Gujarat High Court
Kantibhai Mafabhai Raval vs The Administrative/Deputy Collector on 19 February, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/9311/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9311 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9312 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9313 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9314 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9315 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9316 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9317 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9318 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9319 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9320 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9321 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9322 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9323 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9324 of 2019
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KANTIBHAI MAFABHAI RAVAL
Versus
THE ADMINISTRATIVE/DEPUTY COLLECTOR
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Appearance:
MR KEYUR A VYAS(3247) for the Petitioner(s) No. 1
MS ARCHANA R ACHARYA(2475) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS JUSTICE SONIA GOKANI
Date : 19/02/2020
ORAL ORDER
1. Since common question of law and facts arise in this group of petitions, they are being heard, decided and disposed Page 1 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER of by this common Order.
2. Facts are taken from the Special Civil Application No.9311 of 2011, for the purpose of adjudication of the issue involved in all these petitions :-
2.1. The petitioner was working as daily wager in the respondent - Trust. He was working as Security Guard in two shifts, one shift started from 6.00 AM to 2.00 PM and the second shift was from 2.00 PM to 10.00 PM. According to the petitioner, he completed continuous service of 11 years in the respondent Trust, sincerely and honestly and no complaint was made against him. According to the petitioner, he was orally terminated on 12/3/2004 without following due procedure as prescribed under the Industrial Disputes Act, 1947 (hereinafter shall be referred to as "the Act" for convenience). According to him, the post of Security-cum-Guard is still available in the respondent trust. Under the circumstances, the petitioner raised an industrial dispute before the Labour Court, Palanpur by way of filing Reference (LCP) No.121 of 2011. According to the petitioner, he was paid salary by obtaining signature on voucher slip and he has also worked for more than 240 days in every year. In the said proceedings, the petitioner filed Statement of Claim. The respondent employer denied the averments made and contentions raised in the said Statement of Claim. Both the sides adduced the evidence and after hearing both the sides and considering the evidence, oral as well as documentary, the Labour Court rejected the reference.
Hence, the petitioner has preferred Special Civil Application No.9311 of 2019 for the following main prayers :-
Page 2 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER"12(B). The Honorable Court may be pleased to call for the record and proceedings of the reference case being no.121 of 2011 from the labour court at Palanpur and on perusing the same may be allowed;
(C). The Honourable court may be pleased to quash and set-aside or modified the order passed by labour court, Palanpur in Reference (LCP) case no.121 of 2011 dated 31/3/2018."
2.2. Similar is the case in all other petitions.
2.3. This Court issued Notice and on service of the notice, the respondent Trust appeared and filed Affidavit-in- reply through Administrator Mr.S.J. Chavda. It is contended in the reply that the petitioner has filed reference after seven years from the date of his termination without sufficient or reasonable explanation. It is contended that the Labour Court was justified in rejecting the Reference and cogent reasons have been given while rejecting the Reference. It is contended that the Labour Court has not only rejected the reference on the ground of delay in preferring the reference, but, also considered the merits of the matter. The Labour court has taken note of the fact that delay makes the dispute dead and hence, such dispute cannot be entertained. Relying on various decisions of this Court and the Apex Court, it has urged that the delay is fatal to the case of the petitioner. It is also contended that the petitioner has preferred the present petition after inordinate delay of seven years and the delay has not been explained satisfactorily. It is contended that the Page 3 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER petitioner was appointed as a daily wager and was not appointed on regular sanctioned post. He was called for miscellaneous work and that too during festivity. He never worked continuously in any year for 240 days. It is contended that as the petitioner was daily wager, no notice or compensation as required under the Act has been given. His work is not permanent in nature and there is no post of Security Guard. It is denied that he was in continuous employment till he was terminated. It is contended that the petitioner not being regular employee, there is no question of issuance of any chargesheet nor is there any question of violation of Section 25F, 25G and 25H of the Industrial Disputes Act. In support of the above contentions, reliance is placed on the decision of the Apex Court in the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak, Haryana, reported in (2010) 3 SCC 367, in the case of Jasmer Singh Vs. State of Haryana, reported in (2015) 4 SCC 458 as well as in the case of Deepali Gundu Surwase Vs. Kranti Junior Abhyapak Mahavidyalaya, reported in (2013) 10 SCC 324.
