Gujarat High Court
Dhari Gram Panchayat vs Presiding Officer on 27 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/9129/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 9129 OF 2015
WITH
SPECIAL CIVIL APPLICATION No. 9433 OF 2015
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DHARI GRAM PANCHAYAT
Versus
PRESIDING OFFICER
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Appearance:
MR PJ KANABAR(1416) for the PETITIONER(s) No. 1
MR R D CHAUHAN(6865) for the RESPONDENT(s) No. 2
MR YUSUFKHAN PATHAN(3799) for the RESPONDENT(s) No. 2
MS.MANJULA R CHAUHAN(6871) for the RESPONDENT(s) No. 2
RULE SERVED(64) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 27/04/2018
COMMON ORAL ORDER
1. Heard Mr. Kanabar, learned advocate for the petitioner and Mr. Yusufkhan Pathan, learned advocate for the respondent No.2 (concerned workman).
2. In this petition the petitioner has prayed inter alia, that: "11(B) Your Lordships may further be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned Judgment and Award dated 23.01.2015 passed by the respondent no. 1 herein in Complaint (IT) Case No. 6 of 2009 being illegal, arbitrary, improper, unjust, reasonable, de hors the provisions of the Act and without jurisdiction, in the facts and the circumstances of the present case in the interest of justice." 1 C/SCA/9129/2015 ORDER
3. The petitioner is aggrieved by award dated 23.1.2015 passed by Industrial Tribunal at Bhavnagar in Complaint (IT) No. 6 of 2009 whereby learned tribunal held that the Panchayat (employer) committed breach of Section 33 of Industrial Disputes Act, 19417 (hereinafter referred to as the "I.D. Act"). Having reached such finding and conclusion learned tribunal directed the panchayat to reinstate the claimant on his original post with continuity of service, backwages and consequential benefits.
4. The panchayat felt aggrieved by the said award. Hence present petition.
5. So far as factual background is concerned it has emerged from the record that the respondent (original complaint before tribunal) invoked provision under Section 33(A) read with Section 33 of I.D. Act and filed complaint against present petitioner with the allegation that despite pendency of dispute the panchayat terminated his service without seeking permission 2 C/SCA/9129/2015 ORDER under Section 33(1) of the I.D. Act or even without seeking approval under Section 33(2) of the I.D. Act and thereby employer committed breach of Section 33. With such allegation the complainant demanded that he should be deemed to be in service and the panchayat should be directed to pay all consequential benefits. 5.1 The said complaint came to be registered as Complaint (IT) No. 6 of 2009.
5.2 In the memo of complaint the complainant alleged, inter alia, that he was working as helper with the opponent panchayat since December 1996 and that he was working continuously and regularly since December 1996 at salary of Rs.4133/ p.m. He also claimed that work which he performed was of permanent nature and the post on which he was engaged was also permanent post. He also claimed that despite such facts the panchayat did not term him as regular and permanent employee and thereby the panchayat indulged in unfair labour practice. He also 3 C/SCA/9129/2015 ORDER claimed that because of such illegality by the panchayat he and other workman had raised industrial dispute seeking regularization of their service and status of permanent workman. He also claimed that the said industrial dispute was referred for adjudication and registered as Reference (IT) No.4 of 2009. He further claimed that said Reference (IT) No.4 of 2009 was pending in June 2009 and that despite pendency of the said reference (wherein he and other workman demanded regularization in service and status of permanent workman) the panchayat terminated his service under oral instruction on 24.6.2009. The complainant claimed that his service came to be terminated by the panchayat, despite reference No.4 of 2009 was pending however despite such facts, the panchayat did not comply with the condition precedent prescribed under Section 33(1) or condition/ requirement prescribed by Section 33(2) of the I.D. Act inasmuch as the panchayat did not seek prior permission before terminating their service nor did the panchayat 4 C/SCA/9129/2015 ORDER seek approval of its action after having terminated service vide instruction / order dated 24.6.2009. According to the complainant the action of the employer viz. terminating service on 24.6.2009 without seeking permission or without seeking approval would amount to breach of Section 33 and that therefore consequences contemplated under Section 33(A) read with Section 33 should follow and he should be reinstated in service. The complainant also claimed that the panchayat should be directed to pay all consequential benefits.
