Gujarat High Court
For Approval And Signature vs Girishbhai Mansukhbhai Jani on 13 January, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/24249/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 24249 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
SURENDRANAGAR DISTRICT PANCHAYAT....Petitioner(s)
Versus
GIRISHBHAI MANSUKHBHAI JANI....Respondent(s)
Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
(MR JV MEHTA), ADVOCATE for the Respondent(s) No. 1
MS KRISHNA B MEHTA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 13/01/2017
ORAL JUDGMENT
When the petition is called-out, learned advocates for the petitioner as well as the respondent are not present.
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1.1 This petition is pending since 2007.
Therefore, the Court deems it proper to decide the petition on merits. More than 9 years have passed since the petition is pending. Therefore, the Court is not inclined to adjourn the proceedings on the ground that learned advocates are not present.
2. In present petition, the petitioner panchayat has challenged award dated 4.1.2007 passed by learned Labour Court at Surendranagar in Reference (LCS) No.113 of 2000 whereby the learned Labour Court partly allowed the reference and directed present petitioner panchayat to reinstate the claimant on his original post, however, without backwages.
3. So far as factual background is concerned, it has emerged from the record that present respondent i.e. original claimant raised industrial dispute on the ground that the panchayat illegally terminated his service on Page 2 HC-NIC Page 2 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT 17.7.1987.
3.1 Appropriate government referred the dispute for adjudication to learned Labour Court at Surendranagar. The learned Labour Court registered the dispute as Reference (LCS) No.113 of 2000.
3.2 In his statement of claim, the claimant alleged that he was working with the panchayat since last 9 years and he was paid Rs.14 per day and that during said period of 9 years, he had worked continuously and regularly with the panchayat. He also alleged that he had worked for 240 days in each year and without fault on his part and without following procedure prescribed by law, the opponent panchayat illegally terminated his service and that therefore, the panchayat should be directed to reinstate him in service with consequential benefits.
3.3 The panchayat opposed the reference and
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resisted the demand by the claimant. In its
written statement, the panchayat claimed that the service of the claimant was not terminated, but he voluntarily abandoned the service and stopped reporting for work. The panchayat also disputed and denied the allegation that the claimant worked with the panchayat for 9 years and that he worked continuously and regularly during that period. The panchayat also contended that the claimant had not worked for 240 days in any year. The panchayat also claimed that actually during his entire tenure of about 6 years (i.e. from 1976-1977 to 1982-1983) the claimant had worked only for 403 days and that therefore, even otherwise, there was no obligation on the panchayat to comply the provision under the Industrial Disputes Act, more particularly Section 25F, Section 25G or Section 25H of the Act, and the contention that the service was illegally terminated is factually incorrect and baseless. With such submissions, the panchayat opposed the reference and contended that the Page 4 HC-NIC Page 4 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT reference should be rejected.
3.4 After the parties concluded their pleadings, the learned Labour Court received evidence from the contesting parties. Upon completion of evidence of both sides, the learned Labour Court heard submissions by learned advocates for the claimant and the panchayat and after considering material available on record and rival submissions, learned Labour Court passed impugned award with above mentioned directions.
4. As mentioned above, neither the petitioner nor the respondent nor the learned advocates are present. In this view of the matter, the petition is decided on the basis of material available on record and contentions mentioned in the petition and the reply affidavit.
5. So as to assail the award, the Page 5 HC-NIC Page 5 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT petitioner has reiterated almost same contentions which were raised in the written statement. The petitioner emphasized inordinate delay on the part of the respondent in raising industrial dispute and has also contended that the claimant had never worked for 240 days in any year and that therefore, any question of breach of Section 25F, Section 25G or Section 25H did not arise. The panchayat has contended that the learned Labour Court has failed to consider relevant facts and evidence available on record. 5.1 At this stage, Mr. Munshaw, learned advocate for the petitioner, appeared and he submitted that the respondent was engaged intermittently for temporary work on ad-hoc and on daily wage basis, i.e. for work of repairs and maintenance, and the allegations by the claimant are incorrect and that he had never worked for 240 days in any year. He reiterated the fact that the claimant worked sporadically and for about 403 days over a span of 6 years.
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6. I have considered the submissions by Mr. Munshaw, learned advocate for the petitioner, and the observations and findings recorded by the learned Labour Court in the impugned award and the material available on record as well as the affidavit filed by the respondent.
7. In his reply affidavit, the original claimant has denied the contentions in the petition and claimed that the award may not be disturbed. The claimant has stated, inter alia, that:-
"4. The petition of the petitioner is not maintainable under Articles - 14, 16, 226 and 227 of the Constitution of India and on that ground alone, the petition of the petitioner is deserves to be quashed and set aside.