2.4. Additional Affidavit has also been filed by the respondent trust through its Administrator inter-alia contending that the respondent trust is not principal employer and the petitioner performed the work as daily wager under the contractor. It is contended that as and when there was necessity, work was being done through the contractor. There is no sufficient set up of daily wager in the Trust. It is further contended that on special occasion like Divali, Bhadarvi Punam, Cahitri Punam etc. daily wagers were called either directly or by the contractor on daily-wage basis and daily Page 4 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER wage was paid on the same day and therefore, there was no question of maintaining any register. It is contended that since the petitioners were employed by the Trust through the contractors, the respondent trust do not have the records and it is the Contractor who can produce their record, but the petitioners did not join the contractor as party respondent before the Labour Court as well as this Court.
2.5. Additional Affidavit has been filed by the petitioner stating therein that the petitioner has worked for more than 240 days in last preceding year. The petitioner also placed relevant documents like extract of the attendance registers and other documents in the reference proceedings. The petitioner also filed Production Application before the Labour Court requesting to the respondent trust to produce the relevant documents, but, the respondent trust filed reply stating that no documents were available. It is the grievance of the petitioner that the Labour Court could not have rejected the reference on the ground of delay. The petitioner also sought information under Right to Information Act and the information was provided by the respondent trust, wherein the names of the petitioners workers are mentioned in the list.
3. This Court has heard extensively Mr.Keyur Vyas, learned advocate for the petitioners, who has urged that the petitioners could not have been terminated since they worked for number of years and though there was delay, the reference could not have been rejected the respective reference made by the respective workmen merely on the ground of delay and in case of delay, the Court is required to mould the relief, particularly when when there is non-compliance of provisions Page 5 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER of Section 25F, 25G and 25H of the Industrial Disputes Act.
4. Mr.Vyas, learned advocate for the petitioners has relied on the decision of the Division Bench of this Court in Letters Patent Appeal No.906 of 2016, whereby the Award of the Labour Court directing reinstatement came to be confirmed and the employer has been directed to reinstate the workman but without back-wages, though there was delay of 14 years in raising the dispute.
5. Ms.Archana Acharya, learned advocate for the respondent Trust has argued along the line of Affidavit-in-Reply as well as Additional Affidavit filed by the Administrator of the respondent Trust. It is contended that the petitioners were daily wagers and they were called for work on the occasion of festivity and in such circumstances, if the case of the petitioners is accepted, then it would amount to permit the back-door entry. The trust has its own rules and regulations and all the regular appointments are done by way of giving advertisement for the sanctioned posts. It is refuted firmly that there was no any attempt to sabotage the proceedings by not maintaining the record. It is contended that the trust was required to maintain the record for last 10 years as per the Model Standing Order. It is contended that the separate References have been preferred by respective petitioners belatedly and the delay ranges from 4 years to 15 years and the said inordinate delay has not been explained at all. It is contended that even huge delay can be condoned provided there is reasonable and plausible explanation explaining the delay and since there was no explanation, the Labour Court rightly rejected the reference. It is contended that the finding Page 6 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER of the fact recorded by the Labour Court can be interfered with by the writ court only if the finding is perverse and in all the cases on hand, the findings recorded by the Labour Court are not perverse.
6. In rejoinder, Mr.Keyur Vyas, learned advocate for the petitioners has urged that a group of petitions being Special Civil Application No.9800 of 2019 and other petitions, were not entertain by the coordinate bench on the ground of delay, however, in appeal, Division Bench has admitted the Appeals.
