Gujarat High Court
Manager vs Kiritkumar on 6 December, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
Print
SCA/1546/2006 37/ 37 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1546 of 2006
With
SPECIAL
CIVIL APPLICATION No. 16855 of 2007
With
SPECIAL
CIVIL APPLICATION No. 7664 of 2008
With
SPECIAL
CIVIL APPLICATION No. 3873 of 2009
With
SPECIAL
CIVIL APPLICATION No. 10822 of 2009
With
SPECIAL
CIVIL APPLICATION No. 11736 of 2009
With
CIVIL
APPLICATION No. 12180 of 2010
In
SPECIAL
CIVIL APPLICATION No. 10822 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MANAGER
GUJCOMASOL PESTICIDES DEPTT. - Petitioner(s)
Versus
KIRITKUMAR
BABULAL PATEL & 1 - Respondent(s)
=========================================================
Appearance
:
Special
Civil Application No.1546 of 2006
MR GM
JOSHI for
Petitioner(s) : 1,
MR SATYEN B RAWAL for Respondent(s) : 1,
MR
AB GATESHANIYA for Respondent(s) : 1,
MR JB PARDIWALA for
Respondent(s) : 2,
Special
Civil Application No.16855 of 2007
MR GM
JOSHI for Petitioner(s) : 1,
MR DILIP B RANA for Respondent(s) :
1,
Special
Civil Application No.7664 of 2008
MR GM
JOSHI for Petitioner(s) : 1,
MR SATYEN B RAWAL for Respondent(s) :
1,
MR JB PARDIWALA for Respondent(s) : 2,
Special
Civil Application No.3873 of 2009
MR
GM JOSHI for Petitioner(s) : 1,
MR SUNIL S JOSHI for Respondent(s)
: 1,
MR
JB PARDIWALA for Respondent(s) : 2,
Special
Civil Application No.10822 of 2009
MR
GM JOSHI for Petitioner(s) : 1,
MR PJ MEHTA for Respondent(s) :
1,
MR JB PARDIWALA for Respondent(s) : 2,
Special
Civil Application No.11736 of 2009
MR
PJ MEHTA for Petitioner(s) : 1,
MR GM JOSHI for Respondent(s) :
1,
Civil
Application No.12180 of 2010
MR
PJ MEHTA for Petitioner(s) : 1,
MR GM JOSHI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 08/12/2010
COMMON
CAV JUDGMENT
Since more or less common issue is involved in all these petitions and since they are heard together, the same are being disposed of by this common judgment and order.
Special Civil Application No.1546 of 2006 is filed by a Manager, Gujcomasol Pesticides Department challenging the award passed by the learned Presiding Officer of the Labour Court No.6 at Ahmedabad on 30.5.2005 in Reference (LCA) No.247 of 2001. This reference is in relation to a workman, namely, Kiritkumar Babulal Patel, respondent No.1 herein. The respondent filed his statement of claim, inter alia, contending that he was rendering the services with the petitioner since 1.7.1998 and he was getting monthly salary of Rs.2,180/-. His services were terminated with effect from 31.8.2000 without any fault and without giving him notice or notice pay and the same was violative of Section 25F, G and H of the Industrial Disputes Act. The case of the petitioner was that at the time of termination of service of the respondent on 29.8.2000 all the dues as required under Section 25F were paid to the workmen. The Labour Court has passed an award of reinstatement with continuity of service to his original post and 40% back wages.
Special Civil Application No.16855 of 2007 is filed by Liason Officer, Gujarat State Cooperative Marketing Federation Ltd., challenging the award passed by the Labour Court, Surendranagar on 28.5.2007 in Reference (LCA) No.13 of 2001. This reference is in relation to Shri Atulkumar Bachubhai Parmar, respondent herein. In his statement of claim the respondent, inter alia, contended that initially his services were terminated on 30.10.1996 but on intervention of the Conciliation Officer he was reinstated in the service. However, by an order dated 31.8.2000 his services were again terminated without following due process of law and not even disclosing that he was paid retrenchment compensation and other dues. In its written statement, the petitioner contended that the respondent's services were terminated pursuant to the order passed by this Court and on vacation of the interim order passed by the Presiding Officer, Labour Court at Ahmedabad in Complaint No.4 of 2000. It was further contended that the termination order dated 29.8.2000 was not in challenge and, therefore, the reference was not tenable. The learned Presiding Officer of the Labour Court, at Surendranagar allowed the reference vide his award and order dated 28.5.2007 and directed to reinstate the respondent on his original post without backwages.
