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Gujarat High Court · body

2021 DIGILAW 594 (GUJ)

COMMANDING OFFICER v. KAMUBEN RATILAL

2021-07-16

A.P.THAKER

body2021
JUDGMENT : 1. By filing Special Civil Application Nos.4218, 4219 and 5056 of 2008, the petitioner has challenged judgment and awards dated 7.12.2007 rendered at Exh.24 in Reference (LCJ) No.1 of 1997 and Reference (LCJ) No.263 of 1996 and at Exh.30 in Reference (LCJ) No.34 of 1995 by the Presiding Officer, Jamnagar District Labour Court, Jamnagar, and in Special Civil Application No.4731 of 2016, the petitioner has challenged judgment and award dated 20.5.2015 rendered in Reference (T) No.5 of 2002 by the Presiding Officer, Labour Court, Jamnagar. 2. Since common issue is involved in all these petitions, these petitions are heard and decided together and are being disposed of by this common judgment. Since the facts are also similar, facts of Special Civil Application No.4218 of 2008 are stated hereunder for the purpose of deciding all these petitions. 3. By filing Special Civil Application No.4218 of 2008 under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside judgment and award dated 7.12.2007 rendered at Exh.24 in Reference (LCJ) No.1 of 1997 by the Presiding Officer, Jamnagar District Labour Court, Jamnagar. 3.1 The facts giving rise to the present petition are that the respondent herein made an application to the office of the petitioner on 15.7 1996. Vide the said application, it was stated that she was not having any work for about eight months and she was a widow and she be granted some work on humanitarian ground. 3.2 It appears that the learned Assistant Labour Commissioner, Jamnagar forwarded the complaint of the respondent to the petitioner -Commanding Officer, INS Valsura which is a premier institution of Electrical Engineering of Navy. While forwarding the said complaint, the learned Assistant Labour Commissioner pointed out that the respondent had alleged in the complaint that her services were terminated illegally and requested to reinstate in the service to her original job. Therefore, prior to submitting the case to the Labour Court under the Industrial Disputes Act, clarification of the petitioner was called for. 3.3 It appears that thereupon, Reference (LCJ) No. 1 of 1997 was instituted vide order dated 30.1.1997 of the Assistant Labour Commissioner for decision in accordance with law. 3.4 On 23.5.1997, a notice was issued to the petitioner (respondent in the Labour Court in the said Reference) which was received on 3.6.1997 forwarding a copy of the statement of demand. 3.3 It appears that thereupon, Reference (LCJ) No. 1 of 1997 was instituted vide order dated 30.1.1997 of the Assistant Labour Commissioner for decision in accordance with law. 3.4 On 23.5.1997, a notice was issued to the petitioner (respondent in the Labour Court in the said Reference) which was received on 3.6.1997 forwarding a copy of the statement of demand. The statement of defence was filed on 11.3.1998. In the said statement of defence, it was pointed out that the claim of the respondent was not sustainable, true or bona fide. It was pointed out that there was no cause to file the said Reference and, therefore, the same was liable to be rejected. It was pointed out that the sailors mess was engaging workers for cleaning rice on as and when required basis who were paid charges for cleaning rice from the private fund of the Mess account. It was denied categorically that the respondent was employed. There was no system to employ the people on permanent basis. It was pointed out that there was no provision to file a reference case against the Central Government. There was no notice issued under Section 80 of the CPC. It was, therefore, urged that the case deserved to be rejected with special cost. 3.5 An affidavit at Exh. 19 was also filed by the Administrative Officer II, on behalf of the petitioner-the Commanding Officer, INS Valsura, Jamnagar stating that the respondent was not a worker of the Central Government as there was no such record available with the office of the petitioner. It was stated and affirmed on oath that the respondent, as the petitioner before the Labour Court, did not produce any proof of her service in Valsura nor any proof of the period of her engagement or termination of service. It was pointed out that the sailors’ mess was issued with cleaned grain/rice from the Government. However, the sailor who takes food in the mess, engages workers to clean the rice as and when required basis for their own interest and satisfaction as a purely private arrangement. It was pointed out that the sailors were contributing money themselves and were paying the wages to the workers engaged for the job. 3.6 The cross examination of the Administrative Officer was conducted on 25.7.2006. A further affidavit affirmed on 18.4.2007 was also filed. It was pointed out that the sailors were contributing money themselves and were paying the wages to the workers engaged for the job. 3.6 The cross examination of the Administrative Officer was conducted on 25.7.2006. A further affidavit affirmed on 18.4.2007 was also filed. 