5.3 The panchayat opposed the petition. Reply came to be filed wherein panchayat claimed inter alia, that the allegations by the complainant are incorrect, however the statement that the workman had raised demand for regularization in service and permanent status and that the said demand was referred for adjudication and was registered as Reference Case No.4 of 2008 and that the said reference case was pending at the relevant time, 5 C/SCA/9129/2015 ORDER is correct. The panchayat also accepted that the service of the claimant has been discontinued w.e.f. 24.6.2009, however, panchayat denied allegation that the said termination is illegal or in violation of statutory provision. The panchayat claimed that it had terminated service of the claimant in view of the direction by State to reduce expenditure and to discontinue service of the persons who were irregularly appointed. 5.4 Any other submission was not put forward in the written statement filed before learned Tribunal. On the said premise the panchayat claimed that it was not obliged to follow any other procedure and the claim by the workman is unjustified and should be rejected. 5.5 Learned Tribunal adjudicated said complaint. During proceeding learned tribunal received oral and documentary evidence from both sides. After completion of pleadings and evidence learned labaour Court heard rival submission. Upon conclusion of the proceedings learned Labour 6 C/SCA/9129/2015 ORDER Court passed impugned order holding inter alia, that panchayat committed breach of Section 33 and that therefore the complainant is entitled for reinstatement with consequential benefits and should be deemed to be in service.
5.6 Against said finding and direction the panchayat has taken out present petition.
6. While assailing the award dated 23.1.2015 learned advocate for the petitioner contended that in view of the direction from the State to reduce expenditure and to discontinue irregularly appointed persons, the panchayat terminated service of about 56 employees. Learned advocate for the petitioner made reference of the order dated 24.6.2009 and submitted that the service of the complainant and other workman came to be discontinued vide order dated 24.6.2009. He relied on the order dated 24.6.2009 and submitted that the said order was passed qua present respondent and he was relieved on payment of amount mentioned in the said order whereby notice 7 C/SCA/9129/2015 ORDER pay and retrenchment compensation was paid to the complainant. He submitted that accordingly the panchayat complied requirement prescribed by law i.e. under section 25F of the Industrial Disputes Act (for payment of notice pay and retrenchment compensation). Learned advocate for the petitioner submitted that the complainant had not worked for 240 days. He also submitted that the complainant did not disclose before learned Labour Court that panchayat had paid retrenchment compensation. Learned advocate for the petitioner also claimed that the award, if not set aside, would amount to "unjust enrichment" for the workman.
7. Learned advocate for the petitioner also brought in picture factual development which occurred after the services of the complaint came to be terminated in June 2009. He submitted that after having terminated the service the complainant vide order dated 24.6.2009 panchayat entered into agreement with the complainant, in 8 C/SCA/9129/2015 ORDER June 2013. He submitted that under the said agreement dated 3.6.2013 the complainant accepted fresh appointment with the panchayat as daily wager (wireman) and the said appointment was made effective from 1.6.2013 and the agreement was executed on 3.6.2013. The Counsel for the petitioner further submitted that in the complaint the workman did not disclose fact about agreement.
8. It is pertinent that while making said allegation or while raising said contention, the panchayat overlooked the fact that the said agreement was executed almost four years after the complainant filed complaint and that therefore this reference cannot be found in the complaint.
9. It is also appropriate to mention that during cross examination when the panchayat made reference of fresh appointment, the claimant accepted that he was engaged as fresh employee by way of fresh appointment from 1.6.2013. At the 9 C/SCA/9129/2015 ORDER same time he also mentioned that his service was terminated on 24.6.2009. Thus, the attempt to assail the award on the ground that the claimant did not mention complete facts in the plaint (statement of claim) and that, therefore, the reference should have been rejected is without merits and it must, therefore, fail. Hence, said objection is rejected.
10. Learned advocate for the petitioner also submitted that though the fact about agreement dated 3.6.2013 was placed on record before learned tribunal, the award does not contain any reference about agreement. The purport of the submission is that the learned tribunal has, ignored the said fact and material, though available on record. The said fact is subsequent to the event under challenge and it would not be relevant for deciding legality of the action challenged by the claimant. Thus, said aspect is not valid or substantial to vitiate the award. Further, the part of the award which deals with 10 C/SCA/9129/2015 ORDER the relief to the workman can be appropriately modified / moulded without disturbing the final conclusion and decision with regard to the employer's action which was under challenge before the learned Labour Court. Therefore also, there is no merits in the objection against the final conclusion and finding and decision by the learned Tribunal against impugned action.
Any other contention is not raised.
11. It is necessary to mention at this stage that neither in memo of the petition nor during the submission it is claimed, by the panchayat, that at the relevant point of time an application either under Section 33(1) or under Section 33(2) was filed by the panchayat and necessary permission or approval was sought by the panchayat.
11.1 That is not the case set up even by the panchayat before learned Tribunal also. It is undisputed position that any application either 11 C/SCA/9129/2015 ORDER under section 33(1) or under section 33(2) of the Act was not filed by the panchayat at the relevant time.
