Gujarat High Court Case Information System
Print
SCA/1054/2010 1/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1054 of 2010
With
SPECIAL
CIVIL APPLICATION No. 1055 of 2010
To
SPECIAL
CIVIL APPLICATION No. 1057 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? Yes
2
To
be referred to the Reporter or not ? Yes
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
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 ? No
5
Whether
it is to be circulated to the civil judge ? No
=========================================
VEER
NARMAD SOUTH GUJARAT UNIVERSITY - Petitioner(s)
Versus
SATISHKUMAR
RAMJIBHAI PATEL & 1 - Respondent(s)
=========================================
Appearance
:
MR
HARSHADRAY A DAVE for
Petitioner(s) : 1,
None for Respondent(s) : 1,
MS MOXA THAKKAR,
AGP for Respondent(s) : 2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 15/02/2010
COMMON
ORAL JUDGMENT
1. The
petitioner-University has sought to challenge the judgment and orders
of the Gujarat Universities Services Tribunal, whereby the
respondents-workmen are ordered to be reinstated with 75% back-wages
on their original posts on
daily wage and temporary basis but with continuity of service and all
consequential and incidental benefits. The Tribunal has, in each of
the elaborate impugned judgements, analyzed the facts and, after
appreciating the contentions of the petitioner arrived at findings of
fact to the effect that services of the respondent were terminated
without complying with the provisions of Section 25F of the
Industrial Disputes Act, 1947 and, even as their entry into service
appeared to be irregular, it was not found to be illegal and after
discharge/ discontinuation of the respondents, the University had
employed many other employees in place of the respondents. It was
also noticed that the respondents were not employed only for the
purpose of dealing with extra burden of office work during or around
the examinations, but they were continued in service beyond the
period of examinations. The plea of contract of employment of the
respondents being covered by the definition in Section 2 (oo)(bb) of
the I.D.Act was rejected in absence of any contract of employment
stipulating any limitations.
2. Pressing
the petitions for admission and injunction against the impugned
orders, learned counsel, Mr. H.A.Dave, appearing
for the petitioner, vehemently argued that the service conditions of
employees of the petitioner were governed by the South Gujarat
University Act, 1965 and adjudication of disputes between the
University and its employees was exclusively governed by the Gujarat
Universities Services Tribunal Act, 1983. He submitted that the
application of aforesaid two State Legislations receiving accent of
the President, excluded the application of provisions of Section 25F
or any other provisions of the Industrial Disputes Act. Therefore,
the impugned orders based upon violation of provisions of Section 25F
of the I.D.Act were required to be quashed, according to his
submission. It was further submitted that even if the provisions of
I.D.Act were assumed to be applicable in the facts of the present
cases, the respondents being irregularly appointed temporary
employees, they are not legally entitled to any relief resulting into
regularization of their irregular appointments. He relied upon the
judgements of this Court which were cited before the Tribunal and
which are distinguished in the impugned judgement.
3. There
is no dispute about the facts that the respondents had completed more
than one year of service and in the year preceding the termination of
service they had worked for more than 240 days. All of them were
discharged from service on 03.12.1999 and after their approaching the
labour court, the cases had to be conducted before the Tribunal upon
the petitioner raising the objection of jurisdiction of the labour
court.
4. On
the legal aspect of the matter, relevant express provisions of the
Gujarat Universities Services Tribunal Act, 1983 read as under:
7.
Jurisdiction of Tribunal.-
(1)
The Tribunal shall have jurisdiction to entertain and decide
disputes referred to in section 8, all suits and proceedings
transferred to it under sub-section(2) of section 13 and appeals
made under sub-section(3) of section 14.
(2)
Where any order of dismissal, removal or reduction in rank or
otherwise termination of service of a University employee is decided
by the Tribunal to be wrong, unlawful or otherwise unjustified, the
Tribunal may pass an order directing that the University employee
shall be reinstated in service or, as the case may be, restored to
the rank, which he held immediately before his dismissal, removal
reduction in rank or otherwise termination of service by the
University and the University shall forthwith comply with such
direction.
(3)
Notwithstanding anything contained in any other law for the time
being in force, where the Tribunal has jurisdiction to entertain and
decide a dispute as aforesaid, no other person, officer or authority
shall have jurisdiction to entertain and decide such dispute and any
such dispute pending before any person, officer, or authority on the
appointed day shall, as soon as may be, be transferred to the
Tribunal for its decision.
(8)
Dispute to be decided by Tribunal.-
Where
there is any dispute between the University and any University
employee, which is connected with the conditions of service of such
University employee, the University or, as the case may be the
University employee may make an application to the Tribunal for the
decision of the dispute.
It
is clear from the above provision that the Tribunal had exclusive
jurisdiction to decide the dispute arising from the conditions of
service or termination of service of the respondents. Even as the
Tribunal has not referred to the provisions of Section 25J of the
I.D.Act, it may be pertinent to note the express provisions in the
I.D.Act, which read as under:
25J.
