Gujarat High Court
Keshod Nagarpalika vs Jeshukhlal Govindbhai Tatmiya on 26 June, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/11797/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11797 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
KESHOD NAGARPALIKA
Versus
JESHUKHLAL GOVINDBHAI TATMIYA
==========================================================
Appearance:
MR YOGEN PANDYA, ADVOCATE FOR MR HRIDAY BUCH(2372) for the
PETITIONER(s) No. 1
MR KJ DWIVEDI(316) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 26/06/2018
ORAL JUDGMENT
1. Heard Mr.Pandya, learned advocate for Mr.Buch, learned advocate for the petitioner and Mr.Dwivedi, learned advocate for the respondent.
2. In present petition, a Local Authority 1 C/SCA/11797/2016 JUDGMENT (Keshod Nagarpalika) has challenged award dated 2.1.2016 passed by the learned Labour Court at Junagadh in Reference (T) Case No.199 of 2003.
3. So far as factual background is concerned, it has emerged from the record that the respondent herein (hereinafter referred to as 'the claimant') raised industrial dispute with the allegation that the opponent employer illegally terminated his service by oral order on 25.11.2002. The appropriate government referred the dispute for adjudication to the learned Labour Court at Junagdh. The learned Labour Court registered the dispute as Reference (T) No.199 of 2003.
3.1 In his statement of claim filed before the learned Labour Court, the claimant alleged that he was employed in the nagarpalika in January 1992 and that he worked with the nagarpalika regularly and continuously from January 1992 till 25.11.2002 and despite such long service the opponent employer terminated his service by oral 2 C/SCA/11797/2016 JUDGMENT order and without following any procedure and in breach of Sections 25F, 25G and 25H. He also alleged that he served with the nagarpalika as Water Resource Helper at salary of Rs.4,063/. 3.2 With such allegation, the claimant demanded that he should be reinstated in service with all benefits. He also demanded Rs.5,000/ as cost. The nagarpalika opposed the reference. In the written statement (reply) filed before the learned Labour Court, the nagarpalika asserted that the claimant had suppressed relevant and material facts and therefore, the reference should be rejected. The nagarpalika asserted that earlier service of the claimant was terminated and he had raised dispute against the termination by way of Reference No.10 of 1992. The nagarpalika also asserted that the said Reference No.10 of 1992 was rejected by the learned Labour Court. The nagarpalika also asserted that against the award rejecting the reference, Special Civil Application No.112 of 2003 was filed. The 3 C/SCA/11797/2016 JUDGMENT nagarpalika claimed that the said and other connected relevant facts are suppressed by the claimant and that the allegation that the claimant served with the nagarpalika regularly and continuously from 1992, is incorrect. The nagarpalika also asserted that the claimant was engaged without following any procedure and he was engaged on daily wage basis and he worked with the nagarpalika intermittently for casual work on daily wage basis. It was claimed that since his service was not required, the nagarpalika stopped engaging him on daily wage basis which cannot be termed as termination of service of an employee by the nagarpalika. With such detail and submission, the nagarpalika opposed the reference.
3.3 Before the learned Labour Court, the claimant got his evidence recorded. He did not examine any other witness. The nagarpalika examined one Mr.J.V. Mehta as its witness. His affidavit in lieu of chief examination was filed by the 4 C/SCA/11797/2016 JUDGMENT nagarpalika. The claimant as well as the nagarpalika placed certain documents on record. The claimant placed on record provident fund slip which reflected that the provident fund contribution was deposited from 199899. He also placed on record an appointment order dated 6.1.1999. the claimant also placed on record salary slip / certificate which reflected the payment of salary in September 1999. The nagarpalika also placed several documents on record including the attendance register as well as the award passed by the learned Labour Court in Reference No.10 of 1992.
3.4 After the parties concluded their evidence, the learned Labour Court heard rival submissions. Upon conclusion of the submissions by the parties, the learned Labour Court considered the material on record and passed impugned award with the direction to the petitioner herein to reinstate present respondent on his original post with continuity of service, however, without 5 C/SCA/11797/2016 JUDGMENT backwages.