11.2 Differently put, it is undisputed fact that at the time when the panchayat passed order dated 24.6.2009 and terminated service of present petitioner (original complainant) the procedure prescribed either under Section 33(1) or under Section 33(2) of the I.D. Act was, undisputedly, not followed.
11.3 It is also necessary to mention that the panchayat has not disputed the fact that when the order dated 24.6.2009 came to be passed and service of the complainant came to be terminated, the dispute / reference No. 4 of 2008, wherein the complainant along with other workman demanded regularization in service and permanent status was pending and that the complainant (present respondent) was one of the concerned workmen in the said reference.
12 C/SCA/9129/2015 ORDER
12. Per contra, learned advocate for the present respondent i.e. original complainant submitted that the order dated 23.1.2015 passed by Industrial Tribunal at Bhavnagar in Complaint (IT) No.6 of 2009 does not suffer from any infirmity. Learned advocate for the respondent submitted that though dispute related to the claim for regularisation of service and status of permanent workman was pending before the learned Tribunal and despite the fact that the claimant was one of the concerned workmen in the said proceeding, the panchayat terminated the service of the claimant without following procedure prescribed under Section 33 of the Industrial Disputes Act, 1947 and without complying the conditions prescribed under the said provision. Learned advocate for the respondent further submitted that in view of breach of section 33, the learned Tribunal held that the claimant is entitled for reinstatement with consequential benefits. The said direction is just, legal and proper and in consonance with the provisions 13 C/SCA/9129/2015 ORDER under the Act and it is based on the facts of the case as well as evidence available on record and that, therefore, the decision by the learned Tribunal may not be disturbed and the petition may be rejected.
13. I have considered rival submission and also material available on record as well as the impugned award.
14. In present case, the facts, broadly stated, are not in dispute.
14.1 It is not in dispute that the claimant was employee by the panchayat. He was working as Helper with the panchayat. According to the claimant, he was employed with effect from December 1996.
14.2 The fact that the claimant was its employee, is not disputed even by the panchayat. However, the panchayat claims that the claimant was not engaged after following prescribed procedure, i.e. his appointment was irregular. 14 C/SCA/9129/2015 ORDER 14.3 On the other hand, the claimant contended before the learned Tribunal that he was employed on permanent post and he was performing work and duty which are of permanent and perennial nature. However, the panchayat considered his appointment irregular and his appointment / service was not treated as regular and permanent employment. According to the claimant, the panchayat meted out such treatment to certain other workmen as well. He further claimed that despite repeated requests and demands for regularisation of service / status of permanent workman and removal of illegal treatment and discrimination, repeatedly demands were raised.
15. However, since the panchayat did not accept the said request, the claimant and other similarly situated workmen felt aggrieved and they raised industrial dispute.
16. The said dispute was referred for adjudication to the learned Tribunal. 15 C/SCA/9129/2015 ORDER
17. The said reference / dispute came to be registered as Reference No.4 of 2008.
18. The terms of reference of Reference No.4 of 2008 are taken into account by the learned Tribunal in present case. The terms of Reference No.4 of 2008 are quoted by the learned Tribunal in paragraph No.8 of the award.
19. A glance at the said terms of reference gives out that the demand before the learned Tribunal by way of Reference No.4 of 2008, was with regard to the claim and demand of the workmen for regularisation of their service and for status of permanent workman.
20. It is not in dispute that present respondent (original claimant before the learned Tribunal in Complaint No.6 of 2009) is one of the concerned workmen in the said Reference No.4 of 2008.
21. The facts mentioned above clarify and bring out that though the said Reference No.4 of 2008 16 C/SCA/9129/2015 ORDER was pending in June 2009, present petitioner panchayat terminated service of present respondent (i.e. original complainant before the learned Tribunal in Complaint No.6 of 2009, along with other 55 workmen) on 24.6.2009. 21.1 The said fact, i.e. the fact that the service of present respondent and other about 55 workmen came to be terminated vide order dated 24.6.2009 as well as the fact at the relevant time the said Reference No.4 of 2008 was pending, are not in dispute.
21.2 In this view of the matter, it would be appropriate, at this stage, to take into account the provision under Section 33 of the Act:
"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. -
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before 17 C/SCA/9129/2015 ORDER which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, b [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman;
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." 21.3 Above mentioned provision under Section 33 gives out that (a) if a dispute is pending before the learned Labour or the learned Tribunal; and
(b) if the service of any workman concerned in such pending dispute is to be terminated on ground of misconduct connected or not connected with the pending dispute; or (c) if the conditions of service of any workman concerned in pending is to be altered, then either permission under section 33(1) of approval under section 33(2), as the case may be, should be applied for and sought for by the employer. That is a statutory obligation cast on the employer during 18 C/SCA/9129/2015 ORDER pendency of any dispute.