5. The petitioner has not preferred the petition within a period of limitation, from the date of Award and on the ground of limitation alone, the petition of the petitioner is deserves to be dismissed with cost. I say that the Learned Judge of Labour Court has passed Judgment and order dtd. 4.1.2007 which was notified by the Notification dtd. 15.1.2007 by the Labour Commissioner, Surendranagar and the petitioner has preferred this petition on or about 11.9.2007 i.e. after 9 months from the date of Judgment and order, passed by the Labour Court, and on that ground alone, the petition of the petitioner under Article 227 of the Constitution of India is deserves to be quashed and set aside on the ground of limitation.
6. With reference to para-2 of the petition, Page 7 HC-NIC Page 7 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT whatever submitted contrary to the awards passed by the Labour Court, at Surendranagar in Ref.(LCS) no.113/2000 is illegal, unjust, and against the evidence on record and so allegations made by the petitioner, against me is not true and correct and I denied the same specifically. It is not true and correct to say that I was working as an employee purely on temporary, ad-hoc, and daily wage basis on the maintenance of road works undertaken by the Sub-Division at Patadi depending upon the availability of work and funds in the year 1997-77. It is also not true and correct to say that I had worked for 7 and 78 days in the year - 1976-77 and 1977-78 respectively and thereafter again work on the basis of availability of work and funds between 1982 to 1983 I say that the statement annexed at Annex-A is not showing the true and correct facts and I denied the same specifically. I say that the statement is totally wrong and false and no reliance can be placed upon the same. It is also not true and correct to say that I had worked only 403 days between 1976-77 to 1982-83 and had never completed 240 days in any of the year. I say that the petitioner has made all such false statements without any evidence on record, so the submissions made by the petitioner is not true and correct and I denied the same specifically.
12. It is not true and correct to say that the Reference filed by me is after 17 years and on that ground alone it ought to have been dismissed. I say that the Learned Judge of the Labour Court has considered all this aspect, in his Judgment and the Learned Judge has rightly passed the Judgment and Award and the petitioner has no right to say anything against the same, as they failed to produce any evidence on record, which can support their say."
7.1 Even if all claims, contentions and allegations by the claimant are believed and taken at their face value, the fact that according to claimant his service was terminated in July 1987, would stare in his face because as against the said fact, the claimant, Page 8 HC-NIC Page 8 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT undisputedly, raised dispute in 2000, i.e. after about 13 years.
7.2 In this context, it is relevant to take into account observations in the decision in case of Ajit Narayan Bhanja Deo v. Union of India & Ors. [2002-I LLJ 196] as well as observations in the decision in case of State of Karnataka & Anr. v. Ravi Kumar [(2009) 13 SCC 746].
When the award is examined in light of objection against maintainability of the reference on the ground of delay, it emerges that the claimant did not offer any explanation with reference to the delay caused in raising industrial dispute.
Not only the claimant failed to make out sufficient cause, he, actually, did not offer any explanation and did not make out any ground to condone inordinate delay of almost 13 years in raising industrial dispute.
Even if the fact that period of limitation is not prescribed under the Industrial Page 9 HC-NIC Page 9 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT Disputes Act is taken into account, then also, the plaintiff / claimant would be obliged to explain reasons and ground for approaching the Court after such inordinate delay.
If any justification is not offered, then, the Court would be justified in not granting any relief.
On the other hand, order granting relief without being satisfied about justification with regard to inordinate delay caused in raising the dispute, would not be sustainable. 7.3 On this count, when the award is examined, it emerges that on one hand, the claimant did not offer any explanation or justification with reference to inordinate delay of 13 years in raising industrial dispute whereas on the other hand, the learned Labour Court failed to address the said issue and to record any conclusion with regard to the said aspect. Without application of mind and without being satisfied about the reasons or circumstances, if Page 10 HC-NIC Page 10 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT any, for the inordinate delay caused in raising the dispute, the learned Labour Court mechanically adjudicated the reference and granted relief in favour of the claimant and that therefore, impugned award by the learned Labour Court, cannot be sustained, more particularly because it reflects non-application of mind to the relevant aspect by the learned Labour Court.
8. If the award is examined on merits by putting aside for a while above mentioned aspect related to delay, then, it emerges from the award and from the record that the claimant did not place any material on record to establish that he worked with the panchayat for 9 years. 8.1 The Court is conscious of the fact that factum of claimant's employment with the panchayat was not in dispute before the learned Labour Court inasmuch as the panchayat itself admitted that over a period of about 6 years, i.e. from 1976-77 to 1982-83, the claimant worked Page 11 HC-NIC Page 11 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT for about 403 days. The said admission on the part of panchayat established factum of employment.