Special Civil Application No.7664 of 2008 is filed by Gujarat State Cooperative Marketing Federation Ltd., challenging the award and order dated 5.2.2008 passed by the learned Presiding Officer of the Labour Court at Ahmedabad in Reference (LCA) No.259 of 2001. This reference is in relation to Shri Jigneshkumar Rameshbhai Patel, respondent herein. In his statement of claim the respondent, inter alia, contended that initially his services were terminated on 30.10.1996 but on intervention of the Conciliation Officer he was reinstated in the service. However, by an order dated 31.8.2000 he was dismissed from his services without following due process of law and not even disclosing that he was paid retrenchment compensation and other dues. The petitioner in its written statement pointed out that the services of the respondent were terminated pursuant to the order passed by this Court and on vacation of the interim order passed by the Presiding Officer, Labour Court at Ahmedabad in Complaint No.4 of 2000. The learned Presiding Officer, Labour Court at Ahmedabad by an award and order dated 5.2.2008 allowed the reference and directed the petitioner to reinstate the respondent on his original post without backwages.
Special Civil Application No.3873 of 2009 is filed by Gujarat State Cooperative Marketing Federation Ltd., challenging the award and order dated 26.9.2008 passed by the learned Presiding Officer of the Labour Court at Ahmedabad in Reference (LCA) No.259 of 2001. This reference is in relation to Shri Mohanlal Mangaldas Sindhva, respondent herein. The respondent in his statement of claim, inter alia, contended that he was working as a permanent peon for the last 10 years. He was discharged from the service with effect from 31.8.2000 without disclosing as to whether he was paid the amount of terminal dues. The petitioner in its written statement pointed out that the respondent was engaged as a daily wager having no right to the post. The services of the respondent was terminated pursuant to the order passed by this Court and on vacation of the interim order passed by the learned Presiding Officer, Labour Court at Ahmedabad in Complaint No.4 of 2000. The learned Presiding Officer, Labour Court at Ahmedabad vide his award and order dated 26.9.2008 directed the petitioner to reinstate the respondent on his original post without backwages.
Special Civil Application No.10822 is filed by Gujarat State Cooperative Marketing Federation Ltd., challenging the award and order dated 3.6.2009 passed by the learned Presiding Officer, Labour Court at Ahmedabad in Reference (LCA) No.2297 of 2000. This reference is in relation to Shri Dolatram Motiram Patel, respondent herein. The respondent in his statement of claim, inter alia, contended that he was working as a permanent peon from 1.12.1986 to 3.2.2000. His services were terminated with effect from 3.2.2000 without following the procedure under Section 25G as well as Rule 81. The order dated 3.2.2000 was stayed by the Labour Court, but on vacation of interim order his services were terminated by order dated 29.8.2000 by implementing the order dated 3.2.2000. The amount of terminal benefits were accepted by him under protest. The petitioner in its written statement pointed out that the respondent was engaged as daily wager having no right to the post. The services of the respondent were terminated pursuant to the order passed by this Court and on vacation of interim order passed by the learned Presiding Officer, Labour Court at Ahmedabad in Complaint No.4 of 2000. The respondent was engaged as a daily wager peon at Hajira and, thereafter at Surat office. The learned Presiding Officer, Labour Court at Ahmedabad vide his order and award dated 3.6.2009 allowed the reference and directed the petitioner to reinstate the respondent to his original post without backwages.
Special Civil Application No.11736 of 2009 is filed by Dolatram Motiram Patel challenging the order and award dated 3.6.2009 passed in Reference (LCA) No.2297 of 2000 claiming the full backwages from the respondent.
