Gujarat High Court
Junagadh Municipal Corporation vs Kantaben Arjanbhai Gohel on 25 July, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/9796/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9796 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 10584 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 10705 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9797 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9798 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9799 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9800 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9801 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9802 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9803 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9804 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9805 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9806 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9807 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9808 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9809 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 9810 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
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C/SCA/9796/2016 JUDGMENT
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 ?
JUNAGADH MUNICIPAL CORPORATION
Versus
KANTILAL GOVINDBHAI VALA
Appearance:
MR HS MUNSHAW(495) for the PETITIONER(s) No. 1
MR SAMIR B GOHIL(5718) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 25/07/2018
ORAL JUDGMENT
Heard Mr.Munshaw, learned advocate for the petitioner and Mr. Gohil, learned advocate for the respondent workmen.
1.1 Rule in Special Civil Application Nos.10584 of 2016 and 10705 of 2016, returnable forthwith. Learned advocate for the respondents has waived service of Rule in Special Civil Application Nos.10584 of 2016 and 10705 of 2016.
1.2 With consent of learned advocates, captioned petitions are heard for final decision today.
2. Learned advocates for the petitioner and the respondents have declared that the opponent Page 2 C/SCA/9796/2016 JUDGMENT employer before the learned Labour Court i.e. the petitioner in all petitions is common (Junagadh Municipal Corporation) and though the claimants/workmen/respondents in captioned petitions are different, the facts involved in each case are almost similar. With the said clarification and declaration learned advocates for both sides have submitted that the captioned petitions may be heard and decided together.
3. So far as factual background is concerned, it has emerged from the record that certain persons/claimants raised industrial dispute with the allegation that Junagadh Municipal Corporation illegally terminated their services and that, therefore, the Corporation should reinstate them with all benefits. Appropriate government referred the dispute for adjudication to learned Labour Court at Junagadh vide separate orders of reference. The learned Labour Court at Junagadh registered the said dispute as separate reference cases.
3.1 Before the learned Labour Court the claimants filed almost similar statements of claim, wherein the claimants alleged, inter alia, that initially they were engaged by Joshipura Borrow Municipality and they were working on daily wage basis with the said Municipality for about 3 Page 3 C/SCA/9796/2016 JUDGMENT years and the said Burough Municipality which subsequently emerged with Junagadh Municipal Corporation in January 2004. They also claimed that after the merger with the Municipal Corporation they worked with the Municipal Corporation and their salary were paid by the Municipal Corporation until their services came to be terminated in April 2004. The workmen alleged that they had worked regularly and continuously and that they had rendered service for 240 days in a year, however, the opponent corporation terminated their services without following the procedure prescribed by law. They claimed that their services were not terminated on ground of misconduct but the Corporation abruptly terminated their services by oral order without issuing notice, without granting opportunity of hearing and without payment of compensation. They also alleged breach of statutory provisions, viz. sections 25F, 25G and 25H. With such allegation the claimants demanded that the Corporation should be directed to reinstate them on their own original post with consequential benefits.
3.2 The Corporation opposed the allegation and the demand. In its reply, the Corporation claimed that the claimants were not employed by the Corporation and that, therefore, they cannot Page 4 C/SCA/9796/2016 JUDGMENT claim any right against the Corporation. The Corporation claimed that there was no evidence to establish that the claimants were employees of Joshipura Burough Municipality (hereinafter referred to as "the Municipality") and/or about the date when the claimants joined services of the Municipality before the Municipality came to be merged, in January 2004, with the Corporation. The Corporation also claimed that the claimants failed to place on record appointment orders and/or terms and conditions of appointment (i.e. the terms on which the Municipality had appointed the claimants) and in absence of any evidence about their employment with the Municipality, more particularly about total period of service rendered by the claimants, the allegations and demand by the claimants cannot be and should not be granted. The Corporation also claimed that the merger of the Municipality with the Corporation took place in January 2004 and during the period when the administrative formalities were being completed, the claimants might have worked for some period with the Corporation, however, upon completion of the process of merger, the Corporation stopped engaging claimants and that, therefore, the allegation that the Corporation terminated their services as a misnomer inasmuch as the claimants were never appointed by the Corporation and that, therefore, question of Page 5 C/SCA/9796/2016 JUDGMENT termination of their services never arose so far as the Corporation is concerned. It was also claimed that there were no record with the Municipality about the employment of the claimants with the said Municipality and any record did not come into the hands of the Corporation, however, the fact remains that even according to the claimants, they were employed as and they worked as daily wagers and that, therefore also the claimants do not have any right to claim employment with the corporation. With the said submission the corporation opposed the reference cases.
