Gujarat High Court
Dy. Executive Engineer vs Prafulbhai Virabhai Virda on 18 January, 2008
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard learned Advocate Ms. Gadhvi for the applicant original petitioner and Mr. UT Mishra for the opponent workman in this civil application for restoration of the main matter which has been dismissed by this Court for default by order dated 5.12.2007.
2. Considering the submissions made by both the learned advocates and also considering the averments made in this application, order of this Court dated 5.12.2007 dismissing Special Civil Application No. 28800 of 2007 for default is hereby recalled. Said petition is hereby restored on the files of this Court. Said Miscellaneous Civil Application is disposed of with these directions.
3. Today, this Court has taken up Special Civil Application No. 28800 of 2007 which is restored by this Court today in view of the orders passed by this Court in Miscellaneous Civil Application No. 67 of 2008. Therefore, with consent of both the learned advocates, matter is taken up for hearing on admission.
4. Through this petition under Article 227 of the Constitution of India, the petitioner Gujarat Water and Sewerage Board is challenging award made by the labour court, Rajkot in Reference No. 47 of 1998 dated 22nd March, 2006 wherein the labour court has granted reinstatement of the respondent workman with continuity of service without back wages for interim period. Learned Advocate Ms. Gadhvi for the petitioner has submitted that the respondent was appointed as daily wager and not appointed in accordance with the Recruitment Rules and, therefore, he is not entitled for the benefit of Section 25F of the Industrial Disputes Act, 1947. In support of this submission, she placed reliance upon the decision of Division Bench of this Court in case of Halvad Nagarpalika v. Jani Dipakbhai Chandravadanbhai reported in 2003 (4) GLR 3229 : 2003 (4) GHJ 397 [in Letters Patent Appeal No. 1202 of 2003 dated May 5, 2003]. She relied upon para 12 of the said judgment which is reproduced as under:
12. Mr. Vyas has further relied on the decision of the Hon'ble Supreme Court in the case of Himanshu v. State of Bihar and Ors. , wherein the main grievance of the petitioners was that termination of the services was in violation of Section 25F of the Industrial Disputes Act, 1947. The Hon'ble Supreme Court has observed that the persons, whose services were terminated, were not appointed to the posts in accordance with the rules, but were engaged on the basis of need of work. They were temporary employees working on daily wages and in those circumstances, their disengagement from service could not be construed to be a retrenchment under the Industrial Disputes Act. It was further held by the Hon'ble Supreme Court that the concept of retrenchment, therefore, cannot be stretched to such an extent as to cover the said employees. While negativing the contention of the petitioners in that case that the termination of their services was arbitrary, the Hon'ble Supreme Court has held that they were only daily wage employees and had no right to the posts and hence, their disengagement was not arbitrary.
5. According to her submission, apex court, in the mater of Himanshu v. State of Bihar 1997 (4) SCC 391, has taken view that the daily wagers those who are appointed de-hors the rules are not entitled for the benefit of Section 25F of the ID Act, 1947 and therefore, labour court has committed gross error in granting relief to the present respondent who was daily wager. It is made clear that she is not disputing continuity of service of the respondent workman of 240 days in the year 1995 as discussed by the labour court at page 22 internal page 6. She is not disputing that at the time of terminating services of the respondent workman, Section 25F of the ID Act, 1947 has not been complied with by the petitioner. Therefore, now, the only legal contention to be examined by this Court, as raised by learned advocate Ms. Gadhvi is that the respondent is a daily wager appointed de-hors the recruitment rules and, therefore, not entitled for benefit of Section 25F of the ID Act, 1947 which has been wrongly granted by the labour court and on that basis, termination has been set aside by the labour court and that is the basic error committed by the labour court having decision contrary to the apex court decision as referred above. Therefore, this Court has to examine as to whether the labour court has committed such error as alleged by the learned advocate Ms. Gadhvi or not. This Court is not examining the other contentions except the one recorded above as raised by Ms. Gadhvi. Except the said legal contention, no other contentions were raised by her and no other decisions were cited by Ms. Gadhvi before this Court.
