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SCA/4258/2011 55/ 55 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4258 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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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 ?
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MEDICAL
OFFICER - Petitioner(s)
Versus
DASHRATHSINH
GAJUBHA ZALA - Respondent(s)
=========================================================
Appearance
:
MR
DIPAK C RAVAL for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 10/05/2011
ORAL
JUDGMENT
Heard
learned Advocate Mr. Dipak C. Raval for petitioner. He submitted
that respondent was appointed as daily wager driver in Primary
Health Center when there was additional work available. Respondent
workman was relieved from work as work was not available. Therefore,
respondent raised an industrial dispute under machinery of
Industrial Disputes Act, 1947 which was referred to for adjudication
to Labour Court, Surendranagar, registered as Reference (LCS) No. 24
of 2004. Statement of claim was filed by workman against which
written statement was filed by petitioner wherein it was stated that
appointment of respondent was casual in nature and respondent was
not appointed through any selection procedure and respondent also
not supplied his consent letter to work as and when work was
available. Labour Court, Surendranagar passed award on 24th
March, 2010 and granted reinstatement. According to learned advocate
Mr. Raval for petitioner, Medical Officer, Primary Health Center,
Surendranagar is not having any authority to appoint or terminate
any person and award itself is passed without joining necessary
parties and, therefore, award is challenged in present petition.
Petitioner has annexed award passed by labour court, Surendranagar
page 10 Annexure A dated 24.3.2010. Labour Court has granted relief
of reinstatement in favour of respondent as daily wager driver, to
original post without back wages of interim period with costs of
Rs.500.00. Annexure B page 17 is copy of statement of claim produced
by petitioner along with present petition, according to which,
respondent workman was working as driver in establishment of
petitioner since last two years and was receiving daily wage of
Rs.85.20 ps. According to workman, his presence was being marked in
muster roll and salary was being paid while obtaining signature in
pay register and was not provided pay slip, identity card etc.
According to workman, he has completed 240 days continuous service
in each year when he was working with petitioner. His service was
terminated on 26th June, 2002 and thereafter, new driver
has been engaged by petitioner. According to workman, at present,
petitioner is having vehicle and recruiting fresh driver but on that
occasion, no offer of re-employment has been made by petitioner to
respondent workman. Demand notice was served by respondent workman
to petitioner but no reply was given by petitioner, therefore,
according to workman, his services were terminated by petitioner
establishment in breach of section 25F, G and H of ID Act, 1947.
Against
that, written statement was filed by petitioner which is annexed at
annexure B colly to this petition by petitioner. According to stand
taken by petitioner before labour court that they are functioning
subject to the rules and regulations of Government and instructions
received from Government from time to time and in view of such
function, whoever needy patients comes for primary treatment, they
are provided treatment without taking any charge whatsoever and as
per requirement of patients, even medicines are also being provided,
free of charge. It was also submitted by petitioner establishment
before labour court that their establishment is run from grant of
Government and therein, only persons selected by District Panchayat
Service Selection Board are being recruited and without following
any such procedure, respondent workman was appointed as daily
wager.Respondent workman was intermittently working as daily wager
driver as and when there is necessity. His work was not continuous
and jeep which was being driven by workman is at present not in
working condition and, therefore, in such circumstances, question of
reinstating workman in service is not arising. Industrial Disputes
Act is not applicable to petitioner establishment, therefore,workman
is not entitled to get any relief from labour court. It was also
case of petitioner before labour court that petitioner is not having
jurisdiction or power to appoint any person without following
process of recruitment rules and, therefore, reference is required
to be dismissed. One defence is raised by petitioner that one offer
was made by petitioner establishment that if respondent workman is
willing to perform duties as daily wager driver and makes demand to
that effect in writing before petitioner, then, first preference
will be given to petitioner. Learned
Advocate
Mr. Dipak C. Raval for petitioner submitted that in response to
aforesaid offer made by petitioner, no consent letter was given or
supplied by respondent workman to petitioner and in case after
receiving such consent letter from workman, petitioner was prepared
to provide work to respondent workman. Thereafter, certified copy of
award is placed on record. Except that, no other documents have been
annexed by petitioner in present petition.
Learned
Advocate Mr. Raval for petitioner raised contention before this
court that in such circumstances, labour court ought not to have
granted relief to a daily wager driver whose services were
terminated for want of work and vehicle which was entrusted to
respondent workman was not in working condition and workman was not
recruited after following due process of recruitment rules. Then, he
relied upon decision of apex court in case of Incharge Officer
and another versus Shankar Shetty (2010) 9 SCC 126 and submitted
that labour court ought to have awarded lumpsum compensation in lieu
of reinstatement as daily wager driver. Learned Advocate Mr. Raval
for petitioner emphasized that offer made by petitioner in written
statement was not accepted by workman and, therefore, now,
reinstatement ought not to have been granted by labour court.
According to his submission, this Primary Health Center is run by
Surendranagar District Panchayat on the basis of grant received from
State Government and therefore, petitioner establishment, Primary
Health Center is not having any legal entity but it is depending
upon grant received from either Surendranagar District Panchayat or
from State Government and, therefore, labour court ought not to have
granted relief of reinstatement in favour of respondent workman.
Except that, no other submission is made by learned advocate
Mr.Raval before this Court and no other decision has been cited by
him before this court.
I
have considered submissions made by learned advocate MR. Raval
before this court. I have also perused impugned award made by labour
court, Surendranagar. Industrial dispute has been referred to for
adjudication by appropriate Government on 23rd April,
2004. Statement of claim was filed by workman at Exh. 5 and his
service was terminated on 26th June, 2002 and before
that, he remained in continuous service with petitioner
establishment as daily wager driver and completed continuous service
of 240 days in a year. According to workman, after his termination,
new driver has been appointed on daily wage basis by petitioner and
thereby petitioner establishment committed breach of section 25H of
ID Act, 1947 since no offer was made by petitioner to respondent
workman at that occasion for such work. Written statement was filed
by petitioner before labour court at Exh. 6 where similar
contentions have been raised by petitioner as discussed above by
this court. Before labour court, vide list Exh. 11, petitioner
establishment has produced three document, Exh. 12, details of
muster of respondent workman while working as daily wager driver
from June, 2000 to June, 2002 produced on record. Exh. 13 produced
by petitioner before labour court is circular of Government dated
10.2.2006 to stop recruitment of part time employees. Exh. 14
produced by petitioner before labour court is circular of District
Panchayat dated 31.5.2006 to stop recruitment of part time
employees. Workman was examined at Exh. 9 and he was cross examined
by advocate for petitioner establishment. At Exh. 15 before labour
court, affidavit in form of evidence was filed by witness for
petitioner Shri Mohitbhai Padamchand Gandhi, Medical Officer who was
cross examined by advocate for workman. Thereafter, matter was heard
by labour court and considering pleadings and documents produced by
both parties, in paragraph 8, issues have been framed by labour
court and answer is given in said paragraph by labour court. Labour
Court has considered that respondent workman has worked with
petitioner establishment for about two years as daily wager driver
and as he was daily wager, therefore, his services were terminated
by petitioner establishment because he was daily wager
driver and respondent workman was receiving daily wage of
Rs.85.20 ps.Contention was raised by petitioner establishment before
labour court that respondent workman has not been selected through
District Panchayat Service Selection Board after interview and jeep
which he was driving is not in working condition, therefore,
question of reinstating him in service is not arising. Considering
this contention raised on behalf of petitioner establishment, labour
court has considered oral evidence of respondent workman at Exh. 9
where it was stated by him in his cross examination that he remained
in service upto 1.6.2002 and thereafter, as vehicle had not been in
working condition, he was retrenched. While considering this, labour
court also considered statement made by witness for petitioner
establishment at Exh. 15 where in cross examination, it was stated
by him that there are two vehicles in establishment and in respect
of vehicle which is in running condition, regular appointment has
not been made and as and when driver required, person having
knowledge of driving is being engaged. Further, it has been stated
by said witness on behalf of petitioner that for want of contact of
respondent workman, he has not been called as driver. In light of
such contention raised by petitioner establishment, labour court has
considered that complaint was made by respondent workman before
Assistant Labour Commissioner on 24.2.2002 and prior to that, on
18.1.2002, demand was made by him for reinstating him in service as
has been alleged in letter of complaint and therefore, it cannot be
believed that respondent workman could not be contacted. Thereafter,
labour court has considered statement at Exh. 12 showing details of
days on which workman has performed duties and as per that statement
at Exh. 12, workman has completed 240 days service including weekly
off, public holidays within 12 months preceding date of termination
and as per section 2(s) of ID Act, 1947, even rojamdar employee also
can be considered as workman and termination of service of
respondent workman is retrenchment as per section 2(oo) of ID Act,
1947 and as workman has worked for more than 240 days within 12
months preceding date of termination, as per section 25F of ID Act,
1947, workman is entitled to have notice or notice pay in lieu
thereof and retrenchment compensation but workman has not been
served with any notice and was not given notice pay in lieu thereof
as well as retrenchment compensation also not paid to him and
thereby petitioner has committed breach of sec. 25F of ID Act, 1947.