3.7 The petitioner respectfully submits that considering the fact that the petitioner is a part of the premier institution i.e. Navy and is under the Central Government, the reference was not maintainable at all as it was not referred to by the “appropriate Government” in terms of the Industrial Disputes Act. Despite there being no evidence worth the name to show that the respondent was employed by a Government organization or that she was paid any wages by such organization and despite there being evidence to the effect that the respondent was privately employed by the sailors having their meals in the mess on a purely private arrangement, the reference has been allowed, inter alia, holding that the alleged termination of the respondent was illegal and has been directed to be reinstated with 20% backwages and cost of Rs.500/- vide judgment and award dated 7.12.2007 rendered by the learned Presiding Officer, Jamnagar District Labour Court, Jamnagar. The same appears to have been published on 23.12.2007. Being aggrieved by such award, the petitioner has preferred this petition. 4. Heard Mr.Kshitij Amin, learned advocate for the petitioners in Special Civil Application Nos.4218, 429 and 5056 of 2008, Mr.Nikunt Raval, learned advocate for the petitioner in Special Civil Application No.4731 of 2016 and Mr.T.R.Mishra, learned advocate for respondent in Special Civil Application No.4731 of 2016. None has appeared for the respondents in remaining matters. 5. Mr.Amin, learned advocate for the petitioners of Special Civil Application Nos.4218, 4219 and 5056 of 2008 submitted the same facts which are narrated in the memo of petition and urged that the petitioner challenges the judgment and award by way of the present petition mainly on the ground that it is improper, invalid, bad in law, without jurisdiction and suffers from an error apparent on the face of record and, therefore, it is prayed that the same be quashed and set aside. 5.1 He further submitted that the impugned judgment and award are improper, erroneous, invalid, bad in law, suffers from non application of mind and non consideration of material facts on record including the evidence of the Administrative Officer, INS Valsura and the Labour Court proceeded to grant the reference filed by the respondents despite there being no evidence in support of the case and in support of the statement of claim made by the respondents and, therefore, the same may be quashed and set aside. 5.2 It is submitted that the impugned judgment and awards of the Labour Court are contrary to the decisions of the Hon’ble Supreme Court of India which were not being considered at all by the learned Labour Court. It is submitted that the impugned judgment and award is rendered in a reference which was not maintainable considering the fact that the petitioner is a premier institution of the Indian Navy, one of the armed forces and is under the Central Government. No reference was made by the ‘appropriate Government” within the meaning of the Industrial Disputes Act and, therefore, the Labour Court had no jurisdiction to decide the reference. The reference itself .was not maintainable in accordance with the provisions of the Industrial Disputes Act. 5.3 He also submitted that the Labour Court has erred in law in not appreciating and considering that there was no employment of the respondents by the petitioner at all and that there was voluminous evidence to show that the respondents were being engaged on purely private and temporary arrangements by the sailors of the sailors mess and they were paid out of the contribution of the sailors’ money for doing the job. 5.4 He further submitted that the Labour Court has erred in not appreciating and considering that the respondents were never employed by the petitioner and no record was produced by the respondents in respect of their service. He also submitted that the Labour Court has erred in law in rejecting the petitioner’s contention that there was no jurisdiction to decide the reference in view of the fact that the petitioner was a Central Government organization. This contention is overruled on an ex-facie unsustainable reason and ground that since the administration was out of non-public funds, the Shops & Establishments Act was applicable and the Labour Court had the jurisdiction to decide the issue. This contention is overruled on an ex-facie unsustainable reason and ground that since the administration was out of non-public funds, the Shops & Establishments Act was applicable and the Labour Court had the jurisdiction to decide the issue. 