Gujarat High Court
Kiranben Alpeshbhai Rathod vs Manavadar Nagar Palika on 3 February, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/SCA/1349/2023 ORDER DATED: 03/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1349 of 2023
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KIRANBEN ALPESHBHAI RATHOD
Versus
MANAVADAR NAGAR PALIKA
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 03/02/2023
ORAL ORDER
[1] This petition is filed by the petitioner under Article 227 of the Constitution of India challenging the award dated 30.09.2021 by the Presiding Officer, Labour Court, Junagadh in Reference T. Case No.187 of 2019.
[2] By the aforesaid award, the reference of the petitioner came to be rejected and therefore, the claim of the petitioner for reinstatement with back-wages came to be rejected. The respondent before the Court is Manavadar Nagarpalika where the petitioner was appointed as a Safai Kamdar in the year 2009 and was terminated from service on 31.12.2012 which became the cause of action for raising an industrial dispute and the Assistant Labour Commissioner referred the dispute to the Labor Court vide order dated 14.10.2019.
[3] Learned advocate for the petitioner submitted that on oral evidence of the petitioner, it was brought on record of the Labour Court that the the petitioner was terminated by an oral order against which the Nagarpalika had taken up the stand that the petitioner was not employee of the Nagarpalika and therefore, there is no question of following the mandatory provision of Section 25F read with Sections 25G and Section Page 1 of 6 Downloaded on : Sun Sep 17 21:26:34 IST 2023 NEUTRAL CITATION C/SCA/1349/2023 ORDER DATED: 03/02/2023 undefined 25H of the Industrial Disputes Act, 1947 (for short "the Act") to safeguard the termination of the petitioner. It was also the case that the petitioner actually was an employee of a private contractor who was given the contract order which was placed on record. However, it is submitted that the Labour Court has failed to take into consideration that before awarding the work order to a private contractor there has to be an agreement between the parties for labour contract required under the Contract Labour (Regulation and Abolition) Act, 1970 (for short "CLRA" Act".) Learned advocate has referred to Section 7 of the Act.
[4] It is submitted that sufficient evidence was not placed on record of the Labour Court to conclusively establish that the petitioner was working through the contractor as no agreement was mentioned in the preceding para was placed on record of the Labour Court and the work order placed cannot be said to be conclusive proof to conclude that the petitioner is not an employee. Learned advocate has also submitted that the petitioner was being paid sum of Rs.304/- per day as wages which is notified by the Government of Gujarat under the Minimum Wages Notification and therefore also, the case of the petitioner needs to be considered. Learned advocate submitted that the Labour Court has not entertained the dispute by wrongly taking into consideration the delay of seven years. It is submitted that the issue of delay was already taken into consideration by the Consultation Officer and therefore, the Labour Court was not required to reconsider such issue.
[5] The Court has heard learned advocate for the petitioner and perused the documents placed on record. It is a case where the petitioners claims that the petitioner was appointed as a daily wager 'Safai Kamdar' on 28.07.2009 and was orally terminated on 31.12.2012. The petitioner filed a complaint with the Labour Commissioner on 13.09.2019 and the Labour Commissioner on 14.10.2019 referred the Page 2 of 6 Downloaded on : Sun Sep 17 21:26:34 IST 2023 NEUTRAL CITATION C/SCA/1349/2023 ORDER DATED: 03/02/2023 undefined dispute.
[6] The Court finds that the Labour Court examined the threadbare provisions of Sections 25F, 25G and 25H of the Act and has correctly applied to the facts of the case and has arrived at conclusion that there was no breach of Sections 25F, 25G and 25H of the Act as the petitioner failed to establishment employment or engagement of the petitioner with the respondent-Nagarpalika as it employee.
[7] From the record, it appears that in the present case, the witnesses have been examined vide Exh. 19, 67, 70, 72 and 77 and the documentary evidences have been produced vide Exh.14, Exh.18, Exh.-21 and Exh.69 as per the list of documentary evidence. Perusing the documentary evidences produced by the respondent, i.e. Exh.22, Exh.-23, Exh.26 to 28, as to the work-orders given to M/s. Shaktikrupa Construction Labour Co-Operative Society Ltd., the respondent Municipality, i.e. Manavadar Municipality, had approved the rates quoted by M/s. Shri Shaktikrupa Construction Labour Co-Operative Society Ltd. with respect to the tender invited for work-orders of various departments such as Sanitation, Water-works, Street-Light division etc. and in the beginning, a work-order had been given for the period from 01.07.2006 to 30.06.2007 vide the one year contract, as produced at Exh.22, which was extended till 15.09.2008 vide the order produced at Exh.23. The orders as to giving work-order for the period from 12.11.2010 to 31.12.2010, as produced at Exh.-26, and as to continuing the work for further one year starting from 24.02.2011, as produced at Exh.27, came to be passed. Further, the order as to continuing the work-order given to this agency until a further order, as produced at Exh.28, was issued on 21.02.2012. Thus, it appears from the documentary evidence that the respondent municipality had given work-orders of its various departments to the agency on yearly contract basis at the sanctioned monthly rates .
