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2016 DIGILAW 1237 (GUJ)

Keshod Municipality v. Kapa Hanif Suleman

2016-07-04

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Buch, learned advocate for the petitioner Municipality and Ms. Joshi, learned advocate for the respondent. 2. In this petition, Keshod Municipality has brought under challenge award dated 6.8.2002 passed by the learned Labour Court at Junagadh whereby the learned Labour Court directed the petitioner to reinstate the respondent in service on his original post with 50% backwages. 3. So far as factual background is concerned, it has emerged from the record and from the submissions by learned advocates for the petitioner and the respondent that the respondent herein had raised an industrial dispute with allegation that his service was illegally terminated by the Municipality. Appropriate Government referred the dispute for adjudication to the learned Labour Court at Junagadh. The dispute was registered as Reference (LCJ) No. 234 of 1997. 4. Before the learned Labour Court the claimant filed statement of claim with allegation that he was working with the Municipality w.e.f. February 1996 as Wireman and was paid salary at the rate of Rs. 52/- per day. He also alleged that the Municipality terminated his service w.e.f. 5.7.1997 without following prescribed procedure by law. On such allegation, the claimant demanded reinstatement in service with consequential benefits. 5. The Municipality opposed the reference by filing written statement. In its written statement, the Municipality denied the allegation by the claimant. The Municipality denied that the claimant's service was terminated illegally and/or that after the claimant's service was terminated, it had engaged any other person. The Municipality also denied the allegation that while terminating the service of the claimant, it had not followed the principle of seniority, it was claimed that the claimant was engaged intermittently and on ad hoc basis, i.e. as and when need arose. It was also claimed that the claimant was paid Rs. 52/- per day whenever he was engaged and the claimant was neither regular nor permanent employee and he was not appointed in accordance with the selection and recruitment rules. After the stage of pleading was concluded, the parties to the reference led evidence, documentary as well as orally. After the stage of evidence was concluded, the learned Labour Court heard the submissions by the contesting parties. After the stage of pleading was concluded, the parties to the reference led evidence, documentary as well as orally. After the stage of evidence was concluded, the learned Labour Court heard the submissions by the contesting parties. Then, after considering the material on record and rival submissions, the learned Labour Court reached to the conclusion that the claimant's service came to be terminated in violation of section25F of the Industrial Disputes Act, 1947. Having reached such conclusion the learned Labour Court passed the impugned award with the aforesaid directions. 6. Mr. Buch, learned advocate for the petitioner Municipality submitted that even if it is assumed that the learned Labour Court's conclusions that the claimant's service was terminated in violation of section 25F is correct and justified, then also the direction to reinstate the claimant and/or to pay 50% backwages to the claimant, are, by any standard a yardstick, not justified. He submitted that even if the allegations by the claimant are assumed to be true, then also the claimant had hardly worked for one year with the Municipality and that, therefore, the direction to reinstate the workman with 50% backwages is unjustified and deserves to be set aside. 7. Ms. Joshi, learned advocate for the respondent opposed the submissions by the petitioner and submitted that undisputedly, the petitioner had not complied the procedure prescribed by law at the time when the claimant's service was terminated. She submitted that even the learned Labour Court reached to the conclusion that the claimant's service was terminated in violation of section 25F and the petitioner has not shown any material to establish that the said conclusion by the learned Labour Court is incorrect and unjustified and that, therefore, the direction by the learned Labour Court does not warrant interference. 8. I have heard learned advocates for the petitioner and the respondent and have also considered material on record as well as the award impugned in present petition. 9. Before proceeding further, it is relevant and necessary to mention at the outset that according to the submission by Mr. Buch, learned advocate for the petitioner, which is also confirmed by Ms. Joshi, learned advocate for the respondent, the claimant was reinstated in service after the learned Labour Court passed the award. 9. Before proceeding further, it is relevant and necessary to mention at the outset that according to the submission by Mr. Buch, learned advocate for the petitioner, which is also confirmed by Ms. Joshi, learned advocate for the respondent, the claimant was reinstated in service after the learned Labour Court passed the award. As mentioned above, learned advocate for the respondent was also confirmed that the respondent has reinstated after the learned Labour Court passed the award, however, after the respondent was reinstated by the petitioner Municipality, his service was again terminated and at that stage the claimant raised another - fresh industrial dispute against the subsequent termination. 10. On this count, it is relevant to take into account the below mentioned dates and events: Dates Events 06/08/02 The learned Labour court passed award in Reference (LJC) No. 234 of 1997. 12/12/09 The petitioner Municipality reinstated the claimant – respondent, after the award dated 6.8.2002. 29/09/12 Subsequently, the service of the claimant came to be retrenched by the petitioner Municipality. 11. It is not in dispute that after the petitioner Municipality retrenched the claimant herein w.e.f. 29.9.2012, the claimant has already raised fresh industrial dispute which is registered as Reference (LCJ) No. 12 of 2013 and the said dispute/reference is presently pending before the learned Labour Court at Junagadh. 12. It has also emerged from the record that somewhere in 2009 the claimant herein also filed recovery application under section 33C(2) of the Act against the petitioner Municipality. The said recovery application is registered as Recovery Application No. 14 of 2009 and is pending before the learned trial Court. 13. From the submissions by learned advocates for the petitioner and the respondent, it appears that the petitioner Municipality had failed to contest the reference after filing its written statement. 14. At the stage of evidence, the Municipality did not examine any witness and any documentary was also not led on behalf of the Municipality. 