7. Upon hearing both the sides, what is required for this court to consider is as to whether the delay in raising the dispute should be fatal. The trial court has examined the delay in each reference and the delay has been mentioned in tabular form, which ranges from 4 years to 15 years. All the petitioners claimed to be daily wagers and most of them have claimed to have worked as Security Guard. The respondent trust is not undertaking exercise of appointing daily-wagers and the daily wagers were engaged on the days of festivities. It is their modus to hire services of daily wagers through contractors. In the instant case, it is to be noted that the contractor is not made party before the trial court and therefore, naturally before this Court, the contractor through whom the petitioners were engaged, is not joined as party respondent, though the presence of the contractor was inevitable. Be that as it may. Presently, what is required to be considered is as to whether the delay would defeat the remedy. It is noticed that there is a huge delay in raising the disputes ranging from 4 years to 15 years. The Labour Law is charitable so far as limitation is concerned. It has not prescribed any time schedule. However, Page 7 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER that would not mean that the delay is not required to be explained at all. There are number of decisions over the period of time delivered by various courts and it is trite that mere delay will not defeat the remedy but at the same time, there has to be satisfactorily explanation on the part of the petitioners explaining the delay caused in raising the disputes either at the time of raising the dispute or at the time of making Statement of claim. On a specific query raised by this Court, Mr.Vyas, learned advocate for the petitioners fairly submitted that there is no explanation of delay in raising the disputes. In absence of any explanation the Court is still not powerless not to consider the case on merits. The law on the subject requires some reference at this stage. This Court also in Special Civil Application No.20706 of 2018 had considered the huge delay of 19 years. However, the Court found sufficient explanation of such delay coupled with the fact that there was material to substantiate the case of those petitioners.
8. In the case of Divisional Controller, GSRTC Vs. V.T. Vaghela, reported in 2019 (1) GLR 674, there was delay in raising the dispute, the workman challenged three different orders of penalty, one after 11 years, another after 8 years and third after 7 years, respectively, without any explanation and the Court held that the dispute raised after inordinate delay should be considered "dead dispute" and such dispute should not be entertained in absence of satisfactory explanation.
9. In the case of Vadodara Mahanagar Corporation Kamdar Karmchari Union Vs. Municipal Commissioner, reported in 2018(4)GLR 3531, where the dispute was raised Page 8 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER after 14 years seeking appointment on compassionate ground on the post of Class-III from Class-IV, where the Division Bench, while confirming the decision of the Single Judge, held that when the dispute raised after considerable lapse of period, workman required to give satisfactory explanation for laches and delay and demonstrate that dispute still exists. In the facts of that case, the Court held that the dispute cannot be said to be an existing dispute and therefore, no relief can be granted. The Court further held that relief can be granted by moulding relief in a case where dispute though raised belatedly, still exists.
10. In the case of Prabhakar Vs. Joint Director reported in AIR 2016 S.C. 2984, where the dispute was raised after 14 years, the Court that it was the dispute no longer existed and there was no live dispute and therefore, cannot be entertained.
11. In the case of Indian Pharma Cops and Chemicals Pvt. Ltd. Vs. Subhash R. Shah and others, reported in 2012 (5) GLR 4183, there was delay of 9 years and on facts, the Court found that sufficient opportunities were given to the employer company to contest the complaint of the workman and further held that sufficient cause not shown for delay. On facts, it has been further held that if delay is condoned, it would amount to promote injustice and granting premium to negligence of employer. The Court declined to condoned the delay and confirmed the order of the Tribunal.
12. This Court in Special Civil Application No.20706 of 2018 considered the very issue. Relevant paragraphs read thus :
7.6. Yet, another decision of the Apex Court relied Page 9 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER on by is in the case of S.M. NILAJKAR & OTHERS VS. TELECOM DISTRICT MANAGER, KARNATAKA', AIR 2003 SC 3553, where, the Apex Court held that when the workmen initiated the proceedings under the Industrial Disputes Act, 1947, followed by the conciliation proceedings and when the dispute was referred to the Industrial Tribunal by the Labour Commissioner, then, he could not have been non-suited on the ground of delay. The relevant observations read thus:
"11. It is common knowledge that the Government as a welfare State floats several schemes and projects generating employment opportunities, though they are short-lived. The objective is to meet the need of the moment. The benefit of such schemes and projects is that for the duration they exist, they provide employment and livelihood to such persons as would not have been able to secure the same but for such schemes or projects. If the workmen employed for fulfilling the need of such passing-phase-projects or schemes were to become a liability on the employer-State by too liberally interpreting the labour laws in favour of the workmen, then the same may well act as a disincentive to the State for floating such schemes and the State may opt to keep away from initiating such schemes and projects even in times of dire need, Page 10 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER because it may feel that by opening the gates of welfare it would be letting-in onerous obligations entailed upon it by extended application of the labour laws. Sub-clause (bb) in the definition of retrenchment was introduced to take care of such likesituations by Industrial Disputes (Amendment) Act, 1984 with effect from 18.8.1984.