Thereafter, labour court has considered that after termination of
service of respondent workman, no any workman or employee has been
appointed by way of permanent appointment and has recruited other
driver as daily wager and thus it is clear that work which was being
performed by respondent workman has not been stopped and
subsequently appointment has been made and therefore, there is
breach of section 25F of ID Act, 1947. It is necessary to note that
being independent provisions of section 25H of ID Act, 1947, as and
when in same category if new employee is recruited or engaged by
employer, at that occasion, at relevant time, it is legal obligation
upon employer to first offer re-employment to workman whose service
has earlier been terminated but that has not been done by petitioner
and that has also not been proved by petitioner before labour court
and, therefore, labour court has come to conclusion that there is
breach of section 25F and 25H of ID Act, 1947 and therefore, as
per such observations, labour court has held that service of
respondent workman was illegally terminated in breach of provisions
of ID Act, 1947 and accordingly answered issue no.1 in affirmative,
as per decision of apex court in case of Mohan
Lal v. Bharat Electronics Ltd. Reported in AIR 1981 SC 1253 = (1981)
3 SCC 225.
Before
labour court, on behalf of petitioner establishment, one decision of
Apex Court in case of Secretary, State of Karnataka
and others versus Uma Devi and others reported in 2006(4) SCC page 1
was cited. Labour court has distinguished said decision of Uma Devi
(supra) on ground that this decision is not applicable in facts of
this case because there is no demand made by workman to make him
permanent and, therefore, aforesaid decision of apex court in case
of Uma Devi is not applicable to facts of present case. Labour Court
has observed that looking to facts and circumstances of case, at
present there is need of daily wager driver and in such
circumstances also, said decision is not applicable as it is not in
consonance with facts of this case and at present also, petitioner
is taking service of daily wager driver and, therefore, respondent
workman should be given such opportunity and, , it has been held by
labour court that workman is entitled for getting relief of
reinstatement. For denying back wages of interim period, labour
court has considered decision of apex court reported in 2003-II-LLJ
page 176 in case of Ramashraysingh versus Rambaksh Singh; JT 2005(6)
SCC PAGE 137 in case OF General Manager, Haryana Roadways versus
Rudhan Singh; 2005 (6) SCC page 36 in case of APSRTC versus Abdul
Karim; 2005 AIR SCW 6042 in case of UPSRTC versus Mahendranath
Tiwari and another and 2005 AIR SCW 6314 in case of UP State Branch
Ware Corporation versus Uday Narayan Pandya and considering
principles laid down in aforesaid decisions of Hon’ble apex court,
labour court has held that workman is not becoming automatically
entitled to receive back wages but that aspect has to be determined
by exercising discretion after taking into consideration facts and
circumstances of each case and not mechanically. Considering facts
and circumstances of case and principles laid down by apex court in
aforesaid decision, labour court has denied full back wages of
interim period and answered issue no.2 partly in affirmative and
made award of reinstatement on original post of rojamdar driver
without back wages for interim period with costs of Rs.500.00 to be
paid to workman by petitioner establishment which is under challenge
in this petition.
Question
of law which has been raised by learned advocate Mr. Dipak C. Raval
on behalf of petitioner is that respondent is not covered by section
25F of ID Act, 1947 because he was daily wager. This aspect has been
considered by apex court in case of Rattan Singh versus Union of
India and another, (1997) 11
SCC 396 wherein apex court has considered applicability of sec. 25F
and 25B of ID Act and held that it is applicable to termination of
even a daily rated workman who had continuously served for requisite
statutory minimum period in a year. Relevant paragraph 3 of said
decision is quoted as under:
“3. We
find merit in the said submission of Shri Ashri. From the dates
mentioned in the judgment of the first appellate court dated
22.1.1985, it appears that the appellant had continuously worked for
more than 240 days in a year. Since he was a workman, he was
entitled to the protection of section 25F of the Act and the said
protection could not be denied to him on the ground that he was a
daily rated worker. It is not the case of the respondents that the
provisions of section 25F of the Act were complied with while
terminating the services of
the appellants. In these circumstances, the termination of services
of the appellant cannot be upheld and has to be set aside. The
services of the appellant
were terminated in the year 1976. Nearly 20 years have elapsed since
then. In these circumstances, we are not inclined to direct
reinstatement of the appellant. But having regard to the facts and
circumstances of the case, we direct that a consolidated sum of
Rs.25,000 be paid to the appellant in lieu of compensation for back
wages as well as reinstatement. This amount is being paid in full
and final settlement of all the claims of the appellant. The said
amount shall be paid within two months. The appeal is disposed of
accordingly. No costs.”
In
case of Himanshu Kumar Vidyarthi and others versus State of Bihar
and others, reported in (1997) 4 SCC 391, apex court has come to
conclusion that every department of Government cannot be considered
as industry and dispensing with services of persons engaged on daily
wages in a Government Department therefore is not a retrenchment.
Word retrenchment
has been interpreted. Relevant observations made in para 3 of said
decision are quoted as under:
“3.
The admitted position is that the petitioner No. 1 came to be
appointed as Assistant, Petitioner No. 2 as Driver and Petitioner
Nos. 3 to 5 as Peons on different dates, viz., on August 1, 1988,
November 10, 1989, May 31, 1987 and April 22, 1992. They were
appointed in the Co-operative Training Institute, Deoghar by its
Principal. They are admittedly daily wage employees. Their services
came to be terminated by the Principal. Calling that termination in
question, they filed a writ petition in the High Court. The main
grievance of the petitioners before us is that termination of their
services is in violation of Section 25-F of the Industrial Disputes
Act, 1947. The question for consideration, therefore, is : whether
the petitioners can be said to have been ‘retrenched’
within the meaning of Section 25-F of the Industrial Disputes Act ?
Every Department
of the Government cannot be treated to be “industry”. When
the appointments are regulated by the statutory rules, the concept
of ‘industry ‘ to that extent stands excluded. Admittedly, they were
not appointed to the posts in accordance with the rules but were
engaged on the basis of need of the work. They are temporary
employees working on daily wages. Under these circumstances, their
disengagement from service cannot be construed to be a retrenchment
under the Industrial Disputes Act. The concept of “retrenchment”,
therefore, cannot be stretched to such an extent as to cover these
employees. The learned counsel for the petitioners seeks to contend
that in the High Court, the petitioners did not contend that it is a
case of retrenchment but termination of their services is arbitrary.
Since they are only daily-wage employees and have no right to the
posts, their disengagement is not arbitrary.”
Considering
aforesaid decision of apex court in case of Himanshu KUMar Vidyarthi
(supra), petitioner establishment is not Government Department and
District Panchayat is covered by definition of industry and
respondent workman was not appointed against any post but respondent
workman herein was appointed as daily wager driver and after his
termination, work is available and in respect of vehicle which is in
running condition as admitted by witness for petitioner, regularly
selected driver has not been appointed and therefore, they are
taking work of driver through person having knowledge of driving as
and when required and thus work is still available and after
termination of respondent, new daily wager driver has been engaged
by petitioner establishment and, therefore, in light of these facts
of case before
hand, decision of apex court in case of Himanshu
Kumar Vidyarthi is not applicable.
Recently,
Division Bench of this Court has examined question that in case of
daily wager, while calculating 240 days, whether weekly off and
public and festival holidays are required to be included or not. The
answer given by Division Bench is in negative after considering
decision of Apex Court reported in AIR 1986 SC 458 and decision of
this Court reported in 2006 (3) GLR page 2432. This little bit
create confusion and legal complication which legal aspect required
further detailed examination for legal clarification of ratio laid
down by apex court in AIR 1986 SC 458 where no distinction made
between daily wager and temporary employee. Both type of employees
are entitled for statutory weekly off and public holiday under
provisions of Minimum Wages Rules and Bombay Shops and
Establishments Act and also real interpretation of section 25B(1)
and (2) of ID Act, 1947. Hence this Court has considered recent
decision of Division Bench of this Court in case of RANJIT
NATVARLAL CHAUHAN Versus
MORBI
NAGAR PALIKA reported
in [2011] 26 GHJ (482), Division Bench of this Court has examined
question that in calculation of 240 days continuous service as
required under section 25B (1) and (2) of ID Act, 1947, whether
public holidays and weekly off are to be included or not. Relevant
observations made by Division Bench of this Court
while considering decision of this Court in case of Sihor
Nagarpalika versus Natvarlal Maganlal Trivedi, 2006(3) GLR 2432;
Workmen of American Express International Banking Corporation Versus
Management of American International Banking Corporation reported in
AIR 1986 SC 458 and observed as under:
“The
first aspect is about the findings recorded by the Labour Court for
completion of 240 days in the preceding year prior to the
termination. The evidence on record has been accepted by the Labour
Court which shows that even as per the Labour Court, the evidence
was to the effect that the workman had worked for 215 days. But, in
view of the above referred two decisions, one of this Court in the
case of Shihor Nagarpalika (supra) and another of the Apex Court in
the case of Workmen of American Express International Banking
Corporation (supra), the weekly holidays and other holidays are to
be added and the Labour Court has concluded that the workman had
worked for 240 days.
We
may first consider the decision of the Apex Court in the case of
Workmen of American Express International Banking Corporation
(supra). In the facts of the said case, at para 2, it has been
specifically mentioned that the
workman had joined the service of the American
Express International Banking Corporation as Typist in temporary
capacity and was employed as such with a number of short breaks till
his services were terminated. The pertinent aspect is that the
person had joined service as Typist-Clerk in temporary capacity and
it was not the case of engagement of and any person as daily wager
like in the present case. It is in those facts and circumstances of
the case that the person had worked in service in temporary
capacity, the observations were made by the Apex Court. Thereby, it
cannot be said that even if a person is engaged as daily wager, and
he had worked for a particular number of days, while counting the
total actual working, the weekly holidays are to
be added. If such is considered, the very distinction of a person
engaged on temporary basis and a person engaged as daily wager would
be lost. In the case of an engagement of a person as daily wager,
the person is to be paid calculating his wage on daily basis whereas
in case of a person who is engaged on temporary post, he can be
considered as an employee on monthly basis and his engagement can
also be considered as on monthly basis.