Page 3 of 6 Downloaded on : Sun Sep 17 21:26:34 IST 2023 NEUTRAL CITATION C/SCA/1349/2023 ORDER DATED: 03/02/2023 undefined [8] The respondent has produced the copies of the work-order given to
and the agreement entered into with M/s. Lakshmi Labour Co-Operative Society Ltd. at Exh.29 and 30. The copies of the same have been produced at Exh.-40 and Exh.42. Accordingly, perusing all the documentary evidences at Exh.-40 to Exh.-42, i.e. the work-order, contract etc. of M/s. Lakshmi Labour Co-Operative Society Ltd., for the tenders invited by the respondent for various work-orders of different departments of Manavadar Municipality such as Sanitation, Water-works, Street-Light Division, Gardens, peons etc. sanctioned the rates as quoted by M/s. Lakshmi Labour Co-Operative Society as produced at Exh.40 and executed a Contract-Deed for a period of one year from 26.09.2012. Further, as produced at Exh.41, the Municipality had executed a one year contract-deed dated 28.09.2012 in favor of the same agency with regard to the labour work in it Vehicle Division. Further, as produced at Exh.42, it appears that the Municipality has entered into a one year contract on 29.09.2012 with regard to the uncovered manholes in the Municipality. Thus, it appears that the respondent Municipality had assigned the labour works of its various departments to this agency in the year 2012 on yearly contract basis at the rates sanctioned.
[9] From the record, it appears that as stated by the petitioner, it appears that after discharged from service on 31.12.2012, she got issued first notice to the respondent through her advocate on 22.08.2019. However, during the period from 31.12.2012 to 22.08.2019, the petitioner has neither raised any dispute against the respondent with regard to discharge from service nor got issued any notice in writing to the respondent for not reinstating her to service nor made any communication in this regard. Thus, it cannot be believed that when the petitioner made the complaint, dispute between the petitioner and the respondent was in existence. Moreover, even if provisions of Limitation Page 4 of 6 Downloaded on : Sun Sep 17 21:26:34 IST 2023 NEUTRAL CITATION C/SCA/1349/2023 ORDER DATED: 03/02/2023 undefined Act, 1963 is not applicable to I.D.Act. However, delay becomes an essential factor for adjudication of the said Industrial dispute. In the present case, taking into consideration the evidence on record in the case, it does not established that the petitioner has worked for 240 days in 12 months immediately preceding her discharge from service in the respondent. it appears that the petitioner has not made any communication with the respondent regarding the aforesaid dispute after 31.12.2012 and thereafter, first notice was issued to the petitioner on 22.08.2019 and complaint in this regard was made on 13.09.2019.
[10] Under these circumstances, this Court believes that the reasons submitted by the petitioner regarding her being illiterate and ignorant of law, are not reasonable. Thus, taking into consideration the evidence on record, as the petitioner has caused delay of more than seven years to raise an industrial dispute and reference of the present case and reasons mentioned for the said delay are not proper and satisfactory, present reference is not tenable due to delay without reasonable explanation thereof.
[11] Moreover, as discussed above regarding oral and documentary evidence, it proves that since the year 2006, the Labour Court has also taken into considerartion that the respondent has been inviting tenders for various work of their departments by following due legal procedure thereof, approving rate of particular agency, executing contract thereof and assigning labour contract for various works of the department at the relevant time and as per attendance-register the petitioner has worked as a sweeper in respondent and it does not prove that the petitioner has worked for 240 days in 12 months immediately preceding her discharge from service in the respondent. Thus, the petitioner is not entitled for protection under Section-25F of Industrial Dispute Act.
Page 5 of 6 Downloaded on : Sun Sep 17 21:26:34 IST 2023 NEUTRAL CITATION C/SCA/1349/2023 ORDER DATED: 03/02/2023 undefined [12] In view of the aforesaid, the Labour Court has rightly come to the
conclusion that the petitioner has failed to establish breach of Sections 25F of the Act.
[13] In view of the aforesaid discussion so also in view of the reasoning assigned by the Labour Court, the Court does not find any reason to interfere. The petition is hereby dismissed.
(A.Y. KOGJE, J) SIDDHARTH Page 6 of 6 Downloaded on : Sun Sep 17 21:26:34 IST 2023