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Prantij vs Chauhan on 16 June, 2010

Gujarat High Court
Prantij vs Chauhan on 16 June, 2010
Author: H.K.Rathod,&Nbsp;
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SCA/9123/2009	 16/ 16	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

SPECIAL
CIVIL APPLICATION No. 9123 of 2009
 

 
=========================================================

 

PRANTIJ
MUNICIPAL BOROUGH - Petitioner(s)
 

Versus
 

CHAUHAN
PRABHUDAS SHANKARLAL - Respondent(s)
 

=========================================================
 
Appearance
: 
MR
JV JAPEE for
Petitioner(s) : 1, 
MR KV GADHIA for Respondent(s) :
1, 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE H.K.RATHOD
		
	

 

 
 


 

Date
: 16/06/2010 

 

ORAL
ORDER

Heard
learned advocates appearing on behalf of respective parties.

The
petitioner has challenged award passed by Labour Court, Himatnagar in
Reference (LCH) No.108 of 2002 Ex.55 dated 29th December
2008. The Labour Court has partly allowed Reference with a direction
to petitioner to reinstate respondent workman to his original post
with continuity of service without back wages of interim period and
award is required to be implemented within a period of 30 days from
the date of publication.

According
to learned advocate Mr. Japee, respondent had raised industrial
dispute against the petitioner inter alia alleging that he was
serving as daily wager – Sweeper with petitioner establishment since
5th October 1996 and he had completed 240 days service in
each year. The petitioner had paid Rs.75/- as daily wage. According
to petitioner, respondent was working in a group which consisted of 3
Sweepers and 2 Daily Wagers. It was the further case of respondent
that he was not getting the salary and other benefits equivalent to
the salary of permanent employees. Therefore, on 8th
October 2000, respondent had further alleged that since he had made
frequent demand for various service benefits, his services were
orally terminated by petitioner w.e.f. 8th March 2000
without following required procedure under Section 25F and Section
25H of Industrial Disputes Act, 1947. The industrial dispute has been
referred for adjudication to Labour Court, Himatnagar.

The
statement of claim has been filed by workman. Against which,
petitioner had filed written statement. In written statement,
contention raised by petitioner that respondent was engaged as daily
wager employee without undergoing the procedure of selection in view
of influence of the then President of Prantij Nagar Palika Shri
Bharatsinh Solanki who belongs to caste of respondent. The respondent
was not properly discharging his duties and therefore, there were
several complaints against his work, therefore, on 8th
March 2000, his services were terminated. The petitioner had not made
any fresh recruitment in view of instructions given by Director of
Municipalities. As per the details submitted by respondent workman,
he had completed an aggregate of 225 days during 1996 to 2000. Even
as per the vouchers produced about the payment to the workman, the
respondent had completed 225 days service only during the period of
four years. This fact is also proved by the monthwise presence
statement produced by petitioner. The respondent workman has not
disputed before the Assistant Labour Commissioner about the details
regarding the working days produced by petitioner. The Labour Court
has committed gross error in drawing adverse inference because the
documents, whose production was applied by respondent workman, were
already produced by petitioner.

Learned
advocate Mr. Japee submitted that it is a clear case wherein finding
of fact given by Labour Court that Sec.25F is not violated and only
Sec.25H is violated. In such circumstances, relief of reinstatement
with continuity of service is contrary to provisions of Section 25H
of ID Act. He also raised contention before this Court that witness
of petitioner who was examined but his cross-examination is not
completed and his right to cross-examine has been closed, because,
witness was not remained present after some extent in
cross-examination made by advocate of respondent. A specific
application was made by advocate of respondent to close the evidence
of petitioner because Ex.47 witness of petitioner Chief Officer
was not remained present subsequent to some extent in
cross-examination. Therefore, he submitted that Labour Court has
committed gross error in granting relief in favour of respondent.
Except that, no other submission is made by learned advocate Mr.
Japee before this Court.

