Gujarat High Court
Jagdish Laxman Vaghela vs Chief District Health Officer on 30 July, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/18373/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18373 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18374 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18406 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18807 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18810 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
JAGDISH LAXMAN VAGHELA
Versus
CHIEF DISTRICT HEALTH OFFICER
Appearance:
MR VISHAL B MEHTA(5319) for the PETITIONER(s) No. 1
MR KRUTIK PANDYA AGP for the RESPONDENT(s) No. 1-2 (SCA
Nos.18373/2016 & 18374/2016).
MS RITU GURU AGP for the RESPONDENT(s) No. 1-2 (SCA
Nos.18406/2016, 18807/2016 & 18810/2016).
RULE SERVED(64) for the RESPONDENT(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 30/07/2018
ORAL JUDGMENT
Page 1 C/SCA/18373/2016 JUDGMENT In this group of petitions, almost similar awards passed by learned Labour Court in five separate reference cases (against same opponents/employer) are challenged by original - concerned workmen. By impugned awards, learned Labour Court at Junagadh directed the opponent Chief District Health Officer (Civil Hospital), Junagadh to reinstate the claimants on their original post with continuity of service, however, without backwages.
2. So far as factual background is concerned, it has emerged from the record that five persons raised industrial dispute with allegation that they were employed as daily wagers by the opponent civil hospital and that they were working regularly and continuously since the time of their appointment, however, the opponent employer illegally terminated their service. 2.1 Appropriate government referred the dispute for adjudication to learned Labour Court at Page 2 C/SCA/18373/2016 JUDGMENT Junagadh. The learned Labour Court registered the dispute as Reference (T) Nos. 16 of 2006, 20 of 2006, 18 of 2006, 17 of 2006 and 8 of 2006. 2.2 The claimants filed almost similar and identical statements of claim wherein they alleged that they were working as daily wagers with the opponent civil hospital and that they were working regularly and continuously since their appointment, however, without any fault on their part, the employer terminated their service without granting any opportunity of hearing, without informing the cause for termination and without following prescribed procedure. The claimants also claimed that they had worked regularly and continuously and served for more than 240 days in a year, however, without following procedure prescribed under Section 25F or Section 25G or Section 25H, their service came to be terminated in September 2005. All the claimants alleged that their service came to be terminated on 30.9.2005 and that they had served Page 3 C/SCA/18373/2016 JUDGMENT a notice in November 2005 and demanded that they should be reinstated, however, the opponent employer did not accept their demands and that therefore, they raised industrial dispute. With said allegations, the claimants demanded that they should be reinstated in service with all benefits.
2.3 The opponent employer opposed the references. The Chief District Health Officer filed reply and denied the allegations. The opponent employer claimed that the claimants were engaged on daily wage and adhoc basis for limited period and for part time work. The opponent also claimed that the claimants were engaged by means of appointment order for 29 days and the claimants worked intermittently whenever they were called / whenever need for additional employee arose. It was also claimed that there was no vacancy on the establishment and any procedure prescribed by law for selection and recruitment was not followed. The opponent also claimed that the claimants Page 4 C/SCA/18373/2016 JUDGMENT worked for about 4 hours (part time) for casual and miscellaneous work and that therefore, in absence of any vacancy on regular establishment and in view of nonavailability of permanent post, the demand of the claimants is unjustified and not sustainable. The opponent also claimed that since the claimants were engaged for limited period and for part time work, their engagement came to end on expiry of the period mentioned in the order and that therefore, the references should not be entertained. With said submissions, the opponent employer submitted that the reference should be rejected.
2.4 The learned Labour Court, upon completion of pleadings by both sides, received evidence from the claimants and the opponent employer. So far as claimants are concerned, their deposition was recorded. On behalf of the opponent employer, deposition of Mr. G.T.Dayalu and Mr. T.J.Solanki were recorded. The opponent employer also placed on record copies of wage register and attendance Page 5 C/SCA/18373/2016 JUDGMENT register. When the contesting parties closed their respective evidence, the learned Labour Court heard rival submissions and thereafter, the learned Labour Court passed impugned awards with above mentioned directions.
2.5 The workmen (original claimants) are aggrieved by the awards so far as the learned Labour Court has refused to grant backwages though reinstatement with continuity of service is granted. Hence, present petitions.
3. Learned advocate for the petitioners submitted that on the basis of evidence available on record, the learned Labour Court has reached to the finding that the service of the claimants were terminated illegally and without following procedure prescribed by law. He further submitted that having reached such finding of fact and upon being satisfied that the termination was effected in illegal manner, the learned Labour Court directed the opponent employer to reinstate the Page 6 C/SCA/18373/2016 JUDGMENT claimants. The learned Labour Court also granted further relief viz. continuity of service, however, without any justification and only on the assumption that during interregnum, the workmen would have earned income, learned Court arbitrarily denied the claim for backwages and that therefore, the awards, to that extent, are bad and the respondents should be directed to pay backwages for the interregnum. He submitted that when all facts and findings are in favour of claimants, the denial of backwages is unjust and arbitrary.
