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SCA/8664/2009 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8664 of 2009
=========================================================
STATE
OF GUJARAT - Petitioner(s)
Versus
DHIRSINH
NATHAJI RATHOD - Respondent(s)
=========================================================
Appearance
:
MS
SACHI MATHUR AGP for
Petitioner(s) : 1,
MR PP MAJMUDAR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 11/05/2010
ORAL
ORDER
1. Heard
learned AGP Ms.Shachi Mathur for petitioner State of Gujarat and
learned advocate Mr.P.P.Majmudar for respondent.
2. In
present petition, petitioner has challenged award passed by Labour
Court, Palanpur in Reference (LCP) No.306 of 1996, Exh.47, dated
1.4.2008 whereby Labour Court has granted reinstatement with
continuity of service without back wages of interim period.
3. Learned
AGP Ms.Mathur has given facts of present case, which are as under :
3.1 That
the respondent workman was terminated by the petitioner and therefore
he gave demand notice and raised the dispute before the conciliation
officer. Upon the failure of the conciliation proceedings referred
under Section 10 of the I.D.Act,1947 came to be made to the Labour
Court, Palanpur being LCR No.306 of 1996. As per the allegation made
in the statement of claim that workman was working as daily wager
under petitioner department from 1989. He has also alleged that he
has worked for more than 240 days in every year and the work was
taken by the petitioner from 6 AM to 6 PM. In the season of summer he
had to stayed for 24 hours in the Gujarat Bhavan and when pilgrims
called the workman, he had to remain present in the service of
pilgrims and in the season of summer the petitioner has taken the
work for 24 hours. The respondent has worked in the petitioner
department with spirit and faithfully. That there was no
unsatisfactory report against him by the petitioner and there was no
complaint against the respondent, though from 20.9.1991 he was
terminated orally by the petitioner department. That before the
termination he was not given notice or notice pay and even not
retrenchment compensation was paid to him and it is also alleged that
without having any fault and having any reason the petitioner
terminated him orally on 20.9.1991 which is illegal. That respondent
workman is unemployed from the date of termination. And also alleged
that he is also facing the difficulties for survival for his family.
That it was alleged that before the Labour Court by petitioner herein
that respondent workman was working as daily wager on a daily pay at
Gujarat Bhavan Mountabu. That when the rush of the pilgrims was
increased in the season of summer, he was called for work. That the
respondent workman has worked for 234 in the year 1990 and in the
year 1991 he has worked for 174 days and therefore as per the
Government Road and Building Department Resolution No.DRE/2188/
39009115/G/2 dated 30.5.1989. In Issue No.2 that daily wager has to
completed 240 days in the last year under Section 25(B) of the
I.D.Act and to take the benefits by the account from the resolution
dated 17.10.1988. Thus the respondent workman has not completed 240
days in both the year therefore he cannot be regularized and there is
no question arise to give any benefits. That the petitioner has taken
work from respondent from 8 to 12 am and 14 to 18 pm in a day. The
present petitioner department is a Government department and working
as per the rules and regulations of the Government. It is
respectfully submitted that the present petitioner department is
doing activity like social welfare and in the interest of public at
large. It is also stated that the present petitioner department is
not doing any type of business activity. Therefore, present
petitioners do not fall under the definition of the Industry which is
defined under Section 2(j) of the I.D.Act,1947. There is no relation
between the petitioner and respondent workman as employer and
employee. Therefore, Labour Court has no jurisdiction to entertain
the said reference and reference filed by present respondent workman
was prayed to rejected on the ground of want of jurisdiction. That
respondent workman was allotted the work as a daily wager, as and
when as per the necessity of department. As and when the respondent
workman worked, he was paid salary for that particular period. The
respondent workman has not completed 240 days in any of the calendar
year.
4. Learned
AGP Ms.Mathur submitted that Labour Court has committed gross error
in coming to conclusion that workman has completed 240 days
continuous service within a preceding 12 months from date of
termination. She also submitted that Labour Court has not properly
appreciated evidence which are on record and also not properly
appreciated documentary evidence which are on record. She further
submitted that respondent workman was daily wager and as and when
work is available, he was being called by petitioner and therefore,
question of termination by petitioner does not arise. She submitted
that from respondent workman, no over time work has been taken by
petitioner and his working hours are only 8 hours and not more than
that. She submitted that written statement filed by petitioner vide
Exh.13 and denying facts as mentioned in statement of claim by
workman. She also submitted that it was denied by petitioner that
respondent was working for 24 hours in the summer season and for 12
hours in other seasons. She also submitted that workman was not a
permanent employee and not satisfied requirement of Section 25B of
the I.D.Act,1947, even though Labour Court has passed an award
contrary to law laid down by Apex Court. She submitted that
I.D.Act,1947 is not applicable to petitioner establishment. For that,
certain decisions have been relied upon by petitioner before Labour
Court as referred in Para.9. She also submitted that Labour Court has
not properly considered question of Industry and decided the matter
contrary to record.
