Gujarat High Court Case Information System
Print
SCA/11156/2009 2/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11156 of 2009
=========================================================
BHAVNAGAR
MUNICIPAL CORPORATION - Petitioner(s)
Versus
DHARMENDRA
B VEGAD - Respondent(s)
=========================================================
Appearance
:
MR
HS MUNSHAW for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1,
MR TR
MISHRA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 21/04/2010
ORAL
ORDER
Heard
learned advocate Mr. HS Munshaw on behalf of petitioner, learned
advocate Mr. TR Mishra appearing for respondent.
The
petitioner Bhavnagar Municipal Corporation has challenged award
passed by Labour Court in reference no. 294/2005 decided on
25/5/2009, where Labour Court has granted reinstatement with
continuity of service w.e.f. 27/11/1993 with consequential benefits
with 10% back wages of interim period on original post.
Learned
advocate Mr. Munshaw submitted that Labour Court has committed gross
error in granting relief in favour of respondent workman. The
petitioner Corporation is undertaking various public projects and
for execution of such works it has to engage labourers as daily
wager or on contractual basis or on fixed term based, depend upon
administrative requirement. By letter dated 6/11/1993, respondent
was engaged for a period of one month for survey work of town
planing scheme no. 12 & 14. He had worked only for 45 days as
daily wager pursuance to said order. Thereafter, he was not
provided worked. Therefore, dispute has been raised by respondent
which was referred for adjudication and ultimately Labour Court has
granted reinstatement with continuity of service with 10% back wages
of interim period.
Along
with present petition, copy of statement of claim filed by workman
and contractual appointment given to respondent by order dated
6/11/1993, written statement filed by Corporation and written
argument produced by petitioner Corporation are annexed.
I
have considered submission made by learned advocate Mr. Munshaw that
according to case of workman as per statement of claim exh 3, he was
appointed by order dated 6/11/1993 and his service was terminated
after completion of a period of 27/11/1993. The total period of
service is less than 30 days. The termination is dated 27/11/1993,
for that, dispute has been raised and referred for adjudication on
27/10/2005 after a period of 12 years. According to him such
belated delay and latches, reference itself is not maintainable and
Labour Court should not have to entertain such belated reference.
According to Corporation, ten labourers were appointed on contract
basis for specific period and a moment period was over their
services has came to an end and they were taken on fixed salary.
Before Labour Court number of documents and number of decisions have
been relied by both parties.
The
short fact is that it is not the case of workman that he has
completed 240 days continuous service, therefore, breach of section
25 F of I. D. Act, 1947 does not arise. Before, Labour Court one
witness Dhirajbhai Laljibhai Makwana was examined by petitioner exh
84, where he has admitted that at present five posts are found to
be vacant where workman was appointed.
Learned
advocate Mr. Mishra submitted that after termination of respondent,
new and fresh employees have been recruited. That fact has been
proved before Labour Court by concern employee as discussed in award
para 8(C) where Labour Court has considered whether section 25 H of
I. D. Act, has been violated by petitioner Corporation or
not?Considering evidence of workman that after his termination, on
5/1/1994 (exh 9 to 10), workmen were recruited or appointed and on
11/1/1994 that amendment order has been reproduced before Labour
Court. Vide exh 10 dated 10/2/1994, exh 15 dated 30/6/1994 certain
labourers have been engaged by petitioner Corporation. Vide exh 16
to 70 on different dates fresh Labuorers have been engaged for
performing same kind of work, which was performed by workman.
Therefore,
Labour Court has come to conclusion that work which was performed by
workman, was remained continue and there is no justification to
terminate contract even in favour of respondent workman and nine
employees those who were appointed or engaged along with respondent
workmen, were subsequently engaged by petitioner Corporation. All
nine employees have been made permanent that facts have been
admitted by witness of Corporation Shri Dhirajbhai Laljibhai
Makwana. Shri Dipakbhai and Shri Kishorbhai, both were appointed as
daily wager on contract basis along with respondent workmen. Now
both employees have been made permanent by petitioner Corporation.
Therefore, petitioner Corporation has violated provision of section
25 H of I. D. Act, because juniors to respondent workmen have been
engaged for doing same kind of work, but respondent workman was not
called by petitioner Corporation.
Relying
upon section 25 H of I. D. Act, Labour Court has granted relief in
favour of respondent workman. Therefore, learned advocate Mr. Mishra
submitted that no error is committed by Labour Court, Bhavnagar
which would require interference by this Court.
Considering
submission made by both learned advocates and observation made by
Labour Court and evidence of witness of Corporation Shri Dhirajbhai
Laljibhai Makwana as referred above exh 84 and documents which have
been produced by respective parties. The Labour Court has granted
relief of reinstatement inspite of knowing fully facts that
industrial dispute has been raised after a period of twelve years,
for that, no explanation has been given by workman that why dispute
has been raised after such long time. Normally and ordinarily, such
belated reference should not have to be entertained by Labour Court
unless it is justified delay by workman. The right of reinstatement
is not entitled in case of breach of section 25 H of I. D. Act. It
applied with prospective effect not with retrospective effect. For
breach of section 25 H, workman is not entitled right of
reinstatement from date of termination. But it is separate and
independent right having prospective effect as per decision of
Karnataka High Court reported in 2009 (III) CLR 228.
Therefore,
contention raised by learned advocate Mr. Munshaw is right that
after a period of twelve years delay, without any justification,
reference should not have to be entertained merely because of
section 25 H of I. D. Act, 1947 is violated. Apart from that when
section 25 H is violated then workman is entitled relief of
reinstatement as re-employment but continuity of service which has
been granted, can not be granted in favour of respondent workman.
The question of back wages also does not arise, which has been
granted in favour of workman because it is not a case in respect to
breach of section 25 F of I. D. Act. Considering entire facts and
circumstances of case and keeping in mind law, this being a case of
having special facts and circumstance, it justified reinstatement
only. The direction which has been given by Labour Court with
continuity of service with 10% back wages and consequential benefits
are clear error committed by Labour Court which required
interference by this Court, therefore, same is required to be
modified as under.
Apparently,
Labour Court has committed gross error in granting relief when
breach of section 25 H is found from record, it was not case of
breach of section 25 F of I. D. Act. Therefore, award passed by
Labour Court in reference no. 294/2005 dated 25/5/2005 is required
to be modified. Instead of reinstatement with continuity of service
with 10% back wages with consequential benefit, it is to be modified
to the effect that now respondent workman is entitled reinstatement
in original post and only entitle continuity of service from date of
award.
Therefore,
it is directed to petitioner Corporation to reinstate respondent
workman immediately while giving continuity of service from date of
award. The aforesaid award has been modified to that effect only.
The decision of this Court may not be treated as precedent in other
cases. Accordingly, Rule is made absolute to aforesaid extent. Ad
interim relief, if any, stand vacated. No order as to costs.
(H.K.RATHOD,
J)
asma
Top