3.1 The demand and contentions by the petitioners are opposed by learned AGP. He submitted that the learned Labour Court has not committed any error in denying backwages. It is claimed that the workmen were engaged for part time work on adhoc and temporary basis for limited period and that therefore, the demand for backwages is unjustified.
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4. I have considered rival submissions and material available on record as well as the impugned awards and the findings and conclusion as well as reasons recorded by learned Labour Court.
5. At the outset, it is relevant and appropriate to mention that from the record, it has emerged that present respondents i.e. original opponent - employer before learned Labour Court (Chief District Health Officer, Civil Hospital, Junagadh) had challenged very same awards (which are challenged in present petitions) passed by learned Labour Court. The opponent employer had filed Special Civil Application No.2745 of 2017 against workman (who is the petitioners and concerned workmen) in Special Civil Application No.18807 of 2016 and Special Civil Application No.18810 of 2016 (i.e. workmen concerned in Reference (T) Nos.16 of 2006 and 8 of 2006). The opponent employer felt aggrieved with that part of award whereby the Court directed reinstatement Page 8 C/SCA/18373/2016 JUDGMENT of the claimants with continuity of service. In the said petitions filed by the opponent employer, very same award i.e. award dated 8.3.2016 in above referred two reference cases came to be challenged to the extent the award grants relief in form of reinstatement with continuity of service.
5.1 The Court heard the said petitions and dismissed the said petitions. Vide order dated 16.2.2017 in Special Civil Application No.2646 of 2017, the petition came to be dismissed. The said order reads thus: "The petitioner has challenged the award dated 8.3.2016 passed by the Labour Court, Junagadh, awarding reinstatement in service to the workman without backwages but with continuity of service.
Having considered the submissions made by the learned Assistant Government Pleader, it is clear from the reasons assigned by the Labour Court that on appreciation of evidence on record, breach of section 25F, section 25G and section 25H of the Industrial Disputes Act was found to have been committed by the petitioner. Breach of section 25F of the Industrial Disputes Act has not been seriously disputed. So far as breach of section 25G of the Industrial Disputes Act is concerned, specific finding has been recorded by the Labour Court that two witnesses examined by the petitioner gave contradictory evidence about the maintaining of the seniority list of Class IV employees. The Labour Court, therefore, came to the conclusion that section 25G of the Industrial Disputes Act was violated. As regards breach of section 25H of the Act is concerned, it relied upon the admission of the witness of the petitioner that after termination of service of the workman, similar work is being taken by the petitioner from the employees employed through the contractor and thus at that point of time, no opportunity as required under section 25H of Page 9 C/SCA/18373/2016 JUDGMENT the Act was given to the respondent workman. Thus, once breach of section 25H of the Act was found, reinstatement of the workman ordered by the court below cannot be faulted with. No jurisdictional error or perversity or illegality is noticed in the impugned judgement and order for this court to interfere under Article 227 of the Constitution of India. The petition must, therefore, fail and is summarily rejected." 5.2 The order dated 20.2.2017 whereby Special Civil Application No.2745 of 2017 came to be rejected reads thus: "The judgment and order passed by the Labour Court, Junagadh in Reference (LCJ) T Case No.8 of 2006 is sought to be challenged with a sole contention that the workman had failed to establish continuous service within the meaning of Section 25B of the Industrial Disputes Act (for short I.D. Act), since his appointments were periodical for 29 days each with break in service. Except the break in service, concededly, the workman has served with the petitioner continuously between 24.12.2003 and 30.9.2005 i.e. period for about 21 months, and thus if the break is ignored, it cannot be disputed that the workman was in continuous service for the above stated period within the meaning of Section 25B of the I.D. Act, and consequently, the provisions of Section 25F of the I.D. Act were required to be adhered to which has admittedly not been done. It is a settled legal position that providing artificial break in service is nothing but unfair labour practice and this Court has consistently deprecated such practice, and therefore, such breaks cannot be relied upon to contend that there was no continuous service within the meaning of Section 25B of the I.D. Act. The said legal position has been reiterated by this Court in Special Civil Application No.2639/17, 2640/17 and 2246/17 decided on 16.2.2017.
In view of the above discussion, no substance is found in this petition. The same is therefore liable to be rejected summarily. Accordingly ordered."
5.3 From aforesaid orders, it emerges that so far as findings recorded by learned Labour Court viz. that (a) it is a fit case to hold that the workmen had worked for 240 days and that therefore, provision under Section 25F was attracted and applicable; (b) the service of the Page 10 C/SCA/18373/2016 JUDGMENT claimants were terminated in violation of statutory provision; (c) the workmen were entitled for reinstatement in service, are concerned, the said findings came to be confirmed by the Court.
