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2018 DIGILAW 744 (GUJ)

STATE OF GUJARAT v. MANUBHAI DAYABHAI DABHASARIYA

2018-06-14

K.M.THAKER

body2018
JUDGMENT : 1. Heard Mr. Krutik Parikh, learned AGP for petitioner and Mr. Chhaya, learned advocate for respondent. 1.1 Learned advocates had concluded their submissions yesterday i.e. on 13.6.2018. However for dictation of order the petition came to be adjourned today. Though learned advocate for respondent has filed leave note, in view of the fact that learned advocates for both sides have already concluded their submissions the Court proceeds to dictate the order. 2. In SCA No. 9190 of 2016 the petitioner, Deputy Executive Engineer, Rajkot has placed under challenge award dated 3.11.2015 passed by learned Labour Court at Rajkot in Reference (LCR) No. 13/2010. 3. Whereas in SCA No. 9195 of 2016 the petitioner Deputy Executive Engineer, Rajkot has placed under challenge, award dated 3.11.2015 passed by learned Labour Court at Rajkot in Reference (LCR) No. 11/2010. 4. Though separate awards in respect of 2 different employees are placed under challenge in captioned petitions, learned AGP as well as learned advocate for the said 2 persons have put forward common submissions. It is clarified by learned advocates that almost identical awards are passed in respect of the said 2 reference cases/ 2 workmen. The reasons assigned by learned Labour Court in support of conclusion and final directions are almost identical in both the awards. On the said premise the learned advocates for both the sides have, respectively, raised common contentions against and in support of the awards. Therefore both the petitions are decided by this common order. 5. So far as the factual backdrop is concerned it has emerged from the record that the said workman concerned in Reference No.13/2010 (Mr. M.D.Dabhasariya) raised industrial dispute in 2010 against present petitioner with the allegations that the employer illegally terminated his service in September, 1999. In February, 2010, appropriate government referred the dispute for adjudication to learned Labour Court at Rajkot. Learned Labour Court registered the dispute as Reference (LCR) No.13/2010. In his statement of claim the workman claimant alleged that he joined the service as daily wage labourer in January, 1995 and he worked continuously and regularly as daily wage worker until September, 1999 when the employer illegally and arbitrarily terminated his service without following procedure prescribed by law. He alleged that he had worked for 240 days however the opponent employer committed breach of Section 25F, Section 25G and Section 25H. He alleged that he had worked for 240 days however the opponent employer committed breach of Section 25F, Section 25G and Section 25H. With the said allegations the workman claimed that he should be reinstated in service with all benefits. 6. So far as the workman in Reference Case No. 11/2010 is concerned, he also raised industrial dispute in 2010 against present petitioner with almost identical allegations that the allegations that the employer (present petitioner) illegally terminated his service in September, 1999. This dispute also came to be referred by appropriate government for adjudication to Labour Court at Rajkot in February, 2010. The workman concerned in Reference Case No.11/2010 also made identical allegations in his statement of claim which he filed on record of reference case No. 11/2010 inasmuch as he also claimed that he joined the service as daily wage labourer in January, 1995 and he worked as such until September, 1999 when the employer illegally terminated his service. He also alleged that he worked for 240 days however employer terminated his service without following procedure prescribed and in breach of Section 25F, Section 25G and Section 25H. On the said premise he demanded that he should be reinstated with all benefits. 7. In both reference cases the opponent i.e. present petitioner, having regard to the fact that claimants had made similar allegations, filed separate written statements (Reply) however with similar defence and contentions. The opponent employer placed relevant factual backdrop on record of the said reference cases, through its separate reply. In its written statement the employer i.e. present petitioner submitted that the said 2 claimants were engaged without following procedure prescribed for selection and recruitment, therefore their engagement was irregular. The said claimants were engaged intermittently for casual work and their engagement depended on exigency of work and requirement of their service. According to the reply said claimants were not engaged continuously and regularly and they had not worked for 240 days in any year. The employer also claimed that in view of the policy decision taken by the State Government after the Resolution dated 7.10.1988, service of casual workers engaged on daily wage basis were discontinued which included the claimants as well. The opponent employer also opposed maintainability of the said reference cases on the ground that the workman raised dispute after gross delay of 11 years and therefore reference should not be entertained. The opponent employer also opposed maintainability of the said reference cases on the ground that the workman raised dispute after gross delay of 11 years and therefore reference should not be entertained. It was also claimed that since the claimants had not worked for 240 days and since any junior person or any other persons were not engaged after their service were discontinued, question of alleged breach of Section 25F or Section 25G or Section 25H does not arise. With such submission, the opponent employer i.e. present petitioner opposed the said 2 reference cases. 