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2016 DIGILAW 1643 (GUJ)

Rajkot District Panchayat v. Chhaganbhai Virabhai

2016-08-04

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Joshi, learned advocate for the petitioner District Panchayat and Mr. Devnani, learned advocate for the respondents. 2. In this group of petitions, the petitioner District Panchayat has challenged common award dated 1.10.2007 passed by the learned Labour Court at Rajkot in group of reference cases being Reference (LCR) Nos. 59/91, 74/91 to 78/91, 111/91 to 114/91, 140/91 to 144/91 whereby the learned Labour Court rejected the reference cases of Mr. Manjibhai Jivabhai [i.e. Reference (LCR) No. 142/91] and reference case of Ms. Labhuben Samatbhai [i.e. Reference (LCR) No. 76/91], whereas reference cases of other claimants have been partly allowed. The learned Laboru Court has directed the petitioner District Panchayat to reinstate Ms. Kashiben Dalubhai, Mr. Chhaganbhai Virabhai, Mr. Manilal Harakhabhai, Ms. Ujiben Ghelabhai, Ms. Dhara Samatbhai, Ms. Aisha Hajibhjai, Mr. Samatbhai Karabhai, Mr. Ravjibhai Jesabhai and Mr. Jabuben Motibhai on their original post with continuity of service. The learned Labour Court has also directed the petitioner District Panchayat to pay (to the abovenamed workmen) 100 days wages for each year from the date of termination till the date of award. The learned Labour Court also directed that if the petitioner District Panchayat commits delay in implementing the award and paying in the matter of backwages to the concerned workmen, then the petitioner District Panchayat shall have to pay interest @ 8% from 1.12.2007. Aggrieved by the said directions, i.e. the petitioner District Panchayat has taken out present petitions. 3. So far as the factual background is concerned, it has emerged from the record that the claimants raised industrial dispute on the allegation that the petitioner District Panchayat abruptly and on the same day, i.e. on 16.1.1990 terminated services of all claimants without following any procedure prescribed by law. The appropriate Government referred the dispute raised by the above mentioned claimants for adjudication to the learned Labour Court at Rajkot. The said dispute was registered as Reference (LCR) Nos. 59/91, 74/91 to 78/91, 111/91 to 114/91, 140/91 to 144/91. 4. The claimants filed their respective statements of claim before the learned Labour Court wherein the claimants alleged, inter alia, that they were engaged as daily wager with the petitioner District Panchayat and that they were paid daily wage at Rs. The said dispute was registered as Reference (LCR) Nos. 59/91, 74/91 to 78/91, 111/91 to 114/91, 140/91 to 144/91. 4. The claimants filed their respective statements of claim before the learned Labour Court wherein the claimants alleged, inter alia, that they were engaged as daily wager with the petitioner District Panchayat and that they were paid daily wage at Rs. 21.50 and the petitioner District Panchayat illegally terminated their services by oral order on 16.1.1990 without following procedure prescribed by law and that when they were terminated the petitioner District Panchayat had continued other persons who were junior to them and the petitioner District Panchayat had engaged some workmen after their service were terminated, however they were not offered work. With such allegations, the claimants demanded that they should be reinstated with consequential benefits. 5. The petitioner District Panchayat opposed the said reference cases. In its written statements, the petitioner District Panchayat claimed that the concerned claimants were engaged only on casual and ad hoc basis and they were not engaged regularly and on continuous basis but they were engaged on "as and when need arose" basis for repairing roads at different places within the territory of the District Panchayat. It was also claimed that the work of repairing roads is not regular and/or continuous work. The petitioner District Panchayat claimed that the concerned persons never completed 240 days during their tenure. It was also claimed that since the persons were engaged on "need basis" and as daily wages, there was no question of conducting departmental enquiry more so because their services were not terminated by the petitioner District Panchayat. It was also claimed that even if it is assumed that the District Panchayat discontinued their services, then also their services were not discontinued for any misconduct, consequently, question of conducting enquiry never arose. It was also claimed that since the claimants had not worked for 240 days, question of payment of retrenchment compensation or notice pay also did not arise. According to the petitioner District Panchayat, the claim was unjustified and deserved to be rejected. 6. After the stage of pleadings was concluded, the parties led evidence in respective reference cases. It was also claimed that since the claimants had not worked for 240 days, question of payment of retrenchment compensation or notice pay also did not arise. According to the petitioner District Panchayat, the claim was unjustified and deserved to be rejected. 