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SCA/11125/2009 22/ 22 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11125 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
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 ?
=========================================================
GUJARAT
MARITIME BOARD - Petitioner(s)
Versus
KANTILAL
HIRALAL KHARVA - Respondent(s)
=========================================================
Appearance
:
MS
SEJAL K MANDAVIA for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 27/04/2010
ORAL
JUDGMENT
Heard
learned Advocate Ms. Sejal K.Mandavia for petitioner Gujarat
Maritime Board through its Port Officer, Mandvi (Kutch).
Petitioner
Board has challenged award passed by Labour Court, Kachchh at Bhuj
in Reference (LCB) No.45 of 2000 Exh. 43 dated 27.3.2009. Labour
Court has partly allowed reference and set aside termination of
respondent workman by holding it as illegal, improper, unjust, ultra
vires, against principles of natural justice and directed petitioner
to reinstate respondent workman in service, with continuity of
service with 50 per cent back wages for interim period.
Ms.
Mandavia, learned Advocate appearing for petitioner has raised
contention before this court that according to respondent, he was
serving with petitioner board since 25 years as seaman and on
18.1.2000, he was illegally retrenched by petitioner without
following section 25F of ID Act, 1947. It was also pointed out that
petitioner has not followed principles of last come first go and
other juniors were continued in service and, thereby he has prayed
that he should be reinstated with full back wages for interim
period. She further submitted that detailed written statement was
filed by petitioner contending that it is absolutely wrong fact that
respondent was working since 25 years and for that, he should
produce necessary evidence on record. It was also contended by
petitioner before labour court, Bhuj that respondent has not
completed 240 days’ continuous service and he was employed as and
when work was required and, therefore, she submitted that labour
court has committed gross error in granting relief in favour of
present respondent workman. She also submitted that it is duty of
workman to produce evidence before court and he should establish
that he has completed 240 days continuous service but in facts of
this case, respondent has not produced anything, however, labour
court has believed that he has completed 240 days continuous service
which is not proper. She also submitted that labour court ought to
have considered deposition of witness Shri Chaturbhai Mohanbhai
Rathod Exh. 27 in which he has categorically mentioned that
respondent was given work for one year or two years and respondent
workman has not passed selection process. It is also deposed that
respondent was given work as and when it was available and from 1975
to 2000, he has not served with petitioner board. She also submitted
that labour court has wrongly believed that respondent was working
since 1995 with petitioner. Statement which was produced at Exh.
18/1 is wrongly interpreted by labour court. In short, respondent
has not completed 240 days continuous service and, therefore,
question of compliance of section 25F of ID Act, 1947 does not
arise. Labour Court has wrongly relied upon decisions cited by
respondent which were not applicable to facts of present case. She
also submitted that labour court has wrongly believed that other
persons who are junior to respondent were continued in service. She
submitted that it is important to note that respondent has not given
names of such juniors. She submitted that it is duty of respondent
workman to give names of the persons, date of joining of such
persons and post of said persons. She further submitted that only
after said three facts are established, labour court can say that
there is violation of section 25G and H of ID Act, 1947. She
submitted that respondent workman has not established breach of
section 25G and H of ID Act, 1947. In short, her submission is that
labour court has committed error in granting relief of reinstatement
and 50 per cent back wages for interim period and, therefore,
interference of this court is necessary. Except that, no other
submission is made by learned Advocate Ms. Mandavia before this
Court and no decision has been cited by her before this Court in
support of submissions recorded herein above.
I
have considered submissions made by learned Advocate Ms. Mandavia. I
have also perused impugned award passed by labour court, Bhuj. Award
is running from page 1 to 52 Exh. 43. Statement of claim was filed
by workman at Exh.3 against which reply was filed by petitioner at
Exh.13 and thereafter, documentary evidence was produced by employee
as referred to in para 6. No further documentary evidence is
produced from employee side. Opponent petitioner has not
produced any documentary evidence in support of their case before
labour court. Before labour court, respondent workman was examined
at Exh. 15 and on behalf of petitioner, witness Chaturbhai Mohanbhai
Rathod was examined at Exh. 27. Thereafter, submissions were made by
both learned advocates before labour court. After considering
submissions made by learned advocates for respective parties, issues
have been framed by labour court in paragraph 14. Labour Court has
discussed evidence of workman in paragraph 18 which is quoted as
under:
18. On
the above submission, the employee has examined himself at Exh.15.