21.4 The object of the said provision is very clear. Protection by virtue of the provision is granted to the workman against any arbitrary action of the employer or against victimisation by the employer against the workmen who have raised the dispute.
21.5 In present case, above mentioned facts have brought out that -
(a) present respondent and other similarly workmen had raised dispute seeking regularisation of their service and status of permanent workman;
(b) the said dispute / demand was referred for adjudication to learned Tribunal;
(c) the said dispute was registered as Reference No.4 of 2008 with the learned Tribunal;
(d) the said dispute was pending in June 2009 by way of Reference No.4 of 2008;
19 C/SCA/9129/2015 ORDER
(e) undisputedly, the respondent herein was one of the workmen concerned in the said Reference No.4 of 2008;
(f) according to the panchayat, during pendency of the said dispute, it received instruction / direction from the State Government;
(g) therefore, the panchayat terminated the service of present respondent and other about 55 workmen;
(h) the termination of service of present respondent and other about 55 workmen occurred and took place in June 2009;
(i) at that point of time above mentioned dispute (seeking regularisation of their service and status as permanent workman) was, by way of Reference No.4 of 2008, was pending before the learned Tribunal;
(j) in this view of the matter, it emerged that the factors and conditions required for 20 C/SCA/9129/2015 ORDER applicability of section 33 existed in present case and existence of the said conditions or factors (viz. pendency of dispute before the learned Labour Court or the learned Tribunal and the complainant was workman concerned in such pending dispute and occurrence of action by the employer in form of discharge or dismissal or termination of service of such concerned workman or alteration of service condition of concerned workman during pendency of the dispute) cast obligation on the employer (present petitioner) to file application seeking permission of the learned Labour Court / learned Tribunal or seeking approval of the action. The petitioner was on statutory obligation to comply the said condition. However, the petitioner, undisputedly, did not file any application, i.e. either under section 33(1) or even under section 33(2) of the Act. Thereby the employer / present petitioner failed to and neglected to comply statutory obligation and condition prescribed by section 33 of the Act. In this view of the matter, final 21 C/SCA/9129/2015 ORDER decision and conclusion by the learned Tribunal that the employer i.e. present petitioner committed breach of section 33 is correct and justified and the said final conclusion and decision by the learned Tribunal cannot be faulted {see: decision by Hon'ble Apex Court in case of The Bhavnagar Municipality vs. Alibhai Karimbhai & Others [AIR 1977 SC 1229], wherein Hon'ble Apex Court explained the scope of the expression 'concerned workman' and the expression 'matter connected with the dispute' and the expression 'pending dispute'}.
21.6 In present case, it is not in dispute that the service of present respondent and other about 55 workmen came to be terminated in June 2009 only on the ground that the panchayat received instructions from the State Government to discontinue employment of daily wagers and to reduce its administrative expenditure. 21.7 Even if the panchayat's submission that the termination of the service of the said workman 22 C/SCA/9129/2015 ORDER came to be effected on account of instructions from the State Government is believed to be true, then also by any stretch of imagination, it cannot be said that the Government had instructed the panchayat to terminate the service of daily wagers without following the prescribed procedure. Even if the panchayat was under
obligation to comply the direction of the State Government, then also the procedure prescribed under the Act should have been followed.
21.8 In this context, it is pertinent to note that the very same workmen whose service came to be terminated in June 2009, had raised demand for regularisation of their service and permanent status of workmen. Therefore, the action of present petitioner panchayat amounted to alteration of service condition during pendency of the dispute and such action could not have been taken without complying the procedure under section 33(2)(b) of the Act.
21.9 In this context, it would be appropriate to 23 C/SCA/9129/2015 ORDER refer to the observations by Hon'ble Apex Court in the case of The Bhavnagar Municipality vs. Alibhai Karimbhai & Others [AIR 1977 SC 1229], wherein Hon'ble Apex Court has observed that:
"12. Before we proceed further we should direct our attention to the subject matter of the industrial dispute pending before the Tribunal. It is sufficient to take note of the principal item of the dispute, namely, the demand of the respondents for conversion of the temporary status of their employment into permanent. To recapitulate briefly the appellant employed daily rated workers to do the work of boring and hand pumps in its Water Works Section. These workers have been in employment for over a year. They claimed permanency in their employment on their putting in more than 90 days' service. They also demanded two pairs of uniform every year, cycle allowance at the rate of Rs. 10/ per month, Provident Fund benefit and National Holidays and other holidays allowed to the other workers. While this particular dispute was pending before the Tribunal, the appellant decided to entrust the work, which had till then been performed by these workers in the Water Works Section, to a contractor. On the employment of the contractor by the Municipality for the selfsame work, the services of the respondents became unnecessary and the appellant passed the orders of retrenchment. It is, therefore, clear that by retrenchment of the respondents even the temporary employment of the workers ceased while their dispute before the Tribunal was pending in order to improve that temporary and insecure status.
