Gujarat High Court
Rajkot Municipal Corporation vs Darshan Badrayan Joshi on 27 June, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/792/2023 ORDER DATED: 27/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 792 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 13825 of 2008
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 792 of 2023
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RAJKOT MUNICIPAL CORPORATION
Versus
DARSHAN BADRAYAN JOSHI
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MR GAUTAM JOSHI, SR. ADVOCATE with MR VYOM H SHAH(9387)
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/06/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr. H.S.Munshaw for the appellant Rajkot Municipal Corporation and learned senior advocate Mr. Gautam Joshi with learned advocate Mr. Vyom Shah for the respondent.
2. The present Letters Patent Appeal is directed against the judgment and order of learned Single Judge dated 03.05.2023 passed in Special Civil Application whereby the petition filed by the appellant Corporation came to be dismissed.
2.1 What was challenged in the petition by the petitioner Corporation was the judgment and award Page 1 of 8 Downloaded on : Sat Sep 16 20:40:41 IST 2023 NEUTRAL CITATION C/LPA/792/2023 ORDER DATED: 27/06/2023 undefined dated 08.07.2008 of the Labour Court, Rajkot, his Reference (LCR) No.204/07 (Old No.275/98). Thereby the Labour Court held the action on part of the first party employer to terminate the services of the respondent workman to be illegal. It was directed to reinstate workman on the original post with continuity of service and 40% backwages.
2.2 Learned senior advocate for the respondent at the outset made statement that the respondent workman foregoes the backwages awarded by the Labour Court. The only aspect therefore left to be examined is about the legality of the directions of reinstatement of the workman with continuity given by the Labour Court which came to be confirmed by the learned Single Judge.
3. The respondent workman was working as Swimming Coach since March 1996 receiving last month pay of Rs.1,200/-. It was the case of the workman that his services came to be terminated with effect from 06.11.1997 without any notice or notice pay. It was the case that the termination was in breach of sections 25F as well as 25G and 25H of the Industrial Disputes Act.
3.1 On the other hand, in the reply to the Statement of Claim, the employer contended that the facts of the case of the workman would attract section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter Page 2 of 8 Downloaded on : Sat Sep 16 20:40:41 IST 2023 NEUTRAL CITATION C/LPA/792/2023 ORDER DATED: 27/06/2023 undefined referred to as 'the Act').
3.2 It appears that the appointment of the petitioner was pursuant to the advertisement given by the Corporation in the local newspaper for the post of Swimming Coach at the swimming pools run by the Corporation. It was a temporary appointment. The work of the respondent was to train the swimmers and teach them swimming.
4. The Labour Court examined the case of the workman in respect of breach of mandatory provisions of the Act in terminating his services with reference to the evidence before it. Before the Labour Court, witness at Exhibit 38 of the employer was examined. On the basis of the deposition and evidence of said witness, it was recorded by the Labour Court that at the time when the services of the respondent workman were terminated, his co-workmen were continued on work. It was also admitted that one of the workman working in the swimming pool section only was taken back after having been terminated in view of the availability of work.
4.1 It was the further say of the said witness in evidence that after dispensing with the services of the respondent workman, as many as 12 new workmen were taken on service after giving advertisement in the newspaper. It was also admitted that when new recruitment was made, the respondent workman was not Page 3 of 8 Downloaded on : Sat Sep 16 20:40:41 IST 2023 NEUTRAL CITATION C/LPA/792/2023 ORDER DATED: 27/06/2023 undefined called. It was also stated that the respondent workman worked continuously for 1 1/2 year in the cadre of Junior Clerk, Class-III.
4.2 The Labour Court found on the basis of the evidence that for the same work, the junior employees were retained and even further employees were recruited. Availability of work was clearly suggested and established. In that light, a clear finding was recorded by the Labour Court that there was breach of Section 25H and 25G of the Act. These provisions are mandatory in nature. Resultantly, the order dated 06.11.1997, terminating the services of the petitioner was held to be illegal and the reinstatement was directed by the Labour Court.
4.3 Learned Single Judge considered the controversy by observing in paragraph 6 thus, "6. In the present case, the evidence reveals that pursuant to the advertisement for the post of swimming coach, six candidates came to be selected and the respondent was at serial No.1. The witness of the respondent Corporation in his cross-examination has stated that except the respondent, all other five candidates who were selected as swimming coach, are working on the establishment of the Corporation since their appointment. It was further stated that one more candidate viz. Harshal Virendrabhai Dave was terminated along with the respondent and he was also taken back in service. Further, the evidence reveals that after the termination of the respondent workman, 12 new swimming coaches have been appointed after giving due advertisement and they are in service. It was Page 4 of 8 Downloaded on : Sat Sep 16 20:40:41 IST 2023 NEUTRAL CITATION C/LPA/792/2023 ORDER DATED: 27/06/2023 undefined also admitted that while selecting 12 new swimming coaches, the respondent workman was not called to join the service. In the present case, it is an admitted position that no notice, notice pay or any retrenchment compensation has been given to the respondent workman."
