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2010 DIGILAW 76 (GUJ)

Veer Narmad South Gujarat University v. Satishkumar Ramjibhai Patel

2010-02-15

D.H.WAGHELA

body2010
JUDGMENT : D.H. Waghela, J. 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 judgments, analysed 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 Legislation 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 regularisation of their irregular appointments. He relied upon the judgments of this Court which were cited before the Tribunal and which are distinguished in the impugned judgment. 3. He relied upon the judgments of this Court which were cited before the Tribunal and which are distinguished in the impugned judgment. 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. 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 v. 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 legislation's 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 legislation's. The attractive mantras of globalisation and liberalisation are fast becoming the raise on decree 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 contrary 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 regularisation in service. The judgment of this Court in Halvad Nagarpalika and anr. v. Jani Dipakbhai Chandravadan bhai and ors. [ 2003 (4) GLR 3229 ] has rightly been distinguished by the Tribunal on facts, insofar as the issues of regularisation 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 judgment, 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. Petition summarily dismissed.