Gujarat High Court
State Of Gujarat vs Jashvantsinh Punabhai Gohil on 9 March, 2018
Author: K.M. Thaker
Bench: K.M.Thaker
C/SCA/6263/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6263 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10442 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10443 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10698 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10699 of 2015
With
SPECIAL CIVIL APPLICATION NO. 6265 of 2015
With
SPECIAL CIVIL APPLICATION NO. 6266 of 2015
With
SPECIAL CIVIL APPLICATION NO. 6267 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
JASHVANTSINH PUNABHAI GOHIL
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Appearance:
MR D.M. DEVNANI, AGP FOR THE PETITIONER IN SCA Nos.6263/15, 6265/15,
6266/15, 6267/15
MR P.C. CHAUDHARI, ADVOCATE FOR THE RESPONDENT IN SCA
Nos.6263/15, 6265/15, 6266/15, 6267/15
MR. P.C. CHAUDHARI, ADVOCATE FOR THE PETITIONER IN SCA Nos.10442/15,
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10443/15, 10698/15, 10699/15
MR D.M. DEVNANI, AGP FOR THE RESPONDENT IN SCA Nos.10442/15,
10443/15, 10698/15, 10699/15
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 09/03/2018
COMMON ORAL JUDGMENT
1. Heard Mr.Chaudhari, learned advocate for the concerned employee and Mr.Devnani, learned AGP for the respondent State.
2. Since common issues and facts are involved in this group of petitions and in view of the fact that actually the petitions filed by the State and the petitions filed by concerned workman are essentially cross petitions (which are preferred by both the parties against same awards), captioned petitions are heard together and decided by this common decision.
3. In 4 reference cases i.e. Reference (LCD) No.786 of 2008 (old No.809 of 2001), Reference (LCD) No.787 of 2008 (old No. 810 of 2001), Reference (LCD) No.788 of 2008 (old No.811 of 2 C/SCA/6263/2015 JUDGMENT 2001) and Reference No.789 of 2008 (old No.812 of 2001) the learned Labour Court passed separate but identical awards on 4.12.2004 and directed the opponent employer to reinstate the concerned claimant with continuity of service, however without backwages.
4. In respect of all 4 reference cases learned Labour Court passed identical directions.
5. The concerned claimants as well as opponent employer felt aggrieved by the said directions inasmuch as the claimants felt aggrieved by learned Labour Court's decision to deny backwages whereas the opponent employer felt aggrieved by the direction to reinstate the claimants as well as against the direction to treat the service of the claimants continuous.
5.1 Therefore the claimants as well as employer filed respective petitions. The SCA No.10442 of 2015, SCA No.10669 of 2015, SCA No.10443 of 2015 and SCA No.10698 of 2015 are field by the 3 C/SCA/6263/2015 JUDGMENT concerned claimants whereas SCA No.6263 of 2015, SCA No.6265 of 2015, SCA No.6266 of 2015 and SCA No.6267 of 2015 are filed by the employer. As mentioned above, identical directions in respect of all four claimants are issued by the learned Labour Court.
6. In this view of the matter it is relevant to take into account factual backdrop. 6.1 From the record and from the submissions it has emerged that four claimants raised industrial dispute with the allegation that the opponent employer (Niwasi Shala) illegally terminated their service w.e.f. 2.11.2000, 24.4.1997, 15.12.1998 and 15.12.1998.
6.2 Appropriate Government referred the dispute for adjudication to learned Labaour Court. Learned labour Court registered the said dispute as Reference (LCD) No. 786 of 2008 (old no. 809 of 2001), Reference (LCD) No. 787 of 2008 (old No. 810 of 2001), Reference (LCD) No. 788 of 2008 4 C/SCA/6263/2015 JUDGMENT (old No. 811 of 2001) and Reference No. 789 of 2008 (old No. 812 of 2001).
6.3 In their respective statement of claim the concerned claimants alleged that they were engaged by the opponent school in July 1996 and the opponent school terminated their services w.e.f. 2.11.2000, 24.4.1997, 15.12.1998 and 15.12.1998 without following procedure prescribed by law and in violation of statutory provisions. With the said allegation the claimants demanded that they should be reinstated in service with all benefits.