6. After the stage of pleadings was concluded, the parties led evidence in respective reference cases. Upon conclusion of stage of evidence, the learned Labour Court heard submissions by learned advocates for the claimants and District Panchayat and after considering the material on record and rival submissions by contesting parties, the learned Labour Court reached to the conclusion that the work for which the claimants were engaged, was seasonal work and that, therefore, the Court should examine as to whether the claimants had worked for 120 days during 12 months or not for determining the issue related to compliance of condition prescribed under section 25F. The learned Labour Court has observed and held that for determining as to whether the workmen had worked for 120 days during 12 months, the holidays as well as non-working Saturdays (i.e. second and fourth Saturdays of every month) and weekly off should be included and if number of days for which the claimants worked are calculated while including the said non-working Saturdays, weekly off, etc., it emerged that the workmen had worked for 120 days during 12 months. The learned Labour Court also reached to the conclusion that the petitioner District Panchayat has not only committed breach of sections 25F but it had committed breach of sections 25G and 25H and when the petitioner District Panchayat engaged other persons for similar work, the petitioner District Panchayat did not offer work to the claimants. Having reached to such conclusion, the learned Labour Court passed common award with the above mentioned direction which is challenged in present petitions. 7. Mr. Joshi, learned advocate for the petitioner District Panchayat assailed the common award and submitted that the concerned workmen were engaged on daily wage basis and that, therefore, manner in which the learned Labour Court calculated the total number of days for which the workmen can be said to have worked, is incorrect, unjustified and it is not in accordance with section 25F of the Act. He also submitted that according to the petitioner District Panchayat, the nature of work for which the persons were engaged, cannot be said to be seasonal work. He also submitted that according to the petitioner District Panchayat, the nature of work for which the persons were engaged, cannot be said to be seasonal work. He submitted that the claimants were engaged for work which is casual and temporary and need for such work arise occasionally i.e. as and when the need for repairs of the roads (within the boundaries of District Panchayat) arise and on completion of the work (repairing the road) their requirements would also end and they would automatically stand relieved, however, the learned Labour Court failed to appreciate the said fact. He further submitted that for deciding the allegation that the District Panchayat had committed breach of section 25F the learned Labour Court committed error in applying the requirement of 180 days on the premise that the work is seasonal. Mr. Joshi, learned advocate for the petitioner District Panchayat submitted that the learned Labour Court committed error in including non-working Saturdays in the offices of the government for calculating total number of days for which the workmen had worked. Learned advocate for the petitioner District Panchayat also assailed the direction to pay 100 days' wages for each year from the date of termination until the date of award. 8. Mr. Devnani, learned advocate for the claimants opposed the submissions by Mr. Joshi, learned advocate for the petitioner District Panchayat and he vehemently supported and justified the award. He also submitted that even if the petitioners' contentions and objections against breach of section 25F are assumed to be correct, then also the conclusion by the learned labour Court that the District Panchayat committed breach of section 25G and section 25H survives and the said conclusion would stare in the face of the District Panchayat. He submitted that the final direction of the learned Labour Court is not and cannot be said to be illegal, incorrect or arbitrary. He also submitted that the directions to pay 100 days' wages for each year from the date of termination until the date of award is also just and proper. He submitted that there is no error in the award and the petitions may be rejected. 9. I have considered the submissions by learned advocates for the contesting parties and I have also considered the material available on record. 10. He submitted that there is no error in the award and the petitions may be rejected. 9. I have considered the submissions by learned advocates for the contesting parties and I have also considered the material available on record. 10. Before proceeding further, it is relevant to mention, at the outset, that except those claimants whose reference cases have been rejected by the learned Labour Court other claimants were re-engaged by the petitioner and subsequently i.e. as and when the concerned claimants completed 240 days of services (after they were re-engaged) the petitioner District Panchayat had extended benefit of government resolution dated 17.8.1988 to the said claimants. He also submitted that some of the claimants have expired and few of them attained age of superannuation and they have been relieved on superannuation. 10.1 Mr. Devnani, learned advocate for the claimants has compiled the said details in a statement which is tendered on record. The said statement reads thus:- Sr. No. Case No. Name of the party Remarks 1. SCA No.4951/08 Chhaganbhai Virabhai Expired on 15/12/2003 2. SCA No.4952/08 Ujiben Devabhai Since she attained age superannuation she was not allowed to resume her duties considering her to be retired. 3. SCA No.4953/08 Kashiben Dulabhai Expired no legal heirs. 