It
appears that in the case of Shihor Nagarpalika (supra), the
aforesaid distinction about the status of the person as daily wager
and the working by a person on a temporary post has not been
considered. In our view, if a person is engaged as a daily wager,
he cannot be put at par with the person who has been engaged or who
has been worked on temporary basis for a particular span. It appears
that in the decision of this Court in the case of Shihor
Nagarpalika(supra), the correct effect of decision of the Apex Court
and the distinction between the daily wager and the person engaged
on temporary post has not been considered. Therefore, we find that
the view taken in Shihor Nagarpalika (supra) by the learned Single
Judge of this Court is not correct view. In the case of the daily
wager, if one has to claim the benefit of section 25F of the Act, it
will be required for him to prove that he had actually worked
continuously for a period of 240 days and while counting 240 days,
the weekly holidays which are available to
the permanent employees or in a regular set up
or to employee appointed on temporary post cannot be considered
while computing 240 days. Same situation will prevail for exclusion
of the public holidays in case of daily wager unlike the persons
appointed on temporary basis.
Under
the above circumstances, we find that the Labour Court has wrongly
relied upon the aforesaid both the decisions and has wrongly added
weekly holidays and public holidays for computing 240 days of
service for the purpose of considering the question of breach of
section 25F of the Act. It is true that the learned Single Judge in
the impugned order could have considered the another decision of
this Court in the case of Shihor Nagarpalika (supra), however, the
learned counsel for the appellant has not been able to show before
this Court that the aforesaid decision was brought to the notice of
the learned Single Judge at the time when the petition was heard. In
any event, when we find that the view taken by this Court in the
case of Shihor Nagarpalika (supra) is not by correct interpretation
and the effect of the decision of the Apex Court in the case of
Workmen of American Express International Banking Corporation
(supra), nothing much would turn on the merits of the present appeal
since the workman concerned in the present case was appointed on
daily wages as a daily rated workman.
If
the aforesaid period of weekly holidays and public holidays are
excluded in counting 240 days of service, it appears that even as
per the finding recorded by the Labour Court, it would come to 215
days, which will be less than 240 days.
Under
the circumstances, it can be said that the findings recorded by the
Labour Court that the workman had completed 240 days was perverse to
the record and the same could not be sustained.
As
regards the alleged breach of sections 25G and 25H of the Act is
concerned, it appears that the view taken by the learned Single
Judge in the impugned order that if the person has not
completed 240 days of service, there will not
be any question of following the procedure under section 25G and 25H
of the Act is not supported by the recent decision of the Apex Court
in the case of Harjinder Singh Versus Punjab State Warehousing
Corporation reported at 2010(3) SCC 192 (equivalent AIR 2010 SC
1116), but the matter does not end there. Even if the contention of
the learned counsel is considered for the sake of examination on the
aspect of alleged breach of sections 25G and 25H of the Act, it
appears that the Labour Court has not accepted the contention of the
appellant for the alleged breach of section 25G of the Act and
therefore, such finding not being in favour of the appellant, it
would not be open to the appellant to take the benefit of the
alleged breach of section 25G of the Act. Even otherwise also, the
award shows that as per the Labour Court, the workman did not
discharge the burden of giving details satisfactorily of the juniors
who were retained in service to claim the benefit of section 25G of
the Act.
Concerning
to the finding recorded by the Labour Court for the alleged breach
of section 25H of the Act, we find that the approach of the Labour
Court cannot be countenanced. The examination of the facts of the
present case further shows that there was no evidence on record
before the Labour Court by giving the names of the person who were
offered employment after termination of the workman in question.
Mere allegation that the employer had made new recruitment, in our
view cannot be said to be a sufficient discharge of burden by the
workman. It is required for the workman to state on oath with the
details of the persons who have been offered employment by way of
fresh recruitment or juniors to him. It is only after that burden
is discharged by the workman, the burden would shift to the employer
to disprove the said fact. There was no evidence before the Labour
Court except the bare statement of the workman that after his
termination new recruitment was made. Under these circumstances, we
find that when the workman had not discharged the burden, which was
required to be proved by him for taking benefit of section 25H of
the Act, the finding recorded by
the Labour Court could be said as perverse to
the record of the case. Under the circumstances, the said part of
the award cannot be sustained in the eye of law.
In
view of the aforesaid observations for the alleged breach of section
25H of the Act, we find that even if the contention of the learned
counsel for the appellant is considered and examined on merits, the
same would not lead us to maintain the finding of the Labour Court
of alleged breach of section 25H of the Act even if the matter is
considered on the premise that for invoking the section 25H of the
Act, it is not necessary that the workman concerned should have
worked for 240 days in service. Hence we find that no useful
purpose would be served in examining
the said contention further on the aspects of approach of the
learned Single Judge for the alleged breach of section 25H of the
Act.”
Considering
aforesaid decision of Division Bench of this Court, view taken by
this Court in case of SHIHOR
NAGAR PALIKA THROUGH CHIEF OFFICER Versus
NATVARLAL
MAGANLAL TRIVEDI, reported
in 2006(3) GLR page 2432
is
required to be considered which has been considered by Division
Bench of this Court in decision as referred to above. In case of
Sihor Nagar Palika (supra), this Court has held that weekly off,
public holidays and festival holidays are required to be taken into
account while counting days of continuous service as discussed in
para 10 of judgment which is quoted as under:
“10. I
have considered the reasonings given by the Labour Court as well as
submissions made by both the learned advocates appearing on behalf
of the respective parties. On three grounds, the termination has
been rightly set aside by the Labour Court.
(i) In
written statement, petitioner has made clear
statement that if the workmen are prepared
to work on the same terms and conditions, petitioner is prepared to
reinstate them on job in same terms and conditions. Therefore,
petitioner was prepared to reinstate the workmen when dispute was
raised by the workmen against the termination;
(ii)
Except five workmen, rest of have completed 240 days continuous
service and same has been proved before the Labour Court. In respect
to five workmen, those who were not able to prove 240 days continue
service, the record which was produced by the workmen was only for a
period of twelve months preceding twelve months from the date of
termination, but rest of the record was not produced by the
petitioner.
In respect to five workmen, those who have not completed 240 days,
the decision of Apex Court in case of Workmen
of American Express International Banking Corporation v. Management
of American Express International Banking Corporation
reported in AIR
1986 SC 458 = 1986 Lab.I.C. 98
is required to be taken into account and if calculating the weekly
off, public holidays and festival holidays for a period of twelve
months which covered to complete 240 days.
(iii)
There is a clear finding given by the Labour Court in Para 14 that
petitioner has violated Section 25-H of the Industrial Disputes Act,
1947. In violation of mandatory provisions of Section 25-H is also
give right to the workmen of reinstatement. This being an
independent right has been given to the workmen. Irrespective of the
fact that whether workmen had completed 240 days service or not?
Therefore, on these three counts, Labour Court has rightly granted
reinstatement with continuity of service.”
It
is the contention raised by learned advocate Mr. Dipak C. Raval for
petitioner that respondent workman was appointed as daily wager
driver de-hors recruitment rules, therefore, according to him,
termination is valid. This aspect has been considered by this Court
in Sihor Nagar Palika (supra) in para 16, 17 and 18 which are quoted
as under:
“16. This
aspect has been examined by the Apex Court in reported decision in
case of Vikramaditya
Pandey v. Industrial Tribunal and Another reported
in 2001
AIR SCW 310.
The relevant para 6 is quoted as under :
” Para
6 : We have carefully
considered the respective contentions made on behalf of the parties.
It is not in dispute that the Award passed by the Tribunal was not
challenged by the Bank. The Tribunal as well as the High Court have
concurrently found that the case of the appellant was one
of retrenchment and that the appellant was working between the period
4-12-1981 to 19-7-1985 with small motivated breaks and that in any
case he worked for more than 240 days in a year before termination of
services. The Tribunal in para 5 of its Award has stated thus:-
“It is however
evident that he worked for much more than 240 days in an year before
his service ceased. It is also clear that breaks were given and ad
hoc appointment made every time for 90 days or less. This was
evidently done to stick to the letter of the law regarding the
authority of the bank in regard to making appointments only for
limited periods in ad hoc or temporary arrangement, as specified in
the service Regulations, 1975. It is however, clear that services of
the workman were needed as the work was available but a continuing
temporary appointment was not made even though under Regulation
5(iii) of the Service Regulations such longer term stop-gap
appointment (and not only for 90 days) can be made with prior
approval of the competent authority (the Board). It would thus,
appear that attempt was made confirm to the letter of law and not its
spirit in so far as provisions regarding retrenchment under the
Industrial Disputes Act go.”
