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Gujarat High Court · body

2016 DIGILAW 423 (GUJ)

State of Gujarat v. Brambhatt Jayesh Bhupatray

2016-02-22

K.M.THAKER

body2016
JUDGMENT K.M. Thaker, J. 1. Heard Mr. Barot, learned AGP for the petitioner State and Mr. Nanavati, learned advocate for the respondent. 2. The petitioner has challenged an award dated 29.8.2009 passed by the learned Labour Court at Bhavnagar in Reference (LCB) No. 352 of 2005 whereby the learned Labour Court directed the petitioner State to reinstate the claimant workman with continuity of service and to pay 10% backwages. 3. The factual background involved in and leading to present petition can be summarised thus. 3.1 After lapse of almost 10 years, since the date for the alleged termination of his service, the respondent, i.e. claimant workman raised industrial dispute, alleging that the petitioner Deputy Engineer terminated his service illegally and arbitrarily. 3.2 The claimant workman sought reinstatement in service about 10 years after he was allegedly terminated. 3.3 The appropriate Government referred the said dispute for adjudication vide order of reference dated 26.12.2005. The said reference came to be registered as Reference (LCB) No. 352 of 2005. 3.4 In the reference proceeding before the learned Labour Court, the claimant workman, i.e. present respondent filed his statement of claim alleging, inter alia, that since 1.11.1993 he was working as Chowkidar in the Office of Deputy Engineer, Shetrunji Canal Sub Division at salary of Rs. 90 per day. He alleged that he was engaged as Chowkidar-cum-Clerk and was illegally and arbitrarily terminated by oral order dated 30.4.1999. He also alleged that when his service was terminated on 30.4.1999, the petitioner did not pay retrenchment compensation and he was not granted opportunity of hearing. He alleged that the petitioner terminated his service in violation of statutory provision viz. Sections 25F, 25G and 25H of the Industrial Disputes Act read with Rule 81 of the Rules framed thereunder. He claimed that he had worked for 240 days in preceding 12 months, however, the procedure prescribed by law was not followed before terminating his service. On such claim, he claimed relief of reinstatement and consequential benefits. 3.5 The reference was opposed by the employer, i.e. present petitioner. The petitioner employer denied the allegation made by the claimant workman. With regard to the factual aspects, the petitioner employer claimed that the claimant workman was engaged without following procedure for selection and recruitment and without inviting names from the Employment Exchange. 3.5 The reference was opposed by the employer, i.e. present petitioner. The petitioner employer denied the allegation made by the claimant workman. With regard to the factual aspects, the petitioner employer claimed that the claimant workman was engaged without following procedure for selection and recruitment and without inviting names from the Employment Exchange. It was also claimed that the claimant workman was engaged on ad hoc, temporary and daily wage basis. It was also claimed that the claimant workman worked on Nominal Muster Roll and that it was the claimant workman who had voluntarily stopped reporting for duty with effect from 15.5.1995. The petitioner employer also claimed that in 1993 the claimant was engaged only for 11 days, in 1994 the claimant was engaged only for 20 days and in 1995 before the claimant stopped reporting for work, he was engaged for 76 days. The petitioner employer claimed that neither in preceding 12 months nor in any phase of 12 months the claimant had ever worked for 240 days. It was claimed that since the workman did not fulfill the condition for invoking section 25F, any occasion to pay compensation did not arise an that since it was the claimant who stopped reporting for work, there was no obligation for the employer to comply any provision or condition. 4. During the proceeding before the learned Labour Court, the petitioner employer placed on record a statement reflecting the details of the attendance of the workman. The petitioner employer also placed on record copy of certain Nominal Muster Roll. The petitioner employer also examined one Mr. P.M. Bhatt as its witness whose deposition is at Exh. 26. 5. The learned Labour Court considered the evidence on record and also considered the submissions by learned advocate for the workman and the petitioner employer and passed impugned award with above-mentioned directions. 6. While assailing the impugned award, learned AGP submitted that the learned Labour Court has exercised jurisdiction arbitrarily and with materially irregularity and has committed error of law and jurisdiction. Learned AGP submitted that learned Tribunal erred in not appreciating that the claimant had raised dispute after delay of almost 10 years. According to learned AGP, the learned Tribunal erred in not appreciating that the claimant was appointed illegally, i.e. without following any procedure prescribed for selection and recruitment and without even inviting for the names from the Employment Exchange. Learned AGP submitted that learned Tribunal erred in not appreciating that the claimant had raised dispute after delay of almost 10 years. According to learned AGP, the learned Tribunal erred in not appreciating that the claimant was appointed illegally, i.e. without following any procedure prescribed for selection and recruitment and without even inviting for the names from the Employment Exchange. He also submitted that the learned Labour Court failed to appreciate it was the claimant who had stopped reporting for duty with effect from 15.5.1995 and the fact that he raised dispute after 10 years supports the case of the petitioner that it was the claimant who had stopped reporting for work. Learned AGP submitted that the award deserves to be set aside. 