Gujarat High Court
State vs Indrakumar on 18 March, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/8426/2009 6/ 19 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8426 of 2009
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STATE
OF GUJARAT - Petitioner(s)
Versus
INDRAKUMAR
PHAKIRAJI BHIL - Respondent(s)
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Appearance
:
Ms.
Sachi Mathur, AGP for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1,
MR SP
MAJMUDAR for Respondent(s) : 1,
MR PP MAJMUDAR for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 18/03/2010
ORAL
ORDER
Heard learned AGP Ms. Mathur for petitioners and learned Advocate Mr. Majmudar for respondent. Petitioner is challenging award made by Labour Court, Palanpur in Reference No.357 of 1996 (Old) No. 1180 of 1992 dated 8.4.2008. Labour Court has partly allowed reference with direction to reinstate workman in service to his original post with continuity of service but without back wages of interim period.
Learned AGP Ms. Mathur has raised contention before this court that labour court has committed gross error in deciding reference and also in granting relief in favour of workman who has not completed 240 days continuous service and who was not permanent employee of petitioner and, therefore, interference of this court is required. She also submited that labour court has not properly appreciated evidence which was led before labour court and workman has not established completion of 240 days service before labour court within 12 months preceding date of termination. She submitted that there is no documentary evidence produced on record by workman and workman was working as daily wager and was given work as and when required by department. He was paid merely daily wage and he was not a permanent employee of petitioner. Petitioner establishment is not covered by definition of industry under section 2(j) of ID Act and nature of work of respondent was temporary on need basis and he was allowoed to work as and when work was available and, therefore, labour court ought not to have granted relief of reinstatement with benefit of continuity of service in view of delay in raising of an industrial dispute on the part of workman and, therefore, interference of this court is necessary in exercise of powers under Article 227 of Constitution of India.
Learned Advocate Mr.Majmudar has submited that statement of claim was filed by workman who was working in R&B Department, Gujarat Bhavan, Mount Abu as daily wager on the post of watchman and his service was terminated on 20.9.1991 but at the time of terminating his service, provisions of section 25F were not complied with by petitioner and, therefore, labour court has rightly granted relief of only reinstatement with continuity of service without back wages for interim period and, therefore, there is no substance in this petition and same is required to be dismissed.
I have considered submissions made by learned AGP Ms. Mathur. I have also perused impugned award passed by labour court. Contention of petitioner that petitioner establishment is not covered by definition of industry has been considered by labour court while considering that in Gujarat Bhavan where respondent was working as daily wager watchman, said Bhavan was having income by giving rooms on rent and systematic activities are being carried out and Division Bench of this Court has considered in case of PWD Employees Union versus State of Gujarat, 1987 (2) GLR 1070 that R&B Department/Irrigation Department is held to be industry covered by definition of industry under sec. 2(j) of ID Act. Division Bench of this Court has held that PWD Department is an industry relying upon apex court decision in case of Bangalore Water Supply reported in 1978-I-LLJ 349, and also decision of Division Bench of Orissa High Court in case of Executive Engineer, National Highway versus Industrial Tribunal, Bhuvaneshwar, 1995-I-LLJ page 470, R&B Department is not considered to be a wriggle function described as primary and unalianable function of State. Therefore, in light of facts of this case and decisions as referred to above, contention raised by learned AGP Ms.Mathur in that regard cannot be accepted and same is therefore rejected.
As regards contention raised by learned AGP Ms. Mathur that in view of delay, labour court ought not to have decided reference, Labour Court cannot examine legality and validity of order of reference because dispute has been referred to for adjudication to labour court to decide it but labour court cannot examine legality and validity of reference. Labour court is required to adjudicate reference on merits and dispute cannot be rejected by labour court on ground of delay alone. This view has been taken by apex court in case of Karan Singh v. M/s. Executive Engineer Haryana State Marketing Board, reported in 2007 AIR SCW 6293. Relevant observations made by apex court in para 8 to 14 are reproduced as under:
8. In the case of Management of Express Newspapers (Private) Ltd. v. The Workers and Ors. reported in (AIR 1963 SC 569) it has been held that the jurisdiction of the Tribunal in dealing with industrial disputes is limited to the points mentioned in Section 10(4).
