Gujarat High Court
Hitendrasinh A. Jadeja vs Integrated Child Development Scheme ... on 5 May, 2016
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/102/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 102 of 2016
In SPECIAL CIVIL APPLICATION NO. 5975 of 2004
With
CIVIL APPLICATION NO. 1341 of 2016
In
LETTERS PATENT APPEAL NO. 102 of 2016
With
LETTERS PATENT APPEAL NO. 103 of 2016
In
SPECIAL CIVIL APPLICATION NO. 765 of 2011
With
CIVIL APPLICATION NO. 1342 of 2016
In
LETTERS PATENT APPEAL NO. 103 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==============================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==============================================================
HITENDRASINH A. JADEJA....Appellant(s)
Versus
INTEGRATED CHILD DEVELOPMENT SCHEME OFFICER &
1....Respondent(s)
==============================================================
Appearance:
MR AK CLERK, ADVOCATE for the Appellant(s) No. 1
MS KHYATI P HATHI, ADVOCATE for the Respondent(s) No. 1 -
2
==============================================================
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date :05/05/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. Both these appeals filed under Clause 15 of the Letters Patent arise out of common oral judgment dated 01.09.2014 passed by the learned Single Judge in Special Civil Application No.5975 of 2004 and allied matters by which learned Single Judge allowed the petitions preferred by the District Panchayat and thereby quashed and set aside the award passed by the Labour Court.
2. The factual matrix of these appeals is as under:
2.1. It is the case of the appellant - workman that he was working as daily-wage driver from 25.08.1988 and when there was no work as driver he was asked to perform the other miscellaneous duties in the office, whereas, it is the case of the original Petitioners - employer that the workman was appointed as casual temporary driver by order dated 20.11.1991. Thereafter the workman was apprehending that his services shall be terminated, he filed Regular Civil Suit No.583 of 1992 in the Court of learned Civil Judge, Jamnagar and obtained ex-parte ad-interim Page 2 of 18 HC-NIC Page 2 of 36 Created On Mon May 09 23:59:22 IST 2016 2 of 36 C/LPA/102/2016 JUDGMENT injunction. The said order came to be vacated by order dated 17.09.1996. Thus, during the period between 1992 to 1996 the original petitioners -
employer was constrained to continue the workman in service pursuant to the ex-parte ad-interim injunction granted by the Civil Court.
2.2. It is the case of the appellant - workman that he raised an industrial dispute through Union to confer permanency benefit and in the said conciliation proceeding, Labour Court granted injunction in his favour pending the conciliation proceeding that his services shall not be terminated. The dispute was referred to the Labour Court, Jamnagar, which was registered as Reference (LCD) No. 3/1997. The Labour Court by an award dated 11.12.2003 partly allowed the reference and thereby directed the petitioner employer to make the respondent workman permanent w.e.f. 01.04.2001 and to grant him all the benefits of permanency which may be available to the permanent employee, however, without back- wages. The petitioners - employer therefore challenged the said award by filing Special Civil Application No.5975 of 2004 before this Court.
2.3. It is the case of the appellant - workman that when the award passed by the Labour Court on 11.12.2003 was served to the petitioner -
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employer, the services of the appellant came to be terminated by the petitioners - employer and therefore the appellant - workman raised another dispute which was referred to the Labour Court, Jamnagar being Reference (LCJ) No.122 of 2005. It is the case of the petitioners - employer that as the jeep which was being driven by the workman came to be condemned and there was no jeep available on which the petitioner - employer could have continued the workman, his services were put to an end.
2.4. The Labour Court, Jamnagar, by an order dated 10.11.2009 passed an award by which the petitioners - employer was directed to reinstate the workman with 25% back-wages. However, it is the case of the appellant that the Labour Court on the basis of the application filed by the concerned party once again passed an award on 15.09.2009 (sic 15.09.2010) whereby the employer was directed to reinstate the workman with 25% back-wages. The notification was published by the concerned Labour Court on 23.09.2010. The original petitioners - employer therefore filed Special Civil Application No.765 of 2011 before this Court.
2.5. The learned Single Judge by common judgment dated 01.09.2014 allowed both the petitions Page 4 of 18 HC-NIC Page 4 of 36 Created On Mon May 09 23:59:22 IST 2016 4 of 36 C/LPA/102/2016 JUDGMENT preferred by the employer and thereby awards dated 11.12.2003 and 15.09.2009 (sic 15.09.2010) passed by the Labour Court, Jamnagar are quashed and set aside. At this stage, it is to be noted that the workman also preferred Special Civil Application No.5271 of 2005 wherein workman has prayed that award passed by the Labour Court be modified and he may be awarded back-wages. However, the petition preferred by the workman was dismissed by the learned Single Judge.