3.3 After completion of the pleadings the learned Labour Court received evidence from both sides. When the claimants and the corporation declared closure of their respective evidence, the learned Labour Court heard rival submissions and on conclusion of the proceedings, the learned Labour Court considered the material available on record as well as rival submissions and passed impugned awards in reference cases.
3.4 It has emerged, on examination of awards challenged in captioned petitions and learned advocates have also declared that the learned Labour Court has passed similar awards in all reference cases and similar directions viz.
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direction to the corporation to reinstate the claimants on their original post with continuity of service, however, without backwages, are passed.
4. Mr. Munshaw, learned advocate for the petitioner submitted that the learned Labour Court has failed to take into account that the claimants were not appointed in accordance with and after following the prescribed procedure for selection and recruitment and that in case of such irregular appointments, the direction to reinstate the claimants would not be just and proper direction and the claimants do not have any right to demand that they should be continued in service. Mr.Munshaw, learned advocate for the petitioner further submitted that the allegations about applicability and breach of statutory provisions viz. sections 25F, 25G and 25H are incorrect and unjustified. He submitted that in light of the facts of the case, the said provisions would not be applicable or attracted, however, the learned Labour Court failed to appreciate the said submissions and erroneously applied the said provisions to the case of the claimants and committed error in holding that the termination of services of the claimants would in breach of statutory provisions. Mr.Munshaw, learned advocate further submitted that the Page 7 C/SCA/9796/2016 JUDGMENT claimants were, even according to their own case, appointed as and they worked as daily wager, meaning thereby, the claimants were engaged only on need basis and for administrative exigency and consequently, question of termination of their services would not arise because if there is no need to engage additional labourers, the corporation would not call and engage daily wagers. Mr.Munshaw, learned advocate further submitted that the learned Labour Court failed to take into account the short period for which the claimants had rendered service and that in view of the short period for which the claimants were engaged on daily wage and ad hoc basis, there was no justification to pass direction of reinstatement, that too with continuity of service. According to learned advocate for the petitioner, if at all other conclusion by the learned Labour Court, more particularly about their appointment and employment, about service with the corporation are to be held as correct and justified, then also the direction to reinstate the claimants with continuity of service is unjustified and in light of the facts of the case, the learned Labour Court ought to have moulded the relief and awarded lump sum compensation.
5. Mr. Gohil, learned advocate for the Page 8 C/SCA/9796/2016 JUDGMENT respondents - workmen opposed the submissions and the petitions. He submitted that the learned Labour Court has not committed any error. According to learned advocate for the claimants, the breach of statutory provisions is established inasmuch as the learned Labour Court has, on appreciation of evidence, reached to the conclusion and recorded finding of fact, though the workmen had rendered service for more than 12 months, the services were terminated without following prescribed procedure of law. He submitted that undisputedly, the corporation did not issue notice to the claimants before discontinuing their services and the corporation also did not pay compensation in accordance with section 25F. Mr.Gohil, learned advocate for the claimants further submitted that the learned Labour Court has also recorded finding of fact that when the claimants were discontinued, the corporation had not followed opportunity of seniority and subsequently other persons were engaged. According to learned advocate for the respondents, when it is established that the services of the claimants came to be discontinued in breach of statutory provisions, the direction to reinstate the claimants cannot be said to be illegal or unjustified, more particularly because in present case the learned Labour Court has denied the benefit of backwages. With such Page 9 C/SCA/9796/2016 JUDGMENT submissions learned advocate for the claimants opposed the petitions and submitted that the award is just, correct and proper and should not be set aside.
6. I have considered rival submissions, impugned awards and other material available on record.
7. At the outset, it is relevant to mention that learned advocates for the petitioner and the respondents have jointly submitted statement which is summary of the relevant facts in respect of each claimant in captioned petitions i.e. the date of appointment, date of termination and their employment with the Borrow Municipality and the Corporation. The details which are reflected from the said statement, read thus: Sr. No. of Name of Respondent Period worked No. Petition 1 SCA Kantilal Vaja (Joshipura) 2001 to 1.4.04 No.9796/16 Safai Kamdar 2 SCA Kantilal Vadher (Joshipura) 1999 to 1.4.04 No.9797/16 Safai Kamdar 3 SCA Mohan Chauhan (Joshipura) 1999 to 1.4.04 No.9798/16 Safai Kamdar 4 SCA Jagmal Vala (Joshipura) 1999 to 1.4.04 No.9799/16 5 SCA Narendra Pathak (Joshipura), Sept. 97 to Apr.