6.4 The opponent school opposed the reference cases. The opponent school raised preliminary objection against maintainability of reference cases on various grounds including the contention that the school would not come within purview of the term "industry" defined under Section 2(j) of the Industrial Disputes Act, 1947 and that therefore the reference is not maintainable. The opponent school also denied the allegation about 5 C/SCA/6263/2015 JUDGMENT breach of statutory provision. The school claimed that the the claimants had never worked for 240 days in any year, much less in preceding 12 months and that therefore there was no basis or justification in the allegation that the service of the claimants were terminated in violation of statutory provisions. The school also claimed that the claimants were engaged as stopgap arrangement and on ad hoc basis. The Principal of the school does not have authority to appoint any person on regular and permanent basis and that, therefore, while the school was awaiting appointment of regularly selected permanent employee, the claimants were engaged on ad hoc and daily wage basis as stopgap arrangement and that, therefore, they do not have any right to claim reinstatement or any benefit. The school also claimed that since the Commissioner for Scheduled Tribes Development allocated regularly appointed persons, the services of the claimants are not required, there are no vacancies where the claimants can be accommodated. With such 6 C/SCA/6263/2015 JUDGMENT submission, the opponent opposed the reference cases and submitted that the reference may be rejected.
6.5 Upon conclusion of the pleadings, the learned Labour Court received evidence from both sides. After considering the material available on record and rival submissions by contesting parties, the learned Labour Court passed four awards which are challenged by both sides.
7. Mr.Chaudhari, learned advocate for the claimants submitted that when the learned Labour Court reached to the conclusion that the claimants had worked for 240 days and despite such fact their services came to be terminated without payment of retrenchment compensation and subsequently other persons came to be engaged, the learned Labour Court should have granted backwages. He submitted that by denying benefit of backwages, the learned Labour Court has committed material error and the award, to that extent, is unjustified.
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8. Mr.Devnani, learned AGP, on the other hand, would submit that the learned Labour Court committed material error in rejecting preliminary objection against maintainability of the reference on the ground that the school (Niwasi Shala) would not fall within purview of Section 2(j) of the Industrial Disputes Act, 1947 and that, therefore, the reference would not be maintainable. Learned AGP further submitted that the learned Labour Court should have held that Niwasi Shala is not an industry.
8.1 He also submitted that learned Labour Court failed to appreciate that the claimants were engaged on ad hoc basis and that, therefore, there was no substance or merits in the allegation that the school committed breach of statutory provisions when the claimants came to be relieved. He also submitted that the finding by the learned Labour Court that the claimants had worked for 240 days, is incorrect and based only on presumption. Learned AGP submitted that 8 C/SCA/6263/2015 JUDGMENT the claimant Mr.D.D. Chauhan (i.e. SCA Nos.10443/15 and 6266/15) had worked hardly for 9 months and that, therefore, there was no scope for the said claimant to even claim that he worked for 240 days inasmuch as the school remained closed during vacation (when the claimants were not engaged) and the claimants were also not engaged during public holidays and Sundays. However, the learned Labour Court failed to appreciate the said factual position and committed error in holding that the claimants had worked for 240 days. Learned AGP submitted that even if it is assumed that the school was obliged to follow procedure under Section 25F or Section 25G or Section 25H and that there was any irregularity in relieving the claimants, then also the learned Labour Court ought to have moulded the relief and instead of directing the school to reinstate the claimants with continuity of service, appropriate reasonable compensation should have been awarded.
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9. I have considered rival submissions and I have also considered material available on record including the awards impugned in present petitions.
10. It is not in dispute that the claimants were engaged on daily wage basis and they worked accordingly with the school. It is not in dispute that except in case of one claimant (whose tenure with the school is also for short period), the tenure of other three claimants with the school was extremely short and they were engaged for very short and limited period. The relevant details with regard to four claimants, as borne out from the record, can be summarised thus:
Jashwantbhai Punabhai Gohil 02/07/97 15/12/98 Watchman Dyalsinh Dhulabhai Chauhan 19/07/96 24/04/97 Watchman Rajendra Pratapbhai Pagi 19/07/96 15/10/98 Watchman Rameshbhai Matabhai Ninama 19/07/96 02/11/00 Cook
11. The details compiled in above mentioned statement give out that only one claimant was engaged for period of about 4 years, whereas 1 10 C/SCA/6263/2015 JUDGMENT person was engaged for about 2 years, 1 claimant was engaged for only 1 year and about 5 months and 1 claimant worked with the opponent school only for 9 months.
11.1 In this background, even if it is assumed that the findings and decision by the learned Labour Court, in respect of all aspects involved / raised in the reference proceedings, are correct and do not warrant any interference, then also the learned Labour Court's direction granting continuity of service and backwages cannot be said to be just or fair and cannot be sustained.
