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Gujarat High Court · body

2015 DIGILAW 473 (GUJ)

Maneklal Jethalal Library v. Robert Mavjibai Rana

2015-04-23

N.V.ANJARIA

body2015
Judgment N.V. Anjaria, J. 1. Both the captioned petitions are cognate. They are the cross petitions arising from judgment and order dated 1.8.2014 passed by Labour Court No. 5, Ahmedabad, in Reference (LCA) No. 1460 of 1998. Thereby, the Labour Court partially allowed the reference of the workman and directed the employer to reinstate him on his original post on the same terms and conditions of service, with continuity and 20% back wages; cost of Rs. 1000/- was directed to be paid to the workman. Special Civil Application No. 698 of 2015 is filed by the first party employer, seeking to challenge the aforesaid judgment and award. The second petition is by the workman, wherein he has prayed for grant of 100% back wages, feeling aggrieved that the Labour Court awarded 2 0% back wages only. Being cognate and cross petitions, the facts were common, therefore, both the petitions were placed and heard together and being considered by this common judgment. Learned Advocate Mr. H.S. Munshaw for the petitioner-employer, since had been appearing in Special Civil Application No. 698 of 2015, he was asked to appear and make submissions on behalf of the respondent-employer also in the petition filed by the workman. Accordingly, he appeared in the other petition also. The workman-petitioner of Special Civil Application No. 1554 of 2015 was employed as Farash-cum-Peon with effect from 1.1.1997 under first party No. 2 Granthalay (Library) run by first party respondent No. 1. In the Statement of Claim at Exh. 3 filed before the Labour Court, the workman stated that there were other employees about 200 in numbers were also engaged. The workman was aggrieved because of termination of service effected by the first party employer by oral order dated 13.1.1998. Invoking the jurisdiction of the Labour Court, he contended that the action of terminating the services was unjust, illegal and in violation of the Industrial Disputes Act, 1947, and it amounted to unfair labour practice. The documents showed that the appointment of the workman was pursuant to a public advertisement in the newspaper. The workman had made application dated 23.10.1995 for being appointed on the post of Farash. He was thereupon asked in writing to remain present for the interview which was held on 1.6.1996. Those documents were produced on record with list of documents at Exh. 10. The letter of appointment dated (Exh. The workman had made application dated 23.10.1995 for being appointed on the post of Farash. He was thereupon asked in writing to remain present for the interview which was held on 1.6.1996. Those documents were produced on record with list of documents at Exh. 10. The letter of appointment dated (Exh. 51) showed that the workman was appointed as Farash-cum-Peon in the scale of Rs. 750-940. The Labour Court recorded the above undisputed facts emerging from the record and further recorded that the first party-employer produced register of presence for the period from January 1997 to January 1998 and that from the said documentary material, the presence of the petitioner was indicative. As regards completion of 240 days continuous service by the workman, the Labour Court considered the register of presence (Exh. 53 to Exh. 64) and concluded that the presence during the year was not 240 days, however at the same breath, after looking into the details of other employees-five of which were specifically mentioned by name, the Labour Court noted that none of them had completed 240 days for the reason that the library was not working for 240 days in any year. It was further observed that other employees who were recruited along with the workman as per Exh. 51, were made permanent. The Labour Court proceeded to observe further that the certain documents and details about rendering of service by the workman were in the custody of the employer, which were not produced by the employer, therefore, adverse inference was liable to be drawn. The Labour Court on the basis of total evidence as above, came to a conclusion that the termination of services of the workman was without following requisite procedure required in law and was in breach of section 25-F and section 25-H of the Industrial Disputes Act. As regards back wages is concerned, the Labour Court inter alia observed that there were no clear evidence as regards as to whether the workman had earned during the intervening period. The Labour Court, in the facts and circumstances of the case, awarded 20% back wages. 2. Learned advocate Mr. As regards back wages is concerned, the Labour Court inter alia observed that there were no clear evidence as regards as to whether the workman had earned during the intervening period. The Labour Court, in the facts and circumstances of the case, awarded 20% back wages. 