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Gujarat High Court · body

2016 DIGILAW 2230 (GUJ)

Visnagar Nagarpalika v. Rameshji Manakji Thakor

2016-12-21

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. Heard Mr. C.B. Patel, learned advocate for the petitioner and Ms. Kamani, learned advocate for Mr. P.H. Pathak, learned advocate for the respondent. 2. In present petition the petitioner has challenged award dated 30.9.2008 passed by learned Labour Court at Kalol in Reference (LCK) No. 73 of 1994 whereby learned Labour Court directed the petitioner Nagar Palika to reinstate one of the claimants on his original post with continuity of service however without back wages. Whereas in respect of second claimant learned Labour Court directed the Nagar Palika to reinstate the said second claimant with continuity of service and to pay 40% back wages. 3. So far as factual background is concerned it has emerged from the record and from the rival submissions by the learned advocates that two claimants raised industrial dispute on the ground that Nagar Palika illegally terminated their services. The claimants demanded that they should be reinstated in service with all benefits. Appropriate government referred the dispute for adjudication to learned Labour Court at Kalol. The said reference came to be registered as Reference (LCK) No. 73 of 1994. 3.1 In their statement of claim the claimants alleged that the claimant No. 1 was employed as Pagi (Watchman) w.e.f. November 1988 at salary of Rs.931/whereas claimant no.2 was engaged as clerk w.e.f. November 1988 at salary of Rs.941.20. They further alleged that since Nagar Palika did not pay full and regular salary and other benefits they had raised demand for regularization in service and full salary and other benefits. They also alleged that since they raised such demand Nagar Palika terminated their services on 1.11.1993 without following procedure prescribed by law. With such allegations the claimants demanded that they should be reinstated with consequential benefits. 3.2 The Nagar Palika opposed the reference and demand by the claimants. In its written statement Nagar Palika denied the allegations by the claimants. Nagar Palika contended that the claimants were engaged on contract and fixed basis for temporary duration. It was also contended that the claimants were engaged for temporary and fixed period and on fixed salary and depending on exigency of work fresh contracts of appointment were issued from time to time and each contract was for temporary and fixed period. Nagar Palika contended that the claimants were engaged on contract and fixed basis for temporary duration. It was also contended that the claimants were engaged for temporary and fixed period and on fixed salary and depending on exigency of work fresh contracts of appointment were issued from time to time and each contract was for temporary and fixed period. With such submissions the Nagar Palika claimed that the claimants had no right to post and / or to claim that they should be continued in service. The Nagar Palika contended that when exigency of work for which the claimants were engaged came to end they were automatically relieved. It was claimed that their services came to end upon expiry of contract of appointment and that therefore question of breach of any statutory provision or any illegality in discontinuing service of the claimants. With such reply and explanation the Nagar Palika opposed the reference. It is pertinent to note that the Nagar Palika also contended that the claimants were engaged on fixed term basis and time bound contract, at Pathikashram which was being run and managed at relevant time by the Nagar Palika, however, with passage of time pathikashram became redundant and its utility has expired and now the pathikashram prove to be unnecessary financial burden on limited resources of Nagar Palika and that therefore Nagar Palika resolved to close the activity of pathikashram and consequently need to continue the claimants even on fixed term basis did not survive. It was contended that the pathikashram is closed and that therefore also the demand by the claimants is unjustified and may not be entertained. 3.3 Upon conclusion of pleadings learned Labour Court received evidence from both sides. When the claimants and Nagar palika closed their evidence learned Labour Court heard submissions by learned advocates and thereafter learned Labour Court passed impugned award with above-mentioned directions. 4. Mr. Patel, learned advocate for the petitioner submitted that the learned Labour Court committed error in holding that the termination of the claimants amounts to retrenchment. He submitted that the claimants were engaged on fixed term and fixed salary basis and that therefore their appointment is covered by clause (bb) of Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act") and therefore termination of service of the claimants cannot be equated with retrenchment. He submitted that the claimants were engaged on fixed term and fixed salary basis and that therefore their appointment is covered by clause (bb) of Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act") and therefore termination of service of the claimants cannot be equated with retrenchment. However, learned Labour Court failed to appreciate these aspects and committed error in holding that the services of the claimants discontinued without following procedure prescribed for retrenchment. He submitted that the claimants were engaged on fixed term basis and without following procedure prescribed for selection and recruitment and that therefore there was no justification in the demand by the claimants, more particularly because they were discontinued on account of closure of the pathikashram and that therefore direction by learned Labour Court are unjustified and arbitrary. 