Learned
advocate Mr. Gadhia appearing on behalf of respondent workman
submitted that after award is published, respondent workman was
reinstated in service as per order dated 26th March 2009
passed by Resolution from President of Prantij Nagar Palika with
signature of Chief Officer. This Resolution has been passed in
Special General Board Meeting and accepted the award passed by Labour
Court and accordingly, respondent was appointed as Class-IV employee
as Daily Wager in Sanitation Department. Accordingly, resume report
submitted by respondent workman on 30th March 2009. But,
subsequently, his service has been terminated by petitioner Nagar
Palika, because, petitioner wants to challenge the award passed by
Labour Court, Himatnagar. The relevant documents of order passed in
Special General Board Meeting of Prantij Nagar Palika and order of
reinstatement issued in favour of respondent dated 26th
March 2009, Resume Report dated 27th March 2009 and letter
from Chief Officer dated 30th March 2009 are produced on
record. The respondent has also produced on record letter dated 2nd
April 2009, where, his service was terminated w.e.f. 31st
March 2009 only on the ground that petitioner wants to challenge
award passed by Labour Court, Himatnagar. Therefore, learned advocate
Mr. Gadhia submitted that Special General Board has accepted the
award and accordingly, reinstatement order has been passed in favour
of respondent and he was reinstated as a Class-IV employee daily
wager in Sanitation Department. That resolution has been cancelled
and directed the respondent workman not to remain present in service
w.e.f. 31st March 2009 by petitioner. Against that,
complaint has been made to Chief Officer by respondent on 2nd
April 2009. He submitted that service of respondent was terminated by
violating the provisions of Section 25F and Section 25H of ID Act.
His service was terminated on 8th March 2000. Against
which, dispute was raised and statement of claim was filed in support
of his case by respondent vide Ex.7. Against which, written statement
was filed by petitioner vide Ex.20. Thereafter, purshis was filed by
respondent workman vide Ex.8 that without prejudice to his rights and
contention, respondent is prepared to resume duty with petitioner.
The respondent workman was examined vide Ex.11 and vide Ex.22, one
application was made by respondent before Labour Court, Himatnagar
calling certain documents from petitioner which has been referred in
Para 6 by Labour Court. In support of Ex.22 application, affidavit
vide Ex.23 has been also placed on record by respondent. Vide Ex.39,
two documents have been produced by petitioner i.e. total working
days of respondent has been produced on record by petitioner and
details of monthwise presence of workman which comes to 225 days in a
period from 1996 to 2000. Thereafter, vide Ex.47, one Mr. Dave, Chief
Officer of petitioner was examined, but, his cross-examination is not
completed and for that, documentary evidence is to be produced by
witness. That cross-examination has been adjourned or postponed and
accordingly, note has been made by Labour Court, Himatnagar to that
effect. Vide Ex.48, application has been given by respondent to
consider the evidence of witness Ex.47 is not completed, because,
witness was not remained present subsequently and therefore, the
stage of witness of petitioner has been closed by Labour Court vide
Ex.52. That application Ex.52 is submitted by advocate of
respondent. Vide Ex.53, written arguments have been produced on
record along with certain decisions by petitioner. The Labour Court
has considered undisputed facts between both parties that workman is
appointed in October, 1996 as a Sweeper Daily Wager and his
service was terminated on 8th March 2000. The question has
been considered by Labour Court whether workman has completed
continuous service of 240 days or not. For that, Labour Court, in
terms, has come to conclusion that workman has failed to establish
240 days continuous service within 12 preceding months from date of
termination. Such finding has been given by Labour Court based on
facts at Page 39, internal page 17 of the award. But, he submitted
that Labour Court has examined another question whether provisions of
Section 25H of ID Act has been complied by petitioner or not ? After
evidence of witness of petitioner Ex.47, documents demanded by
respondent’s advocate from witness of petitioner to produce the
details of employees – daily wagers those who have been recruited or
appointed subsequent to termination of respondent workman and their
date of joining as per Mark 22/5, but, these documents have not been
produced by witness of petitioner Ex.37. The respondent workman has
produced a list of 36 daily wagers those who have been recruited or
appointed subsequent to termination of respondent workman. Therefore,
why the said list of 36 workmen have not been produced on record by
witness of petitioner ? For that, no affidavit to that effect is
filed by responsible officer from petitioner. Considering the
evidence of workman Ex.11, after his termination as a Sweeper
Daily Wager, new 10 to 15 persons have been recruited or appointed
and they are still continue in service with petitioner and they were
recruited in the same manner as recruited the respondent workman by
petitioner. The witness of petitioner has admitted in his
cross-examination as discussed at Page 44, internal page 22 of the
award that he will produce details of 36 employees whose who have
been recruited/appointed subsequent to termination of respondent
workman as per Mark 22/5. These documents, though admitted by witness
Ex.47 of petitioner that he will produce it before Labour Court, have
not been produced by witness of petitioner as per Mark 22/5 and
because of cross-examination which is remained incomplete and
thereafter, witness has not entered into the witness box, therefore,
learned advocate Mr. Gadhia submitted that Labour Court has rightly
drawn adverse inference in light of the facts that documents have not
been produced on record by petitioner. Even no affidavit is filed
that why such documents have not been produced on record. Therefore,
learned advocate Mr. Gadhia submitted that order of termination has
been held to be violated the provisions of Sec.25H of ID Act which is
mandatory in nature and not complied with by petitioner. Therefore,
Labour Court has rightly granted reinstatement in favour of workman.
He submitted that when reinstatement order has been passed in favour
of respondent, it includes continuity of service, otherwise, Labour
Court can pass an award of re-employment. He submitted that under
Sec.25H of ID Act; after retrenchment of respondent workman, if any
employee is recruited or appointed in the same manner in a same
category, then, it is a legal obligation upon employer to recall the
services of respondent workman, which was not recalled by petitioner.
Therefore, he submitted that Labour Court has rightly granted relief
of reinstatement with continuity of service to original post of daily
wager.