The employee has deposed, on oath that he was appointed by the
opponent on dated 01.10.1975 as a seaman labourer and worked as such
till dated 18.01.2000 and opponent have retrenched him on dated
18.01.2010. The employee further deposed, on oath, that from the
date of his joining the service till his retrenchment he has
completed more than 240 days in each and every calendar year. The
employee was cross examined by the learned advocate Shri Desai for
the opponent. During the cross examination the employee has denied
the suggestion that he was being paid salary for the period for
which he used to work and he was being called as and when need
arises. The employee has admitted that the first appointment order
was given to him and he has not produced the said appointment order
before this court and for this, he has not explained by deposing
that as the appointment order is destroyed in the earthquake he has
not produced the same. He has deposed during the cross examination
that he has produced the entry permit in the port area for showing
that he was the seaman labourer of the opponent. The employee has
denied the suggestion that he has never worked as rojamdar or
permanent workman with the opponent. Except this nothing fruitful
has come out from the cross examination of the employee by the
learned advocate for the opponent.
Then,
labour court also considered oral evidence of witness for
petitioner, namely Chaturbhai M. Rathod Exh. 27 in para 19 of award
which is quoted as under:
19. On
the other hand, the opponent has examined his witness Shri
Chaturbhai Mohanbhai Rathod at Exh.27. The witness deposed, on oath,
that the employee was not permanent employee of the opponent. He
further deposed on oath that the employee was being called as and
when work was available. The witness has deposed that the employee
was entrusted the petty work on hand pavti and upon completion of
the said petty work, the workman was automatically relieved from
service. He deposed that this work remains in existence for 5 day,
10 days, one year or for two years. He further deposed that the
workman was being taken through the employment exchange and the
workmen were being appointed on temporary basis. He further deposed
that his Institution runs as per BCSR Rules. He further deposed that
the seniority list is not prepared of the workmen like the employee.
During cross examination by the learned Advocate Shri SD Rathod, for
the employee, the witness has admitted that employee used to work as
labourer and the Pass Exh.6 was issued by his Institution. The
witness further admitted that in the said pass the designation of
the employee is shown as SEAMAN The witness deposed that in
the year 1975, the employee may have worked on hand pavti but then
he has deposed that the employee has not produced that he worked in
the year 1975 and onwards. He further deposed that the hand pavti is
not in their possession. He deposed that the seamen are 2 to 3 but
he deposed that on completion of the work the employee was
automatically relieved. The witness deposed that the work done on
handpavti with effect from 1975 to 2000 is not being counted as
service. He deposed that the seniority list is prepared of permanent
employees but not of pavtiwala. The witness deposed that the
employee has not worked for 240 days in any of the calendar years
and there is no proof about the same. From the cross examination of
the witness of the opponent by the learned advocate Shri SD Rathod,
it has come out that the employee was serving as seaman with the
opponent and to that effect the Port Pass Exh. 6 was issued by the
Institution. The Port Pass was issued on 30.12.1995. Thus, from the
cross examination of the opponent witness it is sufficiently proved
that since 1995 the employee was working as Seaman of the opponent.
In support of this there is statement of attendance produced at Exh.