5.4 In this view of the matter, so far as the said conclusion and finding of fact by learned Labour Court are concerned, it has emerged that the said findings and decision by learned Labour Court have attained finality, inasmuch as the challenge against said findings are rejected by this Court.
6. Upon reading the impugned awards, it comes out that the opponent employer admitted before the learned Labour Court that the work which the claimants performed is available but is being carried out through outsourcing.
The claim that the service came to be terminated in September 2005 was established before learned Labour Court.
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The learned Labour Court also reached to the conclusion that the employer adopted practise of artificial break, however, actually the claimants were engaged continuously.
The said conclusions justify the direction granting reinstatement and other benefits. 6.1 When the findings recorded by learned Labour Court viz. that termination was effected in illegal manner and in violation of statutory provision has attained finality, the only question which survives is as to whether the learned Labour Court's decision to deny backwages is correct and justified.
6.2 On this count, it would be relevant to note that on reading the awards, it has emerged that even according to the claimants, the total tenure of service rendered by them before they came to be relieved was hardly for 1½ to 2 years.
It has also emerged from the record that the claimant in Reference (T) No.8 of 2006 alleged Page 12 C/SCA/18373/2016 JUDGMENT that he joined the service from 24.12.2003 and his service came to be terminated on 30.9.2005 whereas the claimant in Reference (T) No.16 of 2006 alleged that he joined the service in December 2003 and his service came to be terminated in September 2005. The claimant in Reference (T) No. 17 of 2006 claimed that he joined the service on 10.3.2004 and his service came to be terminated on 30.9.2005 whereas in Reference (T) No. 18 of 2006, the claimant alleged that he joined the service on 9.12.2003 and his service came to be terminated on 30.9.2005. The claimant in Reference (T) No.20 of 2006 claimed that he joined the service on 11.3.2004 and his service came to be terminated on 30.9.2005.
6.3 The dispute was raised by the said claimants, somewhere in 2006, and learned Labour Court decided the references in March 2016.
Thus, the question is with regard to backwages for 10 years.
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6.4 From the awards, it has emerged that the claimants were engaged on 29 days basis. They worked on daily wage basis and for about 6 hours per day. They were not regular and permanent employees. However, another fact, which exists and is at the same time relevant also is the fact that each claimants had worked for more than 12 months and 240 days in a year and that the service came to be terminated in violation of statutory provision and the said fact also deserves consideration.
6.5 From the awards, it has emerged that the only ground on which the benefit of backwages are denied to the said claimants is the belief of the learned Labour Court that for such long period i.e. for almost 10 years, the workmen would have earned income and that therefore, the claim for backwages is not justified. The fact or ground that the claimants worked as daily wagers, they were engaged irregularly, their engagement was Page 14 C/SCA/18373/2016 JUDGMENT intermittent and on parttime basis and above everything total tenure of their engagement, before termination, was relatively short i.e. for about 1½ years stand on different footing. 6.6 In light of the observations by Hon'ble Apex Court in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) [(2013) 10 SCC 324], said premise for denying backwages is not justified.
6.7 However, the case of daily wagers who came to be engaged on adhoc basis and without following procedure prescribed by law and who was engaged, essentially, for part time base, cannot be equated with termination of the service of regular and permanent workmen. The principle which would applicable in case of regular and permanent employee would not be attracted with equal force and rigor in case of daily wager engaged on adhoc basis and for part time work.
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6.8 The said two position demand process of balancing equity of said two extreme situation. In present case, the learned Labour Court has failed to strike balance by maintaining equity between said two positions.
6.9 From the awards, it has emerged that, on and average, the monthly wages of the claimants were Rs.1,300/ i.e. about Rs.15,000/ per annum. The proceedings remained pending before learned Labour Court for almost 10 years. The learned Labour Court has already granted benefit of continuity of service. The employer's challenge against said direction is rejected. 6.10 Under the circumstances, this Court is of the view that if for the purpose of balancing equity, lump sum compensation, in lieu of back wages for intervening period i.e. from 30.9.2005 to 8.3.2016, is granted then, such direction would be adequate relief in light of facts of present case.
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7. In light of foregoing discussion and for the reasons mentioned above, following order is passed: 7.1 The respondents are directed to pay Rs.20,000/ as lump sum compensation to the claimants whose service, according to their own claim, was less than 2 years, whereas the claimants who rendered service for 2 to 3 years, should be paid Rs.27,500/ towards lump sum compensation and the claimants who had rendered service for 3 years or more, shall be paid Rs.35,000/ towards lump sum compensation. 7.2 The awards impugned in present petitions are set aside and modified to aforesaid extent.
With aforesaid directions, the petitions are partly allowed and accordingly stand disposed of.
Rule is made absolute to aforesaid extent.
Sd/-
(K.M.THAKER, J) KAUSHIK D. CHAUHAN Page 17