5.5 He also submitted that the Labour Court has erred in law in merely relying upon the oral testimony of the respondent and further erred in law in not believing the testimony of the officer who deposed on behalf of the petitioner. He submitted that the Labour Court has erred in law in considering the argument to the effect that the petitioner was intentionally not producing the record of service of the respondent and has further erred in holding that such record existed. That the impugned judgment and order suffers from an error apparent on the face of record since the finding as recorded for not producing any existing record amounts to providing benefit to the respondent workman on a negative basis and, therefore, the impugned judgment and orders are unsustainable in law. 5.6 He also submitted that the Labour Court has erred in law in holding that the respondent workmen successfully proved that they were working with the petitioner and that too continued for a period of 240 days every year without any basis or evidence to support the said finding. The impugned judgment and award of the Labour Court is illegal and improper in as much as without any basis the Labour Court has come to the conclusion that there was a termination and that there was violation of Sections 25 F, G and H of the industrial Disputes Act. This finding is unsustainable in law and without any material or evidence on record. He also submitted that the Labour Court has erred in law in granting 20% backwages to the respondent. 5.7 He also submitted that the Labour Court has erred in law in not reckoning and following the decision of the Hon’ble Supreme Court reported in AIR 1997 SC 2663 wherein it has been held that the Labour Court would have no jurisdiction to grant reinstatement or backwages in case where the appointment is on a post in a project by a Government for sometime and which term has come to an end. 5.8 He further submitted that the Labour Court has erred in law in not respectfully following and relying upon the decision of the Hon’ble Supreme Court reported in AIR 1994 SC 1638 wherein it has been held that where there is no sanctioned post, there is no question of any regularization. That the Labour Court has erred in not relying upon the decision rendered in the case of State Bank of Karnataka whereby the Hon’ble Supreme Court has depreciated the employment in public sectors being started through such back-door entry. 5.9 In view of above submissions, he has prayed to allow all these petitions by quashing and setting aside the impugned awards. 6. Mr.Nikunt Raval, learned advocate for the petitioner of Special Civil Application No.4731 of 2016 has submitted that while admitting this petition, interim observation made by this Court is required to be taken into consideration. According to him, INS, Valsura, is a training center and it is under Indian Navy. He has also submitted that, the workman was rice cleaner. According to him, she was appointed by contractor and, therefore, INS, Valsura, officer cannot be saddled with the so-called wages as directed by learned Labour Court. He has also submitted that definition of “workman” as well as “employer” as provided under the Industrial Disputes Act would not be applicable as INS, Valsura, is a government body. He has also submitted that the officer of INS, Valsura, has clearly deposed that the workman was employed by the contractor and this fact has not been considered by the learned Labour Court. According to him, the canteen was made functional on non-public fund but that fact itself is not sufficient to establish that there was “workman” and “employer” relationship between the parties. He has also submitted that the Labour Court has erred in passing the impugned award. He has prayed to set aside the award passed by the Labour Court by allowing present petition. 7. Per contra, Mr.Mishra, learned advocate for respondent in Special Civil Application No.4731 of 2016 has supported the impugned judgment and submitted that the Labour Court has not committed any error while passing the impugned award. He submitted that the respondent herein has worked for 14 years as rice-cleaner in the Mess maintained by Commanding Officer, INS, Valsura. 7. Per contra, Mr.Mishra, learned advocate for respondent in Special Civil Application No.4731 of 2016 has supported the impugned judgment and submitted that the Labour Court has not committed any error while passing the impugned award. He submitted that the respondent herein has worked for 14 years as rice-cleaner in the Mess maintained by Commanding Officer, INS, Valsura. He further submitted that the wages were used to be paid to the respondent from non-public fund maintained by Indian Navy. He also submitted that as per the Circular produced by him with affidavit-in-reply, service condition of the respondent will be governed by Local Shop and Establishments Act. He also submitted that there is violation of mandatory provisions of Section 25 (F) of the industrial Disputes Act, therefore, the Labour Court has not committed any error while exercising jurisdiction in favour of the respondent. 