6. On the other hand, learned Advocate Mr. Mishra appearing for the respondent workman has submitted that no such contention was raised by the petitioner before the labour court that the daily wagers are not entitled for the protection of Section 25F of the ID Act, 1947 and such contention was raised by the petitioner before this Court for the first time. As per his submission, as such contention was not raised by petitioner before the labour court, labour court could not give finding on that contention and, therefore, such contention cannot be entertained by this Court. As per his submission, daily wagers are covered by the definition of 'workman' under Section 2(s) of the ID Act, 1947. He also submitted that if the daily wagers are satisfying the definition of workman and if the workman has worked for one year , then, such workman is entitled for benefit of Section 25F of the ID Act, 1947. He submits that in statutory provision, there is no distinction made by the legislature and, therefore, respondent is entitled for the benefit of Section 25F of the ID Act though he was engaged as daily wager de-hors the recruitment rules. He submits that 240 days continuous service of the respondent workman has been proved on the basis of the documents produced by the petitioner. He submits that preceding 12 months continuous service from the date of termination from February, 1995 to January, 1996, if it is calculated, it also proves 240 days continuous service within the meaning of Section 25B(1) and (2) of the ID Act, 1947 and that was being satisfied by the workman Section 25F of the ID Act, 1947 was not complied with by the employer and, therefore, labour court was right in granting relief in favour of the respondent workman and in doing so, labour court has not committed any error. He submits that the labour court has taken care while granting relief and no back wages has been granted by the labour court and, therefore, there is no financial burden upon the petitioner. He also submits that the juniors were continued in service while terminating service of the respondent and therefore, petitioner has also violated Section 25G of the ID Act, 1947. He also submits that the service of the respondent was terminated in the year 1996. He was appointed on 7th February, 1994 and his services were terminated on 1st February, 1996 and, therefore, as per his submission, award made by the labour court is balanced award after considering all the legal aspects and, therefore, does not warrant any interference of this Court in exercise of the extra ordinary powers of this Court under Article 227 of the Constitution of India.
7. No doubt the contention has been raised by the petitioner before this Court for the first time that the workman was appointed de hors the recruitment rules as daily wager and, therefore, not entitled for benefit of Section 25F of the ID Act, 1947. However, this Court is entertaining the said contention just to clarify legal position. In Ratan Singh v. Union of India and Anr. , it has been observed by the apex court that Section 25F and 25B of the ID Act, 1947 are applicable to termination of even a daily rated workmen who had continuously worked for requisite statutory minimum period in a year. Termination of services of such workman without compliance with the provisions of Section 25F of the ID Act, 1947 has been held to be illegal by the apex court. Relevant discussion made by the apex court in para 3 of the said judgment is reproduced as under:
3. We find merit in the said submission of Shri Ashri. From the dates mentioned in the judgment of the first appellate court dated 22.1.1985, it appears that the appellant had continuously worked for more than 240 days in a year. Since he was a workman, he was entitled to the protection of Section 25F of the Act and the said protection could not be denied to him on the ground that he was a daily rated worker. It is not the case of the respondents that the provisions of Section 25F of the Act were complied with while terminating the services of the appellants. In these circumstances, the termination of services of the appellant cannot be upheld and has to be set aside. The services of the appellant were terminated in the year 1976. Nearly 20 years have elapsed since then. In these circumstances, we are not inclined to direct reinstatement of the appellant. But having regard to the facts and circumstances of the case, we direct that a consolidated sum of Rs. 25,000 be paid to the appellant in lieu of compensation for back wages as well as reinstatement. This amount is being paid in full and final settlement of all the claims of the appellant. The said amount shall be paid within two months. The appeal is disposed of accordingly. No costs.