2.6. The appellant - workman therefore filed the present appeals challenging the order passed by the learned Single Judge whereby the petitions preferred by the employer are allowed. However, the workman has not challenged the order of learned Single Judge whereby his petition is dismissed.
3. Heard learned advocate Mr. A.K.Clerk for the appellant - workman and learned advocate Ms. Khyati Hathi for the respondents - employer.
4. Learned advocate Mr. Clerk for the appellant mainly contended that when the Labour Court passed an award in Reference (LCD) No.3 of 1997, whereby the Labour Court held that the appellant
- workman was required to be treated as a permanent employee and was entitled to all the Page 5 of 18 HC-NIC Page 5 of 36 Created On Mon May 09 23:59:22 IST 2016 5 of 36 C/LPA/102/2016 JUDGMENT benefits of permanent employee, the employer terminated the services of the appellant - workman and therefore he was compelled to file another reference before the Labour Court. He contended that there is ample material which was produced before the Labour Court whereby the appellant - workman has proved that he was working as driver with the respondents - employer from 25.08.1988 and his services were terminated by oral order dated 01.01.2004. It is further contended that Labour Court has discussed in detail that it is the case of the employer that jeep was contemned on 31.03.2004 and therefore the services of the workman were terminated from 01.04.2004, however, such order was also not produced by the employer before the Labour Court.
5. Learned advocate Mr. Clerk thereafter contended that there is specific finding recorded by the Labour Court on the basis of the evidence produced on record that the employer has violated the provisions contained in Section 25F of the Industrial Disputes Act. No notice or notice pay was given to the workman before terminating his services. A specific finding is also recorded by the Labour Court that the workman had worked as a driver during the period between 1988 to 2004.
6. Learned advocate Mr. Clerk would contend that Page 6 of 18 HC-NIC Page 6 of 36 Created On Mon May 09 23:59:22 IST 2016 6 of 36 C/LPA/102/2016 JUDGMENT the Labour Court has thereafter specifically observed and held that even after the jeep was condemned, another jeep bearing registration No.GJ-10-G-309 was allotted to the petitioners - employer and the witness of the employer has admitted during the course of cross-examination that the aforesaid jeep was allotted to the petitioners - employer and new driver was appointed for driving the said jeep. However, the appellant - workman was not called and thereby the employer has violated the provisions contained in Section 25H of the Industrial Disputes Act.
7. Learned advocate Mr. Clerk thereafter referred to the impugned order passed by the learned Single Judge and submitted that the learned Single Judge has wrongly observed that there is no finding recorded by the Labour Court that there is breach of Section 25G and/or 25H of the Industrial Dispute Act. He, therefore, submitted that learned Single Judge has not properly appreciated the reasoning given by the learned Labour Court and therefore the impugned order be quashed and set aside.
8. On the other hand, learned advocate Ms. Khyati Hathi appearing for the original petitioners - present respondents - employer Page 7 of 18 HC-NIC Page 7 of 36 Created On Mon May 09 23:59:22 IST 2016 7 of 36 C/LPA/102/2016 JUDGMENT mainly contended that the Labour Court has ignored the fact that the workman was continued in service only because of the ex-parte injunction granted by the Civil Court and thereafter pursuant to the ad-interim injunction granted by the Labour Court. Therefore, the period under which the workman was continued in service pursuant to the order passed by the Civil Court as well as the Labour Court, ought not to have been taken into consideration by the Labour Court while passing the award. It is further submitted that when the appointment of the appellant - workman was as casual daily wager pending the regular selection process and without following due procedure of recruitment process and since the appellant - workman was continued in service pursuant to the ad-interim injunction granted by the Civil Court as well as the Labour Court, Labour Court has committed an error in directing the employer to make the workman permanent w.e.f. 01.04.2001 and to grant him all the benefit of permanency which may be available to the permanent employee. Thus, when all the aforesaid aspects were pointed out before the learned Single Judge, learned Single Judge has rightly quashed and set aside both the awards impugned in the aforesaid petitions and therefore learned Single Judge has not committed any error which calls for any interference by this Court.
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Therefore, present appeals be dismissed.
9. Learned advocate Ms. Hathi has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Raghavendra Rao Etc. v. State of Karnataka & Ors., Etc., reported in JT 2009 (2) SC 520.
