SCA/13172/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13172 of 2008 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 ? ========================================================= KHIROD MANEKLAL RAVAL - Petitioner(s) Versus JOINT DIRECTOR OF AGRICULTURE AND SOIL CONSERVATION & 1 - Respondent(s) ========================================================= Appearance : MR KISHOR M PAUL for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MS.V.S.PATHAK, ASST. GOVERNMENT PLEADER for Respondent(s) : 2, DS AFF.NOT FILED (N) for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/12/2008 ORAL JUDGMENT Rule. Mr.V.S.Pathak, learned AGP for respondent No.2 waives service of notice of rule and same is fixed forthwith. SCA/13172/2008 2/8 JUDGMENT 2. The petitioner has approached this Court under Article 226 of the Constitution of India praying that though there is a specific direction given by this Court to reinstate petitioner as typist or on any other equivalent post and ordered continuity of service for the purpose of retirement benefits, the respondents have treated him to be status of daily wager and are paying him salary of Rs.15/- per day. 3. The facts in brief deserves to be set out as under: 4. The petitioner was in-fact working as daily wager typist on salary of Rs.15/- per day and as he was discharged from service without any notice or any other monitory compensation, he raised industrial dispute which came to be referred to the competent court wherein the Reference (LCR) No.1595 of 1988 came to be decided in his favour. As it was allowed partly, the Labour Court ordered reinstatement of the petitioner on original post with 25 % of back wages with continuity of service. 5. The award and order passed by the Labour Court was passed by the Labour Court dated 19/10/2001 came to be challenged by the respondent by preferring Special Civil Application No.10118 of 2003 which came to be disposed of by this Court (Coram: K.S.Jhaveri, J.) vide order dated 26/12/2005. SCA/13172/2008 3/8 JUDGMENT 6. Shri Paul, learned Advocate for the petitioner has contended that the award and order of the Labour Court has been modified by order of this Court passed in aforesaid SCA and when the same has not been complied with, it is always open to the petitioner to approach this Court under Article 227 of the Constitution of India for seeking appropriate writ or any direction in the nature of mandamus calling upon the authorities to do their duties under the law. He further submitted that order dated 28/12/2005 passed in Special Civil Application No.10118 of 2003 by this Court (Coram: K.S.Jhaveri, J.) would unequivocally go to show that the order of reinstatement of the present petitioner either as a typist or on any other equivalent post. Therefore, the direction was required to be complied with, as the respondents have chosen not to assail this order in any other forum and allowed it to be finally. As this order has become final, it was not open to the respondent to treat the petitioner as if he was a daily wager typist and such as to pay him a meager salary of Rs.15/- per day which has been done on date. The non-availability of prescribed rate for a minimum wages for the post of typist is no answer to the contentions raised by the petitioner and therefore the writ of mandamus deserves to be issued calling upon the respondents to act strictly in accordance with the order dated 28/12/2005 passed in Special Civil Application No.10118 of 2003 by this Court (Coram: K.S.Jhaveri, J.). He further submitted SCA/13172/2008 4/8 JUDGMENT that in case even if the process of retrenchment of petitioner is going on and till actual retrenchment is taken place subject to challenge to said retrenchment the petitioner is entitled to receive the wages which is payable to junior clerk. 7. Ms.Pathak, learned AGP could not controvert the fact that the observations made by this Court while passing the order dated 28/12/2005, especially in paragraph Nos.6 and 7 stare in the face of the respondents, but respondents have according to their understanding and in due deference to the Court's order, reinstated the petitioner as daily wager as now there is no post of typist available and as no rates are prescribed for minimum wages so far as the work of typist is concerned and he was paid Rs.15/- per day prior to his so-called illegal termination and said amount is being paid today also. 7. This Court has heard the learned Advocates for both the sides and has perused the orders and papers annexed with the petition. 8. Following facts which are undisputed deserves to be set out as under: 1. The petitioner was in-fact paid Rs.15/- per day prior to his illegal termination. 2. The petitioner did raise industrial dispute which came to be adjudicated upon in SCA/13172/2008 5/8 JUDGMENT Reference (LCR) No.1595 of 1988 whereunder the competent Labour Court ordered reinstatement on the petitioner on his original post with continuity of service and 25 % of back wages. 