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SCA/13506/2009 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13506 of 2009
=========================================================
STATE
OF GUJARAT & 1 - Petitioner(s)
Versus
MUKESHKUMAR
BACHUBHAI KADIYA - Respondent(s)
=========================================================
Appearance
:
MS
SACHI MATHUR AGP for Petitioner(s) : 1 - 2.
MR PH PATHAK for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 15/03/2010
ORAL
ORDER
Heard
learned AGP Ms. Sachi Mathur on behalf of petitioner, learned
advocate Mr. PH Pathak appearing for respondent.
The
petitioner has challenged award passed by Labour Court dated
16/3/2009, Mehsana in reference (old no. 131/1998) new no. 68/2008.
The Labour Court has granted reinstatement with continuity of
service and giving lump sum amount of Rs. 5000/- qua claim of back
wages.
Learned
AGP Ms. Mathur raised contention before this Court that Labour Court
has committed gross error in coming to such conclusion that workman
has completed more than 240 days preceding 12 months from date of
termination. She also raised contention that petitioner
establishment is not covered by definition of an Industry
under section 2 J of I. D. Act, 1947.
The
service of workman was not terminated or workman was not permanent
employee of petitioner establishment. Therefore, award passed by
Labour Court is required to be set aside. She also raised
contention that in the year 1997, there was not work available.
Therefore, automatically service of respondent came to be end and
there is no termination or positive action by petitioner. The view
taken by Labour Court is erroneous contrary to record, which would
require interference by this Court.
Learned
advocate Mr. Pathak appearing for respondent workman submitted that
before Labour Court, 240 days has completed by workman in April 1996
to March 1997 total period of working days comes to 222 days and
that has been proved by workman vide exh 22 to 42. If second &
fourth Saturday, Sunday as well as public holidays are included,
then workman has completed 240 days continuous service within
preceding 12 months from date of termination and section 25 F has
been violated and continuous service has been established by workman
as required under section 25 B of I. D. Act, 1947. He relied upon
decision of Apex Court in case of Moti Ceramic Industries Vs.
Jivuben Rupabhai reported in 2001 (I) CLR 156.
He
also raised contention that witness of petitioner, who was examined
at exh 45 before Labour Court has also made clear in cross
examination that work was not available which required presence of
workman, therefore, by oral order, his service was terminated.
In
light of this back ground, learned advocate Mr. Pathak submitted
that Labour Court has rightly granted reinstatement and not granted
any back wages except awarded lump sum amount of Rs. 5000/-.
According to him, Labour Court has not committed any error which
would require interference by this Court under Art. 227 of
Constitution of India.
I
have considered submission made by both learned advocates and I have
perused award passed by Labour Court, Mehsana. It is true that from
2002 to 2009 case was delayed because petitioner establishment
remained absent. The workman was examined on 19/3/2001 vide exh 8
and none present on behalf of petitioner. Therefore, Labour Court
has passed ex parte order, which was challenged by petitioner in SCA
no. 1961/2003. The said petition has been disposed of by this Court
as petitioner was having alternative remedy to file application to
set aside ex parte award under Rule 26 (A). Thereafter, application
was made before Labour Court by petitioner at Kalol being Misc.
civil application no. 25/2003 and on 11/2/2004, ex parte award has
been set aside and decided to pass bi-parte award. Again,
petitioner establishment remained absent. Therefore, cost has been
awarded to petitioner and on second occasion also ex parte award was
passed, against which, an application to set aside ex parte award
filed and ex parte award is set aside on condition to pay Rs. 7000/-
to workman. Against said award, SCA no. 10258/2008 has been filed
by petitioner, wherein, this Court has directed to decide bi-parte
reference by order dated 25/2/2008. This facts suggested that there
was some lapse on part of petitioner establishment and due to that
matter has been remained pending about more than 12 years.
According
to workman, he was appointed or engaged on December, 1994. In the
year 1995, he has completed 215 days service and in the year 1996 he
has completed 230 days service. His service was terminated in year
1997. Therefore, workman has raised industrial dispute, which has
been decided by Labour Court considering exh 22 to 42 produced by
workman. From April, 1996 to March 1997, workman has proved 240
days continuous service. If second and fourth Saturday, Sunday as
well as Public holidays are included, then it comes to more than 240
days continuous service, which is proved before Labour Court as
required under section 25 B of I. D. Act, 1947. The said aspect has
been considered by Apex Court in case of Workmen of American
Express International Banking Corporation Vs. Management of American
Express International Banking Corporation reported in AIR 1986 SC
458.
Therefore,
Labour Court has rightly calculated 240 days service of workman and
rightly considered decision of this Court in case of Moti
Ceramic Industries Vs. Jivuben Rupabhai reported in 2001 (I) CLR
156. The Labour Court has rightly appreciated evidence of
witness of petitioner exh 45. This being an undisputed fact that at
the time of terminating service on 16/3/1997, section 25 F has not
been followed by petitioner. Therefore, Labour Court has rightly
set aside termination order as mandatory condition has not been
followed by petitioner.
The
Labour Court has granted reinstatement in favour of workman with
continuity of service and not granted any amount of back wages of
interim period and only awarded lump sum amount of Rs. 5000/-.
I
have also considered affidavit in reply filed by respondent and also
considering contention raised by respondent in its reply. The
contention raised by petitioner that petitioner is not an Industry.
