Gujarat High Court
Ranjit vs Morbi on 7 February, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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LPA/3042/2010 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 3042 of 2010
In
SPECIAL
CIVIL APPLICATION No. 9591 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
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RANJIT
NATVARLAL CHAUHAN - Appellant(s)
Versus
MORBI
NAGAR PALIKA - Respondent(s)
=========================================================
Appearance :
MR
MURALI N DEVNANI for
Appellant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 07/02/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present appeal arises against the order dated 12.10.2010 passed by the learned Single Judge in Special Civil Application No.9591/10, whereby the learned Single Judge has quashed and set aside the award passed by the Labour Court by allowing the petition.
Heard Mr.Devnani, learned counsel appearing for the appellant.
We may state that for the sake of convenience, the parties shall be referred to as per their status in the main petition.
The relevant facts are that the appellant-original petitioner was engaged by the Municipality as daily wager in the set up of the Municipality. He was discontinued as daily wager which gave rise to the dispute under the Industrial Disputes Act ("the Act"
for short) at the instance of the petitioner. The matter was referred to the Labour Court for adjudication. Before the Labour Court, the evidence had come on record that the original petitioner had worked for 215 days with the Municipality. However, the Labour Court by relying upon the decision of this Court in the case of Shihor Nagarpalika Vs Natvarlal Maganlal Trivedi reported at 2006(3) GLR 2432 and the another decision of the Apex Court in the case of Workmen of America Express International Banking Corporation Vs. Management of American International Banking Cooperation reported at AIR (1986) SC 458, added the weekly off and holidays in the aforesaid 215 days of the actual work and concluded that the workman can be said to have worked for 240 days and as the procedure under section 25F of the Act was not followed, the termination can be said as bad in law. For the alleged breach of section 25G of the Act, the Labour Court found that the details by name has not been given by the workman in his deposition and therefore, the breach of section 25G has not been proved. However, so far as the alleged breach of section 25H is concerned, the Labour Court found that there was breach of section 25H. Ultimately, the Labour Court directed for reinstatement with 20% backwages vide order dated 19.04.2010. The Municipality challenged the said award before this Court by preferring a petition. The learned Single Judge found that the findings of the Labour Court for completion of 240 days was contrary to the record and the learned Single Judge further found that as 240 days were not completed, there was no question of following procedure under section 25F, 25G and 25H of the Act. The learned Single Judge therefore, quashed the judgement and award of the Labour Court. Under the circumstances, the present appeal before us.
Mr.Devnani, learned counsel appearing for the appellant relied upon the decision of this Court in the case of Shihor Nagarpalika (supra) as well as upon the decision of the Apex Court in the case of Workmen of American Express International Banking Corporation (supra) and contended that the Labour Court had relied upon the said decision and the learned Single Judge has not at all considered the said part. He submitted that in any case, for the alleged breach of sections 25G and 25H of the Act, it is not required for the workman to prove that he had worked for 240 days in the preceeding year and therefore, he submitted that the Award ought not to have been set aside by the learned Single Judge and hence, the appeal.
The first aspect is about the findings recorded by the Labour Court for completion of 240 days in the preceeding year prior to the termination. The evidence on record has been accepted by the Labour Court which shows that even as per the Labour Court, the evidence was to the effect that the workman had worked for 215 days. But, in view of the above referred two decisions, one of this Court in the case of Shihor Nagarpalika (supra) and another of the Apex Court in the case of Workmen of American Express International Banking Corporation (supra), the weekly holidays and other holidays are to be added and the Labour Court has concluded that the workman had worked for 240 days.
We may first consider the decision of the Apex Court in the case of Workmen of American Express International Banking Corporation (supra). In the facts of the said case, at para 2, it has been specifically mentioned that the workman had joined the service of the American Express International Banking Corporation as Typist in temporary capacity and was employed as such with a number of short breaks till his services were terminated. The pertinent aspect is that the person had joined service as Typist-Clerk in temporary capacity and it was not the case of engagement of and any person as daily wager like in the present case. It is in those facts and circumstances of the case that the person had worked in service in temporary capacity, the observations were made by the Apex Court.
Thereby, it cannot be said that even if a person is engaged as daily wager, and he had worked for a particular number of days, while counting the total actual working, the weekly holidays are to be added. If such is considered, the very distinction of a person engaged on temporary basis and a person engaged as daily wager would be lost. In the case of an engagement of a person as daily wager, the person is to be paid calculating his wage on daily basis whereas in case of a person who is engaged on temporary post, he can be considered as an employee on monthly basis and his engagement can also be considered as on monthly basis.