No.9800/16 Tax Dept 996 SCA Gopal Baraiya (Muni. Corp.) Oct. 02 to No.9801/16 Safai Kamdar 17.12.03 7 SCA Sanjay Chudasma (Muni. Corp.) Oct. 02 to No.9802/16 Safai Kamdar 17.12.03 8 SCA Ramesh Vadher (Muni. Corp.) Oct. 02 to No.9803/16 Safai Kamdar 17.12.03 9 SCA Velji Jethwa (Muni. Corp.) Oct. 02 to No.9804/16 Safai Kamdar 17.12.03 Page 10 C/SCA/9796/2016 JUDGMENT 10 SCA Ramji Jethwa 1999 to 1.4.04 No.9805/16 (Joshipura) 11 SCA Mansukh Chudasama 1995 to 26.1.05 No.9806/16 (Muni. Corp.) Labourer 12 SCA Rajesh J. Vala (Muni. Corp) Oct. 02 to No.9807/16 Safai Kamdar 17.12.03 13 SCA Chunilal N. Vala (Muni. Corp) Oct. 02 to No.9808/16 Safai Kamdar 17.12.03 14 SCAS Prakash K. Solanki Oct. 02 to No.9809/16 (Muni. Corp.) 17.12.03 Safai Kamdar 15 SCA Jitendra N. Parmar Oct. 02 to No.9810/16 (Muni. Corp.) 17.12.03 Safai Kamdar 16 SCA Kantaben Gohel (Joshipura) 2001 to 1.4.04 No.10584/16 Safai Kamdar 17 SCA Rajesh M. Jhala (Muni. Corp.) Oct 02 to No.10705/16 Safai Kamdar 17.10.03 7.1 From the details mentioned in above statement, it emerges that the group (total number) of claims comprise :
(a) claimants who were originally appointed by the Municipality and for entire tenure (except last 2 to 3 months) they worked with the Municipality and on merger of Municipality they worked - for about last 2 to 3 months - with the corporation; and
(b) the claimants who were appointed by the corporation and worked - for entire tenure with - only the corporation.
In respect of both sets/groups of claimants similar directions are passed by learned Labour Court in separate but similar awards.
8. From the observations and findings recorded in the awards, from rival submissions by learned Page 11 C/SCA/9796/2016 JUDGMENT advocates and from undisputed facts which emerged from statement jointly prepared by learned advocates, it has emerged that, (a) the claimants were engaged as daily wagers on adhoc basis; (b) the claimants were engaged without following prescribed procedure for selection and recruitment; (c) the claimants came to be discontinued by oral instruction; (d) before claimants came to be discontinued from service, the claimants had rendered service for atleast 12 months (the details in the table statement);
(e) when the claimants came to be discontinued, notice was not issued/served and the retrenchment compensation was not paid and (f) the claimants have not been discontinued from service on the ground of misconduct for any fault on their part.
9. Besides above mentioned facts, certain other relevant facts, which deserve to be taken into consideration for deciding the issues involved in the case, in present petitions, are, (i) the claimants alleged before learned Labour Court in their deposition that the employer did not provide any document related to their appointment in service, i.e. the appointment order was not issued, identity card was not issued, attendance card was not issued, attendance was not marked in register but on loose sheets, salary slips were not issued and salary was paid by taking Page 12 C/SCA/9796/2016 JUDGMENT signature/thumb impression on loose sheet. In short, any document with aid of which the claimants can establish their employment and/or with aid of which they can establish total period of their service was not provided; (ii) the corporation did not place on record attendance register / wage register for the relevant period; and (iii) in the cases where the claimants were originally engaged by municipality, it was not case of the corporation that at the time of merger, there was any break in service of such claimants and that after the merger, the claimants did not work at all with the corporation and the corporation did not pay any benefits including wages, after the merger.
9.1 From above mentioned details, it emerges that there was no material before learned Labour Court in light of which learned Labour Court could reach to the conclusion as to whether the claimants had worked for 240 days in preceeding 12 months or not. Except the allegations and claim by the claimants that they had worked for 240 days, there was no material before learned Labour Court either to verify the claim of the workmen or the employer's submission that the claimants had not worked for 240 days in preceeding 12 months. In that view of the matter, learned Labour Court, considered it appropriate Page 13 C/SCA/9796/2016 JUDGMENT to draw adverse inference and to presume that the claimants had worked for 240 days.