4. Mr.Pandya, learned advocate for Mr.Buch, learned advocate for the petitioner nagarpalika assailed the award and submitted that the learned Labour Court failed to appreciate that under the order dated 6.1.1993, the claimant was engaged only as daily wager and that the learned Labour Court also failed to appreciate that the claimant had suppressed the fact that he had raised dispute on incorrect and concocted allegation (that he was employed by the nagarpalika since 1992) he had raised dispute, however, the reference was rejected by the learned Labour Court and a petition filed by him against the award (passed by the learned Labour Court rejecting the reference), ultimately, came to be dismissed as withdrawn. Learned advocate for the petitioner also submitted that the appointment order dated 6.1.1999 was actually issued arbitrarily by the Chief Officer who exercised his powers against the interest of the 6 C/SCA/11797/2016 JUDGMENT nagarpalika and several similar orders passed by the Chief Officer granting various appointments and other action of the Chief Officer came to be set aside by the Director of Municipalities vide order dated 25.4.2006 whereby the Director of Municipalities also imposed heavy penalty on the Chief Officer who issued the appointment order in favour of the respondent herein. According to the nagarpalika, the respondent's appointment vide order dated 6.1.1999 was irregular and by way of unfair practice committed by the erstwhile Chief Officer of the nagarpalika. The learned Labour Court failed to appreciate the said aspect and passed impugned order. Learned advocate for the petitioner also submitted that the claimant failed to prove the allegation that junior persons were continued in service, while his service came to be terminated. The claimant also failed to mention names of the persons who came to be allegedly appointed after his service was discontinued and/or that the persons who came to be allegedly appointed after his service was 7 C/SCA/11797/2016 JUDGMENT discontinued were employed for the same work and in the same category in same department where he was employed. In absence of such evidence, there was no justification or basis for the learned Labour Court to hold that the employer committed breach of Sections 25G and 25H.
5. Per contra, Mr.Dwivedi, learned advocate for the respondent denied the allegation about suppression. He submitted that in any case, the appointment order dated 6.1.1999 established that the claimant was appointed by the nagarpalika in 1999. He also submitted that the claimant's service came to be discontinued by oral order on 25.1.2002 and the said fact established that the claimant had worked for 3 years (more than 12 months) and that, therefore, the nagarpalika could not have terminated the claimant's service without following procedure prescribed under Section 25F. Learned advocate for the respondent also submitted that the nagarpalika had continued junior persons in service and had engaged other 8 C/SCA/11797/2016 JUDGMENT persons after the claimant was discontinued. He submitted that the work which the claimant performed is of permanent nature and the said work is still available and that, therefore, there is no basis or justification in the allegation and contention raised by the nagarpalika and the award is just and proper and does not suffer from any error.
6. I have considered rival submissions and material available on record as well as the impugned award and the discussion and reasons recorded by the learned Labour Court.
7. From the award, it clearly comes out that before the learned Labour Court the claimant failed to establish that he was employed by the nagarpalika in 1992 and/or that he served with the nagarpalika regularly and continuously from 1992.
8. However, it also appears from the award that the claimant placed on record appointment order 9 C/SCA/11797/2016 JUDGMENT dated 6.1.1992.
8.1 The said appointment order would establish that the claimant was engaged by the nagarpalika from January 1999.
8.2 It is claimed by the petitioner that even by the said order dated 6.1.1999, the claimant was engaged on daily wage basis, however, the Chief Officer had arbitrarily and only to favour the claimant, mentioned that he would get salary under regular pay scale.
8.3 The said appointment order, nevertheless, establishes that the claimant served with the nagarpalika, though as regular, since 1999. 8.4 The claimant alleged that his service came to be terminated in November 2002 by oral order. 8.5 The nagarpalika did not dispute the fact that the claimant's service came to be discontinued. 8.6 The nagarpalika, however, claimed that the service of the claimant was not required and 10 C/SCA/11797/2016 JUDGMENT therefore, he was not engaged on daily wage basis.
9. However, there is no clarity with regard to the date from which the service of the claimant was discontinued. Since the nagarpalika does not appear to have mentioned any particular date to controvert the date mentioned by the claimant, there was no option before the learned Labour Court but to assume that the date mentioned by the claimant is correct.
10. The said two facts establish that the claimant rendered service, as daily wager, for about 3 years.
11. In this background, the question which would arise before the learned Labour Court, is that whether the workman worked for 240 days during preceding 12 months.
12. On this count, it is pertinent to note that the learned Labour Court has failed to take into account the effect of relevant provisions under 11 C/SCA/11797/2016 JUDGMENT the Act.
12.1 The provision contemplates and requires fulfillment of two conditions before invoking and applying the provisions under Section 25F of the Act, i.e. (i) the workman should have continuously worked for 12 months or more with the employer; (ii) he should have completed service for 240 days in 12 months immediately preceding the date from which his service came to be discontinued.