It appears that in the case of Shihor Nagarpalika (supra), the aforesaid distinction about the status of the person as daily wager and the working by a person on a temporary post has not been considered. In our view, if a person is engaged as a daily wager, he cannot be put at par with the person who has been engaged or who has been worked on temporary basis for a particular span. It appears that in the decision of this Court in the case of Shihor Nagarpalika(supra), the correct effect of decision of the Apex Court and the distinction between the daily wager and the person engaged on temporary post has not been considered. Therefore, we find that the view taken in Shihor Nagarpalika (supra) by the learned Single Judge of this Court is not correct view. In the case of the daily wager, if one has to claim the benefit of section 25F of the Act, it will be required for him to prove that he had actually worked continuously for a period of 240 days and while counting 240 days, the weekly holidays which are available to the permanent employees or in a regular set up or to employee appointed on temporary post cannot be considered while computing 240 days. Same situation will prevail for exclusion of the public holidays in case of daily wager unlike the persons appointed on temporary basis.
Under the above circumstances, we find that the Labour Court has wrongly relied upon the aforesaid both the decisions and has wrongly added weekly holidays and public holidays for computing 240 days of service for the purpose of considering the question of breach of section 25F of the Act. It is true that the learned Single Judge in the impugned order could have considered the another decision of this Court in the case of Shihor Nagarpalika (supra), however, the learned counsel for the appellant has not been able to show before this Court that the aforesaid decision was brought to the notice of the learned Single Judge at the time when the petition was heard. In any event, when we find that the view taken by this Court in the case of Shihor Nagarpalika (supra) is not by correct interpretation and the effect of the decision of the Apex Court in the case of Workmen of American Express International Banking Corporation (supra), nothing much would turn on the merits of the present appeal since the workman concerned in the present case was appointed on daily wages as a daily rated workman.
If the aforesaid period of weekly holidays and public holidays are excluded in counting 240 days of service, it appears that even as per the finding recorded by the Labour Court, it would come to 215 days, which will be less than 240 days.
Under the circumstances, it can be said that the findings recorded by the Labour Court that the workman had completed 240 days was perverse to the record and the same could not be sustained.
As regards the alleged breach of sections 25G and 25H of the Act is concerned, it appears that the view taken by the learned Single Judge in the impugned order that if the person has not completed 240 days of service, there will not be any question of following the procedure under section 25G and 25H of the Act is not supported by the recent decision of the Apex Court in the case of Harjinder Singh Versus Punjab State Warehousing Corporation reported at 2010(3) SCC 192 (equivalent AIR 2010 SC 1116), but the matter does not end there. Even if the contention of the learned counsel is considered for the sake of examination on the aspect of alleged breach of sections 25G and 25H of the Act, it appears that the Labour Court has not accepted the contention of the appellant for the alleged breach of section 25G of the Act and therefore, such finding not being in favour of the appellant, it would not be open to the appellant to take the benefit of the alleged breach of section 25G of the Act. Even otherwise also, the award shows that as per the Labour Court, the workman did not discharge the burden of giving details satisfactorily of the juniors who were retained in service to claim the benefit of section 25G of the Act.
Concerning to the finding recorded by the Labour Court for the alleged breach of section 25H of the Act, we find that the approach of the Labour Court cannot be countenanced. The examination of the facts of the present case further shows that there was no evidence on record before the Labour Court by giving the names of the person who were offered employment after termination of the workman in question. Mere allegation that the employer had made new recruitment, in our view cannot be said to be a sufficient discharge of burden by the workman. It is required for the workman to state on oath with the details of the persons who have been offered employment by way of fresh recruitment or juniors to him. It is only after that burden is discharged by the workman, the burden would shift to the employer to disprove the said fact. There was no evidence before the Labour Court except the bare statement of the workman that after his termination new recruitment was made. Under these circumstances, we find that when the workman had not discharged the burden, which was required to be proved by him for taking benefit of section 25H of the Act, the finding recorded by the Labour Court could be said as perverse to the record of the case. Under the circumstances, the said part of the award cannot be sustained in the eye of law.
In view of the aforesaid observations for the alleged breach of section 25H of the Act, we find that even if the contention of the learned counsel for the appellant is considered and examined on merits, the same would not lead us to maintain the finding of the Labour Court of alleged breach of section 25H of the Act even if the matter is considered on the premise that for invoking the section 25H of the Act, it is not necessary that the workman concerned should have worked for 240 days in service. Hence we find that no useful purpose would be served in examining the said contention further on the aspects of approach of the learned Single Judge for the alleged breach of section 25H of the Act.
In view of the aforesaid, we find that when the Award passed by the Labour Court cannot be sustained in the eye of law, we need not disturb the ultimate conclusion recorded by the learned Single Judge for setting aside of the award and hence, no interference would be called for to the ultimate decision of the learned Single Judge for allowing of the petition.
Hence, the appeal is meritless. Therefore, dismissed.
(JAYANT PATEL, J.) (J.C.UPADHYAYA, J.) *bjoy Top