10. We have considered the submissions canvassed on behalf of the learned advocates appearing for the parties and we have also gone through the material produced on record and the decision upon which the reliance is placed. It is revealed from the record that the appellant workman was employed as driver on daily wage basis with the respondents - employer. On apprehension of terminating his services, the appellant workman filed Regular Civil Suit No.583 of 1992 in the Court of Civil Judge, Jamnagar, wherein the Civil Court granted ad-interim injunction in his favour. The said order was vacated in September 1996 and thereafter during the pendency of the conciliation proceedings, Labour Court granted injunction in favour of the workman. The dispute was referred to the Labour Court, Jamnagar which was registered as Reference (LCD) No. 3 of 1997, wherein the workman was protected. The said dispute was referred with a prayer to make him permanent from the date on which he has completed Page 9 of 18 HC-NIC Page 9 of 36 Created On Mon May 09 23:59:22 IST 2016 9 of 36 C/LPA/102/2016 JUDGMENT 240 days and to give him all the benefits of permanent workman. The said reference was partly allowed by the Labour Court by an order dated 11.12.2003 by which the direction was given to the employer to treat the workman as permanent w.e.f. 01.04.2001 and to give him all the benefits of permanency, however, no benefit of permanency was granted prior to the said period. When the aforesaid award was passed by the Labour Court, as per the allegation made by the workman, his services came to be terminated by oral order dated 01.04.2004 so that no benefit can be given to the workman as per the award of the Labour Court. The workman has, therefore, raised the dispute which was referred to the Labour Court and the same was registered as Reference (LCJ) No. 122 of 2005. The Labour Court passed an award by which the employer was directed to reinstate the workman with 25% back-wages. If the award dated 15.09.2009 (sic 15.09.2010) is carefully examined, it is revealed that the workman had produced sufficient documentary evidence before the Labour Court and also filed an affidavit Exh.22. The employer has also produced documentary as well as oral evidence before the Labour Court and the Labour Court after appreciating the evidence produced on record, specifically gave the finding that the workman has worked during the period between 25.08.1988 Page 10 of 18 HC-NIC Page 10 of 36 Created On Mon May 09 23:59:22 IST 2016 10 of 36 C/LPA/102/2016 JUDGMENT to 01.01.2004. The witness of the employer viz. Pratibhaben has also stated the said aspect during her cross-examination and therefore the Labour Court has held that the workman has continuously served during the aforesaid period. The Labour Court has thereafter observed that if the case of the employer that the services of the workman was terminated only because the jeep bearing registration No.GCB-9140 which the workman was driving was condemned on 31.03.2004 and therefore his services came to be terminated on 01.04.2004 is accepted even then the employer has not produced any order of termination from 01.04.2004. Even the employer has not stated that on which date the workman was terminated because of the aforesaid reason. It was further observed that even for the aforesaid reason the service of the workman was not required even then when the workman has worked for 16 years, it was the duty of the employer to follow the provisions contained in Section 25F of the Industrial Disputes Act which they have not followed.
11. There is specific finding recorded by the Labour Court based on the evidence produced before it that after the earlier jeep was condemned, another jeep was allotted to the employer and for that another driver was appointed and therefore there is violation of Page 11 of 18 HC-NIC Page 11 of 36 Created On Mon May 09 23:59:22 IST 2016 11 of 36 C/LPA/102/2016 JUDGMENT provisions contained in Section 25H of the Industrial Disputes Act.
12. In the aforesaid background of specific finding recorded by the Labour Court, if the impugned judgment passed by the learned Single Judge is carefully examined, it is revealed that the learned Single Judge has observed as under:
"However, the learned trial court has passed the impugned order by further observing that subsequently the petitioners have purchased new jeep and another driver has been appointed. However, it is required to be noted that nothing is on record that subsequently another driver was appointed as a casual daily-wager and/or on regular basis. It is required to be noted that as such there is no finding recorded by the learned Labour Court that there is breach of Section 25G and/or 25H of the Industrial Disputes Act."
13. Thus, we are of the opinion that the learned Single Judge has committed an error by observing that there is no finding recorded by the Labour Court that there is breach of Section 25H of the Industrial Disputes Act.
14. Hence, the impugned judgment passed by the learned Single Judge qua allowing the petition being Special Civil Application No.765 of 2011 is required to be quashed and set aside and thereby Page 12 of 18 HC-NIC Page 12 of 36 Created On Mon May 09 23:59:22 IST 2016 12 of 36 C/LPA/102/2016 JUDGMENT the appellant - workman is entitled for reinstatement with continuity in service. However, looking to the overall facts and circumstances of the present case, he is not entitled to get 25% back-wages as awarded by the Labour Court. Accordingly, the award dated 15.09.2009 passed by the Labour Court, Jamnagar in Reference (LCJ) No.122 of 2005 is modified to the aforesaid extent.