13. Retrenchment may not, ordinarily, under all circumstances, amount to alteration of the conditions of service. For instance, when a wage dispute is pending before a Tribunal and on account of the abolition of a particular department the workers therein have to be retrenched by the employer, such a retrenchment cannot amount to alteration of the conditions of service. In this particular case, however, the subject matter: being directly connected with the conversion of the temporary employment into permanent, tampering with the status quo ante of these workers is a clear alteration of the conditions of their service. They were entitled during the pendency of the proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication. And if the appellant wanted to effect a change of their system in getting the work done through a contractor instead of by these temporary workers, it was incumbent upon the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to 24 C/SCA/9129/2015 ORDER retrenchment of their services. The alteration of the method of work culminating in termination of the services by way of retrenchment in this ease has a direct impact on the adjudication proceeding. The alteration effected in the temporary employment of the respondents which was their condition of service immediately before the commencement of the proceeding before the Tribunal, is in regard to a matter connected with the pending industrial dispute.
15. That, however, does not conclude the matter. The Tribunal was clearly in error in not adjudicating the complaint on the merits. It is well settled that in a complaint under section 32A, event if the employer is found to have contravened the provisions of section 33, the Tribunal has to pronounce upon the merits of the dispute between the par ties.' The order passed in an application under section 33A is an award similar to one passed in a reference under section 10 of the Act. The award passed has to be submitted to the Government and the same has to be published under section 17 of the Act. For the purposes of the Act the complaint under section 33A takes, as it were, the form of a reference of an industrial dispute by the appropriate authority and the same has to be disposed of in a like manner. The Tribunal has committed an error of jurisdiction in declining to adjudicate the matter and to make its award on the merits as required under the law. The High Court was, therefore, not right in dismissing the writ application of the appellant in limine. We should also. observe that, in the absence of adjudication on the merits by the Tribunal, the High Court was not right in holding that the retrenchment by the appellant was "a gross act of victimisation".
22. From the said observations by Hon'ble Apex Court, it becomes clear that in present case, the petitioner panchayat was under statutory obligation to comply the provision under section
33. 22.1 It is undisputed fact that at the time when the petitioner panchayat terminated service of present respondent, it did not file any 25 C/SCA/9129/2015 ORDER application under subsection (2) or subsection (2) of section 33.
22.2 The said failure and default on the part of the panchayat established breach of section 33. 22.3 Under the circumstances, the complaint under section 33A was maintainable. The learned Tribunal, accordingly, adjudicated the complaint. Further, foregoing discussion has also brought out that the petitioner - employer failed to comply the condition prescribed by section 33. Thereby the employer failed to discharge its obligation imposed by virtue of section 33 of the Act. Meaning thereby the employer committed breach of section 33 when it terminated service of present respondent without complying the condition prescribed by section 33 of the Act. Therefore, as mentioned above, the final decision and conclusion by the learned Tribunal on this count cannot be faulted.
23. At this stage, it would not be out of place 26 C/SCA/9129/2015 ORDER to deal with the petitioner's contention that the appointment of respondent herein was irregular.
24. The provision under the Industrial Disputes Act, more particularly section 33 of the Act read with section 2(s) of the Act does not make any distinction between the workman appointed irregularly or after following prescribed procedure. Any person who falls within the purview of the term 'workman' defined under section 2(s) i.e. any person who is a workman and if he is concerned in pending dispute, then section 33 would be attracted, irrespective of the nature of the workman's appointment. 24.1 Besides this, as observed by Hon'ble Apex Court in case of Bharat Sevak Samaj, the person who commits irregularity or illegality cannot take defence of such irregularity and claim that because of such irregularity, the person is not entitled for relief.
25. In light of the provisions under section 33 27 C/SCA/9129/2015 ORDER read with section 2(s) of the Act and in light of the scope of section 33, the defence raised on the ground the the respondent was engaged irregularly is of no avail and does not render any assistance to the petitioner panchayat and with such contention, the petitioner panchayat cannot escape from the rigours of section 33. 25.1 The fact that the petitioner panchayat did not file application subsection (1) or sub section (2) at the time when it terminated the service of the respondent herein vide order dated 24.6.2009 is sufficient to establish breach of section 33.
