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2016 DIGILAW 325 (GUJ)

Rajkot District Panchayat v. Rajendra K. Oza

2016-02-10

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. K.R. Patel, learned advocate, for Mr. Munshaw, learned advocate for the petitioner panchayat. None for the respondent. 1.1 At the outset, it is necessary to mention that though served and represented by the learned advocate, the respondent has not attended the hearing. With a view to granting opportunity to the respondent to attend the hearing and oppose the submissions by the petitioner, the hearing of this petition was adjourned on more than 5 occasions. Despite such opportunities, the respondent has not cared to attend the hearing of present petition. Under the circumstances, the Court has proceeded to decide the petition in absence of the respondent, after considering the material available on record and the submissions on behalf of the petitioner panchayat. 1.2 It is also necessary to mention that the Court proceeded to hear and decide present petition in absence of the respondent also for the reason that the petition is pending since 2005 and total number of adjournments granted in this petition is 49 and that therefore, the Court considered it necessary and appropriate to decide the matter finally. 2. In present petition, the petitioner panchayat has challenged the award dated 6.4.2005 passed by the learned Labour Court, Rajkot in Reference (LCR) No. 296 of 1996 whereby the learned Labour Court directed the petitioner panchayat to reinstate the respondent with continuity of service and 25% backwages. 2.1 Feeling aggrieved by the said direction, the panchayat has filed present petition. 3. So far as the relevant facts involved in and leading to submission of present petition is concerned, it has emerged from the record that the respondent herein joined the service of the petitioner panchayat in July-1988 at the salary of Rs. 300/-. The claimant workman claimed that he was appointed as Dresser and that his service came to be abruptly and arbitrarily terminated w.e.f. 3.5.1990 without following any procedure prescribed by law. 3.1 Feeling aggrieved by the termination of his service, the respondent raised industrial dispute which came to be referred for adjudication to the learned Labour Court, Rajkot by order of reference dated 4.11.1996. 3.2 The petitioner Board opposed the reference and denied the allegations by the claimant workman that his service was illegally terminated w.e.f. 3.5.1990. 3.1 Feeling aggrieved by the termination of his service, the respondent raised industrial dispute which came to be referred for adjudication to the learned Labour Court, Rajkot by order of reference dated 4.11.1996. 3.2 The petitioner Board opposed the reference and denied the allegations by the claimant workman that his service was illegally terminated w.e.f. 3.5.1990. The petitioner panchayat claimed and asserted in its written statement filed before the learned Labour Court that the claimant workmen was engaged by way of ad-hoc and stop gap arrangement until the regularly selected employee is made available. 3.3 The petitioner panchayat also claimed before the learned Labour Court that subsequently, when the competent authority appointed regularly selected employee, the respondent was relieved from service. It was also claimed that since the respondent was engaged for fixed period i.e. until the regularly selected employee becomes available and on ad-hoc and stop gap arrangement, the appointment of the claimant work as well as his termination of service would be covered under the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 [hereinafter referred to as "the Act"] and it would not amount to retrenchment and that therefore, there is no obligation to pay retrenchment compensation at the time when the respondent workman was relieved. On the said ground, the petitioner panchayat sought to justify its action of not paying the retrenchment compensation at the time when the respondent workman was relieved. During pendency of the proceedings before the learned Labour Court, the parties to the reference placed on record oral and documentary evidence. The deposition of the claimant workman was recorded at Exh.30 and on behalf of the petitioner panchayat one Mr. Khanpara was examined as panchayat's witness whose deposition was recorded at Exh.34. After considering the rival submissions and evidence available on record, the learned Labour Court passed the impugned award. The learned Labour Court came to the conclusion that the petitioner panchayat failed to establish that the respondent's appointment/termination was covered within purview of Section 2(oo)(bb) of the Act and that the petitioner panchayat also failed to establish that Section 25F was not attracted and applicable in case of the respondent workman. Having reached the said conclusion, the learned Labour Court also found that at the time when the respondent workman was relieved, the petitioner panchayat committed breach of Section 25F and that therefore, the respondent's termination was contrary to statutory condition. Having reached the said conclusion, the learned Labour Court also found that at the time when the respondent workman was relieved, the petitioner panchayat committed breach of Section 25F and that therefore, the respondent's termination was contrary to statutory condition. In light of the said conclusion, the learned Labour Court passed the impugned direction. 4. Mr. Patel, learned advocate, for Mr. Munshaw, learned advocate for the petitioner panchayat, reiterated the contentions raised by the petitioner panchayat in its written statement before the learned Labour Court. He submitted that the learned Labour Court failed to appreciate the fact that the respondent was engaged by way of stop gap arrangement and on ad-hoc basis and that therefore, Section 25F was not applicable. He also submitted that the learned Labour Court erred in not appreciating that the respondent was not only engaged by way of stop gap arrangement and on ad-hoc basis but he was working only as part time employee i.e. for about 4 hours per day and that the respondent's appointment was not regular and that therefore, the direction to reinstate the respondent is unjustified. 