15. So far as the impugned judgment passed by the learned Single Judge in Special Civil Application No.5975 of 2004 is concerned, learned Single Judge has specifically observed in para 6.02 as under:
"6.02. From the impugned judgement and award passed by the Labour Court, it appears that the learned Labour Court has directed the petitioners to make the respondent workman permanent mainly and solely on the ground that since last many years the respondent has worked for 365 days in a year and continuously. However, it is required to be noted that since 1992, the respondent was continued in service only because of the ex-parte ad- interim injunction initially granted by the learned Civil Court and thereafter granted by the learned Labour Court. As per the catena of decisions, the period under which the respondent has been continued in service due to injunction, could not have been considered for grant of permanency to the workman. Under the circumstances, as such the learned trial court has materially erred in considering Page 13 of 18 HC-NIC Page 13 of 36 Created On Mon May 09 23:59:22 IST 2016 13 of 36 C/LPA/102/2016 JUDGMENT the period during which the respondent was continued in service pursuant to the ex- parte interim injunction granted by the learned Civil Court as well as thereafter by the learned Labour Court. If the aforesaid period of injunction is excluded, in that case, it can be said that the respondent had worked only for one year and that too as a daily-wager and as and when the work was available. It is also required to be noted at this stage that initially the respondent workman was appointed as a casual daily-wager driver pending the regularly selected candidate was available. It is not in dispute that the appointment of the respondent workman even as a casual driver was not after following due procedure of selection / recruitment. Under the circumstances, it is not appreciable how the learned Labour Court could have directed the petitioners to make the respondent permanent w.e.f. 1/4/2001. In view of the aforesaid facts and circumstances, the impugned judgement and award passed by the learned Labour Court impugned in the Special Civil Application No. 5975 of 2004 cannot be sustained and the same deserves to be quashed and set aside and consequently Special Civil Application No. 5271 of 2005 filed by the workman deserves to be dismissed."
16. As observed hereinabove when the appellant workman was continued in service pursuant to the ad-interim injunction granted by the Civil Court as well as the Labour Court, Labour Court while passing the award in Reference (LCD) No.3 of 1997 has committed an error directing regularization from the year 2001.
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17. At this stage, the decision rendered by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka v. Umadevi, reported in 2006(4) SCC 1, is required to be kept in mind. In the said case, the Hon'ble Supreme Court has observed in para 53 as under:
"53.One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA, R.N. NANJUNDAPPA, and B.N. NAGARAJAN, and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, Page 15 of 18 HC-NIC Page 15 of 36 Created On Mon May 09 23:59:22 IST 2016 15 of 36 C/LPA/102/2016 JUDGMENT but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
18. In the present case, it is not in dispute that the appellant workman has worked after 1992 because of the ad-interim injunction granted by the Civil Court as well as the Labour Court and therefore Labour Court has committed an error in directing regularization of appellant workman from 2001.
19. Even in the case of Raghavendra Rao (supra) relied upon by learned advocate Ms. Khayati Hathi, the Hon'ble Supreme Court has observed in para 16 as under:
"16. It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service......."
20. Thus, keeping in mind the aforesaid decisions, we are of the opinion that learned Single Judge has not committed any error while allowing Special Civil Application No.5975 of 2004 filed by the petitioner - employer and by quashing and setting aside the award dated 11.12.2003 passed by the Labour Court in Reference (LCD) No. 3 of 1997. However, we have Page 16 of 18 HC-NIC Page 16 of 36 Created On Mon May 09 23:59:22 IST 2016 16 of 36 C/LPA/102/2016 JUDGMENT already observed hereinabove that the termination of the appellant workman was without following mandatory provisions of the Industrial Disputes Act and therefore we have directed for reinstatement of the appellant - workman at his original post with continuity of service and the fact remains that the appellant - workman has worked from 1988 till the date of his termination and therefore looking to his total length of service period, the respondent employer is directed to consider the case of the appellant workman for regularization looking to the peculiar facts of the present case.
21. In view of the aforesaid discussion, Letters Patent Appeal No.103 of 2016 in Special Civil Application No.765 of 2011 is partly allowed and thereby the order passed by the learned Single Judge in Special Civil Application No.765 of 2011 is quashed and set aside with the aforesaid directions. However, Letters Patent Appeal No.102 of 2016 in Special Civil Application No.5975 of 2004 is hereby dismissed and the order of the learned Single Judge qua the said petition is hereby confirmed with the aforesaid directions and observations.
