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2009 DIGILAW 401 (GUJ)

State of Gujarat v. Presiding Officer

2009-06-18

K.M.THAKER

body2009
Judgment K.M. Thaker, J.—Heard Mr. D.C. Sejpal, learned AGP for the petitioner, Mr. S.B. Bundela, learned Advocate for Mr. Harin Raval, learned Advocate for the Respondent No. 2 and Mr. Asim Pandya, learned Advocate for the Respondent No. 3. 2. The above-captioned petition has been admitted for final hearing. By present petition the petitioner has challenged an award dated 5.2.1999 passed by the Labour Court, Ahmedabad in Reference (LCA) No. 5/95. By the impugned award the Labour Court has directed the petitioner to, jointly and severally, pay backwages to the respondent at the rate of 50% from 1.7.1987 to 30.11.1995 and at the rate of 20% from 1.12.1995 until the date of award. The Labour Court has also directed the petitioner of SCA No. 3668/99 i.e. Respondent No. 2 herein to reinstate the respondent on his original post. 3. The State Government, through the Secretary, Social Welfare Department, Gandhinagar is the petitioner in SCA No. 9750 of 2000 whereas a trust named “Gujarat Kelavni Trust” who is said to have been engaged in running various institutions imparting education, is the petitioner in SCA No. 3688/99 (and Respondent No. 2). 4. So far as this Writ Petition being SCA No. 9750 of 2000 filed by the State Government is concerned, the facts are in narrow compass. It emerges from the record that the Respondent No. 2 trust i.e. the petitioner of SCA No. 3668/99 approached the State Government with request for approval and permission to start “Child Advisory Centre” and also requested for sanctioning grant. In pursuance of such request, the State Government, through the Director, Social Welfare Department, vide order dated 28/29th March, 1985, granted the “approval and permission” to start “Child Advisory Centre” with effect from 1.4.1985 and also prescribed certain conditions subject to which the “approval and permission” was granted. Thereafter the Respondent No. 2 also requested for sanction to employ an organiser to conduct and carry on the activities of the said centre. By an order dated 13.3.1986 the Director, Social Welfare Department granted such sanction allowing the Respondent No. 2 trust to employ one Mr. Prashant P. Shah (i.e. the workmen concerned in the petition) for the specified period i.e. from 1.11.1985 to 31.3.1986. By an order dated 13.3.1986 the Director, Social Welfare Department granted such sanction allowing the Respondent No. 2 trust to employ one Mr. Prashant P. Shah (i.e. the workmen concerned in the petition) for the specified period i.e. from 1.11.1985 to 31.3.1986. It is claimed by the petitioner that prior to seeking such sanction, the Respondent No. 2 trust had issued an advertisement inviting application for such appointment and in response to such advertisement said Mr. Prashant P. Shah applied for the post. The said Respondent No. 2 trust had called the concerned workman for interview and after interview he was selected and thereafter the trust had made request for sanction of his appointment. The Respondent No. 2 trust has claimed that subsequent to such sanction, the concerned workman was appointed. The Respondent No. 2 trust has also claimed that as the initial sanction of appointment was to come to an end on 31.3.1986 request for sanction to continue said Mr. Prashant Shah for further period was made, and in response to such request, the Director, Social Welfare Department had granted further sanction, as a result of which, the concerned workman was continued from 1.4.1986 to 31.3.1987. It transpires that after 31.3.1987 the Respondent No. 2 trust, for reasons best known to it, did not apply for further approval/sanction to continue the employment of the concerned workman and for unexplained reasons the trust also decided to close down the said activity namely viz., Child Advisory Centre. It is the claim of the Respondent No. 2 trust that the activity was discontinued with effect from 31.3.1987 and the centre was closed down from 1.4.1987. However, the concerned workman claims that while it is true that the activity was discontinued, he was, nonetheless, continued by the Respondent No. 2 trust and he was asked to work at the office of the Respondent No. 2 trust situate at Paldi, Ahmedabad where he worked from 1.4.1987 to 30.6.1987. According to the claim of the concerned workman, his service was terminated with effect from 1.7.1987. The said rival contentions are matter of dispute between Respondent No. 2 trust and the concerned workman, and the petitioner of present petition is not directly concerned with the said dispute. Therefore the said aspect of the matter is not examined on merits. According to the claim of the concerned workman, his service was terminated with effect from 1.7.1987. The said rival contentions are matter of dispute between Respondent No. 2 trust and the concerned workman, and the petitioner of present petition is not directly concerned with the said dispute. Therefore the said aspect of the matter is not examined on merits. So far as the petitioner in this petition is concerned, the fact remains that the Respondent No. 2 trust did not ask for any sanction-approval to