7.1 Mr.Mishra, learned advocate for the workman has submitted that cross-examination of the INS, Valsura, witness needs to be taken into account. He has submitted that there is a circular made by the Navy that person working in a canteen or mess will be governed by the Shops and Establishments Act. He has also submitted that the workman would not fall under the Army or Navy, as it is civilian work. He has also submitted that as per the material placed on record, the authority of the petitioner has issued Pass to the workman and it shows that she was working with the petitioner. According to him, it is the stand of the petitioner that the workman was a person employed by the contractor, however, no documentary evidence, though claimed to be available with the authority, is produced before the Labour Court. He has also submitted that this fact has been taken into consideration by the Labour Court and the Labour Court has not committed any error of facts and law in passing the impugned order. He has also submitted that the workman has put in 14 years of service and her services came to be terminated without following due process of law. He has also submitted that this is not a case for regularization but its a case of reinstatement as there was breach of Section 25F of the Industrial Disputes Act. He has also submitted that the Civilian employees are entitled to be protected under the ID Act. He has also submitted that this is not a case for regularization but its a case of reinstatement as there was breach of Section 25F of the Industrial Disputes Act. He has also submitted that the Civilian employees are entitled to be protected under the ID Act. He has also submitted that the canteen established under the Act needs to follow the provisions of the ID Act. He has submitted that there is no error of facts or law in passing the impugned award. He has prayed to dismiss present petition. He, therefore, prayed to dismiss present petition being Special Civil Application No.4731 of 2016. He has relied upon the following decisions:- (i) Union of India and Others v. M. Aslam and Others reported in (2001) 1 SCC 720 . (ii) Dharma Nand and Another v. Union of India and Others reported in (2004) 10 SCC 609 . (iii) R.R.Pillai (Dead) through LRs. v. Commanding officer, Headquarters Southern Air Command (U) and Others reported in (2009) 13 SCC 311 . (iv) Union of India and Others v. Gobinda Prasad Mula reported in (2012) 13 SCC 565. 8. In the case of Union of India and Others v. M. Aslam and Others reported in (2001) 1 SCC 720 , the Apex Court held that for effective functioning of the defence services it is absolutely necessary to provide canteen facilities throughout the country and while the Canteen Stores Department serve as wholesale outlet it is the Unit-Run Canteens which serve as retail outlet. A set of Rules regulating the terms and conditions of service of the employees of Unit-Run canteens have been framed which confers all pervasive control over the employees with the authorities of Defence services. Though the funding of the Unit-Run Canteens is not made out of the Consolidated Fund of India but it is made by the Canteen Stores Department and this Department it its turn has formed a part of the Ministry of Defence. Therefore, applying the principles laid down in Parimal Chandra Raha and others vs. Life Insurance Corporation of India and others-1995 Supp. (2) SCC 611, to the facts in the present case, it has to be held that the employees working in the Unit-run Canteens are government servants. Consequently, it was also held that CAT would have the jurisdiction to entertain applications by such employees under the provisions of the Administrative Tribunal Act. (2) SCC 611, to the facts in the present case, it has to be held that the employees working in the Unit-run Canteens are government servants. Consequently, it was also held that CAT would have the jurisdiction to entertain applications by such employees under the provisions of the Administrative Tribunal Act. 8.1 This decision has been relied upon learned advocate Mr.Mishra appearing for the workman. It is pertinent to note that this decision has been overruled by the Supreme Court in a subsequent decision reported in the case of R.R.Pillai (Dead) through LRs. v. Commanding officer, Headquarters Southern Air Command (U) and Others reported in (2009) 13 SCC 311 wherein the Court has held as under:- “9. In Aslam's case (supra) a Bench of this court proceeded on incorrect factual premises inasmuch as after noticing that the URCs are not funded from the Consolidated Fund of India, it went wrong in concluding that the URCs are funded by CSD as well as the articles were supplied by the CSD. Unfortunately, it did not notice that no such funding is made by the CSD. Further, only refundable loans can be granted by the CSD to URCs at the rate of interest laid down by it from time to time upon the application of URCs seeking financial assistance. URCs can also take from other Non- Public Funds. 