4. SCA No.4954/08 Dharabhai Samantbhai He is working with respondent authority as he was allowed to resume his duties in the year 2011. 5. SCA No.4955/08 Samantbhai Karabhai Since expired is represented through his legal heirs. 6. SCA No.4957/08 Manilal Harkhabhai He was not allowed to resume his duty on ground that name reflected in the award differs from the documents produced by him. 11. It is not in dispute that prior to 16.1.1990, the concerned claimants were being engaged by District Panchayat on need basis for the work of road repairing and they were being engaged as daily wagers. 11.1 According to the claim of the claimants, the District Panchayat discontinued them and terminated their services with effect from 16.1.1990. 11.2 It is also not in dispute that the concerned persons were never engaged and appointed on regular set up of the petitioner District Panchayat and they were not appointed or engaged after following procedure prescribed under the Rules. 12. 11.2 It is also not in dispute that the concerned persons were never engaged and appointed on regular set up of the petitioner District Panchayat and they were not appointed or engaged after following procedure prescribed under the Rules. 12. The learned Labour Court has considered the work in question (i.e. work of road repairing), seasonal work which is disputed by the District Panchayat, and it is claimed that actually the work is absolutely casual and temporary work and need for the said work does not arise only in a particular season and therefore, it cannot be considered seasonal work. 13. From the facts and details compiled by the learned advocate for the claimants, which are not disputed by the petitioner, it has emerged that after the award and during pendency of the petition, the petitioner re-engaged the claimants and they were continued in service until the claimants attained age of superannuation (or unfortunately died) during pendency of the proceedings. It has also emerged from the record that other claimants, except one (i.e. the respondent in Special Civil Application No. 4957 of 2008 who was not allowed to resume duty and was not re-engaged because of the discrepancy in the name mentioned in the award and the identity proof/documents submitted by him at the time when he was called for duty) are still in service with the petitioner. Actually, the learned advocate for the claimants also clarified that the persons who have been re-engaged by the petitioner were also granted benefit of the GR dated 17.10.1988 when they fulfilled the conditions prescribed under the GR. The learned counsel for the claimants also clarified that the claimant/respondent in Special Civil Application No. 4961 of 2008 was re-engaged and was allowed to resume her duties but after resuming duties she could not continue in service because of her ill-health, whereas so far as the claimant in Special Civil Application No. 4962 of 2008 is concerned, the question of resuming duties did not arise in her case because she had attained age of superannuation earlier. 14. 14. In light of the facts of the case and in view of aforesaid clarifications by learned counsel for the petitioner and the respondent, the order directing the petitioner to reinstate the claimants does not deserve to be interfered with, more particularly when the petitioner itself reengaged the claimants and also in view of the fact that three claimants have died, whereas five claimants have attained age of superannuation after being re-engaged/after resuming the duties or even before the claimant was called to resume duties. 15. The main and substantial grievance of the petitioner is with regard to the direction to pay 100 days' wages for every year from the date of termination until the date of award. 16. The said direction is not justified or sustainable on any ground. There are more than one reason in light of which the said direction deserves to be set aside. It is pertinent that the petitioner had established before the learned trial Court the fact that the concerned claimants were engaged intermittently as and when need arose, for work of road repairing. Thus, the claimants were neither engaged, nor did they work, for entire year or major part of a year and they were engaged on need basis, i.e. as and when need for repairing the road arose. Further, total tenure for which the claimants were intermittently engaged or total period for which the claimants were engaged is short period and they were not engaged over a long span which would warrant and justify direction to consider claimant's service continuous and/or to pay wages for minimum 100 days for every year from date of termination until the date of award. 17. In view of the fact that when the petitioner itself re-engaged the claimants and when many claimants have, after or before such re-engagement, already attained age of superannuation or died during pendency of the proceedings (either before or after being reengaged), the Court does not consider it appropriate to interfere with the direction to reinstate the claimants. 18. However, the facts and circumstances of the case and the evidence available on record as well as the facts which have been proved by the petitioner, prima facie establish that the orders directing the petitioner to reinstate the claimants is not justified. 