9.2 From the awards, it emerges that the claimants had filed application and prayed for production of documents, however, the corporation did not place on record any document. On said ground and having regard to the decisions in case of (a) R.M.Yellatti v. Assistant Executive Engineer [AIR 2006 SC 355]; (b) Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda [AIR 2010 SC 1236] and (c) Municipal Corporation, Faridabad v. Siri Niwas [(2004) 8 SCC 195], learned Labour Court has justified its decision to draw adverse inference and to assume that the claimants had worked for 240 days.
9.3 In light of facts and circumstances of the case and in light of above mentioned decisions, the decision by learned Labour Court cannot be faulted.
10. When it is found that learned Labour Court did not commit any error in drawing adverse inference and assuming that the claimants had worked for 240 days, the applicability of Section 25F would follow as a corollary because the service of the claimants were not terminated on Page 14 C/SCA/9796/2016 JUDGMENT account of or on the ground of misconduct or on superannuation. Consequently, the termination of service of the claimants would not fall within any of three exceptions mentioned under Section 2(oo) but it would fall within purview of termination for any other reason considered by Hon'ble Apex Court in case of Sundarmani v. State Bank of India. Thus, the termination would amount to retrenchment.
10.1 Therefore, the question which would arise is as to whether the opponent corporation had followed the procedure prescribed under Section 25F when the service of the claimants came to be terminated.
11. From the statement jointly prepared by learned advocates, it has emerged that out of 17 claimants, 7 claimants are undisputedly such claimants, who were originally engaged by the Municipality, whereas other 10 claimants are such who were engaged by petitioner corporation itself.
12. So far as the claimants who were originally engaged by the Municipality are concerned, said cases will call for consideration and examination of the awards from different perspective than the case of the employees who were engaged by the Page 15 C/SCA/9796/2016 JUDGMENT corporation itself, more particularly because (a) the said claimants were, undisputedly, not appointed by the corporation; (b) they were engaged/appointed by the Municipality; (c) entire tenure of their service - except last about two months - they rendered service with the Municipality; (d) it was the Municipality that did not provide documents to claimants and probably did not maintain the documents; (e) after merger relevant documents were not placed in the hands of corporation and the corporation did not have, in its possession, the documents;
(f) due to such difficulty, it could not place documents on record before the Court.
However, before considering said aspect, it would be appropriate to note that applicability of Section 25F in all 17 cases is established. The fact that procedure prescribed under Section 25F was not followed at the time when service of the claimants came to be discontinued is also established.
Therefore, the only question in such cases which would arise is about appropriate relief.
So far as the findings by learned Labour Court with regard to Section 25G and/or principle of seniority is concerned, the learned Labour Court has failed to take into account the relevant aspects attached to said issue in respect of the claimants who were originally Page 16 C/SCA/9796/2016 JUDGMENT engaged by the Municipality.
12.1 On this count, it is necessary to note that it may be true that upon merger of the municipality with corporation, the claimants continued to work for some period i.e. from January 2004 to March 2004 (the claimants have claimed that their service terminated on 1.4.2004).
The Notification under which the Municipality came to be merged was not placed on record before the Court.
The said Notification would contain the terms and conditions of merger, including the terms concerning the employees.
Without reading the Notification, particularly the terms of merger and terms of transfer of employees, the Court could not have known whether daily wagers were also transferred to the corporation or not and if daily wagers were also to be transferred to the corporation, then what were the terms of transfers.
Without examining this aspect, the labour Court could not have assumed that the claimants were also transferred to the corporation. Further, the Court also failed to note that even otherwise, daily wagers of Municipality cannot merge into the cadre of the regular employees of the corporation.
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Under the circumstances, the Court could not have applied principle of seniority by taking into account date of appointment of the employees of the corporation.
It is not in dispute that in April 2004, the corporation discontinued all daily wagers who were originally engaged by Joshipura municipality. In this view of the matter, question of breach of Section 25G would not arise. If any daily wager who was originally employed by Joshipura municipality had been continued by the corporation and the claimants were terminated then only question of seniority and breach of Section 25G would arise. However, when the service of all daily wagers originally engaged by the Municipality came to be discontinued, question of breach of Section 25G would not arise more particularly by comparing then with corporation's employees and to that extent, the conclusion recorded by learned Labour Court are defective and cannot be sustained.