7. Per contra, learned advocate for the respondent vehemently supported the impugned award and submitted that the learned Labour Court has not committed any error in directing the petitioner State to reinstate the respondent with continuity of service and 10% backwages. He submitted that the service of the claimant was terminated without following any procedure prescribed by law and the claimant's termination from service was in violation of statutory provision viz. sections 25F, 25G and 25H of the Act and that, therefore, the direction to reinstate the workman would follow as a corollary, under the circumstances, the direction by the learned Labour Court cannot be said to be arbitrary or unjust. Learned advocate for the claimant also submitted that the petitioner State failed before the learned Labour Court to establish that it was the workman who had stopped reporting for duty and in fact, the superior officer had terminated the respondent arbitrarily by oral order. Learned advocate for the respondent submitted that the petition deserves to be rejected. 8. Learned advocate for the respondent, however, could not explain the delay of 10 years in raising the dispute. Learned advocate for the respondent failed to explain as to why the claimant had not taken any steps for long span of 10 years after his service was allegedly terminated arbitrarily and by oral order. 9. The learned Labour Court has observed in the award that after the service of the respondent was terminated with effect from 10.5.1995, the respondent workman had served demand notice dated 13.10.2005 which was not replied by the petitioner employer. 9. The learned Labour Court has observed in the award that after the service of the respondent was terminated with effect from 10.5.1995, the respondent workman had served demand notice dated 13.10.2005 which was not replied by the petitioner employer. 9.1 From the said observations by the learned Labour Court in paragraph No. 9 of the award, it emerges that the learned Labour Court, upon examination of the evidence on record, accepted that the service of the claimant workman was terminated with effect from 10.5.1995. 9.2 The said observations and conclusions by the learned Labour Court translates into the fact that the claimant workman raised industrial dispute after 10 years from the date of his termination. 9.3 From the said observations by the learned Labour Court, it also emerges that the learned Labour Court did not accept the claim of the petitioner employer that it was the claimant workman who had voluntarily stopped reporting for duty and the petitioner employer had not terminated the service of the claimant workman. 10. From the observations and conclusions recorded by the learned Labour Court in paragraph No. 10 of the award, it has emerged that on examination of the evidence on record the learned Labour Court found that when the service of the claimant workman was terminated in May 1995, five persons who were junior to the claimant workman were retained in service. 11. The learned Labour Court has recorded specific finding that Mr. D.V. Bhatt, Mr. A.D. Dhandhaliya, Mr. D.P. Dhandhaliya, Mr. V.D. Gohil and Mr. S.S. Gohil were junior to the claimant workman and they were retained in service after the claimant's service was terminated. 12. Having reached to the said finding of fact, the learned Labour Court reached to the conclusion that the petitioner employer had violated provision under section 25G of the Act. 13. At this stage, it is pertinent to note that even if the contention raised by the petitioner employer that the claimant workman had not worked for 240 days in preceding 12 months is assumed to be correct, then also it would not be of any assistance to the petitioner employer in view of the conclusion by the learned Labour Court with regard to section 25G inasmuch as section 25G does not require and does not contemplate requirement of attendance of 240 days for invoking and attracting section 25G of the Act. The said section 25G of the Act would be attracted and would be applicable even in cases where the person whose service is terminated had not worked for 240 days before his service came to be terminated. Though section 25G is part of same family under same Chapter V-A which contains sections 25A to 25J, the said section 25G operates independently and it is not dependent on breach and/or compliance of section 25F of the Act. Section 25G of the Act does not require compliance of the condition necessary for attracting section 25F viz. work/service of minimum 240 days in 12 months preceding the date of retrenchment. The only requirement for attracting section 25G is to establish that at the time when the service of the claimant workman came to be terminated person junior to him was retained in service and the principle of "last come, first go" was not followed. If the said fact is established, then breach of section 25G would stand established and that would render the action of termination of the workman contrary to and in violation of statutory provision. 14. In present case, the learned Labour Court has specifically recorded, in paragraph No. 10 of the award, finding of fact that the five persons who were junior to the claimant workman were retained in service at the time when the claimant workman was relieved - terminated. Having regard to the specific finding of fact in paragraph No. 10, which is based on the evidence available on record of the reference the said conclusion cannot be faulted. 15. The learned Labour Court, having reached to the conclusion that the petitioner employer committed breach of section 25G, held that the petitioner's action of terminating service of the respondent is illegal and contrary to statutory provision. In light of the said conclusion, the learned Labour Court directed the petitioner employer to reinstate the respondent. 