Gujarat High Court
Dhoraji Municipality Through Its Chief ... vs Ushaben Anantrai Upadhyay on 5 July, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/30/2024 ORDER DATED: 05/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 30 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 11384 of 2007
==========================================================
DHORAJI MUNICIPALITY THROUGH ITS CHIEF OFFICER
Versus
USHABEN ANANTRAI UPADHYAY
==========================================================
Appearance:
MR PREMAL R JOSHI(1327) for the Appellant(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 05/07/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present Letters Patent Appeal under Clause 15 of the Letters Patent, 1865, arises from the judgement and order dated 01.12.2021 passed by the learned Single Judge rejecting the captioned writ petition filed by the appellant- Municipality assailing the award dated 08.03.2007 passed by the Labour Court, Rajkot in Reference (LCR) No.1356 of 1989.
2. The facts, as recorded by learned Single Judge, are not in dispute. The appellant-Municipality on 02.02.1988 appointed the respondent-workman as Clerk-cum-Typist in the House-Tax Department as a daily wager for 30 days. Thereafter, on completion of every 30 days, further orders were passed by the appellant-Municipality appointing the respondent-workman on such post and the last order was passed on 04.11.1988.
Page 1 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024 NEUTRAL CITATION C/LPA/30/2024 ORDER DATED: 05/07/2024 undefined
3. It appears that thereafter, the respondent-workman was not engaged by the appellant-Municipality and hence, the respondent-workman issued a Notice to the appellant- Municipality seeking reinstatement in service and thereafter, raised the dispute, which culminated into reference proceedings being Reference (LCR) No.1356 of 1989. After considering the documentary as well as oral evidences, the Labour Court directed the appellant-Municipality to reinstate the respondent- workman with continuity of service and 25% back wages. It appears that during the pendency of the writ petition, in view of the interim relief, the respondent-workman was reinstated in May,2007 and is still continuing as such.
4. Learned advocate Mr.Premal Joshi appearing for the appellant-Municipality has submitted that in fact, the appellant-Municipality did not issue further orders appointing the respondent-workman as a Clerk-cum-Typist and hence, the provisions of Section 25-F of the Industrial Disputes Act,1947 (for short "the Act"), are not applicable. He has further submitted that being a daily wager, who was engaged for work as and when the regular Typist was not available and was continued as such for 10 months and thereafter, the appellant- Municipality in its wisdom did not think it fit to further appoint her or engage her for the work and hence, no fresh Page 2 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024 NEUTRAL CITATION C/LPA/30/2024 ORDER DATED: 05/07/2024 undefined appointment order was issued. He has submitted that this vital aspect has been ignored by the Labour Court as well as by the learned Single Judge and hence, the impugned order as well as the award may be quashed and set aside.
5. Finally, it is submitted by learned advocate Mr.Premal Joshi that after the aforesaid award was passed, the respondent-workman further filed reference proceeding seeking regularisation of her service and the Labour Court has also granted such relief, which is subject matter of challenge before the learned Single Judge in writ petition being Special Civil Application No.12627 of 2020. He has submitted that any orders passed in the present appeal would have direct bearing on such issue of regularisation and hence, it is urged that the order passed by the learned Single Judge as well as the award passed by the Labour Court may be quashed and set aside.
6. Learned advocate Mr.Premal Joshi for the appellant- Municipality, while placing reliance on the judgement of the Hon'ble Apex Court in the case of Kishore Chandra Samal V/s. Orissa State Cashew Development Corpn. Ltd., Dhenkanal reported in (2006)1 SCC 253, has submitted that the employment for specific period/ fixed term and the workman engaged for various spells of fixed periods, the provisions of Section 25-F of the Act would not be applicable and it would Page 3 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024 NEUTRAL CITATION C/LPA/30/2024 ORDER DATED: 05/07/2024 undefined be the case under the provisions of sub-clause (bb) of Section 2(oo) of the Act.
7. Learned advocate Mr.Premal Joshi has further placed reliance in the judgement rendered by the Apex Court in the case of Batala Coop. Sugar Mills Ltd. V/s. Sowaran Singh reported in (2005) 8 SCC 481 and has submitted that since the respondent-workman was employed on casual basis on daily wage, provisions of Section 25F of the Act would not be applicable.
8. Per contra, learned advocate Mr.U.T.Mishra appearing for the respondent-workman has submitted that as precisely observed by the Labour Court that after termination of the respondent-workman, there were various persons appointed as daily wager Clerks and it would be violation of provisions of Section 25-G of the Act.
9. Learned advocate Mr.U.T.Mishra has submitted that the learned Single Judge as well as the Labour Court, after considering the documentary as well as oral evidence, has concluded that the respondent-workman was engaged for 300 days and she was not appointed, whereas other persons were thereafter appointed, which would be in violation of provisions of the Act, more particularly, Section 25-G of the Act.
Page 4 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024 NEUTRAL CITATION C/LPA/30/2024 ORDER DATED: 05/07/2024 undefined 10. Learned advocate Mr.U.T.Mishra has submitted that
Labour Court has categorically held that the respondent- workman had worked for 300 days and hence, before disengaging her, it was essential that provisions of Section 25- H of the Act is required to be followed before terminating her services.
11. Learned advocate Mr.Mishra has placed reliance on the judgement rendered by the Apex Court in the case of Harjinder Singh V/s. Punjab State Waterhousing Corporation reported in 2010(3) SCC 192 and has submitted that for attracting Section 25-G of Act, the respondent-workman is not required to prove that he had worked for 240 days.
12. So far as submission of the appellant-Municipality with regard to Section 2(oo)(bb) of the Act is concerned, learned advocate Mr.U.T.Mishra has submitted that this contention is not raised before the Labour Court and therefore, it cannot be raised first time before this Court.