13. So far as breach of Section 25H is concerned, it is relevant to mention that the claimants who were appointed by the Municipality raised unsubstantiated allegation about breach of Section 25H. However, none of the said claimants could mention name of any person who came to be employed by the corporation after claimants' Page 18 C/SCA/9796/2016 JUDGMENT service came to be terminated. In absence of such evidence, particularly in absence of name of any person who came to be engaged subsequently and without first satisfying itself about the terms of merger and transfer of daily wagers the learned Labour Court could not have jumped to the conclusion that the corporation committed breach of Section 25H. So as to establish such allegation, it was necessary for the claimants to prove nature of duty which they were performing, the section or the department in which they were rendering service, name of the person who came to be appointed after their service came to be terminated, the date on which said person came to be appointed and post on which such person came to be appointed.
In present case, the claimants failed to establish said relevant and necessary factual aspects and that therefore, the learned Labour Court could not have reached to the conclusion and could not have recorded finding that the corporation had committed breach of Section 25H.
The findings and conclusion recorded by learned Labour Court to said extent are erroneous and unjustified and that therefore, cannot be sustained.
14. This leaves behind the allegation about breach of Section 25F. As mentioned above, Page 19 C/SCA/9796/2016 JUDGMENT learned Labour Court recorded the conclusion that the corporation committed breach of Section 25F.
The ingredients for invoking Section 25F have been presumed to be present on the basis of adverse inference drawn by learned Labour Court.
The petitioner failed to establish that the labour Court committed error on this count and adverse inference drawn by the labour Court and the presumption, findings and conclusion recorded by learned Labour Court cannot be faulted with regard to the claimants who were appointed and employed by the corporation. However, same standard and analogy which are applied in respect of the claimants appointed by the corporation could not have been mechanically applied by learned Labour Court in case of claimants who were originally engaged by the Municipality, inasmuch as the said claimants failed to establish the terms of transfer of daily wagers appointed by the Municipality and even the terms of merger and there is nothing on record to establish that the terms of merger provide for automatic absorption even of daily wager and even for continuity of service. In absence of relevant evidence and clarity on this count, the labour Court could not have ignored the fact that after the merger, said claimants rendered service for only 3 months with the corporation. The applicability of Section 25F and Page 20 C/SCA/9796/2016 JUDGMENT the consequences should have been examined from this perspective, in case of the daily wagers appointed by the Municipality.
14.1 On this count, it is necessary to note that these claimants failed to establish that any notification is issued by the State declaring that entire establishment of employees of municipality would stand merged into the establishment of employees of the corporation and further that the employees in all categories/ cadre with the municipality would stand merged in respective cadre/category of the corporation and their services shall be deemed to be continuous.
In absence of such notification, the service by the claimants originally employed by the Municipality could not have been clubbed for the purpose of determining applicability of Section 25F and/or Section 25G.
Undisputedly, said employees were never appointed/engaged by the corporation.
They seem to have worked during period of 2 to 3 months when administrative formalities of merger were being undertaken and completed.
However, service, if at all rendered by said claimants during said period, cannot be termed or equated with appointment of the claimants by the corporation.
Even if said work or service rendered by said Page 21 C/SCA/9796/2016 JUDGMENT claimants is treated as service with corporation then also it would be of 3 months.
Under the circumstances, serious issues with regard to applicability of Section 25G would arise in case of the claimants who were originally engaged by the Municipality and the decision on that issue will substantially depend on the notification issued by State Government for merger of the municipality with corporation.
Undisputedly, the notification was not placed on record before learned Labour Court. The said notification and terms and conditions of merger of the municipality with corporation have not been taken into consideration by learned Labour Court while deciding the case of the claimants who were originally engaged by the Municipality.
14.2 Under the circumstances, the awards passed by learned Labour Court in case of claimants who were originally employed by the Municipality deserves reconsideration by learned Labour Court, more particularly in light of the terms and conditions of merger notified by the State.
Unless and until said issue is examined, it could not have been presumed that the claimants become employees of the corporation and that the corporation was under statutory obligation to treat their service as continuous service.
The labour Court could also not even presumed Page 22 C/SCA/9796/2016 JUDGMENT that corporation was under obligation to absorb the service of the employees of municipality or that the said employees, i.e. daily wagers, would stand absorbed in corporation.
Without addressing said issues, learned Labour Court could not have reached to the conclusion about breach of Section 25F and it could not have decided the issue about appropriate relief. For consideration of such issues, case of the claimants who were originally appointed by the Municipality and who rendered entire tenure of service - except last 2 to 3 months - with the Municipality, are required to be remanded to labour Court for fresh consideration.