The only issue before
the High Court was whether the appellant was entitled to
reinstatement in service with back wages, once the termination of his
services had been held to be illegal and more so when the same was
not challenged. Ordinarily, once the termination of service of an
employee is held to be wrongful or illegal the normal relief of
reinstatement with full back wages shall be available to an employee;
it is open to the employer to specifically plead and establish that
there were special circumstances which warranted either
non-reinstatement or non-payment of back wages. In this case we do
not find any such pleading of special circumstances either before the
Tribunal or before the High Court. Since Regulation 103 of the
Regulations is referred to in the order of the Tribunal as well as in
the High Court and it has bearing in deciding the controversy, the
focus is needed on it. It reads:-
“103. The
provisions of these regulations to the extent of their inconsistency
with any of the provisions of the Industrial Disputes Act, 1947, U.P.
Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, Workmen’s Compensation
Act, 1923 and any other Labour Laws for the time being in force, if
applicable to any Co-operative Society or class of co-operative
societies, shall be deemed to be inoperative.”
By
plain reading of the said Regulation it is clear that in case of
inconsistency between the Regulations and the provisions of the
Industrial Disputes Act, 1947, the State Act, the Workmen’s
Compensation Act, 1923 and any other labour laws for the time being
in force, if applicable to any co-operative society or class of
co-operative societies, to that extent Regulations shall be deemed to
be inoperative. In other words, the inconsistent provisions contained
in the Regulations shall be inoperative, not the provisions of the
other statutes mentioned in the Regulation 103. The Tribunal in this
regard correctly understood the Regulation but wrongly refused the
relief on the ground that no reinstatement can be ordered on a
regular employment in view of the provisions contained in the said
Regulation. But the High Court read the Regulation otherwise and
plainly misunderstood it in saying that if there is any inconsistency
between the Regulations and the Industrial Disputes Act, 1947 and
other labour laws for the time being in force the Regulations will
prevail and the Industrial Disputes Act, 1947 and other labour laws
shall be deemed to be inoperative. This misreading and wrong approach
of the High Court resulted in wrong conclusion. In the view it took
as to Regulation 103 the High Court proceeded to State that even if
there was retrenchment in
view of Regulation 5 of the Regulations the Labour Court was not
competent to direct reinstatement of the appellant who was not
recruited in terms of Regulation 5 because the Labour Court had to
act within the ambit of law having regard to the Regulations by which
the workman was governed. In this view the High Court declined relief
to the appellant which in our view cannot be sustained. The Tribunal
felt difficulty in ordering reinstatement as the appellant was not a
regular employee. The appellant ought to have been ordered to be
reinstated in service once it was found that his services were
illegally terminated in the post he was holding including its nature.
Thus in our opinion both the Tribunal as well as the High Court were
not right and justified on facts and in law in refusing the relief of
reinstatement of the appellant in service with back wages. But,
however, having regard to the facts and circumstances of the case and
taking note of the fact that the order of termination dates back to
19-7-1985 we think it just and appropriate in the interest of justice
to grant back wages only to the extent of 50%.”
17. Recently,
the Apex Court has observed in case of Nagar Maha Palika (Now
Municipal Corporation v. State of UP & Ors., reported
in 2006 AIR SCW 2497, as under:
“The
termination was in violation of S.6 N. The respondent cannot be said
to have been appointed on temporary basis pursuant to the said GO
dated 19.12.1985 or such appointments cannot be said to be were made
for a fixed tenure within the meaning of the provisions of sub-cl.
(bb) of cl. (oo) of section 2. But the appointment of respondents
have been made in violation of the provisions of the Adhiniyam. An
appointment made in violation of the provisions of Adhiniyam is void.
The same however although would not mean that the provisions of the
Industrial Disputes Act
are not required to be taken into consideration for the purpose of
determination of the question as to whether the termination of
workmen from service is legal or not but the same
should have to be considered to be an important factor in the matter
of grant of relief.”
18. The
Apex Court has observed that appointments made by authority in
violation of Act and Rules governing such appointment is void. Though
same would not mean that provisions of Industrial Disputes Act, 1947
were not required to be taken into consideration for determination of
question whether termination is legal or not but same should have to
be considered to be an important factor in the mater of grant of
relief. ”
In
case of
H.D. Singh and Reserve Bank of India and others, reported
in 1985 (51) FLR page 495, the phrase “for
any reason”
occurring in section 2(oo) of ID Act, 1947 has been considered by
apex court. Therefore, relevant observations made by apex court in
para 7,8 and 12 are quoted as under:
“7.
It is clear from the pleadings and from the documents noted above
how the respondent-bank managed to get rid of the appellant. The
disclosures made in the confidential circular make our task easy in
holding that the Bank was determined to adopt methods to terminate
the services of the employees like the appellant.. The appellant was
not told that he would be struck off the rolls if he passed the
matriculation. He was not given any order in writing either refusing
work or informing him that his name would be struck off the rolls.
The case of the bank is that he was orally informed that his name
has been struck off. Striking off the name of a workman from the
rolls by the employer amounts to ‘termination of service’ and such
termination is retrenchment within the meaning of Section 2(oo) of
the Act if effected
.in violation of the mandatory provision contained in S. 25-F, and
is invalid. In this case the facts. need only to be stated to hold
that the petitioner’s
name had been struck off the list contrary to the mandate contained
in S. 25F. This Court has held in Delhi Cloth and General Mills Ltd.
v. Shambhu Nath Mukherjee, (1978) 1 SCR 591 : (AIR 1978 SC 8) that
striking off the name from the rolls by the management is
retrenchment within the meaning of S. 2(oo) of the Act. While
reading Ss. 25-F, 25-B and Section 2(oo), Krishna Iyer, J. in State
Bank of India v. N. Sundara Money, (1976) 3 SCR 160 : (AIR 1976 SC
1111) has observed that the words ‘for any reason whatsoever’
occurring in S. 2(oo) are very wide and almost admitting of no
exception. It was made clear that a comprehensive definition has to
be effected to protect the weak against the strong in construing the
ambit of the words contained in S. 2(oo). Pithily he observed that
“without further ado, we reach the conclusion that if the
workman swims into the harbour of S. 25-F, he cannot be retrenched
without payment, at the time of retrenchment, compensation computed
as prescribed therein read with S. 25-B(2).”
8.
That takes us to the question whether the appellant had qualified
himself to sustain his claim to the benefits of Section 25-F. The
appellant, as we will presently see, has given the number of days on
which he worked, in his claim statement. The first respondent-bank
arranged posting Tikka Mazdoors, like the appellant; in such a
manner that they were denied the benefits of the Industrial Disputes
Act. Since the first respondent-bank disputed the fact that the
appellant had worked for sufficient number of days to entitle, him
to claim remedies under the Act, we think it necessary to refer to
the facts as disclosed in the records. The Advocate who appeared for
the appellant before the Tribunal, Shri R. N. Srivastava, has filed
an affidavit in this Court stating that he had filed written
arguments before the Tribunal explaining the mistake committed by
the Bank in the computation
made by it of the number of working days of the appellant. From this
affidavit it is seen that the first respondent-bank put forward a
case that the attendance register for the month of July, 1976 had
been destroyed and that Sundays and other holidays were not taken
into account in computing the number of days that the appellant
worked. We have also a supplementary affidavit filed by the
appellant himself which throws further light about the number of
days that he worked. In this affidavit, it is seen that he worked
for 4 days in 1974,154 days from January 1975 to December 1975 and
105 days from January 1976 to July 1976. The appellant was denied
work from July 1976. His affidavit shows that he had worked for 202
days from July 1975 to July 1976. According to him, if we add 52
Sundays and 17 holidays, the total number of days on which he worked
comes to 271 days. The appellant charged the Bank with having
tampered with the records. To contradict the appellant’s case; the
first respondent-bank did not produce its records. The appellant
wanted the relevant records to be filed but they were not produced.
Grounds 18 to 20 of the special leave petition make mention of this
plea of the appellant. These grounds are met by the first
respondent-bank in their counter-affidavit filed in this Court by
stating that “when the matter was before the Industrial
Tribunal, the registers in question were filed in another case
before the Industrial Tribunal-cum-Labour Court and produced in that
Court. However, I submit that now the attendance register has been
destroyed but the payment registers are available with the
respondent-bank as proof of the number of days on which the
appellant worked.” In the absence of any evidence to the
contrary, we have necessarily to draw the inference that the
appellant’s case that he had worked for more than 240 days from
July, 1975 to July, 1976, is true.
xxx
12.
We thought it necessary to refer to the factual details in the case
only to show our concern at the manner in which the employer in this
case, the Reserve Bank of India, who should set a model for other
employers being a prestigious institution, behaved towards its
employees. It must have been his helpless condition and object
poverty that forced the appellant to accept a job on Rs. 3 per day.
Still see how he has been treated. We will not be far from truth if
we say that the Bank has deliberately indulged in unhealthy labour
practice by rotating employees like the appellant to deny them
benefits under the Industrial Law. It has disturbed us to find that
the appellant was denied job because he has become better qualified.
Perhaps the Reserve Bank of India and its officers are not aware of
the grave unemployment problem facing the youth of this country and
also not aware of the fact that graduates, both boys and girls,
sweep our roads and post-graduates in hundreds, if not in thousands,
apply for the posts of peons. It has been our sad experience to find
employers trying to stifle the efforts of employees in their
legitimate claims seeking benefits under the Industrial Law by
tiring them out in adjudication proceedings raising technical and
hyper-technical pleas, Industrial adjudication in bona fide claims
have been dragged on by employers for years together on such pleas.