12. 'Retrenchment' in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued. It is well-settled by a catena of decisions that labour laws being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries in case of doubt or where it is possible to take two views of a provision. It is also well-settled that the Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever" while defining the term "retrenchment", which is suggestive of the legislative intent to assign the term 'retrenchment' a meaning wider than what it is understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term 'retrenchment', and therefore, termination of service of a workman so long as it is attributable to the act of the employer Page 11 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER would fall within the meaning of 'retrenchment' de hors the reason for termination. To be excepted from within the meaning of 'retrenchment' the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within the categories (a),
(b), (bb) and (c) would fall within the meaning of 'retrenchment'.
13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of Sub-clause (bb) subject to the following conditions being satisfied:-
(i) that the workman was employed in a project or scheme of temporary duration;
(ii) the employment was on a contract, and not as a dailywager simplicitor, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; and
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the Page 12 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER terms of the contract.
(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment.
14. The engagement of a workman as a dailywager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto to occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short-lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end.
The workman may not therefore complaint that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the Page 13 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER applicability of Sub-clause (bb) abovesaid. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of Sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or dailywagers in a project. For want of proof attracting applicability of Sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment.
15. The appropriate provision which should govern the cases of the appellants is Section 25FFF, the relevant part whereof is extracted and reproduced hereunder:-
"25FFF. Compensation to workmen in case of closing down of undertakings.--(1) Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of Sub-
section (2), be entitled to notice and
compensation in accordance with the
provisions of Section 25F, as if the workman had been retrenched:Page 14 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER
Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under Clause (b) of Section 25F shall not exceed his average pay for three months.
[Explanation : An undertaking which is closed down by reason merely of-
(I) financial difficulties (including financial losses); or
(ii) accumulation of undisposed of stocks; or
(iii) the expiry of the period of the lease or license granted to it; or
(iv) in a case where the undertaking is engaged in mining operations, exhaustion of the minerals in the area in which such operations area carried on, shall not be deemed to be closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to this sub-section.] 1A. [Not reproduced] 1B. [Not reproduced] (2) Where any undertaking set-up for the construction of buildings, bridges, roads, canals, dams or other construction work is closed down on account of the completion of the work within two years from the date on which the Page 15 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER undertaking had been set up, no workman employed therein shall be entitled to any compensation under Clause (b) of Section 25F, but if the construction work is not so competed within two years, he shall be entitled to notice and compensation under that section for every [completed year of continuous service] or any part thereof in excess of six months."
16. It is pertinent to note that in Hariprasad Shivshanker Shukla and Anr. v. A.D. Divikar and Ors. - (1957) SCR 121 the Supreme Court held that 'retrenchment' as defined in Section 2(oo) and as used in Section 25F has no wider meaning than the ordinary accepted connotation of the worked, that is, discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than by way of punishment inflicted in disciplinary action. Retrenchment was held to have no application where the service of all workmen were terminated by the employer on a real and bona fide closure of business or on the business or undertaking being taken over by another employer. The abovesaid view of the law taken by the Supreme Court resulted in promulgation of the Industrial Disputes (Amendment) Ordinance, 1957 with effect from 27.4.1957, later on replaced by an Act of Page 16 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER Parliament (Act 18 of 1957) with effect from 6.6.1957 whereby Section 25FF and Section 25FFF were introduced in the body of the Industrial Disputes Act, 1957. Section 25FF deals with the case of transfer of undertakings with which we are not concerned. Section 25FFF deals with closing down of undertakings. The term 'undertaking' is not defined in the Act. The relevant provision use the term 'industry'. Undertaking is a concept narrower than industry. An undertaking may be a part of the whole, that is, the industry. It carries a restrict meaning. (see Bangalore Water Supply & Sewerage Board etc. v. A. Rajappa and Ors. Etc. and the Management of Hindustan Steel Ltd. v. The Workmen and Ors.