8. Therefore, considering the aforesaid decision of this Court in case of Ratan Singh, I have also considered the decision relied upon by Ms. Gadhvi in case of Himanshu (supra). Distinguishing feature between two decisions though on one and same subject is relevant and, therefore, this Court is examining it. In case of Himanshukumar Vidyarthi (supra), the apex court has observed every department of the Government cannot be treated to be industry, when the appellants are regulated by statutory rules. It was observed in that case by the Hon'ble Supreme Court that they were temporary employees working on daily wages and in those circumstances, their disengagement from service could not be construed to be a retrenchment under the Industrial Disputes Act and, therefore, concept of retrenchment cannot be stretched to such an extent as to cover the said employees. The workman in that case was appointed on daily wages as assistant driver and peon in Cooperative and Training Institute under the State Government wherein his service was terminated, therefore, it was considered by the apex court that every department of the Government cannot be considered to be an industry and in light of that back ground, as the Cooperative and Training Institute was under the State Government, said view has been taken by the apex court based on the particular facts of that case but in case of Ratan Singh v. Union of India and Anr. , he was employed as a workman in telephone department Sub Division Kurukshetra on daily wage basis. So, Telephone Department is covered by the definition of 'industry' as has been held by the apex court in Telecom Department case, therefore, facts of both the cases are altogether different and facts of Himanshu Vidyarthi are not applicable to the facts of the present case and in light of the facts of the present case, decision in case of Ratan Singh's case almost similar to the facts of the present case because telephone department is covered by the definition of industry under Section 2(j) of the ID Act, 1947 and in case of Himanshu Vidyarathi, it was held that the department of the Government in that case cannot be considered to be industry within the meaning of Section 2(j) of the ID Act, 1947 and, therefore, according to my opinion, decision in case of Himanshu Vidyarthi (supra) relied upon by Ms. Gadhvi is not helpful to the petitioner and in view of the peculiar facts of the present case and therefore, contention raised by learned Advocate Ms. Gadhvi is rejected.
9. Definition of workman given under Section 2(s) of the ID Act, 1947 has not made any distinction whether it covers only full time and permanent employee and not covering daily wager. Full Bench of this Court has decided that the part time employees are also covered by the definition of workman under Section 2(s) of the ID Act, 1947 as per the decision in Tourism Corporation of Gujarat Ltd. v. Kalu Velji Jethwa reported in 2007 (3) GLH page 711. Similarly, daily wager is also covered in the definition as there is no distinction made in the section. In the matter of Himanshu Vidyarthi (supra), apex court has considered two aspects, one is the Government department and second is statutory rules under Article 309 of the Constitution of India which were there in case of Himanshu Vidyarthi. Both these things are not there in the case before hand because petitioner board is an industry within the meaning of Section 2(j) of the ID Act, 1947. Petitioner Board is not a part of the State Government Department or considered to be a State Government Department. Petitioner Board is not having statutory regulations or service rules under Article 309 of the Constitution of India. Therefore, factually, case of Himanshu Vidyarthi is distinguished, looking to the facts of the present case and also the facts of the case of Ratan Singh (supra). In General Manager, Telecom v. S. Srinivasan Rao and Ors. reported in 1997 (2) GLH 990, full bench of the Hon'ble Supreme Court has held that the Telecom Department is an industry relying upon the apex court decision in Bangalore Water Supply & Sewerage Board v. A. Rajappa and Ors. . It was held in the said decision as under:
Industrial Disputes Act, 1947--Section 2(j) - "Industry" - Telecom Department "Dominant nature test as laid down in Bangalore Water Supply case _ a binding precedent--In view of the tests laid down--Telecom Department is an "industry".
