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Gujarat High Court · body

2016 DIGILAW 1384 (GUJ)

Chief Officer v. Brijesh Kantilal Somaiya

2016-07-19

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. In these petitions, the petitioner Nagarpalika has challenged the award dated 31.3.2011 passed by the learned Labour Court, Junagadh in Reference (LCJ) No. 75 of 2007 whereby the learned Labour Court directed the petitioner Nagarpalika to reinstate the respondent workman on his original post with continuity of service, however, without backwages. 2. So far as factual background is concerned, it has emerged from the record and submissions by learned advocates for the petitioner and the respondent that the respondent was initially appointed as helper in October 1993. Somewhere in November 1993, an administrator was appointed to manage the Nagarpalika. It appears that the administrator noticed that certain persons were appointed illegally and without following prescribed procedure for selection and recruitment and that therefore, he forwarded the said details and information to the Collector. The Collector vide his order dated 8.11.1993 stayed the appointments. Thereafter, the petitioner Nagarpalika terminated service of the respondent in or around 10.11.1993. Feeling aggrieved by the termination, the respondent raised an industrial dispute which was referred for adjudication to the learned Labour Court, Junagadh. The learned Labour Court adjudicated the dispute and partly allowed the reference cases by directing the petitioner to reinstate the respondent with 25% backwages. Feeling aggrieved by the said award, the petitioner Nagarpalika challenged the decision of the learned Labour Court before the High Court and claimed that the direction to reinstate the workman and/or direction to pay 25% backwages is unjustified. The workman also challenged the same award passed by the learned Labour Court and claimed the balance backwages on the ground that denial of full backwages is unjustified and the petitioner Nagarpalika should be directed to pay balance 75% backwages. The Court disposed of the said petitions/cross petitions, i.e. Special Civil Application Nos. 289 of 1996 to 313 of 1996 and Special Civil Application Nos. 1909 of 1996 and Special Civil Application Nos. 2641 of 1996 to 2634 of 1996, vide judgment and order dated 11.4.1997 whereby the Court rejected the Nagarpalika's objection against the direction to reinstate the claimants and partly allowed the claim of the workman by enhancing the backwages from 25% to 50%. It appears that the said directions were complied with and the respondent workman were reinstated. It further appears that around that time, the workman raised another dispute and claimed regularization and status of permanency in the service. It appears that the said directions were complied with and the respondent workman were reinstated. It further appears that around that time, the workman raised another dispute and claimed regularization and status of permanency in the service. The respondent workman also claimed regular pay scale w.e.f. 1.10.1993. 3. On the other hand, in view of the fact that the appointments of the concerned persons were irregular and for other administrative reasons, the Nagarpalika considered it necessary and appropriate to relieve the respondent and certain other similarly situated employees and that therefore, the petitioner Nagarpalika filed approval application seeking approval of terminating the service of the respondent workman. Actually, in view of the fact that reference proceedings were pending, the Nagarpalika was required to file permission application and that therefore, the learned Labour Court granted permission to the petitioner Nagarpalika to convert the approval application into permission application. It also appears that by its order dated 18.6.2004, the learned Labour Court granted permission to relieve the respondent and other similarly situated employees, however, on condition that the Nagarpalika will follow the procedure prescribed by law. The said order of the learned Labour Court was unsuccessfully challenged by the workman in the High Court and subsequently, before Hon'ble Division Bench by way of Letters Patent Appeal which was also rejected. Consequently, the respondent and other similarly situated persons came to be discontinued from service. It is claimed by the Nagarpalika that while terminating the service of the respondent workman and similarly situated employees, it had followed certain procedure of issuing show cause notice so as to grant opportunity of hearing to the employees, at that time, i.e. when the notice were issued, the employees had filed a complaint under Section 33 before the learned Labour Court. The learned Labour Court had granted interim order directing the Nagarpalika to maintain status quo. When the said proceedings came to an end, the service of the respondent and other similarly situated employees came to be terminated on or around 2.8.2007. Feeling aggrieved by the said action of the Nagarpalika, the respondent workman raised industrial dispute which came to be referred for adjudication to the learned Labour Court and the learned Labour Court registered the said dispute as Reference (LCJ) No. 75 of 2007. 4. Feeling aggrieved by the said action of the Nagarpalika, the respondent workman raised industrial dispute which came to be referred for adjudication to the learned Labour Court and the learned Labour Court registered the said dispute as Reference (LCJ) No. 75 of 2007. 4. In the said proceedings, the respondent workman filed his statement of claim with the allegation that the Nagarpalika terminated his service illegally and arbitrarily and without following procedure prescribed by law. It was also alleged that the Nagarpalika committed breach of Section 25-F as well as other provisions. It was also alleged that the workman had worked for more than 240 days, however, retrenchment compensation was not paid. The Nagarpalika opposed the reference case by filing written statement. The Nagarpalika denied the allegations about breach of statutory provisions. It was claimed that the appointment of the concerned workman was illegal, inasmuch as they were appointed without following selection procedure prescribed by the Rules. It was also claimed that the appointments were made though there were no vacancy on the sanctioned set up. The petitioner Nagarpalika also claimed that the workman did not possess prescribed qualification for the respective posts. 