Gujarat High Court
Nirmaldan Narharidan Gadhvi vs Narmada Nigam Ltd. And Anr. on 7 May, 2004
Author: Ravi R. Tripathi
Bench: Ravi R. Tripathi
JUDGMENT Ravi R. Tripathi, J.
1. The petitioner, being aggrieved of the judgement and award dated 25th February, 2002 passed by the learned Presiding Officer of the Labour Court, Surendranagar in Reference (LCS) No.323 of 1992, whereby the learned Presiding Officer was pleased to reject the Reference of the petitioner, has approached this Court by way of this petition.
2. The case of the petitioner is that the petitioner was employed as a daily-wager Chowkidar along with one Ramjibhai Babubhai Valand and Akbarkhan Mohammadkhan. However, the services of the petitioner had been orally terminated on 31st September, 1990 and, therefore, he was constrained to raise a dispute, which is adjudicated by the impugned judgement and award of the learned Presiding Officer of the Labour Court.
3.1. Mrs.D.T.Shah, learned Advocate appearing for the petitioner, submitted that the learned Presiding Officer has committed an error in recording the contradictory findings in the impugned judgement and award and, therefore, the same is required to be quashed and set aside by this Court. The learned Advocate invited the attention of this Court to the contents of paragraph-6, which is the only paragraph wherein the learned Presiding Officer has dealt with the rival contentions of both the sides. The learned Advocate demonstrated that the learned Presiding Officer has committed a grave error by recording contradictory findings in the said paragraph. For example, it is recorded that, `while terminating the services of any workman, one month's written notice or in lieu thereof, wages for one month is to be paid. Wages at the rate of 15 days for every completed year of service is also to be paid by way of compensation and besides, any other amount, which is due and payable to a workman, is also to be paid. Such amount is to be paid on the day the services are terminated.' The learned Presiding Officer has then recorded a finding to the effect that, `the applicant, petitioner, without giving any intimation to the Divisional Office has left the work and, therefore, the amount, which was payable to him, was paid.' These findings are self contradictory inasmuch as if the applicant, petitioner, had left the work without giving any intimation, how any payment could have been made to the applicant, which is not the case of the department even.
3.2. The learned Presiding Officer has then recorded that the applicant-petitioner, in his deposition, at Exh.12, has deposed that he was terminated in the year 1991 and that he does not remember the date. After recording this, the learned Presiding Officer has recorded that, `thus, the concerned workman was not terminated by the establishment by an oral order and is terminated by a written order' . This was not the case of either party before the learned Presiding Officer. Neither the petitioner nor the establishment ever pleaded before the learned Presiding Officer that `services' were terminated by a written order, still the learned Presiding Officer has recorded a categorical finding that the services of the petitioner were not terminated by an oral order, but, were terminated by a written order.
3.3. The learned Presiding Officer has then recorded that on completion of the work of the establishment and there being no need of the services of the Chowkidar, the petitioner was terminated; that in his place, no new person was appointed; that the concerned workman has not put in continuous service; that he has not completed 240 days in a year; and, that when he was to be terminated, he himself stopped coming to work and this is proved. The learned Presiding Officer, without making reference to any of the oral or documentary evidence, has recorded the aforesaid findings that when the services of the petitioner were to be terminated, he himself stopped coming to work. These findings are contradictory as the earlier findings recorded by the learned Presiding Officer are that, `the services of the petitioner were not terminated by an oral order, but, were terminated by a written order'. It is important to note that both these findings are not only self contradictory, but, are also de hors the record. If it is accepted that the services of the petitioner were terminated by a written order, it cannot be said that when the services of the petitioner were about to be terminated, the petitioner stopped coming to work.
3.4. The learned Presiding Officer has next recorded a finding to the effect that, `thus, the act of the establishment of terminating the services of the petitioner by an oral order as there was no work, is illegal'. Thereafter, the learned Presiding Officer has recorded that, `the establishment has not committed breach of any of the Sections of the I.D.Act' . Besides, from reading of the judgement and award of the learned Presiding Officer, it is clear that the learned Presiding Officer is not mindful of the provisions of Sections 25(G) and 25(H) of the I.D. Act, 1947 ("the Act" for short), which read as under:
"25-G. Procedure for retrenchment.--- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
25-H Re-employment of retrenched workmen.--- Where any workmen are retrenched, and the employer proposes to take into his employment any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons."
4. Mrs. D.T. Shah, learned Advocate for the petitioner, submitted that the establishment had filed its written statement dated 22nd March, 1993 in which the details of the days of work of the petitioner are set out. From the said details, the case pleaded by the establishment before the learned Presiding Officer is that, `the petitioner stopped coming to work and that as the petitioner has worked for less than 240 days, in view of the definition of the continuous service, as provided in Section 25(B) of the Act, the petitioner, being a daily wager, was not eligible to get any notice pay or retrenchment compensation at the rate of 15 days'. The learned Advocate for the petitioner strenuously pointed out that, it was the case of the establishment before the learned Presiding Officer that, `as the petitioner had left the work without any intimation, for the safety of the property of the Government, urgently another person was required to be appointed as Chowkidar on ad hoc basis . She submitted that in that view of the matter, if it is not established from the record that the petitioner had abandoned the job - stopped coming to work of his own, it ought to have been held that though there was work the services of the petitioner were terminated for extraneous consideration.