- ). With this amendment it is clear that closure of a project or scheme by the State Government would be covered by the closing down of undertaking within the meaning of Section 25FFF. The workman would therefore be entitled to notice and compensation in accordance with the provisions of Section 25F though the right of employer to close the undertaking for any reason whatsoever cannot be questioned. Compliance of Section 25F shall be subject to such relaxations as are provided by Section 25FFF. The undertaking having been closed on account of unavoidable circumstances beyond the control of the employer, I.e. by its own force as it was Page 17 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER designed and destined to have a limited life only, the compensation payable to the workman under Clause (b) of Section 25F shall not exceed his average pay for three months. This is so because of failure on the part of respondent employer to allege and prove that the termination of employment fell within Sub- clause (bb) of Clause (oo) of Section 2 of the Act.
17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar works Limited v. Their Workmen (supra) that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time without regard to the delay and reasons therefore. There is no limitation prescribed for reference of disputes to an industrial tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re- employment of the most of the old workmen Page 18 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER was held to be fatal in Shalimar Works Limited v. Their Workmen (supra). In Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. (supra), a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan chandra Sammanta and Ors. v. Union of India and Ors. (supra), it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-
87. Pursuant to the judgment in Daily Rated Casual Employees Under P & T Department v. Union of India (supra) the department was formulating a scheme to accommodate casual labourers and the appellants were justified din awaiting the outcome thereof. On 16.1.1990 they were refused to be accommodated in the scheme. On 28.12.1990 they initiated the proceedings under the Industrial Disputes Act Page 19 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum-Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay.
18. The fact remains that there was delay, though not a fatal one, in initiating proceedings calculating the time between the date of termination and initiation of proceedings before the Industrial Tribunal- cum-Labour Court. The employee cannot be blamed for the delay. The learned Single Judge has denied the relief of backwages while directing the appellants to be reinstated. That appears to be a just and reasonable order. Moreover, the judgment of the learned Single Judge was not put in issue by the appellants by filling an appeal.
19. For all the foregoing reasons we are of the opinion that the decision of the Division Bench deserves to be set aside and that of the learned Single Judge restored, except for the finding that the appellants were not project employees."
7.7 This Court (Coram: Mr. Anant S. Dave, A.C.J., Mr. Biren Vaishnav, J.) in Letters Patent Page 20 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER Appeal No. 1554 of 2018 in the case of 'BRAHMBHATT JAYESH BHUPATRAY VS. STATE OF GUJARAT', Dated: 13.03.2019, the challenge was made to the order passed by the learned Single Judge, Dated: 22.02.2016, passed in Special Civil Application No. 1127 of 2010, whereby, the learned Single Judge in the petition filed by the State, confirmed the award of the Labour Court dated 28.08.2009 to the extent it granted reinstatement and 10% backwages. However, the learned Single Judge set aside the benefit of continuity of service granted in favour of the appellant.
7.8 In the matter before the Division Bench of this Court, the question was, whether, the challenge to the oral order of termination dated 30.04.1999 by way of filing Reference in the year 2005, could have been entertained by the Labour Court or not, since, there was delay in making the challenge, where, the Division Bench observed and held as under:
"7. Having considered the submissions made by learned advocates appearing on behalf of the respective parties and in light of the facts on hand, the issue for consideration before us is with regard to continuity of service. It is settled position of law that in cases of wrongful termination of service, reinstatement Page 21 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER with continuity of service and back wages is the normal rule. However, in the present case the reference was raised after a delay of 10 years which was considered by the learned Single Judge. Under the peculiar facts and circumstances of the case, it will be appropriate in order to strike a balance to accept the submission of Mr.Trivedi that on the ground of inordinate delay of 10 years the entire period from the date of termination till the date of the award i.e. from 30.04.1999 to 29.08.2009 cannot be taken away for the purposes of continuity of service as awarded by the Labour Court.
8. Accordingly, the order of the learned Single Judge to the extent that it takes away benefit of continuity of service is modified to the extent that the appellant shall not be entitled to the benefit of continuity of service for the period from 30.04.1999 to 26.12.2005 I.e. from the date of termination till the date of raising reference. However, for the period subsequent thereto till the date of actual reinstatement, the appellant shall be entitled to the benefit of continuity of service and other consequential benefits which accrue to him by virtue of his reinstatement. In view of the fact that the appellant is being deprived of the benefit of continuity of service of Page 22 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER approximately 6 years, even the direction of the learned Single Judge to the extent that it directs that the appellant be treated as fresh employee from 29.08.2009 is set aside. The order of the learned Single Judge is accordingly modified. The remaining award of the Labour Court, i.e. reinstatement with 10% backwages stands confirmed. Appeal is partly allowed.
