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2024 DIGILAW 1521 (GUJ)

State of Gujarat v. Lilavantiben Virabharthi

2024-07-05

BHARGAV D.KARIA

body2024
JUDGMENT : Bhargav D. Karia, J. 1. Heard learned AGP Ms. Shrunjal Shah for the petitioner and learned advocate Ms. Shivangi Rana for the respondent no.1. 2. Special Civil Application Nos.20181 of 2015 and 16676 of 2017 are filed by the State of Gujarat and Sub-registrar Office, Maliya Hatina challenging the Judgment and Award dated 21.08.2015 passed by the Presiding Officer, Labour Court No.1 in Reference T.Case No.113 of 2006 and order dated 22.12.2006 below Exhibit 1 in ID Misc. Application No.5 of 2016 respectively. Whereas Special Civil Application No.18276 of 2015 is preferred by the respondent Lilavantiben Virabharthi in the aforesaid petitions with a prayer to set aside the inaction of the respondent in not converting the status/ post to peon pursuant to the policy of the Government and further to convert the post of the petitioner on full time basis and grant benefit of full timer as the petitioner was working since the year 1988. For the sake of brevity and convenience, the petitioner is referred to as party of the first part being the Government and Sub-Registrar and the respondent workman- Lilavantiben Virabharthi is referred to as the party of the second part. 3. The brief facts of the case are as under: 3.1. The Party of the second part was working on ad-hoc basis as a sweeper from 01.12.1988 to 18.07.1998 on a condition that she would be released from the work without issuance of any notice. 3.2. Accordingly the party of the second part was released from work with effect from 18.07.1998. 3.3. The party of the second part being aggrieved preferred Reference L.C.J. No.199 of 1999 before the Labour Court Junagadh which was partly allowed by Judgment and award dated 09.12.2003 and the order of reinstatement with 30% backwages was passed by the Labour Court. This Court by order dated 19.09.2005 passed in Special Civil Application No.13374 of 2005 confirmed the Judgment and Award passed by the Labour Court. 3.4. This Court by order dated 19.09.2005 passed in Special Civil Application No.13374 of 2005 confirmed the Judgment and Award passed by the Labour Court. 3.4. Pursuant to the Judgment passed by this Court, the party of the second part was reinstated on 25.01.2006 in the service by the party of the first part and thereafter on 10.02.2006 the Finance Department passed a Resolution whereby it was resolved to release all the ad-hoc employees and as a result, Circular dated 04.03.2006 was issued by the Head Office of the concerned branches of the State Authorities and in view of the same, on 18.03.2006, the party of the second part was relieved from the work. 3.5. Being aggrieved by the order of termination of the service from 18.03.2006, the party of the second part made a reference application being Reference LCJ No.113 of 2006 on 15.01.2007 before the Labour Court Junagadh seeking reinstatement at original post with backwages by considering the continuity in service by declaring the action of the party of the first part as illegal and further prayed to award the cost. 3.6. After the reference application was filed, the party of the second part had submitted the statement of claim on 06.02.2007 and reply was filed on behalf of the party of the first part before the Labour Court wherein it was pointed out to the Labour Court that the party of the first part was an ad-hoc employee and as per the service condition can be relieved from work at any point of time without issuing notice and the party of the second part accordingly was relieved from the service in view of the instruction issued by the State Government. 3.7. The Labour court by the impugned Judgment and Award dated 21.08.2015 allowed the reference application preferred by the party of the second part and ordered to reinstate at original post without backwages with continuity in service along with cost of Rs.1,000/-. 3.8. Being aggrieved, the petitioner has challenged the Judgment and Award dated 01.08.2015 passed by the Labour Court Junagadh in Reference T Case No.113 of 2006 by preferring Special Civil Application No.20181 of 2015. 3.9. 3.8. Being aggrieved, the petitioner has challenged the Judgment and Award dated 01.08.2015 passed by the Labour Court Junagadh in Reference T Case No.113 of 2006 by preferring Special Civil Application No.20181 of 2015. 