4.3.1 The contention about application of provisions of section 2(oo)(bb) of the Act was considered to observe, "7. Further, in respect of the contention of learned advocate for the petitioner that the provisions of Section 2(oo)(bb) would apply in the present case, it is seen from the evidence that the contract was initially for a period of six months, but thereafter, all the selected candidates have been continued permanently. In addition, 12 new posts of swimming coach came to be advertised and they have also been appointed on the establishment in the swimming pools run by the petitioner Corporation. In the present case, after the six months period, the petitioner had also been continued for 14 months thereafter without any new contract being executed. Even in the case of the other candidates selected along with respondent, no new contract is placed on record. Therefore, it has to be assumed that like in cases of other candidates selected along with the respondent herein, the appointment was continuous and permanent. No error has been pointed out in the findings recorded by the learned Labour Court. The findings are based on cogent evidence brought on record. The learned Labour Court has properly appreciated the evidence and come to the appropriate conclusion. In view thereof, no interference is called for in the impugned judgment and award."
4.4 Learned Single Judge held that findings recorded Page 5 of 8 Downloaded on : Sat Sep 16 20:40:41 IST 2023 NEUTRAL CITATION C/LPA/792/2023 ORDER DATED: 27/06/2023 undefined by the Labour Court were after appreciation of evidence and the violation of sections 25F, 25G and 25H of the Industrial Disputes Act were established. Learned Single Judge noted that in view of such situation of facts and in law obtaining, normally rule of reinstatement with continuity of service would apply.
5. Upon closely examining the facts and findings recorded by the Labour Court, it clearly emerges that at the point of time when the services of the respondent were terminated, there was availability of work. Not only that, the junior employees were working and they were retained. The perpetuating aspect is that a similarly situated workman in the same department whose services were terminated was brought back into service.
5.1 It was not to end there. The employer published advertisement and made recruitment of 12 swimming trainers, which was the post held by the respondent workman. These findings, which are in nature of findings of fact, could have said to be unequivocally established the breach of section 25F and 25H of the Act.
5.2 Once there is a clear breach on facts and evidence, of section 25 of the Act, reinstatement is to be a relief to be granted as matter of course. sections 25F, 25G and 25 H are mandatory for Page 6 of 8 Downloaded on : Sat Sep 16 20:40:41 IST 2023 NEUTRAL CITATION C/LPA/792/2023 ORDER DATED: 27/06/2023 undefined compliance and have mandatory effect. While the principle may be applied in some cases given the attendant facts of such case that termination of daily wage worker is found illegal on account of violation of section 25F of the Act, in such cases, the reinstatement with backwages may be substituted with relief of giving monetary compensation. However, when breach of section 25F is clear and there is no perversity and no unreasonableness in recording such finding by the Labour Court, it is difficult to say that the workman could be denied relief of reinstatement, and instead may be given monetary compensation.
5.3 Adverting by the Court to the relief of payment of monetary compensation in lieu of reinstatement in all cases and adopting such course as a matter of rule was taken exception to by the Supreme Court in Jeetubhai Khansangji Jadeja vs. Kutchh District Panchayat [2022 SCC Online SC 1284]. In that case, the Division Bench of the High Court, which considered the matter, noticed the findings of learned Single Judge that workman junior to the appellant was retained in service even after the termination of service of the workman, still however, the Division Bench set aside the direction to reinstate the appellant workman and awarded lumpsum compensation of Rs. 1 lakh.
6. In the present case, in view of clear breach of Page 7 of 8 Downloaded on : Sat Sep 16 20:40:41 IST 2023 NEUTRAL CITATION C/LPA/792/2023 ORDER DATED: 27/06/2023 undefined section 25 and other mandatory provisions, as having been established and in view of the law laid down by the Apex Court in Jeetubha Khansangji Jadeja (supra), this Court does not see any illegality in the award of reinstatement of the workman and confirmation by learned Single Judge of the said Order.
6.1 The findings recorded by learned Single Judge about breach of section 25F and other mandatory provisions of Industrial Disputes Act were based on clear evidence and were eminently proper. No interference is required. The challenge thereto fails.
7. The appeal is dismissed as meritless.
Civil Application would not survive in view of the disposal of the appeal. Civil Application is disposed of.
(N.V.ANJARIA, J) (J. C. DOSHI,J) BIJOY B. PILLAI Page 8 of 8 Downloaded on : Sat Sep 16 20:40:41 IST 2023