22. In view of the order passed in main appeals, civil applications do not survive and accordingly Page 17 of 18 HC-NIC Page 17 of 36 Created On Mon May 09 23:59:22 IST 2016 17 of 36 C/LPA/102/2016 JUDGMENT they are disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 18 of 18 HC-NIC Page 18 of 36 Created On Mon May 09 23:59:22 IST 2016 18 of 36 C/LPA/102/2016 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 102 of 2016 In SPECIAL CIVIL APPLICATION NO. 5975 of 2004 With CIVIL APPLICATION NO. 1341 of 2016 In LETTERS PATENT APPEAL NO. 102 of 2016 With LETTERS PATENT APPEAL NO. 103 of 2016 In SPECIAL CIVIL APPLICATION NO. 765 of 2011 With CIVIL APPLICATION NO. 1342 of 2016 In LETTERS PATENT APPEAL NO. 103 of 2016 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
============================================================== HITENDRASINH A. JADEJA....Appellant(s) Versus INTEGRATED CHILD DEVELOPMENT SCHEME OFFICER &
1....Respondent(s) ============================================================== Appearance:
MR AK CLERK, ADVOCATE for the Appellant(s) No. 1 MS KHYATI P HATHI, ADVOCATE for the Respondent(s) No. 1 -2
============================================================== Page 1 of 18 HC-NIC Page 19 of 36 Created On Mon May 09 23:59:22 IST 2016 19 of 36 C/LPA/102/2016 JUDGMENT CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date :05/05/2016 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. Both these appeals filed under Clause 15 of the Letters Patent arise out of common oral judgment dated 01.09.2014 passed by the learned Single Judge in Special Civil Application No.5975 of 2004 and allied matters by which learned Single Judge allowed the petitions preferred by the District Panchayat and thereby quashed and set aside the award passed by the Labour Court.
2. The factual matrix of these appeals is as under:
2.1. It is the case of the appellant - workman that he was working as daily-wage driver from 25.08.1988 and when there was no work as driver he was asked to perform the other miscellaneous duties in the office, whereas, it is the case of the original Petitioners - employer that the workman was appointed as casual temporary driver by order dated 20.11.1991. Thereafter the workman was apprehending that his services shall be terminated, he filed Regular Civil Suit No.583 of 1992 in the Court of learned Civil Judge, Jamnagar and obtained ex-parte ad-interim Page 2 of 18 HC-NIC Page 20 of 36 Created On Mon May 09 23:59:22 IST 2016 20 of 36 C/LPA/102/2016 JUDGMENT injunction. The said order came to be vacated by order dated 17.09.1996. Thus, during the period between 1992 to 1996 the original petitioners - employer was constrained to continue the workman in service pursuant to the ex-parte ad-interim injunction granted by the Civil Court.
2.2. It is the case of the appellant - workman that he raised an industrial dispute through Union to confer permanency benefit and in the said conciliation proceeding, Labour Court granted injunction in his favour pending the conciliation proceeding that his services shall not be terminated. The dispute was referred to the Labour Court, Jamnagar, which was registered as Reference (LCD) No. 3/1997. The Labour Court by an award dated 11.12.2003 partly allowed the reference and thereby directed the petitioner employer to make the respondent workman permanent w.e.f. 01.04.2001 and to grant him all the benefits of permanency which may be available to the permanent employee, however, without back- wages. The petitioners - employer therefore challenged the said award by filing Special Civil Application No.5975 of 2004 before this Court.
2.3. It is the case of the appellant - workman that when the award passed by the Labour Court on 11.12.2003 was served to the petitioner -
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employer, the services of the appellant came to be terminated by the petitioners - employer and therefore the appellant - workman raised another dispute which was referred to the Labour Court, Jamnagar being Reference (LCJ) No.122 of 2005. It is the case of the petitioners - employer that as the jeep which was being driven by the workman came to be condemned and there was no jeep available on which the petitioner - employer could have continued the workman, his services were put to an end.
2.4. The Labour Court, Jamnagar, by an order dated 10.11.2009 passed an award by which the petitioners - employer was directed to reinstate the workman with 25% back-wages. However, it is the case of the appellant that the Labour Court on the basis of the application filed by the concerned party once again passed an award on 15.09.2009 (sic 15.09.2010) whereby the employer was directed to reinstate the workman with 25% back-wages. The notification was published by the concerned Labour Court on 23.09.2010. The original petitioners - employer therefore filed Special Civil Application No.765 of 2011 before this Court.
2.5. The learned Single Judge by common judgment dated 01.09.2014 allowed both the petitions Page 4 of 18 HC-NIC Page 22 of 36 Created On Mon May 09 23:59:22 IST 2016 22 of 36 C/LPA/102/2016 JUDGMENT preferred by the employer and thereby awards dated 11.12.2003 and 15.09.2009 (sic 15.09.2010) passed by the Labour Court, Jamnagar are quashed and set aside. At this stage, it is to be noted that the workman also preferred Special Civil Application No.5271 of 2005 wherein workman has prayed that award passed by the Labour Court be modified and he may be awarded back-wages. However, the petition preferred by the workman was dismissed by the learned Single Judge.