8. Upon conclusion of the pleadings both sides placed evidence on record. After the parties closed their evidence, the learned Labour Court heard rival submissions. After considering material available on record, learned Labour Court reached to the conclusion that the employer committed breach of statutory provisions at the time when it discontinued the service of the claimants. In light of said findings the Court passed impugned awards in said 2 Reference cases. 9. While assailing above mentioned 2 awards learned AGP submitted that learned Labour Court failed to appreciate that the reference/dispute did not deserve to be entertained since the dispute was raised after gross delay of 11 years. He submitted that the workman failed to prove that they had worked for 240 days in preceding 12 months. The learned Labour Court disregarded the said aspect and erroneously held that the petitioner committed breach of Section 25F. The learned AGP also submitted that the learned Labour Court also committed error in holding that the employer committed breach of Section 25G and Section 25H. According to learned AGP the findings recorded in the awards are without support of any evidence. According to learned AGP the reference should have been rejected on solitary ground of gross delay. 10. Learned advocate for both the claimants opposed the submissions. He submitted that the learned Labour Court has not committed error and the conclusions are based on material available on record. He submitted that the employer did not issue identity card, pay receipt, attendance card or any other document which would establish that the workman had worked continuously and had worked for 240 days. Therefore there is no error in the decision of the learned Labour Court. He submitted that the employer did not issue identity card, pay receipt, attendance card or any other document which would establish that the workman had worked continuously and had worked for 240 days. Therefore there is no error in the decision of the learned Labour Court. He also submitted that both the workmen specifically mentioned the names of the persons who were Junior to them but were continued in service and also names of the persons came to be engaged after service of the claimants were discontinued and that therefore finding of learned Labour Court with regard to Section 25G and Section 25H are also correct and justified. Learned advocate for the claimants also submitted that the learned Labour Court has moulded the relief and granted only 25% wages and thereby Court has taken care of the delay caused in raising the dispute. According to learned advocate for the respondents the award is just and proper and the petition deserves to be dismissed. 11. I have considered the rival submissions as well as material on record and the impugned awards passed by learned Labour Court in both reference cases. 12. In present case, even if it is assumed that the findings by learned Labour Court with regard to Section 25F are unjustified because the workmen did not discharge the initial burden to prove that they had worked for 240 days in preceding 12 months, then also the findings of fact recorded by learned Labour Court with regard to Section 25G and Section 25H would still stare in the face of the petitioner. 13. In this context it is relevant to note that both the workmen categorically mentioned that after their service came to be terminated the opponent employer had, without offering work to them, engaged other workmen namely Kishorebhai, Chhaganbhai and Devjibhai. Having mentioned the names the workmen claimed that said action establish breach of Section 25H on the premise that before engaging the said other workmen the employer had not made any offer to the claimants and had not asked present claimants to report for work, if they were so willing. 14. Having mentioned the names the workmen claimed that said action establish breach of Section 25H on the premise that before engaging the said other workmen the employer had not made any offer to the claimants and had not asked present claimants to report for work, if they were so willing. 14. On this count learned Labour Court, has after taking into account the said evidence by the workmen, discussed the said aspect at length and categorically recorded that employer failed to put any question to the workmen during their cross-examination with regard to said specific assertion by the claimants namely that 3 persons came to be engaged by the employer after their service were discontinued. 15. On this count it is relevant to note that the petitioner employer, undisputedly, failed to lead evidence to demonstrate before learned Labour Court that the said 3 person were in service before the service of the claimants came to be terminated or that the said 3 persons were Senior to present claimants and/ or that the said 3 persons were, though engaged subsequently, not engaged in the same department where present claimants were working or for the same work which the claimants were discharging but said 3 persons were engaged in some other department for different work and in different capacity. The petitioner failed to lead evidence to demonstrate the said aspect and also failed to extract any contrary evidence or material from the claimants during their cross-examination. 