The Civil Application No.12180 of 2010 is filed by Shri Dolatram Motiram Patel, the petitioner in Special Civil Application No.10822 of 2009 praying for the direction to the opponent to release the regular salary of peon in favour of the applicant. It is the case of the applicant that he has joined the opponent on 1.12.1986 as peon - sweeper daily wager. He has been paid Rs.2,180/- plus other benefits with effect from 1.2.1999 on adhoc salary. His services were terminated on 3.2.2000 without payment of retrenchment compensation. The termination order was challenged in Reference (LCA) No.2297 of 2000 before the Labour Court, Ahmedabad. The Labour Court has ordered for reinstatement hence both the parties have challenged the said award before this Court. Both the petitions were admitted on 13.1.2010 and the Court has directed the employer establishment to pay last salary drawn under Section 17B of the I.D.Act. Accordingly the employer started paying the last salary of Rs.2,184/- to the applicant. The opponent employer has communicated to the applicant for resuming his duty vide communication dated 11.6.2010. The applicant has joined his duty soon thereafter. The applicant has, thereafter, filed present application claiming that he should be paid regular and current wages at par with other peons in view of the settled legal position. This Court accordingly vide its order dated 29.10.2010 directed the opponent employer to pay at least minimum wages to him in the meantime. As a consequent to this order, instead of paying the minimum wages, the original petitioner - present opponent had relieved the applicant vide its order dated 3.11.2010 and preferred to make the payment under Section 17B of the Act.
In all the above matters Mr.G.M.Joshi, learned advocate is appearing on behalf of the employer whereas on behalf of the workmen different advocates are appearing. Mr.A. B. Gateshaniya is appearing in the lead matter i.e. Special Civil Application No.1546 of 2006, whereas Mr.Dilip B.Rana, Mr.Satyen B. Raval and Mr.P.J.Mehta, learned advocates are appearing on behalf of workmen in other petitions. Mr.J.B.Pardiwala, learned advocate appears on behalf of the learned Presiding Officer of the Labour Court as he is also joined as party in all these matters. However, he is merely a formal party and no relief is prayed for against him.
It is the case of the petitioner in all these petitions that the petitioner is the Apex Co-operative Society having various severable and separable units, one is the Pesticides Department having is factory at Narol. The petitioner federation had appointed about 31 persons at various places as per the exigency of the work. Initially writ petition was filed before this Court by Gujcomaslol Officers Association and other being Special Civil Application No.3028 of 1999. This Court by its order dated 15.8.1999 after hearing the learned advocate for the petitioner, issued certain directions without entertaining the petition at that stage. The Registrar of Cooperative Societies, Gujarat State, Gandhinagar was directed to decide the representation within a period of two months from the date of receipt of the writ of the said order and in case, whether the grievances made by the petitioner therein were found to be correct, necessary action has to be taken for cancelling appointments which have been arbitrarily made of the persons named in Annexure-A to the said Special Civil Application. Pursuant to the said order the Registrar, Cooperative Societies by communication dated 31.12.1999 issued directions purported to have been issued under Section 160 of the Gujarat Cooperative Societies Act, 1961. The petitioner terminated the services of 31 employees, including the present respondents in these petitions, by giving a notice dated 3.2.2000 in accordance with the provisions of Section 25-F of the Act. However, one Union, namely, Akhil Gujarat General Mazdoor Sangh, approached the Labour Court at Ahmedabad by preferring Complaint No.4 of 2000 and obtained an interim order restraining petitioner from terminating the services of those 31 employees. The Labour Court vacated the interim orders by an order dated 19.8.2000. In view of the vacation of the said interim order the petitioner federation by communication dated 29.8.2000 terminated the services of the respondent No.1 in each of these petitions by paying the salary upto 31.8.2000, leave salary and retrenchment compensation calculated till 31.8.2000.
The respondent No.1 in each of these petitions raised an Industrial Dispute challenging the order of termination which was referred to adjudication for the Labour Court and the Labour Court in Reference (LCA) No.247 of 2001 which is under challenge in the first petition i.e. Special Civil Application No.1546 of 2006, passed an award and order of reinstatement with 40% backwages whereas in all other References which are under challenge in other petitions, only the order of reinstatement without backwages was passed. All these awards and orders passed by the Labour Court are under challenge in the present group of petitions.