14.3 Under the circumstances, awards impugned in Special Civil Application Nos.9796 of 2016, 9797 of 2016, 9798 of 2016, 9799 of 2016, 9800 of 2016, 9805 of 2016 and 10584 of 2016 are set aside for above mentioned reasons and the said cases are remanded to learned Labour Court for reconsideration and fresh decision after considering above discussed aspects.
14.4 So far as other cases are concerned, it has emerged as undisputed fact that the claimants in said other cases i.e. Special Civil Application Nos.9801 of 2016, 9802 of 2016, 9803 of 2016, Page 23 C/SCA/9796/2016 JUDGMENT 9804 of 2016 and 9806 of 2016 to 9810 of 2016 and 10305 of 2016 were engaged by the corporation.
It is true that the total period of service rendered by said claimants is comparatively of short tenure, however, it is not in dispute that the said claimants (who were originally appointed by the corporation and who rendered service only to the corporation as against those claimants who were appointed by and who served with the Municipality) had worked for more than 12 months and in their case, the factors which attract applicability of Section 25F are - as discussed earlier - established and the labour Court's conclusion on that count cannot be faulted and it has also emerged that the service of the said claimants came to be terminated without following procedure prescribed by Section 25F (despite the fact that in light of facts of their case, said provision was applicable).
14.5 Having regard to said aspect, learned Labour Court has awarded reinstatement with continuity of service.
So far as direction to reinstate the said claimants is concerned, breach of statutory provisions (Section 25F) at the time of termination is established. Once breach of statutory provision is established then the consequences should follow {see : Deepali Gundu Page 24 C/SCA/9796/2016 JUDGMENT Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) [(2013) 10 SCC 324], State of Uttar Pradesh v. Om Pal Singh [(2016) 16 SCC 584], Fisheries Department, State of U.P. v. Charan Singh [(2015) 8 SCC 150] and Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd. [(2014) 11 SCC 85]} unless strong exceptional case is made out.
In present case, the claimants claim is based on parity on the basis of a decision in Special Civil Application No.12919 of 2016 in case of similarly placed employees of Junagadh Municipality.
On the other hand, except pleading short tenure of service (in one case 10 years and in other 9 cases 1 year and 2 months), learned counsel for the corporation could not make out any other exceptional circumstances in respect of said 10 claimants engaged directly by corporation
- not the transferees from the Municipality - and he also could not make out a case to not give parity to this claims as in case of Junagadh Municipality.
14.6 Now, so far as the direction granting continuity of service is concerned, it is relevant to note that learned Labour Court did not take into account the facts that: (a) the claimants were engaged on adhoc and temporary Page 25 C/SCA/9796/2016 JUDGMENT basis; (b) they were engaged as and they worked on daily wage basis; and (c) total tenure of the service which they rendered on daily wage basis was about 1½ years (except in one case where service period is 10 years). Despite such facts, benefit of continuity of service is granted to said daily wagers. Consequently, without having rendered service for almost 12 years, said daily wagers will get benefit of continuity of service. The learned counsel also urged that on that basis they will later on, claim seniority on the basis of continuity of service.
The said aspect is one of the relevant aspects required to be taken into account while deciding the issue about relief in form of continuity of service.
Of course, care should be taken that the service rendered by the claimants prior to date on which their service came to be discontinued should not go in vain but at the same time, benefit of continuity for such long period ought not be awarded and such direction cannot be sustained.
14.7 Therefore, in said other cases, where the claimants were engaged and employed by the corporation, direction granting reinstatement is not disturbed, however, direction granting continuity of service is set aside with the Page 26 C/SCA/9796/2016 JUDGMENT clarification that for retiral benefit (gratuity) the service rendered by them should be considered for determining their eligibility and entitlement for gratuity.
With aforesaid directions, petitions are disposed of.
Rule is discharged in Special Civil Application Nos.9796 of 2016, 9797 of 2016, 9798 of 2016, 9799 of 2016, 9800 of 2016, 9805 of 2016 and 10584 of 2016, however, rule is made absolute to aforesaid extent in Special Civil Application Nos. 9801 of 2016, 9802 of 2016, 9803 of 2016, 9804 of 2016 and 9806 of 2016 to 9810 of 2016 and 10305 of 2016. Orders accordingly.
Sd/-
(K.M.THAKER, J) KDC/Bharat Page 27