10. Badli Workmen are also covered by the definition of Section 2(s) of the ID Act, 1947. View to that effect has been taken by MP High Court in reported decision 1998 (80) FLR page 54 in the matter of MP Text Book Corporation v. Krishna Kant Panchali; AP High Court in Dena Bank Employees Union v. Industrial Tribunal, AP Hyderabad reported in 2004 LLR 1157; MCD and Praveen Kumar Jain and Ors. reported in 1998-II-LLJ 674; Rajiben Prabhatbhai v. Executive Engineer, Una Irrigtaion Project Division reported in 1998-II-GLH (UJ) 16; Samistha Dube v. City Board, Etawah and Anr. 1999 AIR SCW 694 : 1999 Lab IC 1124; Kirloskar Clummins Ltd. v. Subhash Shripati Darekar and Ors. Reported in 1997 I CLR 868; in the matter of Executive Engineer Garhwal Jal Sansthan v. Chhotey Singh and Anr. reported in 2000 (85) FLR 909 Allahabad; in the matter of State of UP and Anr. v. Rajendra Singh Butola and Ors. Reported in 2000 (84) FLR 896 and Management of MCD v. Prem Chand Gupta and Anr. reported in 2000 Lab IC 250. These are the decisions wherein it has been examined as to whether daily wagers/badli workmen including part timers are covered by the workmen or not and it has been held that the daily wagers/badli workmen including part timers are workmen as defined under Section 2(s) of the ID Act, 1947. Therefore, contention raised by learned Advocate Ms. Gadhvi cannot be accepted and same is, therefore, rejected.
11. Recently, Andhra Pradesh High Court had an occasion to consider the decision of apex court in case of Himanshu Vidyarthi (supra) in case of termination of daily wager employee as NMR Sweeper and the decision of the apex court in the matter of Himanshu Vidyarthi (supra) has been distinguished by the Andhra Pradesh High Court in the matter of Venkateshwarlu K. And State of Andhra Pradesh, reported in 2008-I-LLJ AP page 187. It has been observed in para 3,4,5 as under:
3. Before the Labour Court, on his behalf, petitioner examined himself as WW 1 and got marked Exhibits W1 and W2. On behalf of the Management, none was examined; however, Exhibits M1 and M2 were got marked. After a detailed consideration of both oral and documentary evidence, though the Labour Court gave a finding that the petitioner had put in more than 240 days continuous service in a calendar year preceding the date of his termination, in view of the judgment of the Supreme Court in Himanshu Kumar Vidyarthi v. State of Bihar , held that disengagement from service of a daily wage worker not appointed according to rules cannot be construed as retrenchment under the Act.
4. Thus, the only question that arises for consideration is whether the termination of services of the petitioner amounts to retrenchment and is entitled for the benefit of the provisions of Section 25F of the Act or not?
5. Learned Counsel for the petitioner relied upon a Constitution Bench judgment of the Supreme Court reported in Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, Chandigarh , wherein, applying various tests, principles and precedents to the definition in Section 2(oo) of the Act, held that the expression 'retrenchment' means termination by the employer of the services of a workman for any reason whatsoever except those expressly excluded in the Section and invited attention of the Court to paragraphs 80, 81 and 82, which read as under at p.95 of LLJ:
80. The definition in Section 2 of the Act are to be taken 'unless there is anything repugnant in the subject or context'. The contexual interpretation has not been ruled out. In RBI v. Peerless General Finance AIR 1987 SC 1023, O. Chinnappa Reddy J. Said : "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then Section by Section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each Section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and the reasons for it that the Court construed the expression "Prize Chit-Win Srinivasa and we find no reason to depart from the Court's Construction.
81. As we have mentioned, industrial and labour legislation involves social and labour policy. Often they are passed inconformity with the resolutions of the International Labour Organization. In Duport Steels v. Sirs (1980) 1 WLR 142, the House of Lords observed that there was a difference between applying the law and making it and that Judges ought to avoid becoming involved in the controversial social issues, since this might affect their reputation in impartiality. LORD DIPLOCK said:
A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may in actual operation turn out to have injurious consequences that Parliament did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them.... But if this be the case it is for the Parliament, not for the Judiciary to decide whether any changes should be made to the law as stated in the Acts....
82. Applying the above reasonings, principles and precedents, to the definition in Section 2(oo) of the Act, we hold that 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section.