9. According to the details placed on record by the panchayat, the claimant had worked for about 7 days in the year 1976-77, he worked for about 77 days in the year 1977-78 and thereafter, there is hiatus upto 1980 when the claimant again worked with the panchayat for about 120 days in the year 1980-81 and 126 days in the year 1981-82 and for about 72 days in the year 1982-83.
The claimant, according to the panchayat, worked for about 403 days during said span of about 6 years. On the other hand, the claimant failed to establish that he had worked for 240 days in preceeding 12 months or in any year during the said tenure.
The claimant could not place any
material on record to establish that he had
worked for 240 days in preceeding 12 months.
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Without having regard to the said
aspect, the learned Labour Court has recorded
that the panchayat has committed breach of
Section 25F.
9.1 In this context, it is relevant to note
that the panchayat did not place on record
seniority list of the workmen and therefore, it emerged that the panchayat failed to comply the requirement prescribed by Rule 81 of the Industrial Disputes (Gujarat) Rules. Thus, though breach of Section 25F is not established, it appears that the panchayat committed breach of aforesaid Rule 81.
9.2 The learned Labour Court has recorded that failure of the panchayat to prepare and display seniority list would tantamount to breach of Section 25G. On this count, it is pertinent to note that the claimant failed to mention name of any person who, though junior to him, was continued in service when his service was Page 13 HC-NIC Page 13 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT allegedly terminated. In this view of the matter, actually, there was no material on record before the learned Labour Court to conclude that the panchayat committed breach of Section 25G. It is only an inference or assumption drawn by the learned Labour Court on the premise that the panchayat did not prepare and display seniority list. Actually, such inference, in absence of any cogent evidence (which would establish that junior persons were actually continued in service) could not have been drawn mechanically without any supporting or corroborating material available on record.
10. It appears that some questions or suggestions were put to the witness of the panchayat when he was asked to provide the details of the daily wagers who were in service with the panchayat at the relevant time, however, the witness of the panchayat failed to provide any details except the fact that about 61 labourers were engaged by the panchayat at the Page 14 HC-NIC Page 14 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT relevant time. The witness failed to provide details of date of joining of the said 61 labourers and that therefore, the learned Labour Court drew inference against the panchayat with reference to the claimant's allegation about breach of Section 25H.
11. The foregoing discussion brings out that the impugned award essentially proceeds on and is based on inferences drawn by learned Labour Court rather than cogent evidence.
On the other hand, the issue related to inordinate delay caused in raising dispute is ignored by learned Labour Court. Since any direction to pay backwages is not passed by the learned Labour Court, it may be contended that the learned Labour Court has balanced equities by denying backwages for entire period and even for the period after the claimant raised the dispute.
However, the question about
justification with regard to order directing
reinstatement also arise in view of the fact that Page 15 HC-NIC Page 15 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT by the time the claimant raised dispute, 17 years had already passed and by the time, the learned Labour Court passed the award, more than 25 years had rolled by and that therefore, the learned Labour Court ought to have considered awarding lump sum compensation instead of reinstatement. In view of the fact that the claimant was engaged without following procedure prescribed by rules and that he was engaged on (and he worked on) daily wage basis, the direction to the panchayat to reinstate the claimant whose service was discontinued before about 25 years does not appear justified even if it is assumed that the findings and conclusions recorded by the learned Labour Court are justified and supported by cogent evidence.
12. Having regard to above discussion and for the reasons mentioned above, more particularly the fact that the panchayat committed breach of Rule 81 of the Industrial Disputes (Gujarat) Rules and the fact that the Page 16 HC-NIC Page 16 of 18 Created On Sat Aug 12 10:02:00 IST 2017 C/SCA/24249/2007 JUDGMENT panchayat failed to establish its case that the claimant had voluntarily stopped reporting for work or voluntarily abandoned the service, it appears that if the panchayat is directed to pay reasonable lump sum compensation instead of direction to reinstate the claimant, then, it would serve interest of justice and equities will be balanced.
13. Therefore, following order is passed:-
[a] The impugned award is partly set aside and modified.
[b] The conclusion denying backwages is hereby confirmed.
[c] The order directing the panchayat to reinstate the original claimant is set aside and modified/substituted by order directing panchayat to pay Rs.15,000/- as lump sum compensation to the claimant.
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With aforesaid modification in the
award, the petition is partly allowed. Rule is made absolute to the aforesaid extent.
Sd/-
(K.M.THAKER, J.) kdc Page 18 HC-NIC Page 18 of 18 Created On Sat Aug 12 10:02:00 IST 2017