11.2 On this count, it is relevant to note that
(a) the claimants came to be engaged, undisputedly, without following prescribed procedure;
(b) it is also not in dispute that the claimants came to be engaged on ad hoc and daily wage basis;
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(c) it is also not in dispute that even according to the claimants, their services came to be terminated in 1997 and 1998 (except in one case, i.e. Mr.R.M. Ninama whose service came to be terminated in November 2000). The services of other 3 claimants came to be terminated in October / December 1998 and April 1997;
(d) however, the claimants raised dispute after almost 4 years in case of Mr.D.D. Chauhan whose service came to be terminated in April 1997 and after almost 3 years in case of Mr.J.P. Gohil and Mr.R.P. Pagi whose services came to be terminated in December 1998 and October 1998, respectively. The fact that all 4 claimants raised dispute in 2001, goes to show that they raised dispute belatedly and as an afterthought and they tried to resurrect dead dispute, that too without offering any explanation and without establishing that during the interregnum 12 C/SCA/6263/2015 JUDGMENT dispute were alive and were being actively pursued.
12. Above mentioned aspects cannot be ignored while taking decision with regard to appropriate relief.
12.1 When above mentioned aspects are taken into account, it emerges that the order directing the opponent school to consider services of the claimants as continuous from the date when they were first engaged, is unjustified and unsustainable.
13. Besides this, it is also relevant to note that the opponent school had raised preliminary objection against maintainability of the reference on the ground that the opponent school would not fall within the purview of Section 2(j) of the Act.
14. In this context, it is relevant to note that the opponent school is established and run by the Tribal Development Department of the State and 13 C/SCA/6263/2015 JUDGMENT the school is established in tribal area for providing education and training to the children of the Tribal community (i.e. students of Tribal area) so as to make them selfsufficient and selfreliant.
15. Having regard to the said aspects, the preliminary objection on the ground that the school term 'industry' was raised. 15.1 The learned Labour Court has rejected the said contention.
15.2 The said objection raised by the opponent school is in nature of mixed question of facts and law.
15.3 In present case, it is noticed that after having raised the contention, the school as well as the claimants appear to have failed to lead sufficient evidence to establish the nature and scope of the activities undertaken by the school and other aspects relevant for deciding the issue as to whether the school (the opponent in 14 C/SCA/6263/2015 JUDGMENT reference cases) would fall within purview of the term 'industry' or not.
15.4 On reading the award, it becomes clear that on the premise that the school failed to place on record relevant, sufficient and cogent evidence that the learned Labour Court reached to the conclusion that the school failed to establish that its activity would not fall within the term 'industry'.
15.5 Under the circumstances, the scope before this Court to interfere with the said conclusion by the learned Labour Court is extremely limited and restricted, rather almost nil, in view of the fact that it is not possible to hold that the learned Labour Court has ignored available evidence on record.
15.6 At the same time, it is also true that the decision by the learned Labour Court is in gray area. That is on account of absence of sufficient evidence. In the present proceedings, this Court 15 C/SCA/6263/2015 JUDGMENT cannot enter into the process of reappreciation of the evidence or this Court cannot examine any additional evidence which does not form part of the record before the learned Labour Court. This Court also cannot take into account the submission or material or any other details which were not placed before the learned Labour Court. Therefore, all that can be mentioned at this stage is that the conclusions and findings recorded by the learned Labour Court which are impugned in present petitions shall be treated as findings based on the material which were available on record before the learned Labour Court, however, it would not preclude the school or the claimants in other proceedings to agitate said issue on the basis of the appropriate, relevant and cogent evidence and the findings recorded by the learned Labour Court, the awards which are impugned in present petition shall not operate against the opponent school as concluded issue. The said decision by the learned Labour Court is based on the evidence which are 16 C/SCA/6263/2015 JUDGMENT available on record of present reference proceedings and that, therefore, it would bind the opponent school only so far as present 4 reference cases and the concerned claimants are concerned.