9. In the case of National Engineering Industries Ltd. v. State of Rajasthan and Ors. (2000) 1 SCC 371) it has been held vide para 24 that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10. This is because existence of the industrial dispute is a jurisdictional fact. Absence of such jurisdictional fact results in the invalidation of the reference.
For example, even under the Income Tax Act, 1961 as it stood earlier, the Income Tax Officer must have reason to believe escapement of income. This "reason to believe" is a jurisdictional fact, therefore, writ petitions were maintainable in cases where the High found absence of basic facts for reopening the assessment. The industrial Tribunal under Section 10 gets its jurisdiction to decide an industrial dispute only upon a reference by the appropriate government. The Industrial Tribunal cannot invalidate the reference on the ground of delay. If the employer says that the workman has made a stale claim then the employer must challenge the reference by way of Writ petition and say that since the claim is belated, there was no industrial dispute. The Industrial Tribunal cannot strike down the reference on this ground. In the present case, the Industrial Tribunal has held that the employer has violated Section 25F. If so, the order of termination is bad in law. It has to be struck down. In the present case, it has been struck down. However, the Tribunal had refused to grant any relief on the ground of delay. The Tribunal has no authority to invalidate the reference, particularly when it has found that the order of termination violates Section 25F of the Industrial Disputes Act, 1947.
10. In Sapan Kumar Pandit v. U.P. State Electricity Board and Ors. (2001) 6 SCC 222), it has been held, vide para 15, as follows:
"There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. In this case, when the Government have chosen to refer the dispute for adjudication under Section 4-K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination."
11. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case.
12. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. (2000 (2) SCC
455) it was noted at paragraph 6 as follows:
"6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex-facie bad and incompetent."
13. In S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka (2003 (4) SCC 27) the position was reiterated as follows: (at para 17) "17.
It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in M/s. Shalimar Works Ltd. v. Their Workmen (supra) (AIR 1959 SC 1217), that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even reemployment of the most of the old workmen was held to be fatal in M/s. Shalimar Works Limited v. Their Workmen (supra) (AIR 1959 SC 1217), In Nedungadi Bank Ltd. v. K.P. Madhavankutty and others (supra) AIR 2000 SC 839, a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandra Sammanta and others v. Union of India and others (supra) (1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Employees Under P&T Department v. Union of India (supra) (AIR 1987 SC 2342), the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal cum-Labour Court. We do not think that the appellants deserve to be non suited on the ground of delay."
14. The above position was highlighted recently in Employers in relation to the Management of Sudamdih Colliery of M/s Bharat Coking Coal Ltd. v. Their Workmen represented by Rashtriya Colliery Mazdoor Sangh (2006 (1) Supreme 282) and Chief Engineer, Ranjit Sagar Dam & Anr. v. Sham Lal (2006(9) SCC 124).
In view of aforesaid observations made by apex court and also in view of decision of this Court in case of State of Gujarat versus Maniben Viraji and apex court decision in case of Irrigation Research Industrial and others versus Kirpalsinh, 2008 LLN page 96, wherein apex court has held that reference cannot be rejected by labour court on the ground of delayed approach but if there is delay in reference, it should be disposed of on merits, as considered by labour court, contentions raised by learned AGP Ms. Mathur before this Court about delay cannot be accepted and same are, therefore, rejected.