2. Learned advocate Mr. H.S. Munshaw for the employer assailed the impugned judgment and award and raised following submissions including relying on the grounds mentioned in the petition: (i) the appointment of respondent-workman was temporary and on daily rate basis, which created no right in his favour to continue him in service; (ii) he did not work for 240 days and did not complete the continuous service required in law, therefore, there was no breach of section 25-F of the Industrial Disputes Act, 1947; (iii) the Labour Court committed an error in reaching a finding about breach of section 25-F even as it noticed that completion of 240 days services was not shown; (iv) the Labour Court did not appreciate that the exact number of working days were not established as the entire muster roll was not produced; (v) as far as the cases with regard to Rakhaben Achayra, Anitaben Padamshali, Vaghjibhai Thakarad and Minaben Vrajlal Brahmbhatt are concerned, the same were regularized after following due procedure; (vi) the cases of the other workmen Bhavin Brahmbhatt, Ms. Rekhaben Acharya, Mr. Bharatbhai C. Patel, Minaben Vrajlal Brahmbhatt and Anitaben Padamshali were not comparable as they were qualified librarian and were appointed by Board of Management as Attendant Librarian [Class III] through resolution on probation and thereafter, were taken up on regular basis. He submitted that the cases of the Vaghjibhai Thakarad and Shyamlal Meena were on different footing. He further submitted that the grant of 20% back wages by the Labour Court was unjustified and if allowed to be sustained, it would entail monetary burden of Rs. 2,42,000/- and more on the employer. On the other hand, learned Advocate Mr. P.C. Chaudhary for the workman submitted that the action on part of the first party employer in terminating the services of the workman was manifestly illegal and arbitrary. It was submitted that a public advertisement was issued in the newspaper for recruitment and pursuant to the said process, the workman was selected and appointed. He was appointed in the quota of handicapped persons as mentioned in the advertisement itself. It was submitted that a public advertisement was issued in the newspaper for recruitment and pursuant to the said process, the workman was selected and appointed. He was appointed in the quota of handicapped persons as mentioned in the advertisement itself. As regards of rendering of service for 240 days in a year was concerned, learned Advocate for the workman submitted that the library in which the workman was posted for duty, used not to work for 240 days in whole year and none of the employees had completed 240 days, as they were not required to work for such number of days and the other days were holidays. He submitted that the services of the workman was continuous in the facts and circumstances of the case and the finding recorded by the Labour Court in that regard was proper and unassailable. 3. Having considered the facts of the case, material on record and the submissions made by learned Advocates for the parties, it could not be gainsaid that the appointment of the respondent-workman as Farash-cum-Peon under the first party employer was pursuant to an application made by him in response to a public advertisement dated 21.10.1995 which is placed on record by the workman alongwith his affidavit-in-reply dated 31.1.2015 filed in Special Civil Application of the employer. The advertisement clearly mentioned one post of Farash in the grade of Rs.750-940 and the category mentioned as Schedule Tribe or Physically challenged Person. The workman was physically challenged person and he had applied pursuant to the said advertisement on 23.10.1995 in that category. He received interview call letter on 1.6.1996. The workman appeared in the interview with certificates and ultimately was given appointment. The application made by the workman in response to the aforesaid advertisement and the interview call letter, are on record. The application clearly reflects that the workman satisfied the category of Handicapped/Physically Challenged Person. He belonged to socially and economically backward class. The petitioner-employer passed resolution listing the names of the persons selected to be appointed on the different posts. As far as post of Farash-cum-Peon was concerned, the petitioner, as well as two other persons namely Shyam Ratnaji Meena and Vaghjibhai Thakarad were mentioned. These facts are on record and not in dispute. On the record of Special Civil Application filed by the workman, he has produced the copies of relevant evidence. The workman examined himself (Exh. As far as post of Farash-cum-Peon was concerned, the petitioner, as well as two other persons namely Shyam Ratnaji Meena and Vaghjibhai Thakarad were mentioned. These facts are on record and not in dispute. On the record of Special Civil Application filed by the workman, he has produced the copies of relevant evidence. The workman examined himself (Exh. 12), describing the process pursuant to which he came to be appointed on the post of Farash in the category of Physically Challenged Class of Persons. He referred to in his deposition about news items stating about irregularities and