It would always be desirable for employers to meet the case of the
employees squarely on merits and get them adjudicated quickly. This
would help industrial peace. It is too late in the day for this
Court to alert the employers that their attempt should be to evolve
a contented labour. We do not forget at the same time the fact that
it is necessary for the labour also to reciprocate to prevent
industrial unrest. In this case, for
example, the Bank should have treated the appellant as a regular
hand in List II. Instead, the Bank has, by adopting dubious methods,
invited from us, remarks which
we would have normally avoided.”
Recently,
in case of RANJIT
NATVARLAL CHAUHAN Versus MORBI NAGAR PALIKA reported
in [2011] 26 GHJ (482), Division Bench of this Court has considered
decision of apex court in case of Workmen of American Express
International Banking Corporation Versus Management of American
International Banking Corporation reported in AIR 1986 SC 458
distinguishing facts on ground that in case of Workmen of American
Express International Banking Corporation (supra), workmen were
appointed in temporary capacity, on such ground, case of daily
wager has been distinguished by Division Bench of this Court holding
that temporary employees are entitled for weekly off, public
holidays and festival holidays but daily wagers are not entitled for
such benefit and therefore, decision of Hon’ble Supreme Court in
case of Workmen of American Express International Banking
Corporation reported in AIR 1986 SC 458 has been distinguished by
Division Bench of this Court in above referred decision. In view of
that, para 4,5,6 of decision of apex court in case of Workmen of
American Express International Banking Corporation Versus Management
of American International Banking Corporation reported in AIR 1986
SC 458 are required to be considered. Therefore, para 4,5 and 6 of
said decision are quoted as under:
“4.
The principles of statutory construction are well settled. Words
occurring in statutes of liberal import such as social welfare
legislation and Human Rights’ legislation are not to be put in
procrustean beds or shrunk to Liliputian dimensions. In construing
these legislations the imposture of literal construction must be
avoided and the prodigality of its mis-application must be
recognised and reduced. Judges ought to be more concerned with the
‘colour’, the ‘content’ and the ‘context’ of such statutes. (We have
borrowed the words from Lord Wilberforce’s opinion in Prenn v.
Simmonds, 1971 (3) All ER 237). In the same opinion Lord Wilberforce
pointed out that law is not to be left behind in some island of
literal interpretation but is to enquire beyond the language,
unisolated from the matrix of facts in which they are set; the law
is not to be interpreted purely on internal linguistic
considerations. In one of the cases cited before us, that is,
Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour
Court, we had occasion to say, “Semantic luxuries are misplaced
in the interpretation of ‘bread and butter’ statutes. Welfare
statutes must, of necessity, receive a broad interpretation. Where
legislation is designed to give relief against certain kinds of
mischief, the Court is not to make inroads by making etymological
excursions.”
5.
Section 25-F of the Industrial Disputes Act is plainly intended to
give relief to retrenched workmen. The qualification for relief
under S. 25-F is that he should be a workman employed in an industry
and has been in continuous service for not less than one year under
an employer. What is continuous service has been defined and
explained in S. 25-B of the Industrial Disputes Act. In the present
case, the provision which is of relevance is S. 25-B(2)(a)(ii) which
to the extent that it concerns us, provides that a workman who is
not in continuous service for a period of one year shall be deemed
to be in continuous service for a period of one year if the workman.
during a period of twelve calendar months preceding the date with
reference to which the calculation is to be made, has actually
worked under the employer
for not less than 240 days. The expression which we are required to
construe is ‘actually worked under the employer. This expression,
according to us, cannot mean those days only when the workman worked
with hammer, sickle or pen, but must necessarily comprehend all
those days during which he was in the employment of the employer and
for which he had been paid wages either under express or implied
contract of service or by compulsion of statute, standing orders,
etc. The learned counsel for the Management would urge that only
those days which are mentioned in the Explanation to S. 25-B(2)
should be taken into account for the purpose of calculating the
number of days on which the workman had actually worked though he
had not so worked and no other days. We do not think that we are
entitled to so constrain the construction of the expression
‘actually worked under the employer’. The explanation is only
clarificatory, as all explanations are, and cannot be used to limit
the expanse of the main provision. If the expression ‘actually
worked under the employer’ is capable of comprehending the days
during which the workman was in employment and was paid wages – and
we see no impediment to so construe the expression – there is no
reason why the expression should be limited by the explanation. To
give it any other meaning then what we have done would bring the
object of S. 25-F very close to frustration. It is not necessary to
give examples of how S. 25-F may be frustrated as they are too
obvious to be stated.
6.
The leading authority on which reliance was placed by the learned
counsel for the Management was Lalappa Lingappa v. Laxmi Vishnu
Textile Mills Ltd., (AIR 1981 SC 852). We may straightway say that
the present question whether Sundays and paid holidays should be
taken into account for the purpose of reckoning the number of days
on which an employee actually worked, never arose there. The claim
was under the Payment of Gratuity Act. All permanent employees of
the employer claimed that they were entitled to payment of gratuity
for the entire period of their service, that is, in respect of every
year during which they were in permanent employment irrespective of
the
fact whether they had, actually worked for 240 days in a year or
not. The question there was not how the 240 days were to be
reckoned; the
question was not whether Sundays and paid holidays were to be
included in reckoning the number, of days on which the workmen
actually worked; but the question was whether a workman could be
said to have been actually employed for 240 days by the mere fact
that he was in service for the whole year whether or not he actually
worked for 240 days. On the language employed in S. 2(c) of the
Payment of Gratuity Act, the Court came to the conclusion that ,the
expression ‘actually employed’ occurring in Explanation I meant, the
same thing as the expression ‘actually worked’ occurring in
Explanation II and that as the workmen concerned had not actually
worked for 240 days or more in the year they were not entitled to
payment of gratuity for that year. The further question, as to what
was meant by the expression ‘actually worked’ was not considered as
apparently it did not arise for consideration. Therefore, the
question whether Sundays and other paid holidays should be taken
into account for the purpose of reckoning the total number of days
on which the workmen could be said to have actually worked was not
considered in that case. The other cases cited before us do not
appear to have any bearing on the question at issue before us.”
In
aforesaid decision, apex court has interpreted section 25B sub
section (1) and (2) of ID Act, 1947 which is required to be
considered that workman shall be considered to be in continuous
service. Therefore, section 25B(1) and (2) of ID Act, 1947 is quoted
as under:
“Section
25B. Definition of continuous service
:- For the purposes of this Chapter,-
a workman shall be
said to be in continuous service for a period if he is, for that
period, in uninterrupted service, including service which may be
interrupted on account of sickness or authorized leave or an
accident or a strike which is not illegal, or a lock-out or a
cessation of work which is not due to any fault on the part of the
workman;
(2) where a workman
is not in continuous service within th meaning of clause (1) for a
period of one year or six months, he shall be deemed to be in
continuous service under an employer -(a) for a period of one year,
if the workman, during a period of twelve calender months preceding
the date with reference to which calculation is to be made, has
actually worked under the employer for not less than –
(i) one hundred and
ninety days in the case of a workman employed below ground in a
mine; and
(ii) two hundred and
forty days, in any other case;
(b) for a period of
six months, if the workman, during a period of six calender months
preceding the date with reference to which calculation is to be
made, has actually worked under the employer for not less than –
(i) ninety-five
days, in the case of workman employed below ground in a mine; and
(ii) one hundred and
twenty days, in any other case.
Explanation –
For the purposes of clause (2), the number of days on which a
workman has actually worked under an employer shall include the days
on which –
(i) he has been
laid-off under an agreement or as permitted by standing orders made
under the Industrial Employment (Standing Orders) Act, 1946 920 of
1946), or under the Act or under any other law applicable to the
industrial establishment;
(ii) he has been on
leave with full wages, earned in the previous years;
(iii)he has been
absent due to temporary disablement caused by accident arising out
of and in the course of his employment; and
(iv) in
the case of female, she has been
on maternity leave; so, however, that the total period of such
maternity leave does not exceed twelve weeks.”