Learned
advocate Mr. Gadhia relied upon the decision of this Court in case of
Pratikshaben B. Utrankar and Anr. v. State of Gujarat &
Ors.
reported in 2004(1) GLH 501. The relevant
discussion is made in Para 8 and 9 which are quoted as under :

8. The
controversy involved in the present petition has
been earlier dealt with by this Court in the order dated
7th March, 2002 passed in Special Civil Application
No.13758 of 1993. The relevant observations made by this
Court in aforesaid decision are referred as under :

“I have considered the submissions made by both. I
have considered the submissions made by both the
learned advocates. There are ways of granting
order of reinstatement by the labour court. If
the order of reemployment would have been passed
by the labour court, then, naturally, continuity
of service would not have been there but once
reinstatement has been granted, it would include
continuity of service too, impliedly. This
aspect has been considered by the apex court in
case of Sanat Kumar Dwivedi versus Dhar Jila
Sahakari Bhoomi Vikas Bank Maryadit and Others
reported in 2001 AIR SCW 2430. In para 3 of the
said decision, the apex court has observed as
under :

“3. It is clarified that this order will not
be treated to be resulting in any break in
service of the appellant. He will be deprived of
only the back wages. The continuity of service
and all other notional benefits on that basis
will be available to him. It appears that when
the order of reinstatement was granted, except
depriving him of back wages, it necessarily meant
that the continuity of service was implicit in
the reinstatement. Even condition Nos. 1 and 2
of the order of reinstatement clearly indicate
that he is reinstated in service with continuity
as pay scales and other benefits were also
directed to be given.”

It is further observations that;

“Recently, the apex court has considered the same
question in case of Gurpreet Singh and State of
Punjab and others reported in 2002 (92) FLR 838.
The relevant observations made by the apex court
in 1 and 2 of the said judgment are reproduced as
under :

“Leave granted.

The Plaintiff is in appeal against the
impugned judgment of the High Court of Punjab and
impugned judgment of the High Court of Punjab and
services stood terminated and he filed the suit
for declaring the order of termination null and
void. The suit was dismissed. The lower
appellate court, however, on reappreciation of
the materials on record, came to the conclusion
that the order passed by the D.I.G. must be held
to be illegal and consequently directed that the
plaintiff should be reinstated in service.