7.9 The aforesaid view is vindicated by the Division Bench of this Court vide order dated 01.05.2018 in Mics. Civil Application No. 1 of 2017 in Letters Patent Appeal No. 906 of 2016.
7.10 It is, thus, clear from the above discussion that the issue of delay, per se, may not be a ground for the Court to deny the reliefs to the petitioner / claimant / applicant. Since, the same would amount to depriving the petitioners from putting forth his right and non-suit them. The Court or the adjudicating authority, at the best, can mould the relief and can deny some of the benefits, which, he would be, otherwise, entitled had the Reference been made, earlier.
7.11 In the Instant case also, as can be Page 23 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER noticed from each of the petitions that there has been a huge delay in making the Reference, which is, essentially, the ground, which had led the Court concerned to deny the relief to the petitioners.
7.12 In wake of the discussion herein above, this Court is of the opinion that this ought not to have been a ground for the Labour Court to deny the petitioner reliefs prayed for and to non-suit him.
7.13 The question, then, arises of completion of 240 days, as would be, otherwise, necessary for establishing his rights under the ID Act, as required, as per the provisions of Section 23 of the Act. By oral as well as documentary evidence were necessary for the petitioner to prove the continuous work of 240 days, to attract the provisions of Section 25F of the Act. The service of 240 days continuous service within the period of 12 calender months ought to have been proved. The Court held that in each case this basic aspect of completion of 240 days has not been proved, and therefore, it did not find the breach of Section 25F of the Act. Section 25F of the Act, reads as under:
Page 24 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER"25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--
(a) the workman has been given one month' s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2 for every completed year of continuous service] or any part thereof in excess of six months;
and
(c) notice in the prescribed manner is served on the appropriate Government 3 or such authority as may be specified by the appropriate Government by notification in the Official Gazette].
Compensation to workmen in case of transfer of undertakings."
Page 25 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER7.14 Thus, the workman, who has worked for more than 240 days, during the preceding 12 months on dailywage basis, is to be retrenched on issuance of notice one month by a written communication, indicating the reasons for retrenchment or he has been paid in lieu of such notice or he has been paid, at the time of retrenchment compensation, which shall be equivalent to 15 days average wages for every completed days or any part thereof in excess of six months and the notice in the prescribed manner is served on the appropriate government or such authority, as may be specified. Failing which, the termination order cannot be said to be in accordance with the provisions of Section 25F of the Act.
7.15 In 'M/S. EMPIRE INDUSTRIES LTD. VS.
STATE OF MAHARASHTRA & OTHERS', AIR 2010 SC 1389, the Apex Court was considering the case, where, the appellant, which is a public limited company incorporated under the Companies Act, 1956 sought to challenge the order dated 23.091992, passed by the Government of Maharashtra, in exercise of the powers conferred by sub-section (3) of section 10 of the Industrial Disputes Act, 1947, prohibiting continuance of the lock-out in its factory, Page 26 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER Garlick Engineering at Ambernath, Thane. The appellant first challenged this order before the Bombay High Court in Writ Petition No.6051/1995. The writ petition was dismissed by the learned single judge of the court by judgment and order dated 09.02.2001. Against the judgment of the learned single judge, the appellant preferred an internal court appeal (LPA No. 70 of 2001) which too was dismissed by the division bench of the court by judgment and order dated 04.01. 2005. The appellant , therefore, carried the challenge before the Apex Court.. It appears that during the course of this protracted litigation the factory was closed down on 26.04.1999 and since then, it remained closed.