5. Learned
advocate Mr.P.P.Majmudar for respondent workman submitted that before
Labour Court vide Exh.46, statement of presence of workman was
produced by petitioner and according to that statement, from
March,1990 to September,1991, workman was remained in continuous
service and during that period, workman has in all completed 251
days’ service. But at the time of terminating the service of workman,
no notice / notice pay was paid and no retrenchment benefit was paid
to workman by petitioner. Therefore, he submitted that Labour Court
has rightly examined Issue No.2 while considering Exh.46 which has
been produced by petitioner and accordingly, in case of breach
committed by petitioner of Section 25F, then Labour Court has rightly
granted reinstatement in favour of respondent workman. For that,
according to him, Labour Court has not committed any error which
requires interference by this Court.
6. I
have considered submissions made by both learned advocates and also
perused the award passed by Labour Court. The Labour Court has come
to conclusion looking to facts that workman was working in Gujarat
Bhavan, Mountabu where Gujarat Bhavan is taking charge of room which
has been occupied by certain pilgrims and also receiving rent from
said customers and also receiving amount for supplying meals and
breakfast. The Labour Court has also considered that this being a
commercial activity being carried out by petitioner while maintaining
Gujarat Bhavan Rest House. Therefore, it cannot consider to be a
sovereign function of the State. Therefore, Labour Court has
considered a decision of Division Bench of this Court in case of PWD
Employees’ Union through Secretary Shri M.W.Shinde and Others v.
State of Gujarat, reported in 1987 (2) GLR 1070 where this question
has been examined in detail and come to conclusion that public works
department is an Industry within the meaning of Section 2(j) of the
I.D.Act,1947. Therefore, contentions raised by learned AGP Ms.Mathur
cannot be accepted.
7. The
Labour Court has also considered certain decisions which have been
relied by both parties as discussed in Para.9 and also the Labour
Court has rightly examined Issue No.2 while considering Exh.46 and
ultimately, has come to conclusion that from March,1990 upto
September, 1991, workman was remained in continuous service and
considering presence details given by petitioner Exh.46, in October,
1990 for 27 days, in November,1990 for 26 days, in December, 1990 for
26 days, in January, 1991 for 17 days, in February,1991 for 24 days,
in March,1991 for 26 days, in April,1991 for 18 days, in May,1991 for
12 days, in June for 24 days, in July,1991 for 18 days, in
August,1991 for 16 days and in September 1991 for 17 days and in all,
it comes to 251 days continuous working of respondent workman within
a preceding 12 months from date of termination. Undisputedly, at the
time when termination order has been passed, Section 25G of the
I.D.Act,1947 has not been followed by petitioner. Therefore, order of
termination is ab initio void. The Labour Court has examined factual
aspect and given finding of fact and decided Issue No.2 that workman
has completed continuous service of 240 days and Section 25F has been
violated. Therefore, order of termination has been set aside by
Labour Court. According to my opinion, contentions raised by learned
AGP Ms.Mathur cannot be accepted because facts have been otherwise
proved on the basis of documents produced by petitioner vide Exh.46.
8. In
case when Section 25F has been violated, then workman is entitled the
right of reinstatement. In such circumstances, the Apex Court has
considered the scope of Section 25F, G and H of the I.D.Act,1947 in
case of Harjinder Singh v. Punjab State Warehousing Corporation
reported in 2010 (1) Scale 613. Relevant observations of aforesaid
decision are in Para.13, 14 and 15, which is quoted as under :
13.