5. Per contra Ms. Kamani, learned advocate for the original claimants submitted that the learned Labour Court has held that the Nagar palika failed to prove that the pathikashram is closed. Any evidence to establish that the pathikashram's activity is discontinued and pathikashram is closed was not placed before learned Labour Court and such evidence is not placed even on record of this petition and that therefore there is no error in the findings recorded by the learned Labour Court. She also disputed the contention that the appointment of the claimants is covered under clause (bb) of Section 2(oo) of the I.D. Act, as claimed by learned advocate for the petitioner. She also controverted the contention that the claimant Mr. R.M. Thakar had, on his own volition stopped reporting for work though it was decided to continue service of the claimant until 30.11.1993. According to the learned advocate for the respondent-original claimants, the award does not suffer from any error and the final direction passed by the learned Labour Court are based on evidence available on record. 6. I have considered rival submission by learned advocates for claimants and Nagar Palika and also considered the material available on record as well as impugned award. 7. After evaluating and analysing entire evidence and upon proper scrutiny of the award, learned Labour Court reached to the findings that the claimants had worked with Nagar Palika for more than 12 months and that actually they had worked with Nagar Palika from 1988 to 1993 and that preceding 12 months they had worked for 240 days. 7. After evaluating and analysing entire evidence and upon proper scrutiny of the award, learned Labour Court reached to the findings that the claimants had worked with Nagar Palika for more than 12 months and that actually they had worked with Nagar Palika from 1988 to 1993 and that preceding 12 months they had worked for 240 days. 8. It is necessary to mention that learned advocate for petitioner has failed to point out any material from record of the petition which could convince this Court that the said findings recorded by learned Labour Court are erroneous and incorrect or perverse. The petitioner could not demonstrate that the claimants had not worked for more than 12 months and/ or they had not worked from 1988 to 1993 and/or they had not worked for 240 days in preceding 12 months. 9. In view of the said findings of facts, it emerges that Section 25(F) of the Industrial Disputes Act was attracted. Of course, learned advocate for the petitioner endeavoured to contend that since the claimants were engaged for limited and fixed period the said provision should not have been applied. However, any material to establish that the claimants were appointed with specific condition that the appointment is for fixed period and the claimants would be relieved on end of fixed period and tha such condition was expressly informed to the claimants is not available on record. 9.1 There is nothing on record to demonstrate that such condition was informed to the claimants at the time of appointment. 9.2 Under the circumstances, the contention that the appointment of the claimants was for fixed and limited period, was not established before the learned Labour Court and is not found sustainable. Therefore, the condition under Section 25(F) would be applicable in the present case. 9.3 Consequently, the provision under Rule 81 of the Industrial Disputes (Gujarat) Rules also would be attracted. 9.4 The record gives out that undisputedly the Nagar Palika had not followed and complied the condition prescribed by Section 25(F) and/ or Rule 81 of the Industrial Disputes (Gujarat) Rules. 9.5 Thus, breach of Statutory provision is established the findings of fact recorded by the learned Labour Court on that count cannot be disputed. 10. 9.4 The record gives out that undisputedly the Nagar Palika had not followed and complied the condition prescribed by Section 25(F) and/ or Rule 81 of the Industrial Disputes (Gujarat) Rules. 9.5 Thus, breach of Statutory provision is established the findings of fact recorded by the learned Labour Court on that count cannot be disputed. 10. Despite such factual background, the petitioner consistently claimed that Pathikashram is closed and that therefore it would not be worthless to deal with the petitioner's contention or defence based on the premise that the Pathikasrham is closed down. 10.1 Learned Labour Court has considered the said contention and it is recorded by the learned Labour Court that the Nagar Palika failed to establish that it has closed activity of Pathikashram. 10.2 Even if the reasons on which learned Labour Court rejected the petitioner's submission with reference to closure of Pathikashram, are not taken into account and even if it is assumed that the Nagar Palika has closed the establishment i.e. Pathikashram, then also the said explanation would not come to assist Nagar Palika in opposing the claim raised by the claimants because there is no material or evidence to establish that (i) the services of the claimants were terminated on account of closure of Pathikashram; and (ii) the petitioner Nagar Palika has failed to prove that at the time when Pathikashram came to be closed it had paid closure compensation to the claimants. 10.3 In this view of the matter, the reply or explanation of Panchayat on the ground that Pathikashram activity is closed, cannot come to the rescue of Nagar Palika against the demand of the claimants. 