Having directed so, the first appellate court
categorically held that the plaintiff will not be
entitled for any arrears of salary for the period
for which he has not served. The plaintiff
assailed the appellate decree by filing a second
appeal claiming that he would be entitled to the
arrears of salary. The High Court by the
impugned order not only confirmed the decree of
the lower appellate court that the plaintiff will
not be entitled to any arrears of salary but also
further added that the plaintiff will not get his
continuity of service. The plaintiff therefore
is in appeal before this Court.

2. Having heard the learned counsel for the
parties and on examining the materials on record,
we fail to understand how the continuity of
service could be denied once the plaintiff is
directed to be reinstated in service on setting
aside the order of termination. It is not a case
of fresh appointment but it is a case of
reinstatement. That being the position,
direction of the High Court that the plaintiff
will not get continuity of service cannot be
sustained and we set aside that part of the
impugned order. So far as the arrears of salary
is concerned, we see no infirmity in the
direction which was given by the lower appellate
court taking into account the facts and
circumstances including the fact that the suit
was filed after a considerable length of time.
That part of the decree denying the arrears of
salary stands affirmed and this appeal stands
allowed in part to the extent indicated above.”

9. Thus, in the above decision, this Court has examined
the question and observed that once reinstatement has
been granted and accepted by the the employer, meaning
thereby, it impliedly includes continuity of service. In
such circumstances, continuity of service cannot be
denied to the workman. Unless there is negative
direction issued by the labour court, otherwise,
continuity of service must have to be impliedly covered
in case when reinstatement has been granted by the labour
court. In the facts of this also, reinstatement has been
granted by the labour court on 13th March, 1992 which
remained intact and upheld by the Division Bench of this
Court and therefore, the effect of that award still
remained continued till even in between two termination
orders upto reinstatement has been granted by the
respondent. Therefore, according to my opinion, the
workmen are entitled to all the benefits of continuity of
service under the Service Rules which are available to
the petitioner.

Learned
advocate Mr. Gadhia also relied upon another decision of this Court
in case of Gurpreet Singh v. State of Punjab & Ors.
reported
in JT 2002 (1) SC 409,
where, relevant discussion is made in Para 2 and 3 which are quoted
as under :

2. The
Plaintiff is in appeal against the impugned judgment of the High
Court of Punjab & Haryana in a second appeal. The plaintiff’s
services stood terminated and he filed the suit for declaring the
order of termination null and void. The suit was dismissed. The lower
appellate Court, however, on re-appreciation of the material on
record, came to the conclusion that the order passed by the D.I.G.
must be held to be illegal and consequently directed that the
plaintiff should be reinstated in service. Having directed so, the
first appellate court categorically held that the plaintiff will not
be entitled to any arrears of salary for the period for which he has
not served. The plaintiff assailed the appellate decree by filing a
second appeal claiming that he would be entitled to the arrears of
salary. The High Court by the impugned order not only confirmed the
decree of the lower appellate court that the plaintiff will not be
entitled to any arrears salary, but also further added that the
plaintiff will not get his continuity of service. The plaintiff,
therefore, is in appeal before this Court.

3. Having
heard the learned counsel for the parties and on examining the
materials on record, we fail to understand how the continuity of
service could be denied once the plaintiff is directed to be
reinstated in service on setting aside the order of termination. It
is not a case of fresh appointment, but, it is a case of
reinstatement. That being the position, direction of the High Court
that the plaintiff will not get continuity of service cannot be
sustained and we set aside that part of the impugned order. So far as
the arrears of salary is concerned, we see no infirmity with the
direction which was given by the lower appellate court taking into
account the facts and circumstances including the fact that the suit
was filed after a considerable length of time. That part of the
decree denying the arrears of salary stands affirmed and this appeal
stand allowed in part to the extent indicated above.