It is true that in the writ petition filed by it, the corporation did
plead that the dispute raised by the appellant was not an industrial
dispute because he had not worked continuously for a period of 240
days, the learned Single Judge rightly refused to entertain the same
because no such argument was advanced before him and also because
that plea is falsified by the averments contained in para 2 of the
reply filed on behalf of the corporation to the statement of claim
wherein it was admitted that the appellant was engaged as work charge
Motor Mate for construction work on 5.3.1986 and he worked in that
capacity and also as Work Munshi from 3.10.1986 and, as mentioned
above, even after expiry of the period of three months’ specified in
order dated 5.2.1987, the appellant continued to work till 5.7.1988
when first notice of retrenchment was issued by the Managing Director
of the corporation. Therefore, it was not open for the corporation to
contend that the appellant had not completed 240 days service.
Moreover, it is settled law that for attracting the applicability of
Section 25-G of the Act, the workman is not required to prove that he
had worked for a period of 240 days during twelve calendar months
preceding the termination of his service and it is sufficient for
him to plead and prove that while effecting retrenchment, the
employer violated the rule of `last come first go’ without any
tangible reason. In Central Bank of India v. S. Satyam (1996) 5 SCC
419, this Court considered an analogous issue in the context of
Section 25-H of the Act, which casts a duty upon the employer to give
an opportunity to the retrenched workmen to offer themselves for
re-employment on a preferential basis. It was argued on behalf of the
bank that an offer of re-employment envisaged in Section 25-H should
be confined only to that category of retrenched workmen who are
covered by Section 25-F and a restricted meaning should be given to
the term `retrenchment’ as defined in Section 2(oo). While rejecting
the argument, this Court analysed Section 25-F, 25-H, Rules 77 and 78
of the Industrial Disputes (Central) Rules, 1957, referred to Section
25-G and held:
“Section
25-H then provides for re-employment of retrenched workmen. It
says that when the employer proposes to take into his employ any
persons, he shall, in such manner as may be prescribed, give an
opportunity to the retrenched workmen who are citizens of India to
offer themselves for re-employment, and such retrenched workmen
who offer themselves for re-employment shall have preference over
other persons. Rules 77 and 78 of the Industrial Disputes (Central)
Rules, 1957 prescribe the mode of re-employment. Rule 77 requires
maintenance of seniority list of all workmen in a particular category
from which retrenchment is contemplated arranged according to
seniority of their service in that category and publication of that
list. Rule 78 prescribes the mode of re-employment of retrenched
workmen. The requirement in Rule 78 is of notice in the manner
prescribed to every one of all the retrenched workmen eligible to be
considered for re-employment. Shri Pai contends that Rules 77 and 78
are unworkable unless the application of Section 25-H is confined to
the category of retrenched workmen to whom Section 25-F applies. We
are unable to accept this contention.
Rule
77 requires the employer to maintain a seniority list of workmen in
that particular category from which retrenchment is contemplated
arranged according to the seniority of their service. The category of
workmen to whom Section 25-F applies is distinct from those to whom
it is inapplicable. There is no practical difficulty in maintenance
of seniority list of workmen with reference to the particular
category to which they belong. Rule 77, therefore, does not present
any difficulty. Rule 78 speaks of retrenched workmen eligible to be
considered for filling the vacancies and here also the distinction
based on the category of workmen can be maintained because those
falling in the category of Section 25-F are entitled to be placed
higher than those who do not fall in that category. It is no doubt
true that persons who have been retrenched after a longer period of
service which places them higher in the seniority list are entitled
to be considered for re-employment earlier than those placed lower
because of a lesser period of service. In this manner a workman
falling in the lower category because of not being covered by Section
25-F can claim consideration for re-employment only if an eligible
workman above him in the seniority list is not available. Application
of Section 25-H to the other retrenched workmen not covered by
Section 25- F does not, in any manner, prejudice those covered by
Section 25-F because the question of consideration of any retrenched
workman not covered by Section 25-F would arise only, if and when, no
retrenched workman covered by Section 25-F is available for
re-employment. There is, thus, no reason to curtail the ordinary
meaning of “retrenched workmen” in Section 25-H because of
Rules 77 and 78, even assuming the rules framed under the Act could
have that effect.
The
plain language of Section 25-H speaks only of re-employment of
“retrenched workmen”. The ordinary meaning of the
expression “retrenched workmen” must relate to the wide
meaning of `retrenchment’ given in Section 2(oo). Section 25-F also
uses the word `retrenchment’ but qualifies it by use of the further
words “workman … who has been in continuous service for not
less than one year”. Thus, Section 25-F does not restrict the
meaning of retrenchment but qualifies the category of retrenched
workmen covered therein by use of the further words
“workman
… who has been in continuous service for not less than one year”.