10.4 The fact remains that before the services of the claimants came to be terminated, they had worked for more than 12 months and they had worked for not less than 240 days. The fact that at the relevant time any notice was not issued and in lieu of notice salary was not paid, is established. Likewise, the fact that closure compensation was also not paid at the time when services of claimants came to be discontinued and until now such compensation is not paid, is also established. 10.5 The requirement under Rule 81 were also not complied with. In this background, the conclusion of learned Labour Court that the termination of services of the claimants is illegal, cannot be faulted. 11. 10.5 The requirement under Rule 81 were also not complied with. In this background, the conclusion of learned Labour Court that the termination of services of the claimants is illegal, cannot be faulted. 11. When the said conclusion is reached, the only question which would survive is with regard to appropriate relief. 11.1 As mentioned above, in case of claimant No.1 viz. R.M. Thakor, learned Labour Court has directed the Nagar Palika to reinstate the claimant on his original post with continuity of services, however, without back wages whereas in respect of 2nd claimant viz. M.S. Thakor, learned Labour Court had directed the petitioner Municipality to reinstate the said claimant with continuity of service and 40% back wages. 11.2 Having regard to the fact that the petitioner Municipality has discontinued the activity of Pathikashram and having regard to the fact that total tenure of service of the claimants, according to their own claim, was about 5 years before their services came to be terminated, it appears that the petitioner Municipality has made out case that the direction to reinstate the claimants is incapable to comply with because it will not be possible for the Nagar Palika to reinstate the claimants on post or position and the setup which do not exist. 11.3 In this view of the matter, the order directing the Nagar Palika to reinstate the claimants is required to be modified. 11.4 There is additional reason which also justify modification in direction to reinstate claimants is that almost 23 years have rolled by since the service of the claimants came to be discontinued. After such long period it would not be possible for the Nagar Palika to reinstate the claimants. Therefore also, the said direction is required to be modified. 11.5 While doing so, it is necessary to keep in focus that in respect of R.M. Thakor, learned Labour Court has not awarded back wages whereas in case of Mr. M.S. Thakor, learned Labour Court has awarded 40% back wages also. 12. This Court is, therefore, of the view that direction to Nagar Palika to pay lump sum compensation in lieu of compensation would be appropriate relief in the present case and such direction would balance the equity and would also meet with the ends of justice. 13. M.S. Thakor, learned Labour Court has awarded 40% back wages also. 12. This Court is, therefore, of the view that direction to Nagar Palika to pay lump sum compensation in lieu of compensation would be appropriate relief in the present case and such direction would balance the equity and would also meet with the ends of justice. 13. It has emerged from the record that at the time when the services of the claimants came to be terminated, salary of claimant No.1 was Rs.931/per month and salary of claimant No.2 was Rs.941.20 per month. 14. Thus, salary of the claimants was approximately Rs.950/per month. 14.1 This would mean that claimants earn about Rs.11,500/per annum. Total tenure of their service was 5 years and the proceedings before learned Labour Court continued for about 15 years. 14.2 Having regard to the above, in view of the interim orders passed by this Court, Nagar Palika has paid last drawn wages to the claimants from the date of award till now. 15. Having regard to the above mentioned aspects this Court is of the view that if the petitioner Nagar Palika is directed to pay Rs.65,000/to the claimant No.1 i.e. Mr. R.M. Thakor and Rs.80,000/to the claimant No.2 i.e. Mr. M.S. Rathod, this would be equitable lump sum compensation in lieu of reinstatement/ back wages. 16. Therefore, following order is passed. (a) The impugned award is partly set aside and modified. (b) The direction to reinstate claimant No.1 and the direction to reinstate claimant No.2 with 40% back wages is set aside and modified and instead petitioner Nagar Palika is directed to pay lump sum compensation of Rs.65,000/to claimant No.1 Mr. R.M. Thakor and Rs.80,000/to claimant No.2 Mr. M.S. Thakor in full compliance of the award. (c) Upon payment of the said amount to the claimants, the awards shall stand complied. (d) With aforesaid direction the impugned award is partly modified. (e) It is clarified that the aforesaid amount shall be in addition to the amount paid by the Nagar Palika under Section 17(B) of the Industrial Disputes Act. (f) It is further clarified that the petitioner shall pay the said amount to the claimants as expeditiously as possible and preferably within 8 weeks from the date of receipt of the Certified Copy of the present decision. 17. (f) It is further clarified that the petitioner shall pay the said amount to the claimants as expeditiously as possible and preferably within 8 weeks from the date of receipt of the Certified Copy of the present decision. 17. With the aforesaid clarification the petition is partly allowed and Rule is made absolute to the aforesaid extent.