In respect to working days, respondent was appointed in 1989 as daily wager and his service has been terminated on 20.9.1991 and aspect of working days has been examined by labour court as per statement produced by petitioner Exh. 31 being statement of presence of workman discussed in paragraph 13 and looking to period March, 1990 to September, 1991 and from October, 1990 to September, 1991, as per presence statement produced by petitioner Exh. 31, workman has worked for 27 days in October 1990, 26 days in November, 1990, 26 days in December, 1990, 17 days in January, 1991, 24 days in February, 1991, 26 days in March, 1991 and 18 days in April, 1991, 12 days in June, 1991, 24 days in July 1991, 18 days in August, 1991 and 16 days in September, 1991, and 17 days in October, 1991 and total of these days comes to 251 days, therefore, within 12 months preceding date of termination, workman has completed 240 days continuous service on the basis of document at Exh. 31 and there was no evidence on record to show that petitioner has complied with section25F of ID Act, 1947. Therefore, once, workman has proved before labour court that he remained continue in service as required under section 25B sub section (1) and (2), then, mandatory provisions of section 25F of ID Act, 1947 must have to be complied with and if that has not been complied with, then, order of termination becomes void, ab initio and due to that, workman is entitled for normal relief of reinstatement in service as recently decided by Hon'ble Apex Court (Coram : Hon'ble Mr. Justice Harjit Singh Bedi and Hon'ble Mr. Justice A.K.Patnaik,JJ.) on 12th March, 2010 in case of Krishan Singh versus Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) in Civil Appeal NO. 2335 of 2010 (arising out of SLP (C) No. 11487 of 2009). Relevant observations made by apex court in para 4 to 12 of said decision are reproduced as under:
4.
Shri Shekhar Prit Jha, learned counsel for the appellant, submitted that the High Court has relied on the decisions of this Court in Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr. [(2008) 1 SCC 575] and Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr. [(2008) 4 SCC 261] for setting aside the Award of the Labour Court. He submitted that in Mahboob Deepak's case, the workman was removed for financial irregularities, but the appellant in the present case was not removed for financial irregularities. He submitted that Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr. (supra)was not a case of violation of Section 25F of the Act as in the present case. He submitted that the two decisions on which the High Court has relied upon to set aside the Award of the Labour Court therefore do not apply to the facts of the present case. He submitted that it is now well-settled that if pre-conditions for retrenchment of a workman who has worked for more than a year stipulated in Section 25F of the Act are not complied with, the termination of the service of the workman is illegal. He submitted that the Labour Court having found that these pre-conditions had not been complied with in the case had rightly directed re-instatement of the appellant with 50% back wages.
5. Shri Randhir Badhram, the learned counsel for the respondent, on the other hand, submitted that the High Court has rightly set aside the Award of the Labour Court relying on the decisions of this Court in Ghaziabad Development Authority and Another v. Ashok Kumar & Anr. (supra) and Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr. (supra). He also relied on Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. [(2006) 4 SCC 1] in support of his submission that this is not a fit case where the appellant could be regularized in service.
6. The only question that we have to decide in this case is whether the High Court was right in setting aside the Award dated 18.07.2006 of the Labour Court directing reinstatement of the appellant with 50% back wages and directing instead payment of compensation of Rs.50,000/- to the appellant. We find that the dispute that was referred to by the State Government under Section 10 of the Act to the Labour Court was: "whether the termination of the services of the appellant was justified and if not, to what relief he was entitled to?" As per the claim-statement filed by the appellant before the Labour Court, he was appointed by the respondent as a daily wager against a regular post on 01.06.1988 under the Junior Engineer at Meham and the appellant worked there for different periods until the respondent terminated his services in December, 1993 without any notice and without complying with the provisions of Section 25F of the Act. The respondent in its objections did not take a plea that the engagement of the appellant was either against a post which was not sanctioned or contrary to the statutory rules and admitted in the objections that the services of the appellant were engaged for different periods during 1988-1989, 1989-1990, 1990-1991 and 1992-1993. The respondent also furnished a statement of the works in which the appellant was engaged during the years 1988-1989 and 1989-1990, which was marked as Exb. MW-1. Taking into consideration Exb. MW-1, the Labour Court held that the appellant has completed 267 days from 1.6.1988 to 30.4.1989 and without any notice or notice pay and without retrenchment compensation. In the relief portion of the Award, the Labour Court held that as the services of the appellant had been terminated illegally, he was entitled to be re-instated in his previous post with continuity of service and 50% back wages from the date of demand notice, i.e. 31.12.1997.