Thus,
section 25B is giving definition of continuous service. Bare perusal
of aforesaid section 25B(1) suggests that
for
purposes of this Chapter, a
workman shall be said to be in continuous service for a period if he
is, for that period, in uninterrupted service, including service
which may be interrupted on account of sickness or authorized leave
or an accident or a strike which is not illegal, or a lock-out or a
cessation of work which is not due to any fault on the part of the
workman. Thus, as per section 25B of ID Act, 1947, a workman shall
be said to be in continuous service for a period if he is, for that
period, having uninterrupted service, including service which may be
interrupted on account of sickness or authorized leave or an
accident or a strike which is not illegal, or a lock-out or a
cessation of work which is not due to any fault on the part of
workman. Therefore, interruptions in service on account of sickness
or authorized leave or an accident or a strike which is not illegal
or a lock out or a cessation of work which is not due to any fault
on part of workman have to be ignored while considering continuous
service as defined under section 25-B (1) of ID Act, 1947. Bare
reading of section 25B(1) of ID Act, 1947 suggests that if workman
establish before labour court that he has remained in continuous
service of one year as per section 25B(1) of ID Act, 1947 and his
service was not interrupted, then, question of completion
of 240 days does not arise. In this case, respondent workman has
established before labour court that he has remained in continuous
service for a period of one year as per documents produced by
petitioner establishment Exh. 12 from June, 2000 to June, 2002,
workman was working as daily wager driver throughout for aforesaid
period of two years and in between, his service was not terminated
or interrupted for aforesaid reasons, therefore, in this case,
workman has established continuous service as defined under section
25B(1) of ID Act, 1947and therefore, completion of 240 days within
12 months preceding date of termination is not required to be
established independently by respondent workman as decided by this
Court in case of Moti
Ceramic Industries v. Jivuben Rupabhai & others,
reported in 2000(2) GLR page 1558. However, considering even section
25B, if weekly off and public holidays are included, then, workman
has established 240 days continuous service as per provisions of ID
Act, 1947 and in view of that, contentions raised by learned
advocate Mr. Dipak C. Raval on behalf of petitioner cannot be
accepted and recent decision of Division Bench of this Court as
referred to has not considered section 25-B(1) and (2) of ID Act,
1947 while drawing distinction and holding that daily wager is not
entitled for weekly off and public holidays but temporary employees
are entitled for it, because,
daily wager is not receiving monthly wages and temporary employee
receiving monthly wages. Such distinction has no meaning because
even a daily wager, if he remains in continuous service of six days,
then, he is entitled for weekly off as per statutory provisions made
under rules of Minimum Wages Act, 1948 is applicable to petitioner
establishment being a scheduled employment covered by Schedule under
section 2(g) and Part-1. Employment in any Local Authority is
covered by Minimum Wages Act, 1948. District Panchayat,
Surendranagar is Local Authority and petitioner establishment,
Primary Health Center being part of Local Authority namely
Surendranagar District Panchayat, is covered by provisions of
Minimum Wages Act, 1948. Petitioner establishment is covered by
Scheduled Employment as per Schedule as referred to above and
according to Gujarat Minimum Wages, Rules, 1961, rule 24
provides/suggests number of hours of work which shall constitute a
normal working day. Number of hours which shall constitute a normal
working day shall be 9 hours in case of an adult and 4-1/2 hours in
case of a child. Rule 23 thereof provides weekly day of rest which
is available to daily wager if he has been working in scheduled
employment in respect of which minimum rate of wages have been
fixed under Act shall be allowed day of rest every week as referred
to as rest
day
which shall ordinarily be a Sunday but employer may fix any other
day of week as rest
day
for any employee or class of employees in that scheduled employment.
Provided that employee has worked in scheduled employment under same
employer for a continuous period of not less than six days. Under
Minimum Wages Act, 1948, definition of employee has been given in
section 2(i). As per section 2(i) of Minimum Wages Act, 1948,
employee means any person who is employed for hire or reward to do
any work, skilled or unskilled, manual or clerical, in a scheduled
employment in respect of which minimum rates or wages have been
fixed; and includes an out worker to whom any articles or materials
are given out by another person, to be made up. Therefore,
considering section 2(i) of said Act, any person employed for hire
or reward to do any work, skilled or unskilled, manual or clerical
in a scheduled employment in respect of which minimum rates or
wages have been fixed is an employee within Minimum Wages Act, 1948
which includes daily wager also and it is not necessary that he must
be a permanent employee. Word any
used at the commencement of this definition of employee also
suggests that it includes daily wager. Therefore, in aforesaid
definition, there is no distinction between permanent employee and
daily wager or temporary employee. District Panchayat is local
authority. Petitioner PHC being part of Local Authority, is also
considered to be local authority covered by Scheduled
Employment and Minimum Wages fixed by State Government are
applicable to local authority and accordingly, respondent workman is
covered by definition of employee under section 2(i) and if he is
allowed to work continuously for a period of six days, then, one
rest day means rest day is statutorily available being weekly off to
such employee and, therefore, while calculating or counting 240 days
continuous service, actual weekly off after completion of six days
for continuous service is also part of continuous service rendered
by employee, therefore, weekly off must have to be considered being
statutory weekly off available to employee and in respect of workman
who has not been able to establish completion of actual 240 days
within 12 months preceding date of termination, if he is able to
establish that he has remained in continuous service of one year
within meaning of section 25B (1) of ID Act, 1947, then, he is
getting protection of section 25F of ID Act, 1947. This aspect is
very much relevant for interpreting section 25B (1) and (2) of ID
Act, 1947.
It
is also necessary to note that statutory weekly off is also
available when Bombay Shops and Establishments Act, 1948 is
applicable to such establishment. As per section 2(6) of said Act,
employee means a person wholly or principally employed, whether
directly or through any agency and whether for wages or other
consideration, or in connection with any establishment; and includes
an apprentice but does not include a member of the employer’s
family. So, considering definition of employee given under section
2(6) of said Act, respondent herein is covered by said definition.
As per section 2(15)(iii) of said Act, local authority means a
district panchayat constituted under Gujarat Panchayats Act, 1993
(Gujarat 6 of 1962). Therefore, petitioner PHC is run and managed by
District Panchayat, Surendranagar and petitioner PHC is also covered
by definition of local authority as defined under sec. 2(15)(iii) of
said Act. Then Bombay Shops and Establishments Act, 1948 is also
applicable to petitioner establishment. As per section 2(7),
employer means a person owning or having ultimate control over
affairs of an establishment. As per section 2(31) of said Act, week
means period of seven days beginning at midnight of Saturday. As per
section 2(19) of said Act, period of work means time during which an
employee is at the disposal of employer. As per section 2(11) of
said Act, holiday means a day on which an establishment shall remain
closed or on which an employee shall be given a holiday under
provisions of said Act. Every shops and establishments shall remain
closed on one day of week. Section 18 of said Act provides for
holidays in a week in shops and commercial establishments. Every
shop and commercial establishment
shall remain closed on one day of week. Section 24 thereof provides
for holidays in a week. Every employee shall be given at least one
day in a week as a holiday as proviso thereto provides that nothing
in said sub section shall apply to an employee whose total period
of employment in any week is less than six days. sub section (2) of
section 24 of said Act provides that it shall not be lawful for an
employer to call an employee at, or for an employee to go to, his
residential hotel,restaurant or eating house or any other place for
any work in connection with business of his residential hotel,
restaurant or eating house on a day on which such employee has a
holiday. Sub section (3) of said section 24 provides that no
deduction shall be made from wages of any employee in a residential
hotel, restaurant or eating house on account of any holiday given to
him under sub section (1). If an employee is employed on a daily
wages, he shall none the less be paid his daily wage for holiday.
Thus, as per sub section (3) of section 24 of Bombay Shops and
Establishments Act, 1948 also, it is clear that even a daily wager
is entitled for holiday in a week if he has worked for a period of
six days in a week. Section 34 of Act provides for daily hours of
work for young persons. Sub section (1) thereof provides that
notwithstanding anything contained in this Act, no young person
shall be required or allowed
to work whether as an employee or otherwise, in any establishment
for more than six hours in any day and sub section (2) thereof
provides that no young person shall be required or allowed to work
whether as an employee or otherwise, shall be required or allowed to
perform such work as may be declared by State Government by
notification in Official Gazette, to be work involving danger to
life, health or morals. As per section 31(1) thereof, every employee
in a theatre or other place of public amusement or entertainment
shall be given at least one day in a week as a holiday. In short,
petitioner establishment is covered by definition of local authority
because it is run and managed by District Panchayat Surendranagar
and Bombay Shops and Establishments Act, 1948 is applicable to
petitioner establishment and after completion of continuous work of
six days, one day statutory holiday is available to an employee as
given holiday and for that, employee is entitled for it with wages
and if statutory holiday with wages is available under Minimum Wages
Rules and Bombay Shops and Establishments Act, then, that day of
holiday must have to be counted and included while calculating and
counting 240 days continuous service under section 25B(1) and (2) of
ID Act. Even sub section (3) of section 31 of Bombay Shops and
Establishment Act also provides that if an employee is employed on
daily wage, he shall nonetheless
be paid his daily wage for the holiday given to him which means that
even daily wage employees are also entitled for such holidays in a
week. The law is not distinguishing that particular class of workman
only would be entitled for such benefit of public holidays and
festival holidays. Even section 2(s) of ID Act, 1947 which is
defining workman is also not drawing any such line of distinction.
This aspect has lost sight by Hon’ble Division Bench of this Court
while considering and holding that decision of this Court in case of
Sihor
Nagarpalika versus Natvarlal Maganlal Trivedi, 2006(3) GLR 2432 is
not deciding correct law. Decision of Hon’ble apex court in case of
Workmen of American Express International Banking Corporation Versus
Management of American International Banking Corporation reported in
AIR 1986 SC 458 has also not been properly considered by Hon’ble
Division Bench of this Court because in that decision, Hon’ble apex
court has considered section 25B(1)&(2) of ID Act, 1947 and on
that basis, weekly off being statutorily are available to workman
under provisions of various labour laws and they are required to be
included while calculating 240 days continuous service. But in case
of Workmen of American Express International Banking Corporation
Versus Management of American International Banking Corporation
reported in AIR 1986 SC 458, there is
no such distinction drawn by Hon’ble Supreme Court as understood by
Hon’ble Division Bench of this Court that daily wager employee is
not entitled for weekly off and only temporary employees are
entitled for weekly off. This distinction was not there in decision
of apex court in case of Workmen of American Express International
Banking Corporation Versus Management of American International
Banking Corporation reported in AIR 1986 SC 458 and even sec. 2(s)
of workman which is giving definition of workman is also not drawing
any such distinction. Hence, such distinction which has been made
out by Hon’ble Division Bench of this Court was not the issue
examined by Hon’ble Supreme Court in case of Workmen of American
Express International Banking Corporation Versus Management of
American International Banking Corporation reported in AIR 1986 SC
458.