5. The learned Advocate for the petitioner also invited the attention of the Court to the deposition of one Shri Dahyabhai Naranbhai Patel, witness examined on behalf of the establishment, wherein he has admitted in terms that in 1990, attendance register was not maintained in the establishment. He has also deposed that to exhibit the work done by the petitioner, there is no other documentary evidence than `the hand receipts'; that seniority list is maintained in the Corporation, but then, he has not brought the same to the Court; and, that it is not within his power to produce the same (as he has stated earlier that he is transferred from that particular post). The establishment has not taken any care to produce the seniority list at any stage to establish that the petitioner was a junior-most and because of non-availability of work, his services were terminated. The learned Advocate for the petitioner also invited the attention of the Court to the deposition of one Shri Jagdishkumar Ratilal Parmar, examined on behalf of the establishment, wherein he has stated that it is true that the establishment has not produced the attendance register; that at present, no person is working on `hand receipt' (voucher); that he does not know as to whether Babu Ramji and Shri Pathan along with the petitioner were working on hand receipt. The witness has admitted that, `so far as chowkidars are concerned, no seniority list was maintained and the attendance register, which is referred to in Exh.6, is also not available with the establishment' . He has also admitted an important fact that, at the time of terminating the services of the petitioner, the establishment has not given any notice or notice pay or retrenchment compensation .
6. From the aforesaid depositions of the two witnesses, who were examined by the establishment in support of its case, it is clear that no seniority list was maintained, on the basis of which the procedure prescribed for retrenchment under Section 25G could have been followed. As is the case of the petitioner, he was not allowed to work since 31st September, 1990, as against that the case of the establishment is that he himself had abandoned the work, but then, the same is not substantiated, hence, this Court is of the considered opinion that Section 25G of the Act is violated.
7. Mrs. Shah, the learned Advocate, relied upon a judgement of this Court in the matter of Rajkot Municipal Corporation vs. Kishor Govind, reported at 1996(1) G.L.H.84, wherein this Court was pleased to hold that on plain reading of language of these provisions, continuous service for one year or more is not required. Violation of Sections 25-G and 25-H will warrant a direction to reinstatement with back-wages. The Court was pleased to hold that no interference is called for in the event of such direction being given. The learned Judge was pleased to observe as under in paragraph-6:
"6. On close scrutiny of Ss. 25-F, 25-G and 25-H of the Act, it becomes abundantly clear that though they are part of the same scheme, of providing against arbitrary retrenchment of workmen by the management and to curb the tendency of hire and fire and also to provide for reemployment of such retrenched workman in case same employer again employs new person so that retrenchment simpliciter is not used as a tool merely to make room for somebody else by removing person whose services are otherwise required. Viewing in this light, it cannot be said that on plain reading of the language of the provisions of the statute and also keeping in view the object of various provisions of Chapter V-A of the Act, that rule envisaged under S.25-G is also subject to same condition as are the provisions of S.25-F. It may be noticed that S. 25-G necessarily has within its ingredients of Art.14 which provides equality as fundamental right guaranteed to the citizens and Art. 16 which provides for equal opportunities in the matter of employment. S. 25-G is meant to guard against arbitrarily motivated retrenchment. The provision curbs the tendency of conferring favour on one employee by retaining his services while discharging the senior. S. 25-G does not refer to `such workman falling under S. 25 Had S. 25-G to be dependent upon S.25-F for its operation, terminology used by the legislature would have been different. In that event, instead of the words `any workman', the legislature would have used `such workman'."
Mrs. Shah, the learned Advocate for the petitioner, submitted that the petitioner, on account of his poor financial condition and being in dire necessity of the employment, is ready to forego the back-wages if he is granted reinstatement.
8. Mr. A.D. Oza, the learned Advocate appearing for the respondent-establishment, relied upon a judgement of the Division Bench of this Court in the matter of Halvad Nagarpalika & Ors. vs. Jani Dipakbhai Chandravadanbhai & Ors., reported at [2003] 3 G.H.J.397. Mr.Oza contended that, as held by the Division Bench of this Court, a daily wager is liable to be terminated at any time and the Labour Court could not have directed to absorb the daily wager workman on permanent basis, giving all the benefits. He submitted that in the present case also, the petitioner was appointed as a daily wager, and, therefore, he is rightly not granted reinstatement or any other relief by the learned Judge of the Labour Court. He further submitted that the said judgement and award does not warrant any interference at the hands of this Court.