3.9. It appears that the party of the first part preferred an application Exhibit-1 under ID Miscellaneous Application no.5 of 2016 with a prayer to place on record the documentary evidence pertaining to the party of the second part that she was working as Anganwadi worker and the information was sought from the Development Officer of Child Development, Maliya Hatina which was received by party of the first part after pronouncement of the award dated 21.08.2015. This Court by order dated 09.11.2016 while admitting the Special Civil Application no.20181 of 2015 and granting stay of the impugned Judgment and Award of the Labour Court directing the party of the first part to offer compensation to the party of the second part in view of the decision in case of Bharat Sanchar Nigam Limited Vs. Bhurumal reported in (2014) 7 SCC 177 of the Hon’ble Apex Court, the party of the first part preferred ID Misc. Application No.5 of 2016 for recalling the Judgment passed by the Labour Court in Reference (T) Case No.113 of 2006. 3.10. The Labour Court by order dated 22.12.2016 rejected the application filed by the party of the first part considering that this Court never give any instruction to the party of the first part to file an application with documentary evidence showing that the party of the second part was working as Anganwadi worker. Being aggrieved the party of the first part has preferred Special Civil Application No.16676 of 2017. 3.11. The party of second part Lilavantiben Virabharthi has preferred the Special Civil Application NO.18276 of 2017 for the prayer that though the award was given in her favour in the year 2003 and after reinstatement on service on 01.02.2006, the party of the first part again by misinterpreting the Government Circular for ban on new recruitment, the service of the party of the second part was terminated and she had again filed reference in the year 2006, which was allowed by the Judgment and Award dated 21.08.2015 in Reference(T) No.113 of 2006. It was therefore contended that inspite of 28 years of service, the party of the second part was continued as part timer without any benefit of converting the status and absorb her in class 4 permanent service whereas her junior Shri J.C. Sakaria who was employed after the party of the second part had been absorbed as Class 4 service by passing the order in the year 1991. It was therefore prayed that suitable direction be given for converting the status of the part time worker of the party of the second part to that of the peon on full time basis and to grant all the benefits which are granted to her junior Shri Jayeshkumar Sakaria. 4. Learned AGP Ms. Shraunjal Shah appearing for the party of the first part State Government and Sub-Registrar Maliya Hatina, submitted that the party of the second part Lilavantiben Virabharthi was working on ad-hoc basis since 1988 and she was reinstated on the ad-hoc post pursuant to the Judgment and Award passed by the Labour Court in the year 2003, which was confirmed by this Court in the year 2005 and because of the policy of the Government, the services of the party of the second part was terminated. It was further submitted that the party of the second part was gainfully employed as Anganwadi worker prior to joining of the ad-hoc service in the year 1988 and certificate to that effect was received from the office of the Development Officer, Child Development and after the impugned Judgment and Award was pronounced by the Labour Court therefore review application was filed, however the same is also rejected without giving any opportunity to the party of the first part to show that the party of the second part was gainfully employed prior to 1988. 4.1. It was further submitted that considering such certificate, if the party of the first part would have been allowed to place on record such certificate then the Labour Court would not have passed the impound Judgment and Award of reinstatement without back wages in favour of the party of the second part. 4.2. 4.1. It was further submitted that considering such certificate, if the party of the first part would have been allowed to place on record such certificate then the Labour Court would not have passed the impound Judgment and Award of reinstatement without back wages in favour of the party of the second part. 4.2. It was further submitted that as per the certificate received by the ICDC Office, Maliya Hatina, party of the second part was earning the honorarium from 1998 at the rate of Rs.500/- per month which has increased up to Rs.6,300/- per month up to 30th June, 2018. It was therefore submitted that the impugned Judgment and Award could not have been passed in favour of the party of the second part. 4.3. In support of her submissions Reliance was placed on the decision in case of Bharat Sanchar Nigam Limited (Supra) of the Hon’ble Apex Court wherein it is held as under : “33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.” 4.4. It was therefore submitted that the impugned award is liable to be quashed and set aside. 