Mr.G.M.Joshi, learned advocate appearing for the petitioner in all these petitions submitted that the award and order passed by the learned Presiding Officer of the Labour Court is patently illegal and contrary to law and against the basic principles of law settled by this Court as well as Apex Court and, therefore, liable to be quashed and set aside. He has further submitted that the learned Presiding Officer has materially erred in coming to the conclusion that the petitioner is an industrial establishment within the meaning of Section 25L of the Act and that the termination was in violation of Section 25F of the Industrial Disputes Act. He has further submitted that the pesticides unit is a separable and severable establishment and in view of the judgment of Apex Court in the case of Workman Vs. Star Board Manufacturing Company, reported in 1974(4) SCC 681, each establishment would be a separate establishment and Narol Unit of the petitioner would not come within the meaning of Industrial Establishment as contemplated under Chapter 5B of Industrial Disputes Act and would not be an industrial establishment as contemplated in Section 251 of the Industrial Disputes Act. He has further submitted that even otherwise the termination of of the services is in violation of Section 25F of the Act inasmuch as that each respondent was paid wages and compensation upto 31.8.2000. They have been served with notice of termination on 3.2.2000 and, therefore, it was a sufficient notice as contemplated under Section 25F of the Industrial Disputes Act. He has further submitted that the observations and findings of the learned Presiding Officers are patently illegal and finding that the notice period of the notice dated 3.2.2000 was over suffers from patent illegality and error of jurisdiction which goes to the root of the matter and the same is perverse and liable to be quashed and set aside. It is settled position of law that when interim order is passed by the Court of law staying the particular action or order it gets suspended only but it does not vanish as soon as the interim order gets vacated, the same would revive and would come into play. He has, therefore, submitted that the finding of the Labour Court that the notice period of notice dated 3.2.2000 was over is contrary to such settled position of law.
Mr.Joshi further submitted that the finding of the learned Presiding Officer to the effect that the termination of the services of the respondent under Section 25G and 25H of the Industrial Disputes Act suffers from material irregularity and illegality inasmuch as the services of 161 employees allegedly employed by the petitioner were also terminated by the petitioner federation and they were continued in service only because of interim order passed by this Court. Mr.Joshi further submitted that all these respondents are either dailywagers or they were on fixed salary. They are not the regular employees and hence they have no right to claim permanent status in the petitioner establishment. He has further submitted that most of the respondents have either worked for one or two years and the order of reinstatement passed by the Labour Court in 2009 is contrary to the recent decision of the Apex Court. The Apex Court in more than one cases has held that the dailywagers, temporary employees or employees appointed on adhoc basis on fixed salary are not liable to be appointed and not liable to be reinstated with backwages and the Labour Court and/or Industrial Tribunal should have restrained themselves from passing such order of reinstatement with backwages. At the most if any procedural violation has taken place in that case they should be awarded some monetary compensation. In support of his submissions he relied on following judgments of the Apex Court.
13.1 In the case of Secretary, State of Karnataka & Others Vs. Umadevi & Others, AIR 2006 SC 1806, wherein it is held that, "Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which is described as 'litigious employment', he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The Courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
13.2 In the case of J. K. Synthetics Ltd., Vs. K.P.Agrawal & Anr., reported in (2007) 2 SCC 433, the Apex Court held that the manner in which "back wages"
is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement.
There has also been a noticeable shift in placing the burden of proof in regard to back wages. There is also a misconception that whenever reinstatement is directed, "continuity of service"
and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service"
and/or "consequential benefits" should also be directed.
13.3 In the case of Kanpur Electricity Supply Company Ltd., Vs. Shamim Mirza, reported in (2009) 1 SCC 20, the Apex Court held that it is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back wages, which is independent of reinstatement. While dealing with the prayer for back wages, factual scenario, equity and good conscience and a number of other factors, like the manner of selection, the nature of appointment; the period for which the employee has worked with the employer etc.; have to be kept in view. All these factors are illustrative and no precise formula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of each case.