12.2 From the relevant provisions, it becomes clear that mere completion of 240 days over a span of one year or completion of service for 240 days in any year but not in preceding 12 months does not amount to fulfillment of the requirement contemplated by law.
12.3 The said provision postulates that the claimant must have worked for 240 days in preceding 12 months and in case of dispute, it is the claimant who should establish before the 12 C/SCA/11797/2016 JUDGMENT learned Labour Court that he worked for 240 days during preceding 12 months.
13. In present case, the learned Labour Court satisfied itself by drawing inference that the claimant had worked for 240 days.
14. What is relevant to note that while drawing inference the learned Labour Court has not specifically recorded in the award that the claimant had worked for 240 days during preceding 12 months [i.e. 12 months immediately in preceding the date (25.11.2002) on which the claimant's service came to be allegedly terminated].
14.1 In present case, what the learned Labour Court should have examined and addressed is the issue: whether the claimant had worked for 240 days in 12 months preceding 25.11.2002 and the learned Labour Court should have recorded specific conclusion and finding on this count. 14.2 A vague and general observation, that too 13 C/SCA/11797/2016 JUDGMENT drawn by inference, that the claimant had worked for 240 days, is not sufficient in light of the requirement contemplated by Section 25F read with Section 25G. 14.3 The award, to that extent, falls short of the statutory requirement and to that extent, the award is erroneous.
15. Further, from the award, it emerges that the claimant mentioned names of about 4 to 5 persons. According to the claimant's allegation, the said persons were continued in service after his service was discontinued. The claimant also alleged that after his service came to be discontinued, the nagarpalika had employed other persons.
15.1 The law does not prohibit the employer from engaging other persons in any other category / cadre or any other department (i.e. in a department or a section where the claimant was employed at the time of termination). The 14 C/SCA/11797/2016 JUDGMENT provision (section 25H of the Act) contemplates that where a workman is retrenched, he should be offered employment / work before engaging any other person for the same work / duty which the claimant was performing, i.e. before engaging any other person in the same department / section for performing the same duty which the claimant was performing before his termination. 15.2 So as to take shelter of Section 25H and to seek benefit under the said provision, the claimant must establish that other persons came to be engaged in the same department / same section for doing the same work for which he was performing duty and the same person was engaged after his service came to be discontinued. 15.3 Merely mentioning names of the persons that with vague allegation that the said persons came to be engaged after he was discontinued, does not suffice the requirement prescribed by law. 15.4 If a person is appointed, though after 15 C/SCA/11797/2016 JUDGMENT termination of claimant's service, in some other department on some other post and in different cadre and for altogether different job / work (i.e. other than the post on which the claimant was engaged and in cadre different from the claimant's cadre and in a department other than the department where the claimant worked, then it would not attract Section 25F of the Act.
16. Unfortunately, the learned Labour Court failed to take into account this aspect and merely because the claimant mentioned names of some persons, the learned Labour Court jumped to the conclusion that the said persons must have been engaged in the same department / section for which the claimant had performed.
17. In this context, it may be taken into account that if a workman employed as Fitter is retrenched and subsequently the employer appoints a Fitter in the same section / department where the retrenched Fitter was employed, then provision under section 25H would be attracted. 16
C/SCA/11797/2016 JUDGMENT 17.1 However, if after having retrenched a Fitter, the employer employs a turner in some other department or even in the same department then the provision under section 25H would not be attracted because the person who came to be employed subsequently, is not employed in the same category / same cadre and in the same department / same section for doing the same work before retrenched employee was discontinued. 17.2 It is pertinent that offering work to the claimant at the time when need to engage a turner arises, would not serve the purpose because a Fitter cannot perform duty of turner. The said illustration establishes the fact that the learned Labour Court should examine as to whether the person which came to be allegedly employed, subsequently, were engaged for the same work for which the claimant performed and whether they were engaged in the same department / same section. It is pertinent that the claimant also failed to establish the date on which the said 17 C/SCA/11797/2016 JUDGMENT other persons came to be appointed. The claimant also did not establish that the said persons were engaged in the same category / cadre in which he was engaged or performed the same duty which he was performing 17.3 Unless the answers to the said question are in positive and are duly established by cogent evidence, a conclusion about breach of section 25H cannot be recorded.