18. However, the facts and circumstances of the case and the evidence available on record as well as the facts which have been proved by the petitioner, prima facie establish that the orders directing the petitioner to reinstate the claimants is not justified. In such circumstances and more particularly in light of the fact that the claimants were not engaged after following procedure prescribed by applicable rules and/or names of the claimants were not even sponsored by employment exchange the order directing the petitioner to treat service of such claimants continuous, even otherwise, cannot be sustained. 19. Besides this, the work for which the claimants were engaged, i.e. work of repairing the road within the territory of district panchayat, cannot be termed as seasonal work. The learned Labour Court has committed error in considering the road repairing work as seasonal work. 20. In these circumstances, the decision of the learned Labour Court of importing and applying the concept of seasonal work and thereby applying requirement of 180 days of work for invoking section 25-F, is unsustainable. 21. The very fact that the learned Labour Court itself has observed and concluded that the claimants had worked for 180 days, establishes that the workmen had not worked for 240 days. 22. When the concept of seasonal work is inapplicable in the facts of present case, the decision of taking into account completion of 180 days as sufficient compliance or invoking section 25-F and applying the said concept to the cases of the claimants, is unsustainable. 23. Further, the practice or provision of observing 2nd Saturday & 4th Saturday of every month as non-working Saturdays which is applicable only to offices of the Government where such practice is adopted and implemented by the specific decision by the competent authority and is available only to permanent and regular employees employed in the offices of Government and not to the persons engaged on daily wage basis for particular work during particular and for limited period could not have been imported and applied to the case of claimants who were engaged for limited period on daily wage basis for specific work and that, therefore, the decision of the learned Labour Court to include/add such non-working Saturdays for determining as to whether section 25-F would be applicable or not is not sustainable and deserves to be set aside. 24. 24. For all such reasons, the decision of the learned Labour Court that the claimants fulfill the requirement of minimum attendance for attracting section 25-F, is unjustified. 25. When the concerned claimants had not worked for 240 days, which fact is acknowledged and accepted even by the learned Labour Court, neither section 25-F was attracted or applicable in present case nor there was any justification to hold that the employer committed breach of said provision. 26. Moreover, when the claimants were, undisputedly, engaged for casual work of temporary nature and duration, i.e. road repairing, it is obvious that their engagement would come to an end on completion of the work and that, therefore, the order directing the petitioner to treat their service as continuous and/or the direction granting benefit of continuity of service, is neither justified nor sustainable. Likewise and for same reasons the direction to pay backwages, much less wages for 100 days for every year from the date of termination, cannot be sustained. 27. As mentioned earlier, it is only because of the fact that the petitioner itself re-engaged the claimants and the petitioner itself extended benefit of GR dated 17.10.1988 to the claimants, who, after being re-engaged, fulfilled conditions under the said GR, that this Court framed the opinion that it would not be appropriate to interfere with the direction to reinstate the workmen (since they were already re-engaged by the petitioner of its own choice), however, on examination of the award in light of facts and circumstances of the case and in view of the evidence available on record, the directions passed by the learned Labour Court are found to be unjustified and unsustainable. 28. In this view of the matter and for the foregoing reasons, these petitions are disposed of with following order. "(a) Since petitioner itself re-engaged the workmen after the learned Labour Court passed the award coupled with the fact that some of the claimants died during pendency of the cases and some attained age of superannuation and the petitioner itself extended benefit of Government Resolution dated 17.10.1988, the order directing reinstatement of the workmen is not disturbed. (b) The direction to the corporation that it should treat the service of the claimants continuous is unjustified and unsustainable and therefore, the said direction is set aside. (b) The direction to the corporation that it should treat the service of the claimants continuous is unjustified and unsustainable and therefore, the said direction is set aside. (c) Likewise, the direction to the corporation to pay, by way of backwages, 100 days' wages for every year from the date of termination till the date of award is unjustified and unsustainable and therefore, the said direction is set aside. (d) The awards are accordingly partly set aside/modified with clarification that the workmen who were re-engaged and who resumed duties after being called by the petitioner and who have yet not attained age of superannuation, the direction to reinstate the claimants is not disturbed but the direction granting continuity of service and backwages are set aside." With the aforesaid clarifications, the petitions are disposed of as partly allowed and rule is made absolute to the aforesaid extent.