26. Breach of section 33 has its own consequence. 26.1 Once the breach of section 33 is established, then the action of termination, without seeking permission or without seeking approval, as the case may be, is concerned ab initio void.
26.2 Under the circumstances, the employee whose 28 C/SCA/9129/2015 ORDER service came to be terminated in violation of section 33, would be deemed to be in service and that, therefore, he would be entitled for all wages and other benefits as if his services were never terminated.
26.3 In this context, reference can be had to the observations by Hon'ble Apex Court in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma & Others [(2002) 2 SCC 244], wherein Hon'ble Apex Court observed that:
"13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further any employer who contravenes the provisions of Section 33 invites a punishment under S.31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs.1000/ or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in other way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention 29 C/SCA/9129/2015 ORDER of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman.
14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33A challenging the order granting approval on any of the grounds available to him. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not 30 C/SCA/9129/2015 ORDER correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted.
15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.
16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33A to challenge the approval granted, it 31 C/SCA/9129/2015 ORDER cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33A. There is nothing in Sections 31, 33 and 33A to suggest otherwise even reading them together in the context. These Sections are intended to serve different purposes."
26.4 In the said case, Hon'ble Apex Court clarified that termination of service of an employee in breach of section 33 entails the consequence viz. that the employee is deemed to be in service as if his service had never been terminated.
27. In this view of the matter, the order passed by the learned Tribunal and the directions passed by the learned Tribunal cannot be faulted.
28. Learned advocate for the petitioner placed reliance on the decision in case of Mahanagarpalika, Bhavnagar through its Commissioner vs. Manilal Babubhai Vegad [2017 (2) GLR 1691]. In the said decision, the Court has considered the decision in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra). 28.1 However, the facts in the cited decision and 32 C/SCA/9129/2015 ORDER the facts in present case are substantially different.
28.2 In the cited decision, this Court observed that in light of the facts of the case, the direction granting continuity of service and backwages were not justified.
28.3 Besides other facts, the fact (from cited decision) which persuaded the Court to observe, in the said case, that the direction granting continuity of service and backwages are not justified, are found in paragraph Nos.4, 21.2, 23, 24 and 25, which read thus:
"4. Mr. Chauhan, learned advocate for the petitioner could not dispute the fact that the corporation had not filed any reply before learned tribunal and / or did not lead any evidence before learned tribunal. He, however, submitted that in view of the fact that the claimant had worked with the corporation on purely adhoc and temporary basis inasmuch as for the period from 1985 to 2003 the claimant had worked only for 41 days on daily wage basis (i.e. for 4 days in 1991, 22 days in 1994, for 3 days in 1995 and for 12 days in 1998) the direction passed by the learned tribunal are not justified and that therefore the award may be set aside. Except said submission any other submission is not urged by learned advocate for the petitioner.
21.2 The details that the claimant had not worked with the corporation and he was never engaged after 1999 was not available/was not placed on record before the learned Tribunal.
23. Almost 10 years have passed since learned Tribunal passed the award which is impugned in present petition.33 C/SCA/9129/2015 ORDER
Before that, the proceedings remained pending before the learned Tribunal for 3 years, i.e. from 2003 to 2006. During the said period of 3 years, the corporation neither filed reply nor did it lead evidence before the learned Tribunal and did not place the said details on record before the learned Tribunal.
24. At the same time, the complainant did not take any steps for almost 2 years after his alleged termination. It is not in dispute that the claimant did not place on record the termination order. He alleged that his service was terminated on 21.8.2001 by oral order. Thereafter, for almost 2 years, i.e. until 2003, the complainant did not take any action against alleged termination and filed the complaint for the first time in 2003 against the termination which allegedly took place in August 2001.
25. The facts which emerge from AnnexureC of present petition is also compelling, inasmuch as the complainant seems to have worked with the corporation in 1991 (for 4 days), in 1994 (for 22 days), in 1995 (for 3 days) and in JulyAugust, 1999 (for 12 days)."
28.4 In light of the said peculiar facts of the said case the Court was persuaded to hold that the direction granting continuity of service and backwages was not justified in the said case. 28.5 In present case, such facts and more particularly such evidence are not available. 28.6 Besides this, in present case, the service of the claimant came to be terminated vide order dated 24.6.2009 and the complainant immediately (i.e. without any delay) filed the complaint before the learned Tribunal.