continue the employment of the concerned workman as organiser for the said centre and the Respondent No. 2 also discontinued the said activity with effect from 1.4.1987. The petitioner, taking note of the said fact-situation, issued an intimation dated 29.10.1987 to the Secretary of the Respondent No. 2 – trust, that since the Respondent No. 2-trust had unilaterally discontinued the activity of “Child Advisory Centre” and had closed down the said centre, the approval permission granted for the said centre stood cancelled, and therefore, the entire dead stock which might have been purchased from the grant should be handed over to the competent officer. The said communication made it clear to the Respondent No. 2 trust that in view of the trust’s unilateral action of not seeking extention and continuation of service of the concerned workman and of discontinuing the activity and closing down the centre, the sanction was cancelled/withdrawn. 5. In view of the action of the Respondent No. 2 trust of discontinuing the activity and closing down the centre and the subsequent action of terminating the service of the concerned workman i.e. present Respondent No. 3, an industrial dispute was raised by the Respondent No. 3 making grievance against his termination. It deserves to be mentioned at this stage that the Respondent No. 3 workman raised the dispute after a long gap of almost 8 years since the date of his alleged termination. The dispute raised by the Respondent No. 3 workman was referred for adjudication to the Labour Court, Ahmedabad, and it culminated into Reference (LCA) No. 5/95. 6. It deserves to be mentioned at this stage that the Respondent No. 3 workman raised the dispute after a long gap of almost 8 years since the date of his alleged termination. The dispute raised by the Respondent No. 3 workman was referred for adjudication to the Labour Court, Ahmedabad, and it culminated into Reference (LCA) No. 5/95. 6. At this stage it is pertinent to note that present petitioner i.e. Director, Social Welfare Department was not impleaded as party to the proceedings of said reference and yet the Respondent No. 2 now wants to advance a contention that if at all the obligation cast by virtue of the impugned award is to be confirmed and has to be discharged wholly or partially, then the monetary obligation would be of the State Government. The petitioner has also claimed, and it is not disputed, that said trust also did not take any action during the proceedings to get the order of reference modified and to implead the State Government as a party to the proceedings. Thus, the impugned award came to be passed without hearing the State Government. By the impugned award the Labour Court has, issued direction by which the present petitioner is, jointly and severally, saddled with the liability of discharging the obligation of payment of backwages. Aggrieved by the said direction, the petitioner, State Government, is before this Court. 7. Mr. D.C. Sejpal, learned AGP has appeared for the petitioner and submitted that the petitioner – State Government was never made party to the proceedings and was never afforded any opportunity of hearing and defence and that the Labour Court has, without there being any contention or justification and much less any material on record, passed the impugned direction against the State Government which requires the petitioner State Government to discharge an obligation for which the petitioner State Government is not at all responsible and/or for which it cannot be made liable. Mr. Sejpal, learned AGP further submitted that it was not on account of any direction of the State Government that Respondent No. 2 closed down the activity of the said centre and/or terminated the services of the concerned workman. Mr. Sejpal, learned AGP submitted that it was an unilateral decision and action of the Respondent No. 2 trust for which the petitioner State Government cannot be made liable in any manner whatsoever. Mr. Sejpal, learned AGP submitted that it was an unilateral decision and action of the Respondent No. 2 trust for which the petitioner State Government cannot be made liable in any manner whatsoever. He also submitted that even otherwise any procedure as prescribed by the grant-in-aid code for closing down the establishment and/or terminating the service of an employee was not followed by the Respondent No. 2 – trust. In his submission, under such circumstances no liability can be fastened upon the State Government. 8. Mr. S.B. Bundela, learned Advocate for Mr. Harin Raval, learned Advocate for the Respondent No. 2-trust could advance only one contention to support to the direction impugned by the petitioner-State Government. He submitted that the petitioner had started the activity after obtaining necessary permission from the State Government and the Respondent No. 2 – trust had been subjected to the regulations under grant-in-aid code because the said activity of the Respondent No. 2 trust was considered eligible for grant-in-aid and that the sanction for period subsequent to 31.3.1987 was not granted and that therefore the obligation or responsibility to make the payment of backwages would be that of the State Government alone. So far as the direction regarding reinstatement is concerned, he submitted that the centre has been closed down and it is not possible to reinstate the respondent and it is not possible to comply with the said direction. In view of the scope of the petition it is not necessary to enter into and examine, at this stage, the issue regarding direction for reinstatement of the workman i.e. respondent. Except the said contention, Mr. Bundela, learned Advocate for the Respondent No. 2-trust did not advance any other submission or contention to support the direction of the Labour Court against the petitioner – State Government. 