13.4 In the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board & Anr., reported in (2009) 15 SCC 327, the Apex Court held that it is true that the earlier view of the Supreme Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, the Supreme Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. An order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not be automatically passed. The award of reinstatement with full back wages in a case where the workman particularly a daily wager, who has completed 240 days of work in a year preceding the date of termination has not been found to be proper. Compensation instead of reinstatement has been held to meet the ends of justice. The Supreme Court has distinguished between a daily wager who does not hold a post and a permanent employee.
13.5 In the case of Gujarat Agricultural University Vs. All Gujarat Kamdar Karmachari Union, reported in (2009) 15 SCC 335, the Apex Court held that a just balance needs to be struck between the doctrine of "no work, no pay" and the recent trend that this doctrine is not absolute and cannot be applied as a rule of thumb. As per the doctrine of "no work, no pay", if a person has worked, he must be paid and if he has not worked, he should not be paid. But there is another often repeated principle in service jurisprudence according to which if an employee has wrongly denied an employee his due then in that case the employee should be given full monetary benefits thereof. Of late, the Courts have followed the principle that a person is not entitled to get something only because it would be lawful to do so. A relief of reinstatement and back wages in case of illegal retrenchment or termination under Section 25-F is also not automatic.
Based on the aforesaid factual as well as legal position Mr.Joshi has strongly urged that the impugned awards passed by the Labour Court awarding reinstatement with 40% backwages in one case and only reinstatement in all other cases are absolutely illegal and contrary to the settled legal position and, therefore, deserves to be quashed and set aside.
Mr.A. B. Gateshaniya, learned advocate appearing for the respondent in Special Civil Application No.1546 of 2006 has submitted that the issue raised in the present group of petitions is squarely covered by the decision of this Court in the case of Parmar Dipubhai B and others Vs. Registrar of Cooperative Societies, reported in 2006(2) GLH 659 which is confirmed by the Division Bench of this Court by an order dated 10.11.2009 passed in L.P.A No.1522 of 2009 and other cognate matters. While disposing of several writ petitions this Court has observed that order of Registrar, Gujarat State dated 28.2.2003 / 3.3.2003 is beyond the scope of Section 160 of Act and without jurisdiction and contrary to the principles of natural justice and, therefore, it is quashed. This Court further observed that notice of retrenchment issued by respondent No.2 to the concerned petitioners in the said group of petitions is also quashed and set aside. Mr. Gateshaniya has submitted that in view of the above judgment of this Court the action of the petitioner to retrench the present respondents on the basis of such notice is illegal. Mr. Gateshaniya has further submitted that the present petitions are not maintainable under Article-226 of the Constitution of India. They are also not maintainable in view of the order passed by this Court wherein it is specifically held that Registrar, Cooperative Societies has no power/jurisdiction to issue direction to terminate the services of employees. In the present cases the action of termination of the services of the respondents is on the basis of order of the Registrar, Cooperative Societies, when it is properly concluded by this Court that the Registrar, Cooperative Societies, has no power/jurisdiction to direct the petitioner to terminate the services of the employees then such direction is illegal and the termination of the services of employees on the basis of such direction is also illegal. He has further submitted that simply because the respondents have not challenged the order of Registrar, Cooperative Societies, before this Court it would not affect them adversely in the present proceedings.
Mr. Gateshaniya further submitted that there is no infirmity in the award passed by the Labour Court. On behalf of the petitioner it is stated that in the petitioner federation about 600 employees are working and the post of the respondent is transferable to other branches of the petitioner establishment. There is no dispute about the fact that the petitioner is governing and managing all the branches of the federation and hence it cannot be said that the respondents were appointed only for a particular unit. There is no existing separate Board of Directors and separate constitution of the petitioner to conduct and manage separately Narol unit and other units. There is a common constitution of the petitioner federation and all the units and branches are governed by the head office and management of the petitioner. Inspite of several units and branches the employees of any unit or branch can be said to be employees of the petitioner. He has, therefore, submitted that the petitioner has not complied with the provisions contained in Section 25N of the Industrial Disputes Act.