7.16 The Apex Court was considering the issue with regard to the period from 23.09.1992, i.e. the date on which the prohibition order was issued, to 26.04.1999, when the factory was finally closed down. In that case, the impugned prohibition order was held legal and valid and the appeal was dismissed , whereby, the lock-out in the factory after 26.09.1992 was held to be illegal in terms of section 24(O) of the Act and therefore, the appellant would be liable to face the legal consequences and If, on the Page 27 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER other hand the appeal succeeds and the prohibition order is struck down as illegal and invalid, that would be the end of the matter. The Apex Court held that the provisions of Section 25F lays down the condition precedent to the retrenchment of workmen, requires the employer to give notice to the appropriate government and also to the concerned workman by giving one month's notice in writing or one month's wages in lieu of such notice and payment of retrenchment compensation and in breach thereof, it would be termed as illegal retrenchment and the workman concerned shall be entitled to reinstatement with full back-wages. This provisions have been couched in the mandatory form and non-compliance of the same would result into rendering the order of retrenchment illegal.
7.17 This provision has been couched in a mandatory form and non-compliance of the same would render the order of retrenchment illegal.
13. In light of these decisions, if factual matrix are examined, it can be seen clearly that according to the Page 28 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER petitioners they have worked with the respondent for about 11 years, however, they have raised the industrial disputes after an ordinate delay which ranges from 4 years to 15 years. In all the cases, there is no explanation of the delay either in the Statement of Claim or in the oral evidence of the workmen, or any other manner. There is no material with this Court for satisfying itself and holding that the trial court committed any illegality and did not act within its bounds. It is also relevant to mention that it chose not to entertain the reference on the ground of delay which would definitely affect the merit which is otherwise available to the parties. However, of course, it is the discretion of the Court to condone such delay that would not mean that even when the parties chose not to whisper anything with regard to the delay, the Court should be lenient to entertain such petitions. This is sufficient for this Court not to entertain these petitions.
14. Taking another aspect on merits of Section 25F, 25G and 25H of the I.D. Act, what is required under section 25F is of compliance of 240 days in preceding year. The petitioners have claimed to have worked for nearly 11 years, although they have not produced semblance of material to substantiate their claim. They have made application for production of the documents, which is not decided by the Labour Court, after fixing it for hearing, till it passed the Awards and even the petitioners - workmen were not bothered to make any request to the Labour Court to decide the said application and direct the respondent to produce the documents. Before this Court, Ms.Archana Acharya, learned advocate for the respondent Trust made concerted efforts for getting the material and has disclosed that as per Model Standing Orders, records are not to Page 29 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER be maintained after 10 years and the respondent trust is not having record of the Contractor through whom the petitioners workmen were engaged and hence, the respondent trust has nothing to do with the petitioners and therefore, she has shown her inability to bring any record of the Contractor, as the same is not available with the respondent Trust. The petitioners did not join the contractor as party before the Labour Court as well as this Court and no efforts are made by them to produce the records from the Contractor. The respondent provided the copy of the records of the daily wagers available with them under the Right to Information Act, however, except the names of four petitioners namely petitioner of Special Civil Application Nos.9311/2018, 9320/2018, 9319/2018 and 9321/2018, the names of other petitioners are not reflected from the said records also. The aforesaid four petitioners have worked for once only in four years. This short details of once having guarded the places as provided under the Right to Information Act despite their reference pending for so many years is completely insufficient material for the court to remand the matter for the purpose of permitting further evidence. Had there been some substantive materials of substantial days, this court at the best could have directed these matters to be remanded. Moreover, as mentioned hereinabove, it is the specific case of the respondent Trust that the petitioners were engaged by the Contractors and the respondents had not directly appointed them, which otherwise is bound by the Trust Act and maintain all the documents in accordance with law. In absence of contractor as party and also in absence of any material for breach of section 25F, 25G and 25H of the Industrial Disputes Act, this Court see no reason to interfere.
Page 30 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER15. Even otherwise, the scope of inquiry by this Court is also limited under Articles 226 and 227 of the Constitution of India. The Apex Court in the decision rendered case of Shalini Shyam Shetty and another Versus Rajendra Shankar Patil, reported in 2010 AIR S.C. 6397 [rendered in Civil Appeal No.5896 of 2010 (Arising out of SLP (Civil) No.7445 of 2009)] in para 62 has observed and held as under :-
"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence Page 31 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not Page 32 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment Page 33 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article
227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and Page 34 of 35 Downloaded on : Sun Jun 14 04:19:39 IST 2020 C/SCA/9311/2019 ORDER the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
16. Resultantly, all the petitions are dismissed. Notice is discharged. No order as to costs.
Sd/-
(SONIA GOKANI, J) RAFIK..
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