7. In a recent judgment of this Court in Harjinder Singh v. Punjab State Warehousing Corporation [JT 2010 (1) SC 598], the Labour Court, Gurdaspur, by its Award directed re-instatement of the workman with 50% back wages, but the Award of the Labour Court was modified by a learned Single Judge of the Punjab and Haryana High Court in the writ petition and this Court has held that the order of the learned Single Judge of the High Court was liable to be set aside only on the ground that while interfering with the Award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution. Learned Brother G.S. Singhvi, J., in his opinion, has observed that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV of the Constitution including Articles 38, 39(a) to (e), 43 and 43A thereof. Learned Brother Asok Kumar Ganguly, J. agreeing with learned Brother G. S. Singhvi, J., has also observed that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it.
8. Section 11A of the Act clearly provides that where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. Wide discretion is, therefore, vested in the Labour Court while adjudicating an industrial dispute relating to discharge or dismissal of a workman and if the Labour Court has exercised its jurisdiction in the facts and circumstances of the case to direct re-instatement of a workman with 50% back wages taking into consideration the pleadings of the parties and the evidence on record, the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India will not interfere with the same, except on well-settled principles laid down by this Court for a writ of certiorari against an order passed by a Court or a Tribunal.
9. The High Court, however, has relied on the decision of this Court in Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr. (supra) and on reading of the aforesaid decision, we find that this Court in the aforesaid decision has mentioned the following factors, which are relevant for determining whether an award of re-instatement should or should not be passed:-
(i) whether in making the appointment, the statutory rules, if any, had complied with;
(ii) the period he had worked;
(iii) whether there existed any vacancy; and (iv)
whether he obtained some other employment on the date of termination or passing of the award."
This Court further held in the aforesaid decision that in the light of these principles the relief of re-instatement granted by the Labour Court in that case was wholly unsustainable and has accordingly directed payment of a sum of Rs.50,000/- by way of damages to the workman with interest at the rate of 9% per annum.
10. The High Court has also relied on the decision of this Court in Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr. (supra) and on reading of the aforesaid decision we find that the contention of the management before the Labour Court was that the post, in which the workman was working in that case, was not sanctioned after 31.03.1990 and this was not disputed by the workman and this Court held that if there did not exist any post, the Labour Court should not have directed re-instatement of the workman in service.
11. The aforesaid two decisions of this Court in Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr. (supra) and Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr. (supra) have no application to the facts in this case. In the present case, the respondent has not taken any stand before the Labour Court in his objections that the post in which the workman was working was not sanctioned or that his engagement was contrary to statutory rules or that he was employed elsewhere or that there was no vacancy. In the absence of any pleadings, evidence or findings on any of these aspects, the High Court should not have modified the Award of the Labour Court directing re-instatement of the appellant with 50% back wages and instead directed payment of compensation of Rs.50,000/- to the appellant.
12. The decision of this Court in Secretary, State ofKarnataka & Ors. v. Umadevi (3) & Ors. (supra) cited by the counsel for the respondent relates to regularization in public employment and has no relevance to an Award for re-instatement of a discharged workman passed by the Labour Court under Section 11A of the Act without any direction for regularization of his services.
[See : 2010(1) SCALE Harjinder Singh versus Punjab State Warehousing Ltd.; 2010-I-LLJ-348 (Mad) Ramesh S. & Ors. v/s. Commissioner of Labour, DMC Complex, Chennai 6 and others; 2010 AIR SCW page 542 in case of Director, Fisheries Terminal Division versus Bhikubhai Meghjibhai Chavda].
Therefore, in case when mandatory provisions of section 25F of ID Act are violated, in facts of present case, accordingly labour court has rightly granted relief of mere reinstatement with continuity of service considering delay in deciding of an industrial dispute of about more than fourteen years by denying back wages for whole interim period and, therefore, according to my opinion, award made by labour court is balanced award and, therefore, contentions raised by learned AGP Ms. Mathur cannot be accepted and same are therefore rejected as workman has completed 240 days continuous service in establishment of petitioner on the basis of Exh.31 filed by petitioner itself and also on the basis of evidence of witness for petitioner at Exh. 30. For that, according to my opinion, labour court has not committed any error warranting interference of this court in exercise of powers under Article 227 of Constitution of India. Therefore, there is no substance in this petition and same is required to be dismissed.
For reasons recorded above, this petition is dismissed with no order as to costs.
(H.K. Rathod,J.) Vyas Top