3. This order was challenged by the respondent preferring Special Civil Application No.10118 of 2003 and this Court (Coram: K.S.Jhaveri, J.) on 28/12/2005 allowed the same and modified the award in terms of observation made in paragraph nos.6, 7 and 8 of the said order. 4. The petitioner's contention with regard to payment of Rs.15/- per day has not been controverted by the respondents. 5. The respondents have stated in the affidavit in reply that on account of non-availability of post of typist, he is being paid Rs.15/- and appropriate move for obtaining permission to retrench the petitioner and other similarly situated workers is going on. 6. The respondents have not challenged the order dated 28/12/2005 passed in Special Civil Application 10118 of 2003, though it contains specific directions in paragraph Nos.6 and 7 for reinstating the present SCA/13172/2008 6/8 JUDGMENT petitioner as a typist or on any other equivalent posts and it has ordered continuity of service for the purpose of retirement benefits and not for any other purpose. 9. Against the aforesaid backdrop, this Court is required to examine the submission of Mr.Paul with regard to the prayers made in the petition. 10. In the order dated 28/12/2005 passed in SCA No.10118 of 2003, the Court has observed as under, which is require to be extracted in for appreciating the conduct of the respondents herein after and which is impugned in the present petition. “5. Heard learned counsel for the parties. I have gone through the award of the Labour Court and the evidence available on record and I am of the view that the Labour Court without considering the factum of the case has found that the employer has not proved that he has voluntarily stopped reporting for work thereby committing breach of Section 25F of the Industrial Disputes Act by not following due procedure for relieving the workman. Moreover, the observation of 240 days is after taking into consideration the 56 holidays as well. The Labour Court has overall passed the award against the petitioner for breach of Section 25 F,G & H. 6. As a result of hearing and looking to the peculiar facts and circumstances of the case, since the respondent workman is already over age, I am of the view that interest of justice will be served by directing the petitioner to reinstate the respondent as a typist or on any other equivalent post. 7. In the premises aforesaid, the petition is partly allowed. The award of the Labour Court is modified to the above extent. However, the respondent will not be entitled to any backwages. Continuity of service will be SCA/13172/2008 7/8 JUDGMENT counted only for the purpose of retirement benefits and not for any other benefits. Rule is made absolute to the aforesaid extent with no order as to costs.” 11. As per the said order, the petitioner was required to be reinstated as typist or on any other equivalent posts and continuity of service was ordered only for the purpose of retirement benefits. The petitioner has not been treated as such for any other benefits and being paid only Rs.15/- pr day. In view of the aforesaid observations made by this Court in paragraph Nos.5, 6 and 7 which according to this Court are directions. It was not open to the respondents to withhold the remunerations payable to the Junior Clerk or any other equivalent posts of typist. It goes without saying that the order passed by this Court dated 28/12/2005 has attained the finality and as having not been challenged in any forum. Now, in view of this direction it would not open to the respondents to treat the petitioner as if he was a daily wager only and pay him Rs.15/- per day, as he was being paid. 11. The fact remains to be noted that unfortunately and for the reasons best known to the respondents and their servants and agents despite there being specific observation with regard to rights and relief that may be granted to such workman, the order which has attained finality has been permitted to be there. In view of this, till the workman is retrenched by adopting appropriate procedure that may be permissible under the law, if SCA/13172/2008 8/8 JUDGMENT such retrenchment is permissible, he is to be treated as if he was working as typist or on any other equivalent posts and given remuneration accordingly. 12. Allowing of this petition will not in any way be construed as impediment in the way of the respondents to take appropriate recourse available to have under law so as to come out of the rigors of the order pressed into service for seeking relief. 13. With this observation, the petition is allowed to the aforesaid extent. The petitioner is entitled to receive the equivalent wages admissible to typist or any other equivalent person till he is legally retrenched and his services are dispensed with in accordance with law. Rule made absolute toe the aforesaid extent with no order as to costs. (S.R.BRAHMBHATT, J.) sompura