10. Further observation in Aslam Case regarding supply is also not correct. URCs, in fact, purchase articles from CSD depots and it is not an automatic supply and relation between URCs and CSDs is that of buyer and seller and not of principal and the agent. This Court further went wrong in holding that URCs are parts of CSDs when it has been clearly stated that URCs are purely private ventures and their employees are by no stretch of imagination employees of the Government or CSD. 11. Additionally, in Aslam's case (supra) reference was made to Parimal Chandra Raha and Ors. V. Life Insurance Corporation of India (1995 Supp (2) SCC 611). The Bench hearing the matter unfortunately did not notice that there was no statutory obligation on the part of the Central Government to provide canteen services to its employees. The profits generated from the URCs are not credited to the Consolidated Funds, but are distributed to the Non Public Funds which are used by the units for the welfare of the troops. The profits generated from the URCs are not credited to the Consolidated Funds, but are distributed to the Non Public Funds which are used by the units for the welfare of the troops. As per para 1454 of the Regulations for the Air Force, 1964 the losses incurred by the nonpublic funds are not to be borne by the State.” 8.2 In the case of Union of India and Others v. Gobinda Prasad Mula reported in (2012) 13 SCC 565, in paragraph 10, the Court has observed as under:- “10. We have perused the observations made by the Tribunal insofar as the answer to the preliminary objection raised by the Appellants, i.e., to hold that the Respondent-herein holds a civil post relying upon the observations made in Aslam's case (supra), is concerned. The said decision has now been over-ruled by the decision of three Judge Bench of this Court in R.R. Pillai's case (supra), wherein this Court has specifically observed that an employee working in a URC canteen is not the holder of a civil post. The relevant paragraphs are extracted below: “12. The factors highlighted to distinguish Chotelal case ( (1999) 1 SCC 554 ) in our considered opinion are without any material. There was no scope for making any distinction factually between Aslam case and Chotelal case. In our view, therefore, Aslam case was not correctly decided. Xxxxxxxx 15. It is to be noted that financial assistance is given, but interest and penal interest are charged. URCs can also borrow from financial institutions. The reference is answered by holding that employees of URCs are not government servants.” 8.3 In the case of Dharma Nand and Another v. Union of India and Others reported in (2004) 10 SCC 609 , the Apex Court relying upon the decision of in the case of Union of India v. M.Aslam (2001) 1 SCC 720 , as observed that canteen employee employed by the Defence Ministry are government servants and termination and services of temporary employees, who are appointed on temporary basis for a fixed terms on five years held to be illegal and observed that the petitioner are entitled to reinstatement with consequential benefits. However, as noted earlier, decision in the case of M.Aslam (supra) has been overruled by the Supreme Court in a subsequent decision. 9. However, as noted earlier, decision in the case of M.Aslam (supra) has been overruled by the Supreme Court in a subsequent decision. 9. Having considered the submissions made by learned advocates for both the sides coupled with aforesaid decisions and the material placed on record, it transpires that so far as Special Civil Application No.4731 of 2016 is concerned, it is a specific stand of the petitioner that the respondent is a workman of the contractor, whereas it is the stand of the workman that she was being employed by the petitioner for rice cleaning and she was issued necessary Pass. It appears from record that version of the workman is substantiated from the copy of Pass. When the petitioner has taken a stand that the workman is an employee of the contractor, it is incumbent upon the petitioner to produce relevant documentary evidence in this regard. However, as observed by the Labour Court and considering the affidavit of the officer of the petitioner, there is no material produced so far regarding relationship between the contractor and the workman. Further it also transpires