13. We have heard learned advocates appearing for the respective parties. The respondent-workman is on the verge of retirement and she would be retiring in the year 2025. Pursuant to the interim order passed by this Court and after the award passed by the Labour Court, she was reinstated in Page 5 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024 NEUTRAL CITATION C/LPA/30/2024 ORDER DATED: 05/07/2024 undefined service in the year 2007 and is continuously working. There is no adverse observations against her. The fact, as recorded by the Labour Court in the award and confirmed by the learned Single Judge with regard to the appointment of other various persons on the post of Clerk, after the termination of the respondent-workman, is not in dispute and documentary evidence as referred by the Labour Court in its award establishes such fact. Thus, there is a clear violation of Section 25-G of the Act.
14. It is also not in dispute that the respondent-workman had completed 300 days as a daily wager on the post of Clerk- cum-Typist and thereafter, she was discontinued and no fresh appointment was offered to her.
15. We have also noticed the fact that the appellant- Municipality though has specifically contended before the Labour Court that they have prepared the seniority list of the workmen however, despite the directions issued by the Labour Court, the appellant-Municipality did not produce the seniority list of the workmen and hence, it would also be in violation of Rule-81 of the Industrial Disputes (Gujarat) Rules, 1966, which contemplates thus:
RULE 81 : Maintenance of seniority lists of workmen Page 6 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024 NEUTRAL CITATION C/LPA/30/2024 ORDER DATED: 05/07/2024 undefined (1) The employer shall, prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be posted on a Notice Board in conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment.
16. Reliance placed by Mr.Premal Joshi, learned advocate for the appellant-Municipality on the judgement rendered in the case of Kishore Chandra Samal (supra), will not apply in the case of the respondent-workman since therein, the respondent was appointed on nominal muster roll for a fixed period of time, on basis of different rates and he was appointed intermittently from time to time however, in the present case, engagement of the respondent-workman is continuous for 300 days.
17. The decision, on which reliance is placed upon by learned advocate Mr.Joshi in the case of Batala Coop. Sugar Mills Ltd. (supra), the facts as recorded by the Apex Court suggests that the workman was a seasonal worker appointed on casual basis for a specific period.
The Apex Court has referred to the judgement rendered in the case of Anil Bapurao Kanase V/s. Krishna Sahakari Sakhar Karkhana Ltd. reported in (1997)10 SCC 599, wherein it is held that "since the present work is seasonal business, the principles of the Act have no application. However, this Court has directed that the respondent management should maintain a register and engage the workmen when the season starts in Page 7 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024 NEUTRAL CITATION C/LPA/30/2024 ORDER DATED: 05/07/2024 undefined the succeeding years in the order of seniority. Until all the employees whose names appear in the list are engaged in addition to the employees who are already working, the management should not go in for fresh engagement of new workmen and it would be incumbent upon the respondent management to adopt such procedure as is enumerated above.''
18. In the present case, the appellant-Municipality has in fact, engaged new persons on the posts of Clerk, after engaging the respondent-workman for a period of 300 days and thereafter, did not offer her any fresh appointment. Hence, the procedure adopted by the appellant-Municipality appears to be mala fide. In order to avoid the rigor of the provisions of the Act, she was appointed for 30 days for 10n months.
19. The Apex Court in the case of Harjinder Singh (supra) has held that for attracting applicability of Section 25G of the Act, a workman is not required to prove that he/she had worked for a period of 240 days during twelve calendar months preceding termination of his/her service and it is sufficient for him/her to plead and prove that while effecting retrenchment, employer violated the rule of 'last come first go' without any tangible reason. In the present case, the Labour Court has categorically held that despite a statement was made by the witness of the appellant-Municipality to produce the Page 8 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024 NEUTRAL CITATION C/LPA/30/2024 ORDER DATED: 05/07/2024 undefined seniority list, nothing was produced and on the contrary, the documentary evidence reveals that on the post of Clerks there were various other persons, who were appointed as such, ignoring the demand notice of the respondent-workman.
20. The Apex Court in the case of Ramesh Kumar V/s. State of Haryana reported in (2010)2 SCC 543, in a case of casual employee has held that if the casual employee completes 240 days of service in preceding 12 months, he cannot be terminated without giving notice or compensation in lieu of it in terms of Section 25-F of the Act. In the present case, it is contended before us that since the workman is only engaged for 30 days, the provisions of Section 25-F of the Act would not be applicable however, it is not in dispute that the respondent-workman was engaged on the very same post and the appellant-Municipality had taken work continuously for 300 days, her appointment for a period of 30 days appears to be done in order to avoid the provisions of Section 25 of the Act. The engagement of respondent-workman on the post of Clerk continuously for a period of 300 days, has been established from the documentary evidence placed before the Labour Court.
21. We are in complete agreement with the judgement and order passed by the learned Single Judge rejecting the writ Page 9 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024 NEUTRAL CITATION C/LPA/30/2024 ORDER DATED: 05/07/2024 undefined petition however, it is clarified that the rejection of the writ petition as well as the present appeal, will not be construed either in favour of the respondent-workman or against the appellant-Municipality and the issue of regularisation, which is pending before the learned Single Judge, should be examined on its own merits. The present appeal is confined only with regard to the reinstatement of the respondent-workman and her engagement as a daily wager on the post of Clerk-cum-Typist.
22. The present Letters Patent Appeal fails and the same is dismissed.
(A. S. SUPEHIA, J) (MAUNA M. BHATT,J) DIPTI PATEL/28...
Page 10 of 10 Downloaded on : Tue Jul 09 20:45:16 IST 2024