5. In view of the contentions raised by the learned advocate for the petitioner, the only issue which arises in present petition for consideration by this Court is as to whether the petitioner had established before the learned Labour Court that the appointment as well as termination of the respondent workman would fall within the purview of Section 2(oo)(bb) or not because if it emerges from the evidence on record that the petitioner panchayat had successfully established the said aspect with support of cogent and satisfactory evidence, then, the petitioner panchayat would succeed in contending that the learned Labour Court erred in holding that the petitioner panchayat had acted in breach of Section 25F. In this context, it would be appropriate to take into account observation by Hon'ble Apex Court in case of S.M. Nilajkar v. Telecom District Manager, Karnataka [ (2003) 4 SCC 27 ] wherein Hon'ble Apex Court observed that:-- "13. In this context, it would be appropriate to take into account observation by Hon'ble Apex Court in case of S.M. Nilajkar v. Telecom District Manager, Karnataka [ (2003) 4 SCC 27 ] wherein Hon'ble Apex Court observed that:-- "13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of Sub-clause (bb) subject to the following conditions being satisfied:-- (i) that the workman was employed in a project or scheme of temporary duration; (ii) the employment was on a contract, and not as a daily-wager simplicitor, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; and (iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract. (iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment. 14. The engagement of a workman as a daily-wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto to occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short-lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complaint that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of Sub-clause (bb) abovesaid. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of Sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of Sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. For want of proof attracting applicability of Sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment." Thus, to take recourse under said section can be had if the aspects such as the factors illustrated in the decision are established. The evidence on record of this case shows that relevant aspects have not been established in present case. When the evidence obtaining on record and the discussion in the award is taken into account, it emerges that the petitioner panchayat failed to place any evidence on record to conclusively establish that the respondent was appointed by way of stop gap arrangement and on ad-hoc basis while it was awaiting appointment of regularly selected employee for the post of Dresser. Any appointment order containing such stipulation and declaration that the appointment is made only until regularly selected employee is available, is not found on record of the learned Labour Court. 5.1 If the respondent workman was engaged purely by way of stop gap arrangement and on ad-hoc basis and that too until the regularly selected employee is available, then, the said aspect would have been clearly specified in the appointment order and the respondent workman would have been put to notice that his appointment will continue until the regularly selected employee is available. It is undisputed fact that any appointment letter containing such stipulation and declaration was not placed before the learned Labour Court. Not only this, even the witness of the petitioner panchayat did not assert before the learned Labour Court that any appointment order with such clarification was issued to the respondent. Thus, the first requirement to establish that in the facts of the case Section 2(oo)(bb) is attracted and applicable was not demonstrated and established by the petitioner before the learned Labour Court. 5.2 Besides this, the petitioner panchayat also failed to establish before the learned Labour Court the date on which the regularly selected employee came to be appointed on the post of Dresser and thereupon the claimant became surplus. 5.2 Besides this, the petitioner panchayat also failed to establish before the learned Labour Court the date on which the regularly selected employee came to be appointed on the post of Dresser and thereupon the claimant became surplus. Neither the name of the regularly selected employee was mentioned before the learned Labour Court nor the date on which such employee came to be appointed and when did he reported for duty was established before the learned Labour Court. On examination of the record, it emerges that there is nothing on record to establish that the regularly selected employee became available on any particular date and the respondent was terminated immediately after such regularly selected employee became available. If the service of the respondent workman was actually terminated upon appointment of regularly selected employee, then, the aforesaid details would be on record. In absence of any evidence to establish the said aspect, the Court cannot presume that the service of the respondent was terminated when regularly selected employee was appointed. 5.3 The foregoing discussion brings out and establishes that the factors relevant for establishing applicability of clause (bb) of Section 2(oo) have not been established either at the stage of appointment of the respondent workman or at the stage when his service came to be terminated. The other relevant factor to establish applicability of Section 2(oo)(bb) namely appointment of regularly selected employee is also not established before the learned Labour Court. 