18/1. Now, as it has come on record by way of evidence of the
witness of the opponent that this statement was given by the
opponent to the employee. On going through the said statement it
appears that in the year 1995, the employee had worked for 250
days. In the year 1996, the employee had worked for 327 days. He has
also worked for 332 days in the year 1997. He has also worked for
307 days in the year 1998 and that in the year 1999 he has worked
for 345 days. At the last in the year 2000 upto he was retrenched,
he has worked 17 days only. Thus, from this statement, it is
sufficient proved that right from 1995 upto 2000 the employee had
worked for more than 240 days. This statement is supported by the
attendance registers produced at Exh.42 by the learned advocate Shri
SD Rathod. However, as it has come out from the deposition of the
witness of the opponent that prior to 1995 the employee may have
worked on handpavti and the period of work done on hand pavti is not
being counted. The witness has not denied that the employee has not
worked from 1975 upto 1995. Thus, when the opponent is in possession
of those hand pavtis and when they have shown their inability to
produce the said handpavtis, this court is inclined to observe that
had the opponent produced the said handpavti then from the said
handpavti it would have been proved that the employee had worked for
more than 240 days in each and every calendar year. Therefore,
without any hesitation this court raises a presumption that the
employee had worked for more than 240 days in each calendar year
right from 1975 upto 2000 the date of retrenchment of the employee.
Aforesaid
paragraph is very much relevant and on that basis, labour court has
come to conclusion that concerned workman has worked for more than
240 days in each calendar year right from 1975 upto 2000, till date
of retrenchment of employee. Before labour court, Port Pass issued
by institution dated 30.12.1995 was produced at Exh. 6. In cross
examination of opponent’s witness, it is sufficiently proved that
since 1995, employee was working as seaman of opponents. In support
of this, there is statement of attendance produced at Exh. 18/1
which has come on record by way of evidence of witness for opponent
means present petitioner that this statement was given by petitioner
to employee concerned. Going through the said statement which was
given by petitioner to concerned employee, it appears, as considered
by labour court, that in the year
1995, the employee had worked for 250 days, in the year 1996, the
employee had worked for 327 days. He has also worked for 332 days in
the year 1997. He has also worked for 307 days in the year 1998 and
that in the year 1999 he has worked for 345 days. At the last in the
year 2000 upto he was retrenched, he has worked 17 days only.
Therefore, on the basis of
aforesaid statement which was given by petitioner to workman,
completion of 240 days has been established by way of documentary
evidence before labour court, therefore, in light of these facts,
according to my opinion, labour court has rightly come to conclusion
that 240days continuous service has been completed by respondent
workman and at the time of retrenchment or termination of service of
workman, section 25F of ID Act, 1947 has not been complied with by
petitioner and, therefore, labour court has rightly held that the
order of termination/retrenchment is void ab initio.
In
respect to contention about 25G and 25H of ID Act, 1947, labour
court has given reasoning in para 24 and 25 of impugned award.
Therefore, para 24 and 25 of impugned award are quoted as under:
24. The
learned advocate Shri SD Rathod has vehemently submitted that when
the junior to the employee are continued in service and the work
which the employee was doing before his retrenchment is continued
the employee cannot be retrenched therefore the retrenchment is
illegal and the employee should be reinstated in service with
retrenchment compensation and other benefits also. It is further
submitted that before retrenchment the provisions of section 25F of
ID Act are mandatory and non compliance with said provisions is
illegal. The learned advocate Shri Rathod has submitted that the
opponent has not given any chance to the employee but has kept new
workmen, which is illegal, therefore, the order of retrenchment
should be set aside and the employee should be reinstated with full
back wages. The learned advocate has also argued that the opponent
has not followed the principle of Last come First Go
and has retrenched the employee without any default. In support of
his case the employee has deposed in his deposition Exh. 15 that he
was illegally retrenched. This fact is not rebutted by the opponent.