16. Now, so far as the opponent's contention on the ground that the learned Labour Court committed error in holding that the claimants had worked for 240 days in preceding 12 months, it is necessary to note that the school had, in its written statement, mentioned the details about attendance of the claimants. If the said details are taken into account, it emerges that the claimants had not worked for 240 days. 16.1 However, from the evidence it comes out that the school failed to place any document on record before the learned Labour Court to support the details mentioned in the written statement. 16.2 In this context, it is relevant to note that the claimants (during their evidence) asserted 17 C/SCA/6263/2015 JUDGMENT that they had worked for 240 days in every year and also in preceding 12 months, however, the claimants failed to place on record any documents e.g. appointment order or pay slip or attendance card or any other document on strength of which they can establish their attendance. It also appears that the claimants had submitted applications seeking production of documents, however, the opponent school failed to place on record attendance register or wage register. Therefore, the learned Labour Court decided that adverse inference should be drawn against the school. Having drawn adverse inference against the school and thereupon having decided that the claimants are presumed to have worked for 240 days, the learned Labour Court took into account the fact that when the claimants came to be relieved, the opponent school did not pay compensation and did not follow procedure prescribed under Section 25F. On that premise, the learned Labour Court reached to the conclusion that the opponent school committed 18 C/SCA/6263/2015 JUDGMENT breach of Section 25F.
17. Having reached to the said conclusion, the learned Labour Court held that the termination was illegal.
18. After recording such findings, the learned Labour Court passed impugned directions.
19. On this count, it is relevant to note that in light of the facts and circumstances of present case, the nature and method of claimants' appointments and nature of their work, the order directing the school to treat the service of the claimants continuous is, undoubtedly, unjustified.
19.1 Learned AGP for the school submitted that the learned Labour Court also failed to take into account the fact that the tenure of the employment of the employees was very short and that, therefore, even the direction to reinstate the claimants is not justified.
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20. In this context, learned advocate for the claimant, on the basis of / after taking instructions from the claimant, categorically, voluntarily and expressly declared that the claimants are ready and willing to forgo the benefit of continuous service and they would be satisfied with the reinstatement in service if for the purpose of payment of gratuity, the service rendered by them prior to termination is taken into account. He also declared that the claimants accordingly waive and forgo the benefit of 'continuous service' from the date of termination till the date of award.
21. With reference to the school's objection against the Court's findings that the claimants' termination is unsustainable, it is necessary to note that the objection is without merits. The school failed to establish that the claimants were engaged as stopgap arrangement and/or they were relieved when regular appointee arrived. The school also failed to prove that it had followed 20 C/SCA/6263/2015 JUDGMENT prescribed procedure and that the learned Labour Court's conclusion and decision are perverse. However, so far as the submission by learned AGP against the direction to reinstate the claimants and his submission to consider option of lump sum compensation is concerned, this Court is of the view that there is no material on record to establish that the order directing the reinstatement of the claimants is incapable of being complied with. In absence of any compelling circumstances which would convince this Court to modify the order passed by the learned Labour Court, this Court is of the view that the direction to reinstate the claimants may not be disturbed, more particularly when the learned Labour Court itself has denied the benefit of backwages.
22. In the result, this Court, in light of the foregoing discussion, is of the view that the direction granting reinstatement does not deserve to be disturbed in present cases. However, the 21 C/SCA/6263/2015 JUDGMENT claimants shall not be entitled for continuity of service and that, therefore, they will be re engaged by way of fresh appointment/s but their post service (from date of appointment till date of termination) shall be considered only for the purpose of computing gratuity (if they acquire eligibility / entitlement pursuant to fresh appointment) and not for any other purpose / benefit including seniority, pension, government resolution dated 17.10.1988 (even if applicable to the school) etc. The said past service shall be counted only for computing gratuity (or being otherwise eligible).
23. The order granting benefit of continuous service is not sustainable and deserves to be set aside and it is accordingly hereby set aside. Besides this, the claimants have declared that they do not claim / they waive benefit of 'continuity'.
24. The learned Labour Court has rightly not granted benefit of backwages. The said decision 22 C/SCA/6263/2015 JUDGMENT is confirmed.
25. Under the circumstances, 4 petitions filed by the opponent school, i.e. Special Civil Application Nos.6263, 6265, 6266 and 6267 of 2015 stand partly allowed. Rule is made absolute to the said 4 petitions.
26. So far as 4 petitions filed by the claimants, i.e. Special Civil Application Nos.10442, 10443, 10698 and 10699 of 2015 are concerned, the challenge by the claimants against denial of backwages is rejected. Since learned advocate for the claimants, on the basis of the instructions, declared that the claimants do not demand and they forgo and waive continuity of service and also in view of the fact that this Court found that the said direction is unjustified, the said direction is set aside by direction / order in the petitions filed by the school.
27. The direction granting reinstatement is not disturbed. Under the circumstances, above 23 C/SCA/6263/2015 JUDGMENT mentioned 4 petitions filed by the claimants against refusal of backwages are rejected. Rule is discharged.
Sd/ (K.M. THAKER, J.) Bharat 24