Mr. Gateshaniya further submitted that the impugned order of termination is also in violation of the provisions contained in Section 25F of the Act. The notice of termination is dated 3.2.2000 which was challenged by the respondents by way of a complaint No.4 of 2000 and interim stay was granted in favour of present respondents. The stay was vacated. Thereafter, without compliance with the provisions of Section 25F of the Industrial Disputes Act the respondents' services were terminated. The petitioner should have therefore issued notice to the respondents and in absence of this the termination order cannot be said to be legal or lawful.
Mr. Gateshaniya further submitted that the petitioner has appointed 161 employees in the service after termination of services of present respondents. Most of them are juniors to the respondents and the post on which the respondents were working, the juniors are working on such posts. He has further submitted that in all 31 employees including present respondents were terminated and after termination of these 31 employees some of them were reappointed by the petitioner. The respondents were not given opportunity to work which is clearly discrimination and mal-practice of the petitioner. The petitioner has, therefore, committed violation of the provisions contained in Section 25G and H of the Act.
Mr.Satyen B. Raval, Mr. Dilip B. Rana, Mr.Sunil S. Joshi and Mr. P.G.Mehta, the learned advocates appearing for other workmen in other petitions have virtually adopted the arguments of Mr. Gateshaniya and also made submissions depending upon the facts of their case.
The starting point of entire dispute between the parties is the order of this Court passed on 15.8.1999 in Special Civil Application No.3028 of 1999 preferred by Gujcomasol Officers' Association and others wherein while disposing of the said petition the Court, inter alia, directed that in case where the grievances made by the petitioner therein are found to be correct, necessary action has to be taken for cancelling appointments which have been arbitrarily made of persons named in Annexure-A to the said petition. Pursuant to the said decision of this Court, the Registrar of Cooperative Societies, Gandhinagar passed an order on 31.12.1999 directing the petitioner to terminate all temporary employees including 31 employees, who have been recruited without giving any advertisement or without calling for the names from the office of the Employment Exchange. As a consequence to this direction by Registrar of Cooperative Societies, the petitioner issued a notice of termination on 3.2.2000 to all the respondents in this group of petitions stating that they were performing their duties as daily wager/on fixed salary/ as temporary employees and hence they are discharged from their duties with effect from 4.3.2000. This notice of termination was challenged by the Association, namely, Akhil Gujarat General Mazdoor Sangh, Ahmedabad by filing Complaint No.4 of 2000 in the Labour Court, Ahmedabad and the Labour Court has granted stay against the operation of the said notice. However, the said stay was vacated and hence the petitioner has issued order of termination on 29.8.2000 alongwith which notice pay, retrenchment compensation and all other benefits were paid by the petitioner to the concerned workmen and it was made clear that the termination would take place with effect from 31.8.2000. It is true that the order of termination is passed pursuant to the direction of Registrar, Cooperative Societies and it is held by this Court in the case of Parmar Dipuhai B & others Vs. Registrar of Cooperative Societies, reported in 2006 (2) GLH 659, that the Registrar has no power or jurisdiction to issue such direction to the petitioner federation.
This point is, however, considered in light of the fact that the present respondents have not challenged the Registrar's order before this Court nor they have challenged the initial notice dated 3.2.2000 before this Court, as was done by the petitioners, in the above case decided by this Court. It is also relevant to note that even this Court while disposing of the said group of petitions has observed that machinery under the Industrial Disputes Act cannot examine legality, validity and propriety of direction issued by the Registrar of Cooperative Societies to the petitioner federation, while examining the retrenchment notices. Faced with this situation it is not open for the Labour Court to go into or to examine the legality, validity and propriety of the directions issued by the Registrar of Cooperative Societies. The Labour Court has decided all the references keeping in mind the provisions contained in the Industrial Disputes Act and since the Labour Court has come to the conclusion that since the petitioner has committed breach of provisions of Section 25F, G and H of the Industrial Disputes Act the respondents workmen are required to be reinstated and considering the facts, in the case of petitioner of Special Civil Application No.1546 of 2006, the order of reinstatement with 40% back wages was passed whereas in all other cases only the order of reinstatement without back wages was passed. The moot question therefore before this Court is to decide as to whether the order of termination is held to be illegal and invalid in view of the findings recorded by this Court in the above referred judgment to the effect that the Registrar has no power to issue such directions or without going into this issue in absence of any specific challenge to the Registrar's directions before this Court and the Labour Court is not competent to go into this issue and it is only to be considered as to whether on the alleged violation of provisions of Sections 25F, G and H of the Industrial Disputes Act the respondents are entitled to be reinstated with or without back wages.