Effect of Laws inconsistent with this Chapter.-
(1)
The provisions of this Chapter shall have effect notwithstanding
anything inconsistent therewith contained in any other law including
standing orders made under the Industrial Employment (Standing
Orders) Act, 1946:
Provided
that where under the provisions of any other Act or rules, orders or
notifications issued thereunder or under any standing orders or any
award, contract of service or otherwise, a workman is entitled to
benefits in respect of any matter which are more favourable to him
than those to which he would be entitled under this Act, the workman
shall continue to be entitled to the more favourable benefits in
respect of that matter, notwithstanding that he receives benefits in
respect of other matters under this Act.
(2)
For the removal of doubts, it is hereby declared that nothing
contained in this Chapter shall be deemed to affect the provisions of
any other law for the time being in force in any State in so far as
that law provides for the settlement of industrial disputes, but the
rights and liabilities of employers and workmen in so far as they
relate to lay-off and retrenchment shall be determined in accordance
with the provisions of this Chapter.
5. In
view of the finding of the fact of the Tribunal that the respondents
had completed 240 days of service in the year preceding their date of
termination, it could not be disputed that the provision of Section
25F of the I.D.Act related to retrenchment applied in the facts of
the present cases and the above provisions of Section 25J of the
I.D.Act with the clarification in sub-section (2) makes it absolutely
clear that despite the forum for settlement of dispute being not the
one provided under the I.D.Act, the rights and liabilities of the
parties continued to be governed by the provisions of Chapter-VA, as
far as they relate to lay off and retrenchment.
6. Therefore,
the contention that the provision of Section 25F of the I.D.Act could
not be applied in the facts of the present cases, is rejected. It is
also clear from the provisions of Section 7 of the Gujarat
Universities Services Tribunal Act that the Tribunal is conferred
with very wide jurisdiction and when it finds the termination of
service of university employee to be wrong, unlawful or otherwise
unjustified, it has the jurisdiction to direct the University to
reinstate in service the employee concerned. It is not only when the
Tribunal finds the termination to be illegal or in violation of any
particular provision of law but even in cases where the termination
of service is found to be wrong or otherwise unjustified, the
Tribunal is empowered to grant appropriate relief. Therefore, when in
the facts of the present case Tribunal found the termination of
services of the employees concerned to be unfair, insofar as other
employees were subsequently employed and continued in service, the
impugned order could not be faulted.
7. As
recently held by the Apex Court in Harjinder Singh Vs. Punjab
State Warehousing Corporation [2010 (1) SCALE 613], it is
settled law that, for attracting the applicability of Section 25-G of
the I.D.Act, the workman is not required to prove that he had worked
for a period of 240 days during twelve calender 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. It is
further observed that, while exercising jurisdiction under Articles
226 and/or 227 of the Constitution in such matters, the High Courts
are duty bound to keep in mind that the I.D.Act and other similar
legislative instruments are social welfare legislations and the same
are required to be interpreted keeping in view the goals set out in
the preamble of the Constitution and the provisions contained in Part
IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in
particular, which mandate that the State should secure a social order
for the promotion of welfare of the people, ensure equality between
men and women and equitable distribution of material resources of the
community to sub-serve the common good and also ensure that the
workers get their dues. It is further observed that there has been a
visible shift in the Courts approach in dealing with the cases
involving interpretation of social welfare legislations. The
attractive mantras of globalization and liberalization are fast
becoming the raison d’etre of the judicial process and an impression
has been created that the constitutional courts are no longer
sympathetic towards the plight of industrial and unorganized workers.
In large number of such cases, relief has been denied to the
employees falling in the category of workmen, who are illegally
retrenched from service by creating by-lanes and side-lanes in the
jurisprudence developed by the Court in three decades. The stock plea
raised by the public employer in such cases is that the initial
employment/engagement of the workman-employee was contarary to some
or the other statute or that reinstatement of the workman will put
unbearable burden on the financial health of the establishment. The
Courts have readily accepted such plea unmindful of the
accountability of the wrong doer and indirectly punished the tiny
beneficiary of the wrong ignoring the fact that he may have continued
in the employment for years together and that micro wages earned by
him may be the only source of his livelihood. It needs no emphasis
that if a man is deprived of his livelihood, he is deprived of all
his fundamental and constitutional rights and the freedoms enshrined
in the Constitution remain illusory.
8. The
Tribunal has taken adequate care to reduce the back-wages and ordered
reinstatement of the respondents on the same daily wages and
temporary basis so as not to confer any further right of permanency
or regularization in service. The judgement of this Court in Halvad
Nagarpalika and anr. Vs. Jani Dipakbhai Chandravadanbhai and ors.
[2003 (4) GLR 3229] has rightly been distinguished by the
Tribunal on facts, insofar as the issues of regularization or
direction to make the employees permanent do not arise in the present
cases. Since no jurisdictional error or any other error apparent on
the face of the record could be pointed out from the impugned
judgement, this Court would not be justified in interfering with the
orders in exercise of its extraordinary jurisdiction either under
Article 227 or Article 226 of the Constitution, so as to reverse the
impugned orders made in judicious exercise of the discretion
conferred upon the Tribunal. Accordingly, the petitions are summarily
dismissed.
Learned
counsel, Mr. H.A.Dave at last sought clarification to the effect that
the petitioner would be at liberty to terminate services of the
respondent in accordance with law after implementation of the
impugned orders. Such clarification is, however, not required as
there cannot be any injunction against termination of service in
accordance with law.
(D.H.Waghela,
J.)
Jyoti
Top