The opponent has examined one witness at Exh. 27 but from the
evidence of the said witness particularly from the cross
examination, nothing fruitful has come out. Therefore, the say of
the employee in his deposition coupled with cross examination is
required to be believed. Thus, from the record of the case, it has
come out that the opponent has illegally retrenched the employee
because the work which the employee was doing, is still going on. It
is also the case of the employee that after his retrenchment also,
persons are taken in service and the employee is not called for the
same, therefore, his retrenchment is is illegal. In views of the
above circumstances, when the opponent has not rebutted
the say of the employee on oath, in that case, it can be said that
the opponent has not followed the provisions of the principle Last
Come First Go . In view of
the above circumstances, the opponent has violating the mandatory
provisions of Section 25-G of ID Act by retrenching the employee
because in the ordinary course the opponent should have retrenched
the workman who was the last person employed in that category and if
the employer has retrenched the employee instead of last person
employed in that category, in that case the employer should have
given reasons for doing so. When the employer has not given notice
recording reasons for retrenching the employee instead of the
employee last employed nor the employer has given notice pay to the
employee because employee has completed 25 years continuous service
with the opponent. It has also come on record that the employer has
also not paid compensation for retrenchment for every completed year
of continuous service or any part thereof, therefore the employer
has not followed the mandatory provisions of Section 25-F of I.D.
Act but has violated the provisions of the said section. The
employer has also violated the mandatory provisions of Section 25H
of ID Act because he has employed other employees after retrenchment
of the employee and the work on which the employee was working was
still continued even after retrenchment of the employee. Not only
this, the employer has not given any opportunity in the manner
prescribed in Section 25-H to offer himself for reemployment because
as per provisions the employee shall have preference over other
persons. Meaning thereby, before taking into his employ any persons,
the employer should have first given opportunity to the employee on
the said post and thereafter he may have employed other persons. As
the employer has employed other persons without taking the employee
as his workman, the employer has violated the mandatory provisions
of the ID Act. In view of the above circumstances, the employee is
entitled for reinstatement on his original post with continuity of
service along with back wages.
25. The
learned Advocate for the employee has vehemently submitted that the
employee has not published the seniority list on the notice board
in conspicuous place in the premises of the industrial establishment
at least seven days before the actual date of retrenchment but has
directly retrenched the employee from service and thereby the
employer has violated the mandatory provisions of section
81 of the Industrial Disputes (Gujarat) Rules, 1966 nor the employer
has shown the seniority list to the employee before his
retrenchment. This Court has gone through the record of the case and
there is substance in the submission of the learned advocate for the
employee, therefore, this Court holds that the employer has violated
the mandatory provisions of section 81 of the ID Rules, 1966. Not
only this, the employer has not included the employee in the
seniority list and to explain this the employer has examined his
witness at Exh. 27 who deposed that as the employee has not
completed 240 days in any of the years of his service his name is
not included in the seniority. As held above, while deciding point
NO. 1, the employee has completed 240 days in each and every year.
Moreover, when the employee has been in continuous service for 25
years under the opponent, he cannot be retrenched from service
without giving notice in writing assigning the reasons because the
opponent has not followed the Principle of Last Come
First Go Therefore this
explanation given by the witness of the opponent cannot be accepted.
The employer has also violated the provisions by not including the
employee in seniority list when the juniors to him are included in
the said seniority list. In view of the above detailed discussion
the retrenchment of employee is illegal. Therefore, the opponent has
violated the mandatory provisions of section 25F, 25G, 25H of ID Act
and Rule 81 of ID Rules. The employer has also violated the
provisions of Section 82 of ID Rules because as per said section the
employer has not given the notice in writing by registered post to
the retrenched workman employee at his last known address for
filling the vacancies. The employee has also not informed, under
sub Rule (1) of Rule 82 of ID Rules, the trade union or unions of
workmen connected with the industrial establishment for the
vacancies to be filled in, giving details, therefore, the employer
has also violated the mandatory provisions of the said rules. In
this respect reference may be made to the decision of Division Bench
of Hon’ble Gujarat High Court reported in 2001(3) GLR
Page 2734.
In the said case the employee was governed by Industrial Disputes
(Central)Rules, 1957.Juniors to the employee were reemployed and no
intimation was given to the employee about vacancy by Registered
Post at the address given by him. Therefore, the Hon’ble High Court
of Gujarat has held that there was violation of section 25-H and
Rule 78.In the present case
also, the employer has not given intimation to the employee about
filling of the vacancy. Therefore, the said decision is applicable
to the facts of the present case.