Further, learned Counsel for the petitioner submitted that in the judgment reported in Himanshu Kumar Vidyarthi's case (supra) the question that arose for consideration of the Court was whether the termination of services of the petitioners therein cannot be said to have been retrenchment within the meaning of Section 2(oo) of the Act. While examining the case, the Apex Court found that the petitioners therein were the employees of the Government department governed by statutory rules (made under Article 309 of the Constitution of India) threefore every department of the Government cannot be treated as an industry and the concept of industry to that extent stand excluded when the services of the employees of such department are governed by statutory rules. It was also noticed by the Apex Court that the petitioners therein were not appointed to the post in accordance with rules, but were engaged on the basis of need of the work and they were temporary employees working on daily wage basis. Under those circumstances, their disengagement from service was held to be 'not a retrenchment' within the meaning of Section 25F of the Act. This judgment could not have been taken into consideration and applied by the Labour Court to the facts of this case. In the present case, there is no dispute that the Municipality of Paloncha, Khammam District is an industry within the meaning of the Act and the petitioner was not governed by any rules made under Article 309 of the Constitution. Therefore, the said judgment has no relevance to the facts of this case.
12. Thereafter, in para 10 of the said judgment, it has further been observed as under:
10. The Constitution Bench of the Apex Court in Punjab Land Development and Reclamation Corporation Limited's case (supra) has elaborately dealt with the scope and connotation of the expression 'retrenchment' and held that the expression 'retrenchment' and held that the expression 'retrenchment' means termination of the services of a workman for any reason whatsoever other than those expressly excluded in the definition in Section 2(oo) of the Act and the expression retrenchment does not mean termination by the employer of the services of the surplus labour for any reason whatsoever. The expression retrenchment is not to be understood in its narrow, natural and contextual meaning, but is to be understood in its wider literal meaning to mean termination of service of workman for any reason whatsoever. Apart from that in so far as the case on hand is concerned, it is not the case of the respondent workman that the petitioner herein is governed by any statutory rules made under Article 309 of the Constitution of India. Admittedly, petitioner was appointed as NMR/daily wage employee and worked for more than 240 days continuously in the calendar year preceding the date of his termination and his services were [terminated/retrenched without following the mandatory provisions of Section 25F of the Act. Therefore, it cannot be said that the services of the petitioner were not retrenched/terminated and as such, there is no violation of provisions of Section 25F of the Act by the Management. The decision in Punjab Land Development and Reclamation Corporation Limited's case (supra), is squarely applicable to the case on hand. The judgment relied upon by the respondent Management in Himanshu Kumar Vidyarthi's case (supra) has no application to the facts of this case. That was a case where a daily wage employee/temporary employee whose services are governed by statutory rules when his services were terminated, claimed that the department had violated the provisions of Section 25F of the Act and the termination of his services amounted to retrenchment. This is not one such case. Admittedly petitioner herein was appointed as NMR/daily wage employee and the Municipality is an industry within the meaning of Section 2(j) of the Act and the service condition of the petitioner were not governed by any statutory rules made under Article 309 of the Constitution of India. Further, it was not a department of the Government, may be a local body/instrumentality of the State/Therefore, I am of the view that the Labour Court has grossly erred in dismissing the claim petition filed by the workman under Section 2-A(2) of the Act on a wrong premise. As such, the impugned Award is liable to be set aside and is accordingly set aside. ID No. 153/1994 on the file of Industrial Tribunal cum Labour Court, Warangal shall stand allowed and the respondent Management is directed to reinstate the petitioner workman with continuity of service and full back wages from the date of filing of the claim petition till the date of reinstatement. Respondents shall reinstate the petitioner within a period of four weeks from the date of receipt of copy of this order.