favoritism practice by the first party employer in various appointments, wanting to show thereby that termination of services was actuated by such considerations. The oral evidence (Exh. 47) of an employee working as an Assistant Librarian suggested, when the said witness mentioned several persons with names who were the relatives of office bearers and who came to be appointed to the various posts. Thus, it clearly emerged from the evidence on record that the appointment of the respondent-workman was after following the process of issuing advertisement, calling the eligible candidates for interview, and appointing them upon selection. The workman had applied in the category of Physically Challenged Persons which was mentioned in the advertisement in respect of post in question. In the resolution passed by the first party employer thereafter on 25.6.1996, short-listed five persons for the post of Library Attendants in the grade of Rs. 1150-1500, one Typist in the grade of Rs. 750-940, one lady as Water Serving Peon in the grade of Rs. 750-940. In the various resolutions, of Rs. 750- 940. In the three persons being Shyam Ratnaji Meena, Robert Mavjibhai Rana-the petitioner and Vaghjibhai K. Thakarad were selected for the post of Farash-cum-Peon in the grade of Rs. 750-940. All the above categories were mentioned in the advertisement issued and the persons short-listed were selectees in the respective categories. 4. It further emerges that the said two persons Shyam Meena and Vaghjibhai Thakarad were taken with the petitioner, came to be later regularized in service. The witness of first party employer (Exh. 47) admitted about the said two persons having been made regular employees. This aspect is material and rightly weighed with the Labour Court in holding that the mandatory requirements of the provisions of the Industrial Disputes Act, were breached. The witness of first party employer (Exh. 47) admitted about the said two persons having been made regular employees. This aspect is material and rightly weighed with the Labour Court in holding that the mandatory requirements of the provisions of the Industrial Disputes Act, were breached. The services of the workman however came to be done away with. As already noted, the department in which the workman was employed, was a Library which used to remain open for less number of days in any year, therefore no employee employed there could show completion of 240 days. The registers of presence produced (Exh. 53 to Exh. 64) showed uniform presence of all employees. The Labour Court did not commit any error in view of the above facts that the termination of services of the workman was in breach of section 25-F. The finding recorded by the Labour Court that section 25-H was also violated, could also be expected in light of the facts and evidence highlighted above. It was not that the workman was taken in service by way of backdoor entry and his appointment was illegal on that count. The workman was appointed after selection process he underwent; while he was arbitrarily treated by driving him out of service, those engaged alongwith him in the very process of selection were made regular employees. The contention of other side that the said two persons were not comparable cases would not be countenanced, on the contrary, vis-à-vis them, the unequal treatment to the workman and dispensation of his services illegally and without compliance of mandatory provisions of the Industrial Disputes Act, was evident. 5. The Labour Court has granted 20% back wages. The Labour Court referred to the evidence of the workman (Exh. 12) and the said aspect and viewed that it was not possible to believe that the workman would not have sat idle for all these years. The Labour Court considered appropriate to award 20% back wages. The reasoning and approach of the Labour Court towards grant of back wages could not be said to be looking any error. 12) and the said aspect and viewed that it was not possible to believe that the workman would not have sat idle for all these years. The Labour Court considered appropriate to award 20% back wages. The reasoning and approach of the Labour Court towards grant of back wages could not be said to be looking any error. Considering the reasons supplied by the Labour Court, further considering that the termination has in the year 1998 and the time-gap intervened and balancing the principle of no-work-no-pay vis-à-vis the relief which the workman could legitimately claim upon his termination of services being held illegal, the Labour Court was justified in exercising discretion for granting back wages to the extent of 20%. No intervention is warranted in the said part of the judgment and award as well. For the foregoing discussion and reasons, the judgment and award dated 1.8.2014 passed by Labour Court No. 5, Ahmedabad, in Reference (LCA) No. 14 60 of 1998 requires no interference and deserves to be upheld as it stands. As a result, both these Special Civil Application No. 698 of 2015, as well as Special Civil Application No. 1554 of 2015 are hereby dismissed. Petition Dismissed.