9. The Division Bench judgement relied upon by Mr.Oza in the case of Halvad Nagarpalika (supra) pertains to the matter wherein daily wagers, who had approached the Labour Court, were directed to be appointed on permanent basis giving them all benefits holding that there was a breach of Section 25-F of the Act. The said decision of the Labour Court was confirmed by the learned single Judge of this Court, against which a Letters Patent Appeal was filed and in that Letters Patent Appeal, the Division Bench of this Court was pleased to hold that, `the appointment was for a temporary period and in the case of daily wagers, the establishment is not required to comply with the provisions of Section 25-F(3).
As against that, in the present case, the question which arises for the consideration of this Court is about non-compliance of Sections 25-G and 25-H of the Act. It is a settled legal position that the requirement of compliance of Sections 25-G and 25-H is independent that of compliance of Section 25-F. Not only that, so far as Section 25-F is concerned, it provides the `conditions precedent' to retrenchment of workmen as the opening part of the section says that, "no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer untill--".
Whereas Section 25-G lays down the principle of "LAST IN FIRST OUT", as it provides that "where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman, who was the last person to be employed in that category....".
10. Sections 25-G, 25-H and 25-F of the Act operate in different set of circumstances with different object to be achieved and, therefore, there is no question of their interchange. The conditions prescribed under Sections 25-G and 25-H are distinct, in fact, there is no condition like the workman, who is to get the benefit of these Sections, should have been in continuous service for a period not less than one year.
11. Mr. A.D. Oza, the learned Advocate appearing for the respondents, relied upon a judgement of the Apex Court in the matter of M/s.Essen Deinki vs. Rajiv Kumar, reported at 2002(7) Supreme 393. Mr.Oza contended that the services of the petitioner can be terminated as he had not put in 240 days' service with the respondent establishment. In the case before the Apex Court, the services of the workman, who had worked for less than 240 days, were terminated on the ground that his work was found below the desired standard. The learned Judge of the Labour Court had held that the termination was valid and compliance of Section 25-F of the Act was not required. The High Court reversed the order of the Labour Court on the question of fact and held that Section 25-F was attracted. The Apex Court, in the appeal, quashed the order of the High Court and restored the order of the Labour Court. The said decision of the Apex Court has no application to the facts of the present case because in the present case, there is violation of of Sections 25-G and 25-H. The present case is not decided on the basis of non-compliance of the provisions of Section 25-F and, therefore, in the present case, it is also not relevant as to whether the petitioner had worked for 240 days or not.
12. In this regard, Mrs.D.T.Shah, the learned Advocate for the petitioner, relied upon a judgement of the Bombay High Court in the matter of Navbharat, Hindi Daily, Nagpur vs. Navbharat Shramik Sangha & Anr., reported at 1984 Lab.I.C. 445, wherein the Bombay High Court was pleased to held that Section 25-F and Section 25-G are both independent of each other. Failure to comply with either Section 25-F or follow Section 25-G, retrenchment will be invalid. In fact, the High Court of Bombay was pleased to hold that when there is a retrenchment without complying with Sections 25-G and rule-81, the whole action of the retrenchment is illegal although rule of "last come first go" was contravened only in respect of two workmen.
13. Mrs. Shah, the learned Advocate, also relied upon a judgement of the Bombay High Court in the case of Dharmaraj Vithoba Natekar vs. Unique Industries & Ors., reported at 1996 II L.L.J. 948, to contend that an inference of abandonment of service can be arrived at taking into consideration the totality of the circumstances provided such circumstances indicate that the workman was not interested in continuing in service. She submitted that in the present case, there is no such totality of circumstances pleaded and proved before the Court, on the contrary in the present case, even remotely, it is not suggested that the petitioner was not interested in work.
14. As is observed herein above, in the present case it is established on facts that there is violation of Section 25-G of the Act and, therefore, the action of the respondent-establishment of terminating the services of the petitioner is held to be invalid. Besides, it is also required to be taken into consideration that a substantial concession is given by the petitioner, by giving up his claim for the back-wages. On both these counts, this Court is of the considered opinion that an order of reinstatement is required to be passed. The judgement and award dated 25th February, 2002 passed by the learned Presiding Officer of the Labour Court, Surendranagar in Reference (LCS) No.323 of 1992 is quashed and set aside and as a necessary consequence of the same, the respondent-establishment is directed to reinstate the petitioner within six weeks from the date of the receipt of this order. It is clarified that if work is not available at the same station where the petitioner was last working, it will be open for the respondent establishment to transfer the petitioner to any nearby place. The respondent establishment shall take a sympathetic view of the matter and see that all possible attempts are made, within law to see that the petitioner continues to get his livelihood, more particularly, in light of the fact that the petitioner-workman has waived his right of back-wages.
15. In the result, the petition is allowed. Rule is made absolute. No order as to costs.