Labour
Court has considered various decisions in respect to subject. For
that, labour court has rightly considered relevant facts which are
on record and also relevant decisions which are applicable to facts
of present case and for that, labour court has not committed any
error which would require interference of this court. Labour Court
has also considered question of back wages in paragraph which is
quoted as under:
33. From
the above detailed discussion, this Court comes to the final
conclusion that the employee has sufficiently proved that he has
completed 240 days in each and every calendar year during the course
of his service and that he was illegally retrenched by the opponent
from service, without giving him notice, notice pay or retrenchment
compensation. When such is the situation, this Court thinks it just
and proper, in the interest of justice to hold that the employee is
entitled to be reinstated on his original post along with 50 per
cent back wages. In view of the above detailed discussion, the
following final order is passed. –
It
is necessary to note that the date of termination is 18th
January, 2000 and dispute raised by workman was referred for
adjudication on 9th March, 2000 and reference came to be
decided on 27th March, 2009. Duration in deciding
reference is exactly about 9 years. Pendency is not because of
lethargic approach of concerned workman. While considering question
of back wages, labour court has considered relevant aspect and mere
long pendency of litigation in Court is not a ground to deny relief
of back wages to concerned employee, otherwise, employee would
suffer double jeopardy of losing back wages and also delay in
getting reinstatement. As per recent decision of apex court in case
of M/s. PVK Distillery Ltd. v. Mahendra Ram, 2009 AIR SCW page
2904, question of relief of
back wages has been considered while considering long pendency of
litigation in Courts and it was held that it is not ground to deny
relief,otherwise, employee would suffer double jeopardy of losing
back wages and also delay in getting reinstatement. Relevant
paragraph 20,21,22 and 23 are reproduced as under:
20. In the instant
case, the notice had been issued limiting the question to the payment
of 50% of the total back wages. This does not mean that the
respondent is not entitled to further relief. The point that his
services were terminated in the year 1985 and since then the case is
pending for the last two decades in different courts also has no
relevance, since he had approached the court within a reasonable
time. It is not his fault that the case is still pending before the
court. These grounds could not be held against him for denying the
relief of back wages otherwise he would suffer double jeopardy of
losing back wages and delay in getting the reinstatement for no fault
of his. Therefore, it would have been more enlightening, had the High
Court reasoned out as to why the appellant should reinstate the
respondent with full employment benefits and should pay full back
wages to him for nothing in return from him in terms of work,
production etc.
21)Giving
a realistic approach to the matter and in spite of all these
circumstances we are restricting ourselves to the question of 50% of
the total back wages. Although services of the respondent have been
terminated unjustifiably and illegally, it itself does not create a
right of reinstatement with full employment benefits and full back
wages. The notice was issued with a view that the appellant s
factory has been taken over by a new management altogether and by
asking the appellant to pay full back wages for the long interregnum
would be unfair and unjust. The workman has not entered appearance to
justify the award passed by the Labour Court. Therefore, in our view,
it would be unreasonable to put a huge burden on the appellant by
directing them to reinstate respondent with continuity of service and
with full back wages, because the appellant s factory had been
declared sick and remained closed for many years and has been
assigned to a new management led by its Chief Executive Director, Sri
M.K. Pilania in order to rehabilitate/reconstruct it.
22)In
view of the above discussion, we are of the opinion that it would be
fair and reasonable to direct the employer to deposit 50% of back
wages by way of arrears of back wages, instead of full wages awarded
by the Labour Court.
23)Accordingly,
the judgment and order of the Labour Court and the High Court are set
aside and it is declared that the respondent herein shall be entitled
to 50% of the total back wages payable during the aforesaid period in
terms
of Section 6-N of the U.P. Industrial Disputes Act.
