are being disposed of by this common judgment and order. 4. The workman who is respondent in Special Civil Application No.6309 of 1995 and petitioner in Special Civil Application No.7815 of 1995 is herein after referred as workman and S.T. Corporation is herein after referred as employer for the sake of convenience. 5. The facts in brief deserves to be set out as under: 6. The workman who was conductor at the relevant time came to be dismissed vide order dated 19-21/09/1978 after completion of departmental inquiry in respect of the charge of misconduct of not issuing tickets and collecting cash from the passengers. The workman's appeal to the authorities against the said order of dismissal came to be rejected on 29/11/1978 and the Second Appeal against the rejection also came to be rejected on 12/02/1979. The workman, thereafter raised industrial dispute which came to be referred to the SCA/6309/1995 3/7 JUDGMENT Labour Court, Rajkot for adjudication and wherein it came to be numbered as Reference (LCR) No.722 of 1999. In this reference after hearing both the sides and appreciating the evidence on record, the learned Labour Court rejected the same vide its order dated 03/08/1981. After passage of time, the workman raised another industrial dispute which came to be referred to the Labour Court for adjudication and same came to be numbered as Reference (LCR) No.152 of 1983. This was in-fact a second reference assailing the order of dismissal. It is deserves to be noted at this stage that the employer – S.T. Corporation raised specific plea with regard to non-maintainability of the reference in view of the earlier reference having been rejected on merits by the competent Labour Court vide its order dated 03/08/1981 in Reference (LCR) No.722 of 1979. However, the learned Labour Court on ground of some approval application being rejected came to the conclusion that the reference was competent and allowed the same vide its order dated 25/04/1995, which is impugned by both the parties for the respective reasons as stated herein above. 7. Shri Dipen Desai, learned Counsel appearing for the S.T. Corporation submitted that the second reference was barred by principle of res-judicata, as the plea of not granting of approval was available to the workman even during the earlier reference when it was being argued and decided being Reference (LCR) No.722 of 1979. He further submitted that in- fact the second reference and award therein do not disclose as to what was the application seeking approval and in-fact as per his instructions, there was no industrial dispute pending conciliation and adjudication in any Court or before any SCA/6309/1995 4/7 JUDGMENT authority and therefore approval application was not warranted at all. He further submitted that assuming for the sake of submission that the approval was warranted and it was not granted then also non-granting of approval was a ground to be adjudicated before the competent Labour Court, while Reference (LCR) No.722 of 1979 was being adjudicated and decided. Having not taken that ground, the workman could not have filed second reference, as it was clearly barred by principle of res-judicata. 8. Shri Rathod, learned Advocate appearing for the workman could not dispute the submissions made by the learned Counsel for the S.T. Corporation, he however, submitted that the workman was reinstated on 17/07/1995 and thereafter on attaining age of superannuation on 31/08/2004, he was made to retired. During this period, the workman had received salary and wages for the work done and has received only Rs.42,000/- by way of Provident Fund amount. Shri Rathod is not clear as to whether this amount of Rs.42,000/- is exclusive of employer's contribution also or not, but he submits that even if the Court is inclined to accept the petition and quash the award, no order of recovery from the workman be passed, as the workman has in-fact worked after reinstatement on 17/07/1995 till date. Though, technically speaking his reinstatement was subject to final outcome of this petition, but now when the workman is aged about 62 years, it would be very harsh on him if he is required to refund the amount of wages as well as the amount of provident fund, which he received after satisfactorily discharging his duties to the Corporation. SCA/6309/1995 5/7 JUDGMENT 9. This Court is of the considered view that the award impugned in Special Civil Application No.6309 of 1995 is not sustainable at all. The award is passed without adverting to and dealing with the plea of non-maintainability of the said reference. The award is solely based upon the ground of rejection of approval application seeking approval for implementing the dismissal order, but unfortunately no details whatsoever including the number of approval application, pendency of proceedings and the authority before which the conciliation and / or adjudication proceedings were pending warranting making of such approval application, etc., have been mentioned. The award which is made in the reference which in-fact challenging dismissal order of 19-21/09/1978 and on which there was adjudication on merits in the earlier reference being Reference (LCR) No.722 of 1979 in the order dated 03/08/1981, it was not proper, just and legal to allow the Reference with 60 % of back wages without there being any other material on record. The reference was not maintainable and as the reference was not maintainable, resultantly the award is also required to be quashed and set aside and accordingly the same is quashed and set aside. 10. It deserves to be noted that as the award is quashed and set aside for the reasons stated herein above, the petition filed by the workman being Special Civil Application No.7819 of 1995 seeking full back wages would also naturally meet with the fate of rejection and the same is hereby rejected. 10.1 Now, at this stage, the submission made by Shri Rathod, with regard to resultant effect of quashing the award deserves to be discussed. SCA/6309/1995 6/7 JUDGMENT 10.2 In view of the peculiar facts and circumstances of the present case, the fact remains to be noted that this Court in Special Civil Application No.6309 of 1995 granted stay against the award on a condition of compliance of 17 (B). That order was made on 15/09/1995 meaning thereby prior to that order came to be passed, on 17/07/1995 the workman was reinstated. As per statement made at the bar by learned Counsel for the workman, thereafter despite the order dated 15/09/1995 the workman was permitted to discharge his duties and he was permitted to retire after attaining age of superannuating on 31/08/2004 and was paid the amount of provident fund also. It is stated at the bar that the service of conductor is not pensionable and therefore no other benefits are given to the workman. The Corporation has permitted the workman to discharge his duties after 17/07/1995. If this is correct and if he is permitted to receive the amount of provident fund, then the wages received by the workman for the work done and the provident fund would not be ordered to be recovered even though the impugned award is quashed and set aside, as the same would not be in the interest of justice. However, if the workman had not been continued after 17/07/1995 or after 15/09/1995 and if only 17-B wages were paid then naturally he would not receive any other benefits as the award is quashed and set aside. 11. With the above observations, Rule is made absolute in Special Civil Application No.6309 of 1995 and Rule is discharged in Special Civil Application No.7819 of 1995. SCA/6309/1995 7/7 JUDGMENT (S.R.BRAHMBHATT, J.) sompura