It
is necessary to note that for claiming protection of section 25F of
ID Act, 1947, it is not necessary for an employee to establish 240
days continuous service u/s. 25B(2) of ID Act if employee is able to
satisfy conditions incorporated in section 25B(1) of ID Act and
proves continuous service within meaning of section 25B(1) of ID Act
that he remained in service of one year continuously and during
that period, his service has not been interrupted by employer
because of any fault on his part, in such eventuality, such workman
is entitled for benefit
of section 25F of ID Act, 1947 irrespective of fact that he has not
completed 240 days continuous service within 12 months preceding
date of termination but he remained in service continuously for a
period of one year and his service has not been interrupted by
employer during one year period and there was no interruption in
service due to any fault on his part. In case before hand, learned
Advocate Mr. Raval for petitioner has not been able to point out
that there was any interruption in service of respondent workman due
to any fault on his part and he cannot be considered to be in
continuous service within meaning of sec. 25B(1) of ID Act, 1947.
Even before Labour Court also, no any evidence to that effect was
produced by petitioner. Therefore, contentions raised by learned
advocate Mr.Dipak Raval to that effect cannot be accepted and same
are, therefore, rejected.
In
case of Prathma
Bank V/s. Presiding Officer, Central Government Industrial
Tribunal-cum-Labour Court, Pandu Nagar, Kanpur
reported in 2002
– II – LLJ 1000,
this aspect has been examined by Allahabad High Court as discussed
in para 3 and 4. The relevant para 3 and 4 of said decision of
Allahabad High Court are quoted as under:
“3. It
is this part of the award, which is challenged by the employer inter
alia on the ground that in
paragraph 7 of the award the date of engagement in the second spell
i.e. July 23, 1989 i.e. date
of termination April 22, 1988, is not disputed by either side. The
Industrial Tribunal-cum-Labour Court has also referred that it is
admitted that between these two dates the total working days come to
275 days. The workman has contended that the Labour Court came to the
conclusion that between two dates, namely the date of engagement and
the date of termination, the total working days come to 275 days. The
employer has not given the number of days in their statement. In the
written statement filed by the workman, the workman has stated that
he has worked for 275 days. The witness of the employer Shri S.K.
Chandra has stated that the workman has worked 207 days during the
aforesaid two dates. This fact has been sought to be corrected
belated from the payment vouchers Ext.W-1 to Ext. W-15. Respondent
No.1, the Labour Court came to the conclusion that even without
entering into the disputed fact, on the basis of admitted facts, the
management version of 207 days working counted by employer is
excluding the holidays. The respondent No.1 relied upon the decision
in the case of H.P. Singh v. Reserve Bank of India, 1985 (51) FLR 494
(SC), in which it has been
held that the Sunday and other Holidays are to be included within the
definition of continuous service as defined under Section 25-B(2),
read with Section 25(1) of the Industrial Disputes Act, 1947,
therefore, the contention of the employer was rightly rejected by the
Labour Court that the respondent – workman had worked only 207
days thus the finding arrived at by the Labour Court that the
respondent – workman has worked more than 240 days, cannot be
assailed and therefore, is to be accepted.
4. The next contention
of the learned counsel for the petitioner is that in view of the
decision reported in Himanshu Kumar Vidyarthi and others v. State of
Bihar and others, 1997 (4) SCC 391 : 1998-II-LLJ-15, since the
workmen in the aforestated cases were daily wagers, their services
stand terminated in terms of contract of employment, thus the ground
that they are not covered by the definition of retrenchment as
defined after 1984 amendment of Industrial Disputes Act, 1947, cannot
be accepted. In the case of U.P. State Sugar Corporation Ltd. v. Om
Prakash Upadhyaya 2002-I-LLJ-241 (SC), the Apex Court dealing with
the daily wagers, opined that once the Labour Court comes to the
conclusion that the workman has worked for more than 240 days in the
preceding year and Labour Court having come to the conclusion that
the termination is without complying with the provision of Section
25-F or Section 6-N of U.P. Industrial Disputes Act, 1947, this makes
the termination per se illegal, then, the workman would be entitled
for back wages and reinstatement from the date of termination itself.
Learned
Advocate Mr. Dipak C. Raval has placed reliance upon apex court
decision in case of Incharge
Officer and another Versus Shankar Shetty,
reported in (2010)9 SCC 126 where apex court has considered fact
that respondent was engaged as daily wager in 1978, respondent
therein worked intermittently for seven years, upto his retrenchment
which was about 25 years back and in such case, relief of
reinstatement cannot be justified and considering aforesaid facts
only, apex court has granted compensation to workman in lieu of
reinstatement and back wages. Now, looking to facts of this case,
service of present respondent workman was terminated as daily wager
driver on 26th
June, 2002 and he remained in continuous service as daily wager
driver from June, 2000 to June, 2002 and dispute has been referred
to for adjudication before labour court on 23.4.2004 and
labour court passed award on 24th
March, 2010. Therefore, it is not oldest case of about 25 years as
has been considered by apex court in case of Shankar Shetty (supra).
It is also necessary to note that in written statement filed by
petitioner before labour court, nowhere such contention has been
raised by petitioner establishment that instead of granting
reinstatement, he should be paid reasonable amount of compensation.
For that, there must be pleading and evidence is necessary. Not only
that but this contention was also not raised by petitioner before
labour court at the time of argument that in lieu of reinstatement,
some compensation may be given to respondent workman. Therefore,
now for the first time, petitioner cannot be permitted to raise such
contention before this court.
As
regards contention raised by learned advocate Mr. Raval on behalf of
petitioner that respondent workman was not appointed after following
recruitment rules and he is not legally entitled for right of
reinstatement. In case of daily wager, whether any recruitment rules
have been framed by employer or not, for that, there is no any
pleading made by petitioner before labour court in its written
statement and that has also not been emphasized by petitioner before
labour court at the time of hearing. However, this aspect has been
considered by apex court in case of Director,
Fisheries
Terminal Division versus Bhikhubhai Meghajibhai Chavda, 2010 AIR SCW
542. Relevant
para 12 and 13 of decision of apex court are quoted as under:
“”12. The
perusal of all these details clearly shows that the appellant alone
was singled out and discriminated. We have already noted the
specific finding of the Labour Court that the appellant had
fulfilled 240 days in a calendar year before the order of
termination. The appellant has also highlighted that he is the sole
bread earner of his family and his family consists of his old
mother, wife and two minor sons and a minor daughter. The
above-mentioned chart also shows that identical awards passed in the
case of Mast Ram, Rajesh, Paramjit and Amarjit was upheld by the
High Court and the award in favour of the appellant alone was
quashed by the High Court in the second round of litigation. Though,
it was contended that the initial appointment of the appellant was
contrary to the recruitment rules and constitutional scheme of
employment, admittedly, the said objection was not raised by the
Department either before the Labour Court or before the High Court
at the first instance. It was only for the first time that they
raised the said issue before the High Court when the matter was
remitted to it that too the same was raised only during the
arguments. In such circumstances, the High Court ought not
to have interfered with the factual finding rendered by the Labour
Court and in view of the different treatment to other similarly
placed workmen the Department ought not to have challenged the order
of the Labour Court. In addition to the above infirmities, the
appellant has also pointed out that one Gurbax Singh who was engaged
subsequent to the appellant on casual basis has challenged
his termination order, which was quashed by the Labour Court;
interestingly the Department did not challenge the award of the
Labour Court by filing writ petition. It was also highlighted by the
appellant that on the basis of the award, Gurbax singh was not only
taken back in service but his services were regularized w.e.f.
01.07.2004.
13. The next
contention of the learned counsel for the appellant is that the
respondent had not worked for 240 days during the preceding twelve
months on daily wages and, therefore, the respondent cannot claim
any protection under the provisions of Industrial Disputes Act,
1947. The case of the respondent before the labour court was that as
he had completed working for more than 240 days in a year, the
purported order of retrenchment is illegal, as conditions precedent
as contained in Section 25F of the Industrial Disputes Act, 1947
were not complied with.
In
view of aforesaid observations made by apex court and considering
facts of this case, here also, respondent workman has not prayed for
regularization of his service and to make him permanent in
establishment but he was merely seeking restoration of his status of
daily wager driver and nothing more than that was sought by him
before labour court. Therefore, contentions raised by learned
advocate Mr. Raval for petitioner cannot be accepted and same are
accordingly rejected.
Daily
wager is also covered by definition of workman under section 2(s) of
ID Act, 1947 which starts with word any
person and not excluding daily wager. Condition
Precedent to retrench workman under sec. 25F of ID Act, 1947 is
squarely applicable to facts of this case which has not been
followed by petitioner and it has been violated by petitioner and it
being condition precedent, non compliance thereof has rendered such
termination void, ab initio. As per evidence of witness for
petitioner itself, work of daily wager driver is available because
in respect of vehicle which is in working condition,
appointment of regular driver has not been made and new daily wager
driver has been engaged by petitioner as stated by petitioner’s
witness at Exh. 15 and at that time, before engaging fresh daily
wager driver, respondent was not offered work by petitioner then
section 25H of ID Act, 1947 is also violated by petitioner.
In
case of Anoop
Sharma Versus Executive Engineer, Public Health Division No.1,
Panipat (Haryana)
reported in 2010-II-CLR page 1, this aspect has been examined by
apex court. Relevant discussion made by Hon’ble apex court while
considering number of decisions on subject in para 13, 14, 15, 16,
17, 19 is quoted as under:
“13.