I
have considered submissions made by both learned advocates appearing
on behalf of respective parties. The Labour Court has rightly come to
conclusion that workman is failed to prove 240 days continuous
service in 12 preceding months, therefore, Section 25F of ID Act is
not violated, but, Labour Court has also rightly discussed the
evidence which are on record and evidence of witness of petitioner
Ex.47. The documents/details have been demanded as per Mark 22/5 by
advocate of respondent in respect to 36 employees, those have been
recruited or appointed in the same manner subsequent to the date of
termination of respondent workman, have not been given or produced on
record by the petitioner. Not only that, no affidavit has been
produced on record in support of facts that why such documents as
demanded by workman vide Mark 22/5 have not been produced by
petitioner. The case of respondent workman was as per Ex.11 in his
evidence, certain new persons have been recruited or appointed in
same manner as he was appointed in the post of Sweeper subsequent to
termination of workman. Therefore, at that occasion, as per Sec.25H
of ID Act, it was a legal obligation upon petitioner to recall the
service of respondent workman, but, in fact, it was not recalled by
petitioner. Therefore, breach of mandatory provision has been
committed by petitioner. Sec.25H being an independent Section, which
applies even in case where workman has not completed 240 days
continuous service. Section 25H is made applicable in case of
retrenchment. Whether workman has completed 240 days continuous
service or not, that facts are totally irrelevant while question of
compliance of Sec.25H is considered by Labour Court. [See
: 2010 (1) SCALE 613 Harjinder Singh v. Punjab State Warehousing
Corporation]

In
light of these facts, Labour Court has rightly come to conclusion
that petitioner establishment has violated Sec.25H, because, no
details have been produced on record in spite of demand made by
workman as per Mark 22/5. No affidavit to that effect is filed by
officer of petitioner as to why such documents have not been
produced. Therefore, adverse inference has been rightly drawn by
Labour Court that after termination of services of respondent workman
in the same post as a daily wager, new persons have been
recruited/appointed in the same manner as respondent was appointed,
therefore, Sec.25H has been violated.

The
Labour Court has also considered certain decisions which have been
relied upon by advocate of petitioner in written arguments at Ex.53
i.e. 2007-II-CLR 859 Rameshwar Dayal v. Presiding Officer, Labour
Court No.VI and Others of Delhi High Court. The Labour Court
has also
considered decision of Apex Court in case of Central Bank of India v.
S. Satyam & others
reported in 1996-II CLR 1095 and also
considered decision of Apex Court in case of Jaipur Development
Authority v. Ram Sahay & Others
reported in 2006-II Scale 95.

Therefore,
considering the reasoning given by Labour Court and also keeping in
mind that details though admitted by witness of petitioner Ex.47 that
he will produce details as demanded by respondent as per Mark 22/5 in
cross-examination, but, that has not been produced, even though,
incomplete cross-examination has been closed and right to lead
further evidence of petitioner has been closed. No affidavit in
support of that as to why documents have not been produced by
petitioner, is filed. Therefore, considering the facts, Labour Court
has rightly come to conclusion that petitioner establishment has
violated mandatory provisions of Sec.25H of ID Act, therefore,
respondent workman is entitled right of reinstatement in service.
Accordingly, direction order has been set aside and ordinary relief
of reinstatement has been granted. The Labour Court has rightly not
granted relief of re-employment, therefore, the relief of
reinstatement has been granted which includes continuity of service
and accordingly, Labour Court has rightly granted benefits of
continuity of service in favour of respondent workman. Therefore,
contentions raised by learned advocate Mr. Japee cannot be accepted,
because, there is no error committed by Labour Court in granting
relief in favour of respondent workman. The Labour Court has rightly
not awarded any amount of back wages in favour of respondent workman,
because, only Sec.25H of ID Act has been violated by petitioner
establishment.

Therefore,
according to my opinion, Labour Court has rightly discussed oral as
well as documentary evidence which are on record and Labour Court has
not committed any error in deciding reference and Labour Court has
given correct reason in support of its conclusion. For that, no
interference is required by this Court while exercising the powers
under Article 227 of the Constitution of India.

Hence,
there is no substance in present petition. Accordingly, present
petition is dismissed. No order as to costs.

[H.K.

RATHOD, J.]

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