The position in law is now well settled. There is no dispute about the fact that all the respondents workmen in this group of petitions are either daily wagers or appointed on fixed salary or are temporary workmen. There is nothing on record that they have been employed after following the proper procedure or after issuance of advertisement or after calling names from the Employment Exchange. If this was the situation, the awards passed by the Labour Court are to be tested on the anvil of the above referred judgments of the Apex Court and in that case, the respondent workmen cannot be reinstated with or without back wages. At the most, they can only claim the reasonable compensation from the petitioner depending upon their length of service, mode of appointment, salary drawn and other relevant factors. If all these factors are to be taken into consideration the respondent workman in each of these petitions is entitled to the compensation as under :-
(A) Special Civil Application No.1546 of 2006 Considering the length of service of the respondent workman i.e. Shri Kiritkumar Babulal Patel as a clerk for the period of about 2 years and fixed monthly salary of Rs.2,180/- and further considering that he was paid notice pay, leave salary and retrenchment compensation of Rs.5,440/-, the reasonable compensation of Rs.75,000/- be awarded to him.
(B) Special Civil Application No.16855 of 2007 Considering the length of service of the respondent workman i.e. Shri Atulkumar Bachubhai Parmar as a peon on daily wage basis for the period of about 7 years and further considering that he was paid notice pay and retrenchment compensation of Rs.24,270/-, the reasonable compensation of Rs.50,000/- be awarded to him.
(C) Special Civil Application No.7664 of 2008 Considering the length of service of the respondent workman i.e. Jigneshkumar Rameshbhai Patel as a peon on daily wage basis for the period of about 4 years and further considering that he was paid notice pay and retrenchment compensation of Rs.3,631.50, the reasonable compensation of Rs.50,000/- be awarded to him.
(D) Special Civil Application No.3873 of 2009 Considering the length of service of the respondent workman i.e. Shri Mohanlal Mangaldas Sindhva as a peon on daily wage basis for the period of about 10 years and further considering that he was paid notice pay and retrenchment compensation of Rs.26,145/-, the reasonable compensation of Rs.50,000/- be awarded to him.
(E) Special Civil Application No.10822 of 2009 Considering the length of service of the respondent workman i.e. Shri Dolatram Motiram Patel as a peon on daily wage basis for the period of about 14 years and further considering that he was paid notice pay and retrenchment compensation of Rs.40,798/-, the reasonable compensation of Rs.50,000/- be awarded to him.
In the above view of the matter, the award of reinstatement with or without back wages passed by the Labour Court in each of these petitions is hereby quashed and set aside and instead of that the respondent workman in each of this group of petitions is entitled to the compensation as indicated above.
In the result, all these petitions except petition being Special Civil Application No.11736 of 2009 are partly allowed. This petition is filed by workman, namely, Dolatram Motiram Patel, challenging the impugned award passed by the Labour Court in Reference (LCA) No.2297 of 2000 whereby the back wages were not granted by the Labour Court. The petitioner has, therefore, claimed the back wages in this petition. In view of findings recorded by the Court hereinabove the petition deserves to be dismissed and it is accordingly dismissed. Rule is made absolute to the above extent in each of the above petitions except Special Civil Application No.11736 of 2009 wherein Rule/Notice is discharged without any order as to costs.
Since Special Civil Application No.10822 of 2009 is disposed of Civil Application No.12180 of 2010 no longer survives and it is accordingly rejected.
(K. A. PUJ, J.) kks Top