An analysis of the above reproduced provisions shows that no
workman employed in any industry who has been in continuous service
for not less than one year under an employer can be retrenched by
that employer until the conditions enumerated in Clauses (a) and (b)
of Section 25-F of the Act are satisfied. In terms of Clause (a),
the employer is required to give to the workman one month’s notice
in writing indicating the reasons for retrenchment or pay him wages
in lieu of the notice. Clause (b) casts a duty upon the employer to
pay to the workman at the time of retrenchment, compensation
equivalent to fifteen days’ average pay for every completed year of
continuous service or any part thereof in excess of six months. This
Court has repeatedly held that Section 25-F(a) and (b) of the Act is
mandatory and non-compliance thereof renders the
retrenchment of an employee nullity – State of Bombay v. Hospital
Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State
of Bombay (1964) 6 SCR 22, State Bank of India v. N. Sundara Money
(1976) 1 SCC 822, Santosh Gupta v. State Bank of Patiala (1980) 3
SCC 340, Mohan Lal v. Management of M/s. Bharat Electronics
Ltd. (1981) 3 SCC 225, L. Robert D’Souza v. Executive Engineer,
Southern Railway (1982) 1 SCC 645, Surendra Kumar Verma v.
Industrial Tribunal (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan
Das (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC
189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619. This Court
has used different expressions for describing the consequence of
terminating a workman’s service / employment / engagement by way of
retrenchment without complying with the mandate of Section 25-F of
the Act. Sometimes it has been termed as ab initio void, sometimes
as illegal per se, sometimes as nullity and sometimes as non est.
Leaving aside the legal semantics, we have no hesitation to hold
that termination of service of an employee by way of retrenchment
without complying with the requirement of giving one month’s notice
or pay in lieu thereof and compensation in terms of Section 25-F(a)
and (b) has the effect of rendering the action of the employer as
nullity and the employee is entitled to continue in employment as if
his service was not
terminated.
14.
The question whether the offer to pay wages in lieu of one month’s
notice and retrenchment compensation in terms of Clauses (a) and (b)
of Section 25-F must accompany the letter of termination of service
by way of retrenchment or it is sufficient that the employer should
make a tangible offer to pay the amount of wages and compensation to
the workman before he ask to go was considered in National Iron and
Steel Company Ltd. v. State of West Bengal (1967) 2 SCR 391. The
facts of that case were that the workman was given notice dated
15.11.1958 for termination of his service with effect from
17.11.1958. In the notice, it was mentioned that the workman would
get one month’s wages in lieu of notice and he was asked to collect
his dues from the cash office on 20.11.1958 or thereafter during the
working hours. The argument of the Additional Solicitor General that
there was sufficient compliance of Section 25-F was rejected by this
Court by making the following observations:
“The third point
raised by the Additional Solicitor-General is also not one of
substance. According to him, retrenchment could only be struck down
if it was mala fide or if it was shown that there was victimization
of the workman etc. Learned counsel further argued that the
Tribunal had gone wrong in holding that the retrenchment was
illegal as Section 25-F of the Industrial Disputes Act had not been
complied with. Under that section, a workman employed in any
industry should not be retrenched until he had been given one
month’s notice in writing indicating the reasons for retrenchment
and the period of notice had expired, or the workman had been paid
in lieu of such notice, wages for the period of the notice. The
notice in this case bears the date November 15, 1958. It is to the
effect that the addressee’s services were terminated with effect
from 17th November and that he would get one month’s wages in lieu
of notice of termination of his service. The workman was further
asked to collect his dues from the cash office on November 20, 1958
or thereafter during the working hours. Manifestly, Section 25-F,
had not been complied with under which it was incumbent on the
employer to pay the workman, the wages for the period of the notice
in lieu of the notice. That is to say, if he was asked to go
forthwith he had to be paid at the time when he was asked to go and
could not be asked to collect his dues afterwards. As there was no
compliance with Section 25-F, we need not consider the other points
raised by the learned counsel.”
15. In State Bank of
India v. N. Sundara Money (supra), the Court emphasised that the
workman cannot be retrenched without payment, at the time of
retrenchment, compensation computed in terms of Section 25-F(b).
16. The
legal position has been beautifully summed up in Pramod Jha v. State
of Bihar (supra) in the following words:
“The
underlying object of Section 25-F is twofold. Firstly, a retrenched
employee must have one month’s time available at his disposal to
search for alternate employment, and so, either he should be given
one month’s notice of the proposed termination or he should be paid
wages for the notice period. Secondly, the workman must be paid
retrenchment compensation at the time of retrenchment, or before,
so that once having been retrenched there should be no need for him
to go to his employer demanding retrenchment compensation and the
compensation so paid is not only a reward earned for his previous
services rendered to the employer but is also a sustenance to the
worker for the period which may be spent in searching for another
employment. Section 25-F nowhere speaks of the retrenchment
compensation being paid or tendered to the worker along with one
month’s notice; on the contrary, clause (b) expressly provides for
the payment of compensation being made at the time of retrenchment
and by implication it would be permissible to pay the same before
retrenchment. Payment or tender of compensation after the time when
the retrenchment has taken effect would vitiate the retrenchment and
non-compliance with the mandatory provision which has a beneficial
purpose and a public policy behind it would result in nullifying
the retrenchment.”
17.
If the workman is retrenched by an oral order or communication or
he is simply asked not to come for duty, the employer will be
required to lead tangible and substantive evidence to prove
compliance of Clauses (a) and (b) of Section 25-F of the Act.
18.
The stage is now set for considering whether the respondent had
offered compensation to the appellant before
discontinuing his engagement/employment, which amounts to
retrenchment within the meaning of Section 2(oo) of the Act.
In his statement, the appellant categorically stated that before
discontinuing his service, the respondent did not give him notice
pay and retrenchment compensation. Shri Ram Chander,
who appeared as the sole witness on behalf of the respondent stated
that the compensation amounting to Rs.5,491/- was offered to the
appellant along with letter Ext. M-1, but he refused to accept the
same. The respondent did not examine any other witness to
corroborate the testimony of Ram Chander and no contemporaneous
document was produced to prove that the compensation was offered to
the appellant on 25.4.1998. Not only this, the respondent did not
explain as to why the demand draft was sent to the appellant after
more than three months of his alleged refusal to accept the
compensation on 25.4.1998. If there was any grain of truth in
the respondent’s assertion that the compensation was offered to the
appellant on 25.4.1998 and he refused to accept the same, there
could be no justification for not sending the demand draft by post
immediately after the appellant’s refusal to accept the offer of
compensation. The minimum which the respondent ought to have
done was to produce the letter with which draft was sent at the
appellant’s residence. The contents of that letter would have shown
whether the offer of compensation was made to the appellant on
25.4.1998 and he refused to accept the same. However, the fact of
the matter is that no such document was produced. Therefore, we are
convinced that the finding recorded by the Labour Court on the issue
of non- compliance of Section 25-F of the Act was based on correct
appreciation of the pleadings and evidence of the parties and the
High Court committed serious error by setting aside the award of
reinstatement.
19.
The judgment of the Constitution Bench in Secretary, State of
Karnataka vs. Uma Devi (supra) and other decisions in which this
Court considered the right of casual, daily wage, temporary
and ad hoc employees to be regularised/continued in service or paid
salary in the regular time scale, appears to have unduly influenced
the High Court’s approach in dealing with the appellant’s challenge
to the award of the Labour Court. In our view, none of those
judgments has any bearing on the interpretation of Section 25- F of
the Act and employer’s obligation to comply with the conditions
enumerated in that section.
In
view of aforesaid observations made by apex court and considering
facts of present case, petitioner has committed breach of section
25H also as per evidence of witness for petitioner at Exh. 15.
Finding of labour court that workman has remained in service and
including public holidays and weekly holidays, he has completed 240
days continuous service within 12 months preceding date of
termination, such finding is absolutely correct and legal finding
and there is no distinction made by apex court in case of Workmen
of American Express International Banking Corporation Versus
Management of American International Banking Corporation reported in
AIR 1986 SC 458 that weekly off and public holidays is to be
included only in case of temporary employee and not to be included
in case of daily wager. There is no such distinction in law to any
continuous service which is to be established by workman. And
moment workman satisfies continuous service within meaning of
section 25B(1) or (2), then, he is entitled for benefit of section
25F of ID Act, 1947. Therefore, labour court has rightly granted
relief of reinstatement as daily wager driver in favour of
respondent workman and in doing so, labour court has not committed
any error which would require interference of this court in exercise
of power under Article 227 of Constitution of India. Offer has been
made by petitioner in its written statement filed by petitioner
before labour court after dispute was referred for adjudication to
labour court. Fresh daily wager driver was appointed by petitioner
after termination of service of present respondent workman and at
that time also, no offer was made by petitioner to respondent before
engaging or appointing fresh daily wager driver. Therefore labour
court has rightly held that petitioner has violated sec. 25F and 25H
of ID Act, 1947 and has rightly set aside termination
of service of respondent and in doing so, no error has been
committed by labour court, Surendranagar which would require
interference of this court in exercise of powers under Article 227
of Constitution of India. Hence, there is no substance in this
petition and same is, therefore, dismissed in limine.
(H.K.
Rathod, J.)
Vyas
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