from documentary evidence that workman was working since long as rice-cleaner. It also reveals from the circular relied upon by the learned advocate for the workman, which is produced at page 57 in Special Civil Application No.4218 of 2008 issued by the Headquarter, Southern Naval Command, Cochin, in April 1992, there is a specific mention that the employees in the defence unit run canteen are paid out of the non-public funds will be governed by Shops and Establishments Act of the respective State. There is a direction in the said Circular that all defence unit-run canteens be directed to resort to Shops and Establishments Act, wherever civil employees are working. This circular clearly suggests that the civilian working in the canteen will be governed by the Shops and Establishments Act of the State. Admittedly, the workmen in all these four petitions are civilian. They are not claiming regularization of their services. The grievances raised by all the workmen, who were rice-cleaners, is that without following legal procedure envisaged in the Industrial Disputes Act, their services came to be terminated without any notice or without making any payment of retrenchment allowance. 10. Admittedly, the workmen in all these four petitions are civilian. They are not claiming regularization of their services. The grievances raised by all the workmen, who were rice-cleaners, is that without following legal procedure envisaged in the Industrial Disputes Act, their services came to be terminated without any notice or without making any payment of retrenchment allowance. 10. The concerned Labour Court in respective references has dealt with all the issues and the observations made by the Labour Court is in consonance with the facts and legal provisions applicable to the case. There is no illegality committed by the Labour Court. 11. It is pertinent to note that the Labour Court has granted backwages of 20%. However, on perusal of oral evidence of the workman in each case, it appears that during interregnum period they were getting some income. Further it is well settled that for being entitled for backwages, the workman has to prove that during interregnum period period he/ she was not employed. Now, in all these matters, except bare word of the workmen, there is no iota of evidence to substantiate their plea that they were unemployed. Therefore, the order granting backwages is not sustainable in the eyes of law. It appears from record that since long time has passed and it might possible that the workmen have crossed the age of retirement. Therefore, the order of reinstatement is not appropriate in the present cases. Instead thereof, some lumpsum amount as full and final compensation would meet the ends of justice. 12. Therefore, considering the judgment of the Apex Court in the case of Tapash Paul Vs. BSNL and another reported in 2016 (1) Scale 92 and BSNL Vs. Bhurumal reported in 2014 (7) SCC 177 , this Court is of the view that in the present cases granting of relief of reinstatement after such a long gap will not serve any purpose and, therefore, this Court deems it fit to order grant of compensation of Rs.50,000/- to each respondent-workman in lieu of reinstatement. Bhurumal reported in 2014 (7) SCC 177 , this Court is of the view that in the present cases granting of relief of reinstatement after such a long gap will not serve any purpose and, therefore, this Court deems it fit to order grant of compensation of Rs.50,000/- to each respondent-workman in lieu of reinstatement. Such amount be paid to each workman by the petitioner, after proper verification of the identity by an account payee cheque/ pay order within a period of three months from the date of receipt of this order, failing which the workman shall be entitled to get interest at the rate of 6% from the date of this order till the date of actual realization. It is observed that the aforesaid amount is in addition to whatsoever amount paid to him/her till today. 13. In view of above, so far as Special Civil Application Nos.4218, 4219 and 5056 of 2008 are concerned, judgment and awards dated 7.12.2007 respectively rendered at Exh.24 in Reference (LCJ) No.1 of 1997 and Reference (LCJ) No.263 of 1996 and at Exh.30 in Reference (LCJ) No.34 of 1995 by the Presiding Officer, Jamnagar District Labour Court, Jamnagar, as well as judgment and award dated 20.5.2015 rendered in Reference (T) No.5 of 2002 by the Presiding Officer, Labour Court, Jamnagar, impugned in Special Civil Application No.4731 of 2016, are modified to the aforesaid extent that the petitioner herein shall pay Rs.50,000/- as full and final compensation to each of the workman, as aforesaid. This amount would be in addition to whatever amount paid by the petitioner during the pendency of the petition. Rule is made absolute accordingly with no order as to costs.