16. When the direction to reinstate the respondent is based on specific finding of fact (that the petitioner employer committed breach of section 25G) recorded by the learned Labour Court, then such direction cannot be interfered with. This Court does not find any reason or ground to interfere with the finding of fact recorded by the learned Labour Court that when the claimant workman was relieved - terminated, the five persons who were junior to the claimant workman were retained in service. This Court does not find any reason or ground to interfere with the finding of fact recorded by the learned Labour Court that when the claimant workman was relieved - terminated, the five persons who were junior to the claimant workman were retained in service. The conclusion about the breach of section 25G is based on such finding of fact and therefore the said conclusion also cannot be said to be erroneous and the said conclusion does not warrant any interference. 17. The petitioner has failed to make out any ground to dislodge the finding of fact recorded by the learned Labour Court. It is not established that the said finding of fact is perverse. Any material to establish that any person junior to the claimant workman was not retained in service at the time when the claimant workman was relieved - terminated, is not placed on record. 18. When breach of statutory provision is established and is accepted by the learned Labour Court, then as a corollary, the direction to reinstate the workman would follow. 19. Under the circumstances, the order passed by the learned Labour Court directing the petitioner employer to reinstate the claimant workman cannot be faulted and does not warrant interference. 20. This leaves behind the issue related to the direction granting benefit of continuity of service and backwages. 21. As mentioned earlier, the learned Labour Court has recorded finding of fact that the service of the respondent workman was put to an end in May 1995. 22. The claimant workman raised dispute by issuing demand notice dated 13.10.2005. 23. Thus, before 13.10.2005 i.e. for almost 10 years, the workman did not take any steps or any action against termination of his service in May 1995. Differently put, the respondent workman raised dispute against termination of his service, after lapse of almost 10 years. 24. It is also necessary to recall that the respondent workman was engaged without following procedure of selection and recruitment and that there is nothing on record to establish that at the time when the claimant workman was engaged, there was any clear vacancy in respect of sanctioned permanent post. It is accepted by the learned Labour Court that the respondent workman was engaged on ad hoc and temporary and daily wage basis and he was working on Nominal Muster Roll. 25. It is accepted by the learned Labour Court that the respondent workman was engaged on ad hoc and temporary and daily wage basis and he was working on Nominal Muster Roll. 25. When above-mentioned facts are established, then the direction granting continuity of service cannot be justified or sustained, more particularly when the respondent workman raised in dispute after delay of 10 years. 26. Learned advocate for the respondent workman would contend that merely on ground of delay, the dispute/reference cannot be rejected. True it is that ordinarily the Court would not dismiss or reject the reference at its threshold only on the ground that the workman raised dispute after delay. However, that does not mean that all consequential benefits can be and must be granted mechanically and without taking into account the fact that the concerned workman raised dispute after inordinate delay. Actually, delay - unreasonable delay - in raising dispute will invite and justify all presumptions or assumptions if cause for delay is not explained. 27. In present case, the claimant workman raised industrial dispute after inordinate delay of 10 years. In normal circumstances, there would be presumption against the concerned workman, in face of such facts, that during the interregnum, he must have been gainfully employed and therefore, he did not take any steps to raise industrial dispute and/or that the dispute and claim are raised as afterthought. 28. However, when legality, propriety and maintainability of the direction granting benefit of continuity of service is to be examined, the said facts cannot be overlooked. Having regard to the above-mentioned facts and more particularly the fact that the respondent's appointment was not made in accordance with the selection and recruitment procedure and he was engaged only on ad hoc and temporary and daily wage basis and he was working on Nominal Muster Roll and he raised dispute after 10 years, this Court is of the view that direction granting continuity of service is unjustified and it cannot be sustained and deserves to be set aside and is accordingly set aside. 29. So far as the direction to pay 10% backwages is concerned, the learned Labour Court has recorded sufficient and cogent reasons to grant backwages @ 10%. There is no claim or demand by the respondent workman for backwages. 29. So far as the direction to pay 10% backwages is concerned, the learned Labour Court has recorded sufficient and cogent reasons to grant backwages @ 10%. There is no claim or demand by the respondent workman for backwages. The challenge of the petitioner employer against the direction to grant 10% backwages does not deserve to be entertained in view of the finding of fact recorded by the learned Labour Court in paragraph No. 10 of the award, i.e. the fact that the respondent's service was terminated in breach of section 25G. Under the circumstances, the direction granting backwages is not interfered with. In the result, the petition is partly allowed. The direction granting reinstatement and 10% of backwages are not interfered with and they are not disturbed. However, the direction granting continuity of service is set aside. The reinstatement of the respondent workman pursuant to the award impugned in present petition, i.e. pursuant to the award dated 20.8.2009 would be as fresh employee from the date of the award. With the aforesaid directions and clarifications, the petition is disposed of. Rule is discharged.