It is clear that Section 25-F applies to the retrenchment of a
workman who has been in continuous service for not less than one year
and not to any workman who has been in continuous service for less
than one year; and it does not restrict or curtail the meaning of
retrenchment merely because the provision therein is made only for
the retrenchment of a workman who has been in continuous service for
not less than one year. Chapter V-A deals with all retrenchments
while Section 25-F is confined only to the mode of retrenchment of
workmen in continuous service for not less than one year. Section
25-G prescribes the principle for retrenchment and applies ordinarily
the principle of “last come first go” which is not confined
only to workmen who have been in continuous service for not less than
one year, covered by Section 25-F.”
(emphasis
supplied)
14.
The ratio of the above noted judgment was reiterated in Samishta Dube
v. City Board Etawah (1999) 3 SCC 14. In that case, the Court
interpreted Section 6-P of the U.P. Industrial Disputes Act, 1947,
which is pari materia to Section 25-G of the Act, and held:
Now
this provision is not controlled by conditions as to length of
service contained in Section 6-N (which corresponds to Section 25-F
of the Industrial Disputes Act, 1947). Section 6-P does not require
any particular period of continuous service as required by Section
6-N. In Kamlesh Singh v. Presiding Officer in a matter which arose
under this very Section 6-P of the U.P. Act, it was so held. Hence
the High Court was wrong in relying on the fact that the appellant
had put in only three and a half months of service and in denying
relief. See also in this connection Central Bank of India v. S.
Satyam.
Nor
was the High Court correct in stating that no rule of seniority was
applicable to daily-wagers. There is no such restriction in Section
6-P of the U.P. Act read with Section 2(z) of the U.P. Act which
defines “workman”.
It
is true that the rule of “first come, last go” in Section
6-P could be deviated from by an employer because the section uses
the word “ordinarily”. It is, therefore, permissible for
the employer to deviate from the rule in cases of lack of
efficiency or loss of confidence, etc., as held in Swadesamitran
Ltd. v. Workmen. But the burden will then be on the employer to
justify the deviation. No such attempt has been made in the
present case. Hence, it is clear that there is clear violation of
Section 6-P of the U.P. Act.
15.
The distinction between Sections 25-F and 25-G of the Act was
recently reiterated in Bhogpur Coop. Sugar Mills Ltd. v. Harmesh
Kumar (2006) 13 SCC 28, in the following words:
“We
are not oblivious of the distinction in regard to the legality of the
order of termination in a case where Section 25-F of the Act
applies on the one hand, and a situation where Section 25-G
thereof applies on the other. Whereas in a case where Section 25-F
of the Act applies the workman is bound to prove that he had been in
continuous service of 240 days during twelve months preceding the
order of termination; in a case where he invokes the provisions
of Sections 25-G and 25-H thereof he may not have to establish
the said fact. See: Central Bank of India v. S. Satyam, Samishtaa
Dube v. City Board, Etawah, SBI v. Rakesh Kumar Tewari and Jaipur
Development Authority v. Ram Sahai.”
(See
: Ramesh Kumar v. State of Haryana reported in 2010 (1) Scale 432;
Krishna Singh v. Executive Engineer, Haryana State Agriculture
Marketing Board, Rohtak (Haryana) reported in 2010 (2) Scale 848;
Director, Fisheries Terminal Division v. Bhikhubhai Meghjibhai
Chavda, reported in AIR 2010 SC 1236; Anoop Sharma v. Executive
Engineer, Public Health Division No.1, Panipat (Haryana), reported in
2010-II-CLR-1)
9. It
is necessary to note that service of workman was terminated in the
year 1992, even though Labour Court has not granted any amount of
back wages for a long period and only granted continuity of service
to workman. Therefore, according to my opinion, Labour Court has
passed balanced award where finding of fact has been decided which
cannot be disturbed by this Court while exercising the powers under
Article 227 of the Constitution of India. (See : State
of Haryana & Ors. v. Manoj Kumar reported in 2010 AIR SCW 1990,
Para.22 to 29.)
10. Therefore,
according to my opinion, Labour Court has not committed any error
which requires interference by this Court. Therefore, contentions
raised by learned AGP Ms.Mathur
cannot be accepted and hence, rejected. Therefore, there is no
substance in present petition. Accordingly, present petition is
dismissed.
(H.K.RATHOD,J.)
(vipul)
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