2.6. The appellant - workman therefore filed the present appeals challenging the order passed by the learned Single Judge whereby the petitions preferred by the employer are allowed. However, the workman has not challenged the order of learned Single Judge whereby his petition is dismissed.
3. Heard learned advocate Mr. A.K.Clerk for the appellant - workman and learned advocate Ms. Khyati Hathi for the respondents - employer.
4. Learned advocate Mr. Clerk for the appellant mainly contended that when the Labour Court passed an award in Reference (LCD) No.3 of 1997, whereby the Labour Court held that the appellant
- workman was required to be treated as a permanent employee and was entitled to all the Page 5 of 18 HC-NIC Page 23 of 36 Created On Mon May 09 23:59:22 IST 2016 23 of 36 C/LPA/102/2016 JUDGMENT benefits of permanent employee, the employer terminated the services of the appellant - workman and therefore he was compelled to file another reference before the Labour Court. He contended that there is ample material which was produced before the Labour Court whereby the appellant - workman has proved that he was working as driver with the respondents - employer from 25.08.1988 and his services were terminated by oral order dated 01.01.2004. It is further contended that Labour Court has discussed in detail that it is the case of the employer that jeep was contemned on 31.03.2004 and therefore the services of the workman were terminated from 01.04.2004, however, such order was also not produced by the employer before the Labour Court.
5. Learned advocate Mr. Clerk thereafter contended that there is specific finding recorded by the Labour Court on the basis of the evidence produced on record that the employer has violated the provisions contained in Section 25F of the Industrial Disputes Act. No notice or notice pay was given to the workman before terminating his services. A specific finding is also recorded by the Labour Court that the workman had worked as a driver during the period between 1988 to 2004.
6. Learned advocate Mr. Clerk would contend that Page 6 of 18 HC-NIC Page 24 of 36 Created On Mon May 09 23:59:22 IST 2016 24 of 36 C/LPA/102/2016 JUDGMENT the Labour Court has thereafter specifically observed and held that even after the jeep was condemned, another jeep bearing registration No.GJ-10-G-309 was allotted to the petitioners - employer and the witness of the employer has admitted during the course of cross-examination that the aforesaid jeep was allotted to the petitioners - employer and new driver was appointed for driving the said jeep. However, the appellant - workman was not called and thereby the employer has violated the provisions contained in Section 25H of the Industrial Disputes Act.
7. Learned advocate Mr. Clerk thereafter referred to the impugned order passed by the learned Single Judge and submitted that the learned Single Judge has wrongly observed that there is no finding recorded by the Labour Court that there is breach of Section 25G and/or 25H of the Industrial Dispute Act. He, therefore, submitted that learned Single Judge has not properly appreciated the reasoning given by the learned Labour Court and therefore the impugned order be quashed and set aside.
8. On the other hand, learned advocate Ms. Khyati Hathi appearing for the original petitioners - present respondents - employer Page 7 of 18 HC-NIC Page 25 of 36 Created On Mon May 09 23:59:22 IST 2016 25 of 36 C/LPA/102/2016 JUDGMENT mainly contended that the Labour Court has ignored the fact that the workman was continued in service only because of the ex-parte injunction granted by the Civil Court and thereafter pursuant to the ad-interim injunction granted by the Labour Court. Therefore, the period under which the workman was continued in service pursuant to the order passed by the Civil Court as well as the Labour Court, ought not to have been taken into consideration by the Labour Court while passing the award. It is further submitted that when the appointment of the appellant - workman was as casual daily wager pending the regular selection process and without following due procedure of recruitment process and since the appellant - workman was continued in service pursuant to the ad-interim injunction granted by the Civil Court as well as the Labour Court, Labour Court has committed an error in directing the employer to make the workman permanent w.e.f. 01.04.2001 and to grant him all the benefit of permanency which may be available to the permanent employee. Thus, when all the aforesaid aspects were pointed out before the learned Single Judge, learned Single Judge has rightly quashed and set aside both the awards impugned in the aforesaid petitions and therefore learned Single Judge has not committed any error which calls for any interference by this Court.
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Therefore, present appeals be dismissed.
9. Learned advocate Ms. Hathi has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Raghavendra Rao Etc. v. State of Karnataka & Ors., Etc., reported in JT 2009 (2) SC 520.