5.4 Under the circumstances, it becomes clear that the petitioner's claim that the respondent workman was engaged by way of stop gap arrangement and on ad-hoc basis as well as for fixed period i.e. until regularly selected employee becomes available is not established before the learned Labour Court and that therefore, the conclusion recorded by the learned Labour Court that in present case, any ingredient necessary for establishing the said provision is not available, cannot be faulted. 5.5 The above discussion also brings out and establishes the fact that the respondent's appointment is not covered under Section 2(oo) (bb) and that therefore, at the time of termination of the service of the respondent the said provision would not be applicable. Consequently, the provision and condition prescribed by Section 25F would be attracted if it is established that the claimant workman had continuously worked for 12 months and for not less than 240 days in preceeding 12 months. Consequently, the provision and condition prescribed by Section 25F would be attracted if it is established that the claimant workman had continuously worked for 12 months and for not less than 240 days in preceeding 12 months. In present case, so far as the facts related to date of joining and the date on which the service of the respondent was terminated are not in dispute. It is established that the respondent was appointed w.e.f. 19.7.1988 and thereafter, he worked continuously until 3.5.1990. Even the learned Labour Court has recorded a finding of fact to that effect. In view of the fact that the petitioner panchayat raised the contention on the strength of Section 2(oo)(bb), the petitioner panchayat did not oppose the respondent's claim on the ground that he had not worked for 240 days during the preceeding 12 months. Even if, it is assumed that the said contention was raised before the learned Labour Court, it comes out from the discussion in the impugned award that the witness of the petitioner panchayat had admitted and accepted that before the service of the respondent was terminated, he had worked continuously from July 1988 to May 1990 and that in each year, he had worked for 240 days. Thus, on the said count also, the learned Labour Court also recorded finding of fact and there is nothing on record to establish that the said finding of fact is contrary to evidence on record and perverse. 6. It is an undisputed position of fact that when the service of the respondent was terminated, the petitioner panchayat did not pay retrenchment compensation or any other amount. It is not in dispute that the service of the respondent was not terminated by way of misconduct and/or after conducting any departmental inquiry. If all these aspects are collectively taken into account, then, it emerges that in present case Section 25F was attracted and applicable and that therefore, the petitioner panchayat was obliged to comply with the condition prescribed under Section 25F of the Act at the time of relieving the respondent. 6.1 Undisputedly, the condition required to be complied by the employer while terminating service of an employee who worked continuously for 12 months and also worked for 240 days in preceeding 12 months namely to pay retrenchment compensation in accordance with the procedure prescribed under Section 25F, was not complied. 6.1 Undisputedly, the condition required to be complied by the employer while terminating service of an employee who worked continuously for 12 months and also worked for 240 days in preceeding 12 months namely to pay retrenchment compensation in accordance with the procedure prescribed under Section 25F, was not complied. Therefore, the learned Labour Court's conclusion that the respondent's service was terminated in breach of Section 25F cannot be faulted. 7. When the above discussed aspects are examined in light of the evidence available on record, as a corollary, direction for reinstatement and backwages would follow. 7.1 However, so far as the issue related to backwages is concerned, it is necessary to note that the respondent's service was terminated in 1990 whereas he raised industrial dispute in 1996 i.e. 6 years after his termination. Moreover, after having raised the dispute in 1996, i.e. almost 6 years after his termination, the respondent appeared before the learned Labour Court to depose, i.e. to offer his oral evidence, in 2003 i.e. after 7 years. Further, total tenure of the respondent's service with the petitioner was only about 22 months i.e. July 1988 to May 1990. When above aspects are taken into consideration, then, it emerges that the direction by the learned Labour Court granting benefit of continuity of service as well as 25% backwages cannot be sustained. A person who was engaged without following procedure of selection and recruitment i.e. a person whose appointment itself was irregular and illegal and who worked only for about 22 months was not vigilant in raising industrial dispute and/or in conducting the reference on merits for long time, cannot be considered entitled for benefit of continuity of service and/or backwages. 7.2 In this view of the matter, the direction requiring the petitioner to consider the respondent's service as continuous i.e. benefit of continuity of service as well as direction to pay 25% backwages are not sustainable and therefore, the said directions are set aside. It is clarified that the petitioner's reinstatement in service will not entail liability or obligation to pay backwages and/or to grant continuity of service to the respondent. With the aforesaid clarifications and directions, the petition stands disposed of. The impugned award is modified to the aforesaid extent by setting aside the direction with regard to continuity of service and backwages. Consequently, the petition is partly allowed. With the aforesaid clarifications and directions, the petition stands disposed of. The impugned award is modified to the aforesaid extent by setting aside the direction with regard to continuity of service and backwages. Consequently, the petition is partly allowed. Rule is made absolute to the aforesaid extent.