34 C/SCA/9129/2015 ORDER 28.7 Further, in present case, the complainant claimed that he was employed on permanent post and he was performing work and duty which are of permanent and perennial nature. The complainant also contended that he worked continuously and without any break from December 1996 till June 2009 when his service came to be terminated. 28.8 In present case, the discussion by the learned Tribunal particularly the facts recorded in paragraph No.3 of the award and the discussion in paragraph Nos.9 to 15 of the award gives out that the panchayat did not lead any evidence to establish that the assertions by the claimant viz. that he worked continuously and regularly without break in service, are incorrect.
29. Further, on reading affidavit in lieu of chief examination filed by the panchayat's witness, it comes out that the the said witness has not made even a whisper about the contentions which are raised by learned advocate for the petitioner during hearing of this petition viz. 35 C/SCA/9129/2015 ORDER that the appointment / appointment of the complainant was irregular and that he was employed / appointed without following prescribed procedure and/or that the complainant had not worked for 240 days in any year.
29.1 The written statement / reply filed by the panchayat before the learned Tribunal as well as the evidence by the panchayat's service are completely silent in respect of all these aspects. The said submissions are raised, orally, for the first time during hearing of this petition and were never pleaded or would be before the learned Tribunal. In light of foregoing discussion, it has emerged that at the time when the petitioner terminated service of present respondent, the petitioner failed to comply the condition prescribed by section 33, though the said provision was applicable in present case. The said failure on the part of the petitioner - employer rendered the action (i.e. termination of respondent's service) ab initio 36 C/SCA/9129/2015 ORDER void. In this view of the matter, the respondent, as explained by Hon'ble Apex Court in above mentioned decision in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra), would be deemed to be in service for entire interregnum and he would be entitled for all the benefits including backwages in the same manner as if he continued in service and as if his service was never terminated.
30. In this context, reference may be had to the decision by Hon'ble Apex Court in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) (2013) 10 SCC 324 wherein Hon'ble Apex Court has observed that:
"38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman 37 C/SCA/9129/2015 ORDER was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position visàvis the employee or workman. He can avail the services of best legal brain for 38 C/SCA/9129/2015 ORDER prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees."
30.1 The said observations by Hon'ble Apex Court make it abundantly clear that in light of the facts of present case, the respondent would be entitled for backwages and other benefits for the entire interregnum, i.e. from the date of termination of service.
30.2 At this stage, a contention raised by learned advocate for the petitioner is required to be dealt with.
30.3 Learned advocate for the petitioner contended that after the service of the complainant came to be terminated in June 2009, the panchayat entered into an agreement in June 2013 (i.e. after almost 14 years from the date of termination) with the claimant and by virtue of the said agreement, the panchayat appointed / employed the complainant by way of fresh appointment. Learned advocate for the petitioner 39 C/SCA/9129/2015 ORDER panchayat heavily relied on the said agreement and submitted that by the said agreement, the petitioner came to be reengaged with effect from 1.6.2013, however, the learned Tribunal has not taken into account the said agreement, though it was placed on record.
30.4 On this count, it is relevant to note that when the learned Tribunal decided the complaint (filed under section 33A) on the premise that the employer committed breach of section 33, the relevant date / relevant period to be taken into account (by the learned Tribunal) would be the date on which the alleged breach of section 33 is committed. Any event which takes place after the date when the breach of section 33 is committed, would be irrelevant for deciding the complaint. 30.5 Even otherwise, the action of the panchayat of appointing the complainant by way of fresh appointment, that too after 13 years, would even otherwise have no relevance or bearing for deciding the complaint filed on the premise that 40 C/SCA/9129/2015 ORDER the panchayat committed breach of section 33 on 24.6.2009 (i.e. to decide whether the panchayat committed breach of section 33 or not). For the said purpose the factsituation which prevailed - existed on the day alleged action was taken (in present case, 24.6.2009) alone can be taken into account.
30.6 Further, merely on that ground (viz. the ground that almost 14 years after the breach was committed the employer engage the workman whose service came to be undisputedly terminated in breach of section 33) the award - order by the learned Tribunal which rests on undisputed fact that the petitioner panchayat committed breach of section 33, cannot be faulted.
31. On strength of the said agreement, learned advocate for the petitioner also tried to contend that the claimant had accepted the appointment and the said agreement provided that the service of the workman can be terminated without assigning any reasons. In the first place, the 41 C/SCA/9129/2015 ORDER said clause / provision under the agreement which came to be executed almost 13 or 14 years after the complainant's termination in breach of section 33, cannot have any bearing. Besides this, in light of the decision by Hon'ble Apex Court in case of Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly [(1986) 3 SCC 156], such a clause in contract of employment is against public policy and in breach of section 23 of the Contract Act and therefore, it is void. In this view of the matter also, the said agreement and/or provision under the agreement has no relevance.