It
is necessary to note that in aforesaid reported decision, apex court
has also considered 50 per cent back wages for interim period being
reasonable amount because termination is found to be unjustified and
illegal. Looking to facts which are on record in present case also
squarely covers reasoning given by apex court in aforesaid
paragraph, therefore, according to my opinion, labour court has not
committed any error which would require interference in granting 50
per cent back wages for interim period because order of termination
is found to be void ab initio because of violation of mandatory
provisions of section 25F of ID Act, 1947 and, therefore,
contentions raised by learned Advocate Ms.Mandavia in this regard
cannot be accepted. Same are, therefore, rejected.
Entire
findings given by labour court are based on appreciation of evidence
on record and labour court has appreciated oral as well as
documentary evidence and has recorded finding of fact. Such findings
of fact recorded by court below normally cannot be disturbed by this
court while exercising powers under Article 227 of Constitution of
India as per recent decision of apex court in case of State
of Haryana v. Manoj Kumar
reported in 2010 AIR SCW 1990
decided on 9th
March 2010. The relevant
Para 22 to 29
are quoted as under:
22. The
appellants urged that the jurisdiction of the High Court under
Article 227 is very limited and the High Court, while exercising
the jurisdiction under Article 227, has to ensure that the courts
below work within the bounds of their authority.
23.
More than half a century ago, the Constitution Bench of this
court in Nagendra Nath Bora and Another v. Commissioner of
Hills Division and Appeals, Assam & Others AIR 1958 SC 398
settled that power under Article 227 is limited to seeing that the
courts below function within the limit of its authority or
jurisdiction.
24.
This court placed reliance on Nagendra Nath’s case in a
subsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu
AIR 1963 SC 1895. The court observed that jurisdiction conferred
under Article 227 is not by any means appellate in its nature for
correcting errors in the decisions of subordinate courts or
tribunals but is merely a power of superintendence to be used to
keep them within the bounds of their authority.
25.
This court had an occasion to examine this aspect of the matter
in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4
SCC 566 . The court observed as under:-
“The
supervisory jurisdiction conferred on the High Courts under Article
227 of the Constitution is limited “to seeing that an inferior
Court or Tribunal functions within the limits of its authority,”
and not to correct an error apparent on the face of the record, much
less an error of law. for this case there was, in our opinion, no
error of law much less an error apparent on the face of the record.
There was no failure on the part of the learned Subordinate Judge to
exercise jurisdiction nor did he act in disregard of principles of
natural justice. Nor was the procedure adopted by him not in
consonance with the procedure established by law. In exercising the
supervisory power under Article 227, the High Court does not act as
an Appellate Court or Tribunal. It will not review or reweigh the
evidence upon which the determination of the inferior court or
tribunal purports to be based or to correct errors of law in the
decision.”
This
court again clearly reiterated the legal position in Laxmikant
Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi
(1995) 6 SCC 576. The court again cautioned that the High Court
under Article 227 of the Constitution cannot assume unlimited
prerogative to correct all species of hardship or wrong decisions.
It must be restricted to cases of grave dereliction of duty and
flagrant abuse of fundamental principles of law or justice, where
grave injustice would be done unless the
High Court interferes.
A three-Judge Bench of
this court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998)
3 SCC 341 again abundantly made it clear that the High Court cannot
interfere with the findings of fact recorded by the subordinate
court or the tribunal while exercising its jurisdiction under
Article 227. Its function is limited to seeing that the subordinate
court or the tribunal functions within the limits of its authority.
It cannot correct mere errors of fact by examining the evidence and
re-appreciating it.
In
Virendra Kashinath Ravat & Another v. Vinayak N. Joshi &
Others (1999) 1 SCC 47 this court held that the limited power under
Article 227 cannot be invoked except for ensuring that the
subordinate courts function within its limits.
29.
This court over 50 years has been consistently observing that
limited jurisdiction of the High Court under Article 227 cannot be
exercised by interfering with the findings of fact and set aside the
judgments of the courts below on merit.
Therefore,
in view of above discussion and decision of apex court as referred
above, there is no substance in this petition and same is required
to be dismissed.
Therefore,
in result, this petition is dismissed accordingly.
(H.K.
Rathod,J.)
Vyas
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