10. We have considered the submissions canvassed on behalf of the learned advocates appearing for the parties and we have also gone through the material produced on record and the decision upon which the reliance is placed. It is revealed from the record that the appellant workman was employed as driver on daily wage basis with the respondents - employer. On apprehension of terminating his services, the appellant workman filed Regular Civil Suit No.583 of 1992 in the Court of Civil Judge, Jamnagar, wherein the Civil Court granted ad-interim injunction in his favour. The said order was vacated in September 1996 and thereafter during the pendency of the conciliation proceedings, Labour Court granted injunction in favour of the workman. The dispute was referred to the Labour Court, Jamnagar which was registered as Reference (LCD) No. 3 of 1997, wherein the workman was protected. The said dispute was referred with a prayer to make him permanent from the date on which he has completed Page 9 of 18 HC-NIC Page 27 of 36 Created On Mon May 09 23:59:22 IST 2016 27 of 36 C/LPA/102/2016 JUDGMENT 240 days and to give him all the benefits of permanent workman. The said reference was partly allowed by the Labour Court by an order dated 11.12.2003 by which the direction was given to the employer to treat the workman as permanent w.e.f. 01.04.2001 and to give him all the benefits of permanency, however, no benefit of permanency was granted prior to the said period. When the aforesaid award was passed by the Labour Court, as per the allegation made by the workman, his services came to be terminated by oral order dated 01.04.2004 so that no benefit can be given to the workman as per the award of the Labour Court. The workman has, therefore, raised the dispute which was referred to the Labour Court and the same was registered as Reference (LCJ) No. 122 of 2005. The Labour Court passed an award by which the employer was directed to reinstate the workman with 25% back-wages. If the award dated 15.09.2009 (sic 15.09.2010) is carefully examined, it is revealed that the workman had produced sufficient documentary evidence before the Labour Court and also filed an affidavit Exh.22. The employer has also produced documentary as well as oral evidence before the Labour Court and the Labour Court after appreciating the evidence produced on record, specifically gave the finding that the workman has worked during the period between 25.08.1988 Page 10 of 18 HC-NIC Page 28 of 36 Created On Mon May 09 23:59:22 IST 2016 28 of 36 C/LPA/102/2016 JUDGMENT to 01.01.2004. The witness of the employer viz. Pratibhaben has also stated the said aspect during her cross-examination and therefore the Labour Court has held that the workman has continuously served during the aforesaid period. The Labour Court has thereafter observed that if the case of the employer that the services of the workman was terminated only because the jeep bearing registration No.GCB-9140 which the workman was driving was condemned on 31.03.2004 and therefore his services came to be terminated on 01.04.2004 is accepted even then the employer has not produced any order of termination from 01.04.2004. Even the employer has not stated that on which date the workman was terminated because of the aforesaid reason. It was further observed that even for the aforesaid reason the service of the workman was not required even then when the workman has worked for 16 years, it was the duty of the employer to follow the provisions contained in Section 25F of the Industrial Disputes Act which they have not followed.
11. There is specific finding recorded by the Labour Court based on the evidence produced before it that after the earlier jeep was condemned, another jeep was allotted to the employer and for that another driver was appointed and therefore there is violation of Page 11 of 18 HC-NIC Page 29 of 36 Created On Mon May 09 23:59:22 IST 2016 29 of 36 C/LPA/102/2016 JUDGMENT provisions contained in Section 25H of the Industrial Disputes Act.
12. In the aforesaid background of specific finding recorded by the Labour Court, if the impugned judgment passed by the learned Single Judge is carefully examined, it is revealed that the learned Single Judge has observed as under:
"However, the learned trial court has passed the impugned order by further observing that subsequently the petitioners have purchased new jeep and another driver has been appointed. However, it is required to be noted that nothing is on record that subsequently another driver was appointed as a casual daily-wager and/or on regular basis. It is required to be noted that as such there is no finding recorded by the learned Labour Court that there is breach of Section 25G and/or 25H of the Industrial Disputes Act."
13. Thus, we are of the opinion that the learned Single Judge has committed an error by observing that there is no finding recorded by the Labour Court that there is breach of Section 25H of the Industrial Disputes Act.
14. Hence, the impugned judgment passed by the learned Single Judge qua allowing the petition being Special Civil Application No.765 of 2011 is required to be quashed and set aside and thereby Page 12 of 18 HC-NIC Page 30 of 36 Created On Mon May 09 23:59:22 IST 2016 30 of 36 C/LPA/102/2016 JUDGMENT the appellant - workman is entitled for reinstatement with continuity in service. However, looking to the overall facts and circumstances of the present case, he is not entitled to get 25% back-wages as awarded by the Labour Court. Accordingly, the award dated 15.09.2009 passed by the Labour Court, Jamnagar in Reference (LCJ) No.122 of 2005 is modified to the aforesaid extent.