13. If Section 25F of the ID Act, 1947 has been violated, then, violation thereof would render termination as bad as recently decided by the Delhi High Court in the matter of Workmen ITPO v. Management ITPO reported in 2008-I-LLJ 205. Therefore, contention raised by Ms. Gadhvi cannot be accepted and same is, therefore, rejected. In the case before hand, it is not the case of the petitioner that it has ever complied with Section 25F of the ID Act, 1947 before effecting termination of the respondent herein but the petitioner before this Court is contending that the respondent workman is not entitled for protection of Section 25F of the ID Act, 1947 as he is daily wager and, therefore, petitioner is not obliged to comply with Section 25F of the ID Act, 1947. As the said contention of the petitioner has been rejected by this Court, the action would be rendered bad as violative of Section 25F of the ID Act, 1947.
14. Therefore, in view of the above discussion, Labour Court has rightly examined the matter and has rightly appreciated oral and documentary evidence produced by the parties before it and the reasons assigned and the conclusions drawn by the labour court are cogent and convincing requiring no interference of this Court in exercise of the powers under Article 227 of this Court. Learned Advocate Ms. Gadhvi has not been able to point out any infirmity in the award in question. She has also not been able to point out any irregularity and/or jurisdictional error in the award in question. Therefore, this petition is required to be dismissed.
15. As regards the decision of the Division Bench of this Court in the matter of Halvad Nagarpalika v. Jani Dipakbhai Chandravadanbhai reported in 2003 (4) GLR 3229 relied upon by the learned Advocate Ms.Gadhvi before this Court, same is not applicable in the facts of this Court as same is based upon the decision of the apex court in Himanshu Kumar Vidyarthi's case which too is not applicable to the peculiar facts of this case.
16. The Delhi High Court in case of Sushila Sharma v. Pawan Sharma reported in 2007 II LLJ 865 has considered the power of judicial review of the High Court. Relevant observations are made in Para. 11 and 12 which are quoted as under:
11. The settled position of law in respect of interference by the writ courts under Article 226 of the Constitution of India in matters of this nature is that a writ court exercises its powers of judicial review well within certain parameters. A series of judgments have been rendered by the Supreme Court in this context, as mentioned below:
(i) Sadhu Ram v. Delhi Transport Corporation Learned AGP Mrs. Pathak requests for some time. Therefore, matter is adjourned to 3.12.2007. Ad-interim relief granted earlier to continue till then 1984 Learned advocate Mr. ...has filed leave note/sick note. Therefore, matter is adjourned to 24.7.2007. 1967.
(ii) Harbans Lal v. Jag Mohan .
(iii) Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors. 1988 (supp.) SCC 768.
(iv) Ramniklal N. Butta and Anr. v. State of Maharashtra and Ors. .
(v) Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Anr. Learned AGP Mrs. Pathak requests for some time. Therefore, matter is adjourned to 3.12.2007. Ad-interim relief granted earlier to continue till then.
2000 Learned advocate Mr. ...has filed leave note/sick note. Therefore, matter is adjourned to 24.7.2007. 1508.
(vi) Master Marine Services (P) Ltd. v. Metcalfe and Hodgkinson (P) Ltd. and Anr. .
All the above judgments, if read collectively, clearly indicate that the High Courts should not interfere with the awards of the Industrial Tribunal or the Labour Court on mere technicalities. Interference is permissible only if the order of the Subordinate Court suffers from an error of jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Reappraisal of evidence without sufficient reason in law to arrive at a finding of fact contrary to those arrived at by the Subordinate Court is not the intent of exercising judicial review. It is only in cases where overwhelming public interest requires interference and cases of the nature where there is an error of jurisdiction or law as referred to herein above, should the court interfere, particularly in view of the fact that the object of enacting Industrial Disputes Act and of making a provision therein to refer disputes to tribunals for settlement, is to bring about industrial peace and in all such cases, an attempt should be made by the courts in exercise of their powers of judicial review, to sustain as far as possible, the awards made by the Industrial Tribunals and Labour Courts, instead of picking holes in the awards on rival points and frustrating the entire adjudication process.
17. Therefore, in view of the above discussion, there is no substance in this petition and the same are therefore liable to be dismissed. Accordingly, the petition is dismissed.