18. Unfortunately, the learned Labour Court failed to take into account this aspect.
19. Likewise, even with regard to the alleged breach of section 25G the learned Labour Court relied on the same allegation by the workman viz. that some persons were continued in service even after his service was discontinued. 19.1 The claimant also failed to establish that by virtue of the date of the appointment, the persons continued in service were junior to him. 18
C/SCA/11797/2016 JUDGMENT 19.2 In this context, it is pertinent to mention that to make good his said allegation, it was necessary for the claimant to prove the date of his appointment and the date of appointment of said other person.
19.3 It appears that the claimant alleged that on the premise that he was in service since 1992. Whereas it was demonstrated before the learned Labour Court that the said persons were junior to him, the claimant's date of appointment was January 1999.
20. Under the circumstances, before reaching to the conclusion that the employer committed breach of section 25G, the learned Labour Court ought to have examined as to whether the said persons were engaged in the same cadre and same category as that of claimant and whether they were appointed after 6.1.1999 or before the said date. 20.1 The award does not throw light on the issue and does not clarify as to whether such evidence 19 C/SCA/11797/2016 JUDGMENT was before th learned Labour Court. 20.2 On the contrary, entire discussion is silent on this aspect.
20.3 The only thing which emerges from the award is that the claimant mentioned names of about 5 to 6 persons without mentioning other relevant facts and details and the learned Labour Court, on such incomplete details and without examining other relevant aspects, reached to the conclusion that the employer committed breach of sections 25G and 25H. The said conclusion and findings, for above discussed reasons, cannot be sustained. The learned Labour Court has not considered relevant aspects and recorded findings without taking into account relevant and necessary details / facts.
21. Foregoing discussion brings out that the findings recorded by the learned Labour Court are not based on cogent and sufficient evidence. Foregoing discussion also brings out that while 20 C/SCA/11797/2016 JUDGMENT recording finding about breach of sections 25G and 25H, the learned Labour Court has failed to take into the requirement contemplated under the said section and that the claimant failed to establish relevant aspects. Even with regard to alleged breach of section 25F the learned Labour Court failed to examine as to whether the claimant had worked for 240 days in preceding 12 months or not. The learned Labour Court seems to have proceeded on premise that completion of service of 240 days in any year would serve the purpose and would suffice the requirement and amount to compliance of the condition on part of work i.e. the condition which workman should fulfill and establish the compliance.
22. While examining the claimant's allegation about breach of sections 25F, 25G and 25H, the learned Labour Court proceeded on erroneous path and impermissible assumptions and did not examine relevant aspects. The said allegations are not tested / examined in the light of the requirement 21 C/SCA/11797/2016 JUDGMENT prescribed by the said provision.
23. Therefore, the findings recorded by the learned Labour Court about breach of statutory provisions are not sustainable.
24. At this stage, it is necessary to mention that it is not clear from available record as to whether relevant evidence which would enable the learned Labour Court to decide these aspects is available (on record) before the learned Labour Court or not.
24.1 In view of the fact that erroneous consideration led the Court to erroneous conclusion and such erroneous conclusions have vitiated the award and it deserves to be set aside and the matter deserves reconsideration by the learned Labour Court.
25. If the evidence necessary for deciding the issues relevant for the deciding the issues viz. as to whether the employer committed breach of statutory provision or not, is not available on 22 C/SCA/11797/2016 JUDGMENT record, then the learned Labour Court ought to have allowed the parties to lead sufficient and cogent evidence or the Court should have called for relevant and cogent evidence so that it can reach to correct and legally sustainable conclusion
26. In the light of foregoing discussion and for the reasons mentioned above, the award is not sustainable and deserves to be set aside and the proceedings deserve to be remanded to the learned Labour Court for fresh decision after addressing the aspects and defects (in the award) mentioned above.
27. Therefore, following order is passed:
(a) The impugned award is set aside;
(b) The case (i.e. Reference No.199 of 2003) is remanded to the learned Labour Court for fresh decision;
(c) The learned Labour Court shall examine the 23 C/SCA/11797/2016 JUDGMENT case in light of foregoing discussion and will address all relevant issues and aspects including those which have not been considered in the impugned award and after considering relevant evidence in light of the requirement contemplated by above mentioned provisions;
(d) The learned Labour Court shall render fresh decision after granting opportunity of hearing to both sides;
(e) If the claimant and/or nagarpalika requests for permission to lead further evidence (documentary and/or oral), the learned Labour Court shall allow such opportunity and thereafter pass an order.
With aforesaid clarifications, observations and directions, the petition is disposed of. Orders accordingly. Notice is discharged.
Sd/ (K.M.THAKER, J) BHARAT 24