4.1 The learned Labour Court adjudicated the reference cases and passed the impugned awards which are challenged in this group of petitions. 5. Learned advocate for the petitioner Nagarpalika and learned advocates for the workmen have declared and submitted that the learned Labour Court has passed almost similar awards in all reference cases. The grounds on which the termination of the employees have been declared defective and illegal are similar in all cases. The respective submissions by learned advocates for the petitioner Nagarpalika and the respondent employees are similar for all cases and though the petitioner Nagarpalika has filed separate petitions so far as other employees/awards in reference cases are concerned but the challenge against the said awards in all petitions are identical. 6. Learned advocate for the petitioner has compiled the details of the names of the concerned workman and the corresponding petition and the post on which the concerned workman was working at the time of termination. 6. Learned advocate for the petitioner has compiled the details of the names of the concerned workman and the corresponding petition and the post on which the concerned workman was working at the time of termination. The said compilation is reproduced below:- S/N. Petition Number Names of the Respondents post 1 SCA/14983/2011 Brijesh Kantilal Somaiya Helper water works 2 SCA/14984/2011 Ratandhayra Dharmeshbhai Chotalal Helper water works 3 SCA/14985/2011 Mansukhbhai Tejabhai Vanpariya (Retired) Helper water works 4 SCA/14986/2011 Basia Udaykumar Valabhai Junior Clerk 5 SCA/14987/2011 Vanpariya Rasikbhai Karamsinbhai Junior Clerk 6 SCA/14988/2011 Bhalodiya Rajeshbhai Nanjibhai Junior Clerk 7 SCA/14989/2011 Jitedrakumar Bhikabhai Makwana Cleaner 8 SCA/14990/2011 Kansagara Mukeshbhai Gordhanbhai Cleaner 9 SCA/14991/2011 Dae Kishorbhai Gaurishankar (Retired) Clerk in building Dept. 10 SCA/14992/2011 Gondaliya Amrishkumar Bhaktiram Helper water works 11 SCA/14993/2011 Navinchandra Shamjibhai Bhatt (Retired) Clerk, water works Deput. 12 SCA/14994/2011 Ramniklal Valjibhai Kumbhanji (did not join) Junior Clerk 13 SCA/14995/2011 Navinchandra Ratilal Karia (Retired) Peon Recovery Dept. 14 SCA/14996/2011 Hamir Taiyab Sufiya Driver 15 SCA/14997/2011 Vipulkumar Gordhanbhai Savaliya Juniour Clerk 16 SCA/14998/2011 Vitthalbhai Chaganbhai Manpara Juniour Clerk 17 SCA/14999/2011 Thummar Jitendra Ranchidbhai Clerk, House Tex Dept. 18 SCA/15000/2011 Usdadia Ashok Gobarbhai Junior Clerk 19 SCA/15001/2011 Gordhanbhai Polabhai Kotadia Helper, water works Dept. 7. Mr. Buch, learned advocate for the petitioner Nagarpalika, submitted that the learned Labour Court failed to appreciate that the service of the workmen were terminated after the permission granted by the learned Labour Court. He also submitted that the learned Labour Court failed to appreciate that the initial appointments of the concerned workmen was illegal and appointments were made by disregarding and flouting prescribed procedure for selection and recruitment. Mr. Buch, learned advocate for the petitioner, also submitted that the learned Labour Court failed to appreciate that, at the relevant time, the persons were appointed though there were no vacancy and the appointments were made without verifying the qualification and the learned Labour Court also failed to appreciate that the concerned workmen do not possess the prescribed qualification and that therefore, the orders directing the Nagarpalika to reinstate the persons whose initial appointments were illegal, are unjustified and deserves to be set aside. He also submitted that in view of the short tenure for which the concerned persons were worked with the Nagarpalika and that too after illegal appointments, the Court should not have granted benefit of continuity of service. 7.1 Mr. He also submitted that in view of the short tenure for which the concerned persons were worked with the Nagarpalika and that too after illegal appointments, the Court should not have granted benefit of continuity of service. 7.1 Mr. Buch, learned advocate for the petitioner Nagarpalika, clarified that though the Court granted interim relief against the impugned awards on condition to comply the requirement under Section 17-B of the Act, the petitioner Nagarpalika with a view to avoiding idle payment, considered it appropriate to engage the respondent workmen without prejudice to the contentions in the petitions and accordingly, the respondent workmen have been reinstated during pendency of the petitions, however, without prejudice to the contentions in the petitions. 7.2 Mr. Buch, learned advocate for the petitioner, submitted that the impugned awards may be set aside. 8. The submissions are opposed by learned advocate for the respondent. It is claimed that the learned Court has recorded findings of fact that while terminating the service of the workmen, the Nagarpalika violated statutory provisions namely, Section 25-F, Section 25-Gand Section 25-H. It is further submitted that when the Court has found violation of statutory provisions, then, there is no justification to interfere with the orders directing reinstatement of the workmen and/or direction granting continuity of service. It is submitted that though the workmen had worked continuously before their termination and had also worked for more than 240 days, their services were terminated without payment of compensation and that therefore, there is no justification for the petitioner to oppose the orders directing the Nagarpalika to reinstate the employees. 