15. So far as the impugned judgment passed by the learned Single Judge in Special Civil Application No.5975 of 2004 is concerned, learned Single Judge has specifically observed in para 6.02 as under:
"6.02. From the impugned judgement and award passed by the Labour Court, it appears that the learned Labour Court has directed the petitioners to make the respondent workman permanent mainly and solely on the ground that since last many years the respondent has worked for 365 days in a year and continuously. However, it is required to be noted that since 1992, the respondent was continued in service only because of the ex-parte ad- interim injunction initially granted by the learned Civil Court and thereafter granted by the learned Labour Court. As per the catena of decisions, the period under which the respondent has been continued in service due to injunction, could not have been considered for grant of permanency to the workman. Under the circumstances, as such the learned trial court has materially erred in considering Page 13 of 18 HC-NIC Page 31 of 36 Created On Mon May 09 23:59:22 IST 2016 31 of 36 C/LPA/102/2016 JUDGMENT the period during which the respondent was continued in service pursuant to the ex- parte interim injunction granted by the learned Civil Court as well as thereafter by the learned Labour Court. If the aforesaid period of injunction is excluded, in that case, it can be said that the respondent had worked only for one year and that too as a daily-wager and as and when the work was available. It is also required to be noted at this stage that initially the respondent workman was appointed as a casual daily-wager driver pending the regularly selected candidate was available. It is not in dispute that the appointment of the respondent workman even as a casual driver was not after following due procedure of selection / recruitment. Under the circumstances, it is not appreciable how the learned Labour Court could have directed the petitioners to make the respondent permanent w.e.f. 1/4/2001. In view of the aforesaid facts and circumstances, the impugned judgement and award passed by the learned Labour Court impugned in the Special Civil Application No. 5975 of 2004 cannot be sustained and the same deserves to be quashed and set aside and consequently Special Civil Application No. 5271 of 2005 filed by the workman deserves to be dismissed."
16. As observed hereinabove when the appellant workman was continued in service pursuant to the ad-interim injunction granted by the Civil Court as well as the Labour Court, Labour Court while passing the award in Reference (LCD) No.3 of 1997 has committed an error directing regularization from the year 2001.
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17. At this stage, the decision rendered by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka v. Umadevi, reported in 2006(4) SCC 1, is required to be kept in mind. In the said case, the Hon'ble Supreme Court has observed in para 53 as under:
"53.One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA, R.N. NANJUNDAPPA, and B.N. NAGARAJAN, and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, Page 15 of 18 HC-NIC Page 33 of 36 Created On Mon May 09 23:59:22 IST 2016 33 of 36 C/LPA/102/2016 JUDGMENT but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
18. In the present case, it is not in dispute that the appellant workman has worked after 1992 because of the ad-interim injunction granted by the Civil Court as well as the Labour Court and therefore Labour Court has committed an error in directing regularization of appellant workman from 2001.
19. Even in the case of Raghavendra Rao (supra) relied upon by learned advocate Ms. Khayati Hathi, the Hon'ble Supreme Court has observed in para 16 as under:
"16. It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service......."
20. Thus, keeping in mind the aforesaid decisions, we are of the opinion that learned Single Judge has not committed any error while allowing Special Civil Application No.5975 of 2004 filed by the petitioner - employer and by quashing and setting aside the award dated 11.12.2003 passed by the Labour Court in Reference (LCD) No. 3 of 1997. However, we have Page 16 of 18 HC-NIC Page 34 of 36 Created On Mon May 09 23:59:22 IST 2016 34 of 36 C/LPA/102/2016 JUDGMENT already observed hereinabove that the termination of the appellant workman was without following mandatory provisions of the Industrial Disputes Act and therefore we have directed for reinstatement of the appellant - workman at his original post with continuity of service and the fact remains that the appellant - workman has worked from 1988 till the date of his termination and therefore looking to his total length of service period, the respondent employer is directed to consider the case of the appellant workman for regularization looking to the peculiar facts of the present case.
21. In view of the aforesaid discussion, Letters Patent Appeal No.103 of 2016 in Special Civil Application No.765 of 2011 is partly allowed and thereby the order passed by the learned Single Judge in Special Civil Application No.765 of 2011 is quashed and set aside with the aforesaid directions. However, Letters Patent Appeal No.102 of 2016 in Special Civil Application No.5975 of 2004 is hereby dismissed and the order of the learned Single Judge qua the said petition is hereby confirmed with the aforesaid directions and observations.
22. In view of the order passed in main appeals, civil applications do not survive and accordingly Page 17 of 18 HC-NIC Page 35 of 36 Created On Mon May 09 23:59:22 IST 2016 35 of 36 C/LPA/102/2016 JUDGMENT they are disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 18 of 18 HC-NIC Page 36 of 36 Created On Mon May 09 23:59:22 IST 2016 36 of 36