This contention is raised before this Court first time, therefore,
can not be entertained by this Court. The petitioner has not led
any oral evidence in support of contention that petitioner is not an
Industry before Labour Court. The first time such contention
raised in absence of pleading and documents can not be entertained
as per recent decision of Apex Court reported in AIR 2010 SC 19.
Recently,
apex Court has considered this aspect of violating section 25 F of
I. D. Act, 1947 in case of Ramesh Kumar Vs. State of Haryana
reported in 2010 (1) SCALE 432. The relevant discussion
made in para 10, 11 and 13 are quoted as under:
10)
It is not in dispute that the appellant was appointed as a Mali and
posted at the residence of the Chief Minister in the year 1991. The
materials placed by the appellant before the Labour Court clearly
show that he had worked for three years and there was no break
during his service tenure. He was issued identity card to work in
the residence of the Chief Minister and no reason was given
for
his termination. It is also his case that there was no show cause
notice and no inquiry was conducted. The perusal of the order of the
Labour Court clearly shows that one Shri Nasib Singh, Junior
Engineer, who deposed as MW-1 on behalf of the Department has
categorically stated that the workman was engaged by the Department
on muster rolls as Mali in December, 1991 and he worked up to
31.01.1993. He also stated that there was no break from December,
1991 to January, 1993 during which the workman was engaged.
The Labour Court as per the materials placed rightly found that the
workman has continuously worked from December 1991 to 31.01.1993. It
also found that the workman worked for 240 days with the Department
within 12 calendar months preceding his date of termination i.e.
31.01.1993. It is useful to refer the definition of “retrenchment”
and “workman” in the Act which reads thus:
“2
(oo) “retrenchment” means the termination by the employer
of the service of a workman for any reason whatsoever, otherwise
than as a punishment inflicted by way of disciplinary action, but
does not include…….”
2
(s) “workman” means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or
reward, whether the terms of employment be express or implied, and
for the purposes of any proceeding under this Act in relation to
an industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or as a
consequence of, that dispute, or whose dismissal, discharge or
retrenchment has led to that dispute, but does not include any such
person………….”
25F.
Conditions precedent to retrenchment of workmen. No workman
employed in any industry who has been in continuous service for not
less than one year under an employer shall be retrenched by that
employer until- (a) the workman has been given one month’s notice in
writing indicating the reasons for retrenchment and the period of
notice has expired, or the workman has been paid in lieu of such
notice, wages for the period of the notice;
(b)
the workman has been paid, at the time of
retrenchment,
compensation which shall be equivalent to fifteen days’ average pay
for every completed year of continuous service or any part thereof
in excess of six months; and
(c)
notice in the prescribed manner is served on the appropriate
Government or such authority as may be specified by the appropriate
Government by notification in the Official Gazette.”
It
is not in dispute that the appellant is a “workman” as
defined under Section 2 (s) and “retrenchment” if any it
should be in accordance with Section 25F of the Act. Admittedly, in
the case on hand, the workman was not given any notice or pay in
lieu of notice or retrenchment compensation at the time of his
retrenchment. In view of the same, the Labour Court has correctly
concluded that his termination is in contravention of the provisions
of Section 25 F of the Act. Though the Department has relied on a
circular, the Labour Court on going through the same rightly
concluded that the same is not applicable to the case of the
retrenchment.
(11)
In addition to the factual conclusion by the Labour Court, namely,
continuance for a period of 24 days in a calendar year preceding his
termination, the appellant has also placed relevant materials to
show that persons similarly situated have already been reinstated
and their services have been regularized. It is his grievance that
appellant alone has been meted out with the hostile discrimination
by the Department. He also highlighted that in respect of some
of the workmen who were appointed and terminated, after similar
awards passed by the Labour Court, the Management did not challenge
the same before the High Court by filing writ petitions. He also
pointed out that out that in some cases where a challenge was made
before the High Court by filing writ petitions however, after
dismissal of the writ petitions those persons were reinstated. In
fact, according to the appellant some of them were even regularized.
(13)
We are conscious of the fact that an appointment on public post
cannot be made in contravention of recruitment rules and
constitutional scheme of employment. However, in view of the
materials placed before the Labour Court and in this Court, we are
satisfied that the said principle would not apply in the case on
hand. As rightly pointed out, the appellant has not prayed for
regularization but only for reinstatement with continuity of service
for which he is legally entitled to. It is to be noted in the case
of termination of casual employee what is required to be seen is
whether a workman has completed 240 days in the preceding 12 months
or not. If sufficient materials are shown that workman has completed
240 days then his service cannot be terminated without giving notice
or compensation in lieu of it in terms of Section 25F. The High
Court failed to appreciate that in the present case appellant has
completed 240 days in the preceding 12 months and no notice or
compensation in lieu of it was given to him, in such circumstances
his termination was illegal. All the decisions relied on by the
High Court are not applicable to the case on hand more particularly,
in view of the specific factual finding by the Labour Court.
According
to my opinion, contention which has been raised by learned AGP Ms.
Mathur can not be accepted. The Labour Court has rightly considered
evidence on record and granted relief of reinstatement only with
continuity of service. Due to delay, no back wages of interim
period has been awarded. This being a balanced award, Labour Court
has not committed any error, which would require interference by
this Court while exercising power under Art. 227 of Constitution of
India.
Hence,
there is no substance in present petition, same is dismissed.
(H.K.RATHOD,
J)
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