14.1 It appears that even at the stage of hearing of the reference (after the stage of evidence), nobody attended the hearing of the reference and any submission/argument on behalf of the petitioner Municipality was not made before the learned Labour Court and the award came to be passed by the learned Labour Court on the basis of the submissions made by learned advocate for the claimant. 14.2 In this background, the petitioner Municipality has claimed that it was not aware and it had no knowledge that the final award in Reference No. 234 of 1997 was passed in August 2002. 15. The Municipality has further claimed that when the claimant filed recovery application in 2009 (i.e. Recovery Application No. 14 of 2009) and the learned Labour Court issued notice in respect of the said recovery application, the petitioner came to know about the award and thereafter it submitted an application for certified copy of the award. According to the Municipality, it was only in 2009 that for the first time it got the information and knowledge about the award dated 6.8.2002 and therefore, the Municipality filed present petition in 2009. 16. In this petition, the petitioner has prayed, inter alia, that: "7(B) Your Lordship may be pleased to issue a writ of mandamus or certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned Order and Award dated 06.08.2002 passed by the Presiding Officer, Labour Court, Junagadh, in Reference (LCJ) No. 234 1997 (Annexure-A), in the interest of justice; (C) Pending admission, hearing and final disposal of this petition, Your Lordship be pleased to stay the operation, implementation and execution of impugned Award dated 06.08.2002 passed in Reference (LCJ) No. 234 of 1997 and further be pleased to stay the further proceedings of Recovery Application No. 14 of 2009 filed by the Respondent before the Labour Court, Junagadh, in the interest of justice;" 17. It is noticed from the relief prayed for by the Municipality that the proceedings of recovery application are also challenged in present petition. 18. In this view of the matter and more particularly in light of the fact that the claimant was reinstated in 2009 and thereafter he came to be retrenched in 2012 and thereafter the claimant has raised fresh industrial dispute which is pending by way of Reference No. 12 of 2013, the petitioner's grievance with regard to the respondent's demand for reinstatement does not survive. 19. 19. So far as the question of wages for the period after the award is concerned, the said dispute or claim cannot be made part of present petition which is filed by Municipality and if some wages for post-award period are not paid, then the respondent will have to take out appropriate proceeding in accordance with the law to claim the wages from August 2002 (date of the award) to December 2009 (date when the respondent was reinstated), in appropriate proceedings before the appropriate Court in accordance with the law and the scope of present petition is restricted to the claim for wages for the period from the date of termination (i.e. July 2007) to the date of award (i.e. August 2002). 20. So far as the said issue is concerned, it is necessary to keep in focus that before the service of the respondent was terminated, he had worked only for about 14-15 months. 20.1 The learned Labour Court has recorded finding of fact that at the time when the claimant's service was terminated, the procedure prescribed by section 25F was not followed. 20.2 At the time of hearing of this petition, the petitioner has failed to show any evidence from the material on record to establish that the said conclusion by the learned Labour Court is incorrect or unjustified. 20.3 In that view of the matter, the said conclusion by the learned Labour Court cannot be faulted. 21. The learned Labour Court has directed the petitioner (whose service was terminated in July 1997) to reinstate the claimant with 50% backwages. 21.1 So far as the direction to reinstate the respondent is concerned, the said dispute or issue does not survive inasmuch as the respondent was reinstated in 2009. The event subsequent to the reinstatement in 2009 is subject matter of different proceeding/different (subsequent) reference which the respondent has already filed and this petition is not concerned with the period after the award and more particularly with the event which occurred in 2009. 22. Now, so far as the direction to pay 50% backwages is concerned, as mentioned earlier, the said direction has to be examined in light of the fact that before his termination from service the respondent had worked only for about 14-15 months. 22.1 It also appears from the record that the claimant was appointed without following prescribed procedure for selection and recruitment rules. 22.1 It also appears from the record that the claimant was appointed without following prescribed procedure for selection and recruitment rules. Besides this, the claimant's name was not sponsored by the Employment Exchange. Thus, from initial stage the respondent's appointment was illegal. 22.2 Further, though the claimant has claimed that he was working as Wireman, however, there is nothing on record to show that the claimant possessed qualification prescribed for Wireman post under the selection recruitment rules. 22.3 When all these aspects are taken into account to decide the justifiability and propriety of the direction to pay 50%, then it becomes clear that the direction is not justified and deserves to be modified. 23. Having regard to above mentioned aspects coupled with the learned Labour Court's conclusion that the termination effected in 1997 was in violation of section 25 of the Act and the reference proceedings continued for almost 5 years and having regard to the fact that at the relevant time the claimant's salary was Rs. 52/- per day, it appears that the direction to pay Rs. 25,000/- towards backwages from the period from the date of termination till August 2002 would serve interest of justice. Therefore, following order is passed. 24. The order directing the petitioner Municipality to pay 50% backwages is set aside and modified and instead, the Municipality is directed to pay Rs. 25,000/- as compensation in lieu of backwages for the period from the date of the termination to August 2002. The petitioner Municipality shall pay the said amount to the respondent as expeditiously as possible and preferably within eight weeks after the receipt of the certified copy of this judgment. 24.1 So far as the order directing the reinstatement is concerned in view of the foregoing discussion and in light of the facts related to the subsequent termination (against which fresh/another and subsequent reference/dispute is already raised/referred), any order with regard to the said direction is not required to be passed in present petition. With the aforesaid clarifications and directions, the petition is partly allowed. The award is partly modified. Rule is made absolute to the aforesaid extent. Ad-interim relief, if any, stands vacated.