5. On the other hand learned advocate Ms. Shivangi M. Rana for the party of the second part appearing for the respondent in SCA Nos.20181 of 2015 and 16676 of 2017 submitted that the workman was illegally terminated by misinterpreting the Circular dated 04.03.2006 which was applicable to the new recruitment and therefore the Labour Court has rightly ordered to reinstate the respondent party of the second part to the original post with continuity of service without back wages. It was submitted that the party of the second part was not ready to accept the offer made by the Government pursuant to the order passed by this Court on 09.11.2016. It was submitted that the party of the second part has preferred Special Civil Application NO.18276 of 2015 for regularization of her service as she was discharging ad-hoc services since 1988 and the Labour Court has already passed an award of continuation of service however backwages was not awarded. 6. Having heard learned advocates for the respective parties and considering the facts and material made available on the record, it appears that the Labour Court after taking into consideration the Judgment and Award passed in Reference LCJ No.199 of 1999 dated 09.12.2003 which was confirmed by this Court by order dated 19.09.2005 in Special Civil Application No.13374 of 2015 has passed the impugned Judgment and Award in view of the fact that there was no fault on the part of the party of second part and the services were terminated without giving any opportunity, notice, notice pay or retrenchment compensation only of the basis of the circular dated 04.03.2006. 7. In view of such findings of facts recorded by the Labour Court by considering the oral and documentary evidence led by the parties to the effect that the party of the second part has rendered services of more than 240 days per year from 1988 till 18.03.2006 and the circular was misinterpreted by the party of the first part and accordingly there was breach of provision of Section 25F of the Industrial Disputes Act, 1947(for short ‘the Act’). 8. The Labour Court has also recorded the finding that after termination of service of the party of the second part, services from outsourcing was also taken and without giving any opportunity to the party of the second part and considering the continuous service of more than 18 years the Labour Court passed the impugned Judgment and Award. 9. Therefore, in view of this Court no interference is required to be made in the impugned award while exercising extraordinary jurisdiction under Article 227 of the Constitution of India. 10. In view of the above, Special Civil Application No.20181 of 2015 is ordered to be dismissed. 11. 9. Therefore, in view of this Court no interference is required to be made in the impugned award while exercising extraordinary jurisdiction under Article 227 of the Constitution of India. 10. In view of the above, Special Civil Application No.20181 of 2015 is ordered to be dismissed. 11. So far as Special Civil Application No.16676 of 2017 is concerned, the same was filed for review of the Judgment and Award rendered by the Labour Court in Reference(T) Case No.113 of 2006, however, considering the fact that after passing of the award the Labour Court has become a Functus Officio, and therefore new evidence could not have been placed before the Labour Court so as to reconsider the Judgment and Award passed by it. The Labour Court has also taken into consideration in the impugned order dated 22.12.2016 that on the basis of the records placed on record that no evidence was produced by the party of the first part in the Reference (T) Case No.113 of 2006 prior to passing of the Judgment and Award dated 21.08.2015 and the Labour Court has no right or jurisdiction to modify such award. 12. In view of the above the Labour court having become Functus Officio has rightly rejected the application being ID Miscellaneous Application no.05 of 2016 filed by the party of the first part. Accordingly Special Civil Application NO.16676 of 2017 is also ordered to be dismissed. 13. With regard to Special Civil Application No.18276 of 2015 filed by the Lilavantiben Virabharthi the party is concerned, the same also cannot be entertained as this Court while exercising jurisdiction under Article 226 of the Constitution of India cannot direct the respondent authority for the prayers made in the petition for passing the order of full time, converting the post of the petitioner to the peon pursuant to the policy of the Government. The petitioner is at liberty to apply before appropriate forum for redressal of the grievance raised in this petition in accordance with law and the prevalent Circulars and Policy of the Government. 14. With the aforesaid observation, Special Civil Application No.18276 of 2015 is also disposed off. 15. In view of the foregoing reasons Special Civil Application Nos.20181 of 2015 and 16676 of 2017 are dismissed. Rule is discharged. Whereas Special Civil Application No.18276 of 2015 is disposed of with aforesaid direction. Rule is discharged. No order as to cost.