9. Obviously, the petitioner-State Government is not concerned with the merits or demerits of the findings recorded by the Labour Court in the impugned award and/or even about the justiciability of the direction so far as it concerns the Respondent No. 2 – trust. The only limited concern and objection or grievance of the petitioner – State Government against the direction requiring the State Government to discharge, jointly and severally, the obligation of payment of backwages. 10. The only limited concern and objection or grievance of the petitioner – State Government against the direction requiring the State Government to discharge, jointly and severally, the obligation of payment of backwages. 10. It clearly emerges from the record that it was the Respondent No. 2-trust who unilaterally decided to discontinue the activity and closed down the centre. It also comes out from the record that it is the Respondent No. 2-trust who did not make any application seeking extension and/or sanction-approval to continue the employment of the concerned workman and/or to continue the activity either through the concerned workman or with the help of any other employee. Thus, it is the Respondent No. 2-trust who, on its own and of its own volition, brought about the situation which resulted into closure of the centre and the activity as well as termination of service of the concerned workman. In the facts and circumstances and the material available on record and in light of the situation emerging from the record, it would be wholly unreasonable and unjustified to hold the State Government liable for such decision and action of the Respondent No. 2-trust. Merely because the State Government had agreed to extend the benefit of grant-in-aid to the said activity of the Respondent No. 2-trust, it would not follow that for all and every action of the Respondent No. 2-trust, though they may be illegal or contrary to the terms of grant-in-aid or contrary to the terms of sanction or any violation of the procedure, the State Government would be responsible and the liability of payment of backwages to the Respondent No. 3 - workman cannot be fastened upon the State Government. There was no material before the Labour Court, much less any justification or cause to rope in the State Government in the dispute between the trust and its employee, and to fasten any obligation on it and that too in absence of and without hearing the petitioner-State Government. 11. The concerned workman had never made any grievance or demand against the State Government and he did not even implead the State Government as a necessary and/or relevant party to the proceedings. During the proceedings before the Labour Court, he also did not make any claim against the petitioner-State Government. 11. The concerned workman had never made any grievance or demand against the State Government and he did not even implead the State Government as a necessary and/or relevant party to the proceedings. During the proceedings before the Labour Court, he also did not make any claim against the petitioner-State Government. Further, even the Respondent No. 2-trust also does not appear to have advanced any contention to the effect that if at all any direction for backwages were to be granted then the said liability would be that of the State Government. Had it been the case of the Respondent No. 2-trust to such effect then such a contention, for whatever worth it was, at least should have been raised before the Labour Court and necessary steps to implead the petitioner-State government as a party to the proceedings should have been taken by the Respondent No. 2-trust. 12. In absence of any such action by the Respondent No. 2-trust, it becomes clear that the submissions made before this Court and in support of the direction by the Court is only an after-thought and the Respondent No. 2 trust merely wants to take advantage of the direction passed by the Labour Court. 13. The impugned direction is without jurisdiction and could not have been passed by the Labour Court in the facts of the case. 14. Thus, the said direction deserves to be set aside and is hereby set aside. Accordingly, the petition is allowed. The impugned award dated 5.2.1999 passed by the Labour Court, Ahmedabad in Reference (LCA) No. 5/95 and the direction requiring the petitioner-State Government/Director of Social Welfare Department to make the payment of backwages to the respondent-workman at the rate of 50% from 1.7.1987 to 30.11.1995 and at the rate of 20% from 1.12.1995 to the date of award qua the State Government is set aside. Rule is made absolute to the aforesaid extent. No order as to costs. P P P P P