9. I have considered the submissions by learned advocates for the petitioner Nagarpalika and the respondent employees. 10. The facts which are relevant for the purpose of deciding this group of petitions are not in dispute. It is not in dispute that there are some variations in the date of appointment of the concerned employees. It is not in dispute that the concerned employees had worked for more than 12 months and had worked for more than 240 days before the petitioner terminated their services. It is not in dispute that there are some variations in the date of appointment of the concerned employees. It is not in dispute that the concerned employees had worked for more than 12 months and had worked for more than 240 days before the petitioner terminated their services. The learned Labour Court has, in the awards, observed and reproduced abstracts from the deposition of the witness of the petitioner Nagarpalika who seems to have accepted during his deposition that before terminating the service of the concerned employees, the retrenchment compensation was not paid and the seniority list as contemplated by Rule 81 of the Gujarat Industrial Disputes Rules was also not displayed. The learned Labour Court also observed that breach of Section 25-H is also established. 10.1 Any material is not placed on record by the petitioner to demonstrate that the findings of fact recorded by the learned Labour Court are incorrect or perverse. Unless very strong case is made out against the award/findings by the Court and it is demonstrated that the findings recorded by the learned trial Court are contrary to specific evidence available on record or the findings are not supported by any evidence, this Court would not enter into process of re-examination or re-appreciation of evidence. Besides this, even otherwise, in this group of petitions, the petitioner has not placed any material to establish that the findings recorded by the learned Labour Court are perverse. Under the circumstances, this Court has to proceed to examine the petitioner's challenge against the awards in light of and on the premises of the findings and factual findings and conclusions recorded by the learned Labour Court. 11. When the learned Labour Court has reached to the findings that while terminating the services of the concerned workmen, the petitioner Nagarpalika committed breach of Section 25-F and that therefore, the Nagarpalika should reinstate them then, in that event, the conclusion and the direction to reinstate the concerned workmen cannot be faulted. Besides this, as clarified by Mr. Buch, learned advocate for the petitioner, the concerned employees are reengaged by the petitioner Nagarpalika during pendency of these petition and the said persons are in service since November/December 2011. In light of the said two compelling reasons and circumstances, there is no justification to interfere with the direction to reinstate the employees. 12. Besides this, as clarified by Mr. Buch, learned advocate for the petitioner, the concerned employees are reengaged by the petitioner Nagarpalika during pendency of these petition and the said persons are in service since November/December 2011. In light of the said two compelling reasons and circumstances, there is no justification to interfere with the direction to reinstate the employees. 12. So far as the issue of backwages is concerned, after examining the facts and circumstances of present case, learned Labour Court itself has not granted backwages and has denied the said benefit by specific direction in the award. The learned Labour Court has recorded reasons and clarified and directed that the workmen are not entitled for backwages and that they should be reinstated without backwages. 12.1 However, the learned Labour Court has, while directing the petitioner to reinstate the workmen also directed that the workmen should be reinstated with continuity of service. 13. In view of the fact that initial appointments of the concerned workmen were made without following procedure of selection and recruitment and having regard to the fact that there is no evidence to establish that the concerned workmen possess requisite qualification prescribed under the Rules and in view of the fact that their appointments were made without verification of qualification and also having regard to the fact that the names of the concerned workmen were not sponsored by the employment exchange and any procedure in accordance with rules is not followed and also having regard to the fact that at the relevant time there were no vacancy on permanent, sanctioned and regular set up of the establishment and also having regard to the short tenure of the service of the respondents before they were terminated, in view of this Court, the direction to consider the service of the workmen continuous and to grant benefit of continuity of service is not sustainable. The said order deserves to be set aside and is hereby set aside. Therefore, the impugned awards are modified and following order is passed. 13.1 The direction to reinstate the concerned employees is not disturbed and the said direction is confirmed. However, the order directing the petitioner to grant continuity of service to the employees and the order directing the corporation to treat the service of the concerned employees as continuous is set aside. 13.1 The direction to reinstate the concerned employees is not disturbed and the said direction is confirmed. However, the order directing the petitioner to grant continuity of service to the employees and the order directing the corporation to treat the service of the concerned employees as continuous is set aside. Since there is no counter claim by the workmen for backwages, any direction or observation or clarification is not required. Even otherwise, the learned Labour Court itself has not awarded backwages and the said direction does not warrant any interference. With aforesaid observations, directions and clarifications, present petitions are partly allowed. Rule is made absolute to the aforesaid extent.