32. Foregoing discussion brings out and establishes that the learned Tribunal has not committed any error in holding that the petitioner committed breach of section 33 of the Industrial Disputes Act. The learned Tribunal addressed relevant issues, i.e. as to whether any dispute was pending at the time when the service of the complainant came to be terminated and as 42 C/SCA/9129/2015 ORDER to whether the complainant was concerned workman in the pending dispute or not and whether the application under subsection (1) or subsection (2) of section 33, as the case may be, was filed by the employer at the time when the employer terminated service of the complainant on 24.6.2009, or not. On the basis of the reply (as regards the said relevant issues) which emerged in light of the pleadings of the parties and evidence available on record, the learned Tribunal reached to the conclusion that the employer committed breach of section 33.
33. The discussion in the award and foregoing discussion in present decision has brought out that the said decision by the learned Tribunal is just and correct and does not suffer any error or infirmity.
34. The learned Tribunal thereafter addressed the issue about appropriate relief. In light of the observations by Hon'ble Apex Court in case of Deepali Gundu Surwase (supra) and in view of the 43 C/SCA/9129/2015 ORDER fact that in present case breach of statutory provision is established, the Tribunal's decision with regard to final relief, as such, cannot be faulted. The Tribunal decided said issue also in right and just manner. In light of the facts of present case and in light of the decision by Hon'ble Apex Court in case of Deepali Gundu Surwase and the decision in case of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd., the learned Court's decision and direction to pay backwages, cannot be termed 'unjust enrichment' as claimed by the petitioner.
35. On this count, it is necessary to take into account the fact that the panchayat, even otherwise, did not place any material and did not plead any circumstances or any other aspects either in its pleading or even at the stage of oral evidence which could persuade the Court to reduce the obligation to pay backwages. The learned Tribunal has observed that since the employer's decision is null and void, the 44 C/SCA/9129/2015 ORDER employee is deemed to be in service. On the said premise and on said principle (see Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd.), the learned Tribunal awarded full backwages. Besides this, the panchayat failed to make out any case for reduction in quantum of backwages and the panchayat also could not assail specific assertion and evidence by the claimant that he was employed on permanent post and he was performing work and duty which are of permanent and perennial nature and he was illegally treated as daily wager and also having regard to the fact that the complainant approached the learned Tribunal immediately and without delay after his service came to be terminated, the petitioner has failed to demonstrate any justification and/or valid reason to disturb the decision by the learned Tribunal.
36. However, the petitioner's submission that since in June 2013 the concerned workman accepted employment with the panchayat, wages for the 45 C/SCA/9129/2015 ORDER period from and after June 2013, the respondent (concerned workman / complainant) should not have been granted.
37. The said submission by learned advocate for the petitioner deserves to be some consideration because the petitioner is a local authority (panchayat) and payment of wages would affect public money.
38. However, while considering the said submission, it would also be necessary and relevant to take into account the fact that the panchayat again terminated service of the respondent in 2017 (i.e. after having engaged him from 1.6.2013 the respondent's service came to be again terminated in 2017).
39. Having regard to the fact that the petitioner before this Court is a panchayat and the burden of backwages would be on public exchequer, this Court is of the view that it would be appropriate to allow the petitioner to adjust amount / wages 46 C/SCA/9129/2015 ORDER paid to the concerned workmen for the period from June 2013 to 2017.
40. Therefore, it is clarified that the complainant will be entitled for backwages, on strength of learned Tribunal's award, from 24.6.2009 till 1.6.2013 and the panchayat would be entitled to also set off / adjust the amount of Rs.24,804/ from the said backwages.
41. At this stage, it is necessary to take into account that according to the petitioner panchayat, at the time when it terminated the service of the complainant on 24.6.2009, it had paid Rs.24,804/ to the complainant.
42. Therefore, it is necessary to clarify and declare that the panchayat will be entitled to set off / adjust the amount paid by it to the complainant. The said amount may be adjusted by the petitioner panchayat against the backwages payable to the respondent in accordance with the award by the learned Tribunal.
47 C/SCA/9129/2015 ORDER
43. It is also necessary to clarify, in light of the fact that the learned Tribunal has directed that the complainant would be entitled for continuity of service, that the claimant's service will be considered continuous amongst the daily wagers and not amongst the regular and permanent workmen, until the decision in Reference No.4 of 2008 is rendered by the learned Tribunal.
With the aforesaid clarifications, directions and observations, the petitions are disposed of. Orders accordingly. Rule is discharged.
(K.M.THAKER, J) BHARAT 48