16. It is pertinent to note even on record of present petition the petitioner has failed to place any material to demonstrate (that the allegations by the present claimants that the said 3 persons were engaged after their services were discontinued) is incorrect. 17. Under the circumstances, the conclusion by learned Labour Court with regard to breach of Section 25H cannot be faulted. 18. Besides this, it has also emerged from the record that at the material point of time present petitioner engaged more number of workmen on daily wage basis. 17. Under the circumstances, the conclusion by learned Labour Court with regard to breach of Section 25H cannot be faulted. 18. Besides this, it has also emerged from the record that at the material point of time present petitioner engaged more number of workmen on daily wage basis. Therefore, in light of the provisions under Rule 81 of the Industrial Disputes (Gujarat) Rules, the petitioner was under obligation to maintain seniority list of employees engaged on daily wage basis and it was also necessary that the petitioner should have displayed, on the notice board, Seniority list of daily wage employees 7 days before the date on which the service of the claimants came to be discontinued. It is not the case even of the petitioner that the said procedure and condition prescribed by Rule 81 was followed at the time when the service of the claimants came to be discontinued. Thus, undisputedly, the employer committed breach of Rule 81. Under the circumstances the findings recorded by learned Labour Court on that count cannot be faulted. 19. In this view of the matter, it emerges that the learned Labour Court has not committed any error in recording findings and final conclusion with regard to breach of statutory provision. 20. In this view of the matter, ordinarily direction to reinstate the workmen would follow. 21. However, the undisputed fact that the claimants raised dispute after almost 11 years coupled with the undisputed fact that both the claimants admitted that after their service were discontinued they earned income of about Rs.700/to Rs.800/per month, as well as the fact that they were not permanent employees but they were employees working on daily wage basis and were engaged irregularly their tenure was also not long. 22. In that view of the matter, the decision of learned Labour Court to award 25% backwages from the date of termination and continuity cannot be sustained. 23. In view of the fact that the dispute was raised after 11 years, the predicament and practical difficulties for accommodating daily wages employees of present petitioner also cannot be overlooked. 24. 22. In that view of the matter, the decision of learned Labour Court to award 25% backwages from the date of termination and continuity cannot be sustained. 23. In view of the fact that the dispute was raised after 11 years, the predicament and practical difficulties for accommodating daily wages employees of present petitioner also cannot be overlooked. 24. Even when overall view of said other factual aspect namely delay in raising the dispute and that the workmen have admitted that they earned income in the interregnum and their status as daily wage employees as well as irregularity when they were engaged on short tenure of engagement it appears that final direction by learned Labour Court including the direction to reinstate the claimants with continuity deserves to be modified. 25. On overall consideration of factual backdrop, particularly the fact that (i) the concerned workmen were working as daily wager; (ii) the total tenure of their service with the petitioner (even according to their own allegations) is of 3½ to 4 years and (iii) delay in raising dispute, it appears that if lump sum compensation is awarded to the claimants then it would be appropriate relief. 26. Having regard to the above mentioned aspects, this Court is of the view that if the claimants are awarded lump sum compensation equivalent to 25% of wages payable from the date when appropriate government referred the dispute (i.e. 1.2.2000) to the date of award, then that would be appropriate and sufficient compensation and relief to the workmen. 27. Therefore following order is passed: a. The impugned award is partly setaside and modified. b. Instead of direction to reinstate the claimants with continuity and to pay 25% backwages, it is directed that the petitioner shall pay lump sum compensation to the workmen which should be equivalent to the wages which would be equivalent to 25% of the wages which would have been paid to them from the date of order of reference to the date of award i.e. compensation equivalent to 25% of wages payable from 1.2.2010 to 03.11.2015. c. The petitioner shall pay the said amount to each claimant. d. The petitioner shall endeavour to pay the said lump sum compensation to the workmen as expeditiously as possible and preferably within 4 weeks from the date of receipt of Certified copy of this Order. With aforesaid order, the petitions are partly allowed. Orders accordingly.