Gujarat High Court
Executive vs Arvindbhai on 1 July, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/16931/2010 22/ 22 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16931 of 2010
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EXECUTIVE
ENGINEER & 1 - Petitioner(s)
Versus
ARVINDBHAI
ANANDBHAI MARU - Respondent(s)
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Appearance
:
MR
ANAND L SHARMA, AGP for Petitioner(s) : 1 - 2.
MS SUDHA C SHUKLA
for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/04/2011
ORAL
ORDER
1. Heard learned advocates appearing on behalf of respective parties.
2. In this petition, petitioner has challenged award passed by Labour Court, Bhavnagar in Reference (LCB) No.90 of 2009, Ex.22 in favour of respondent dated 21st May, 2010. The Labour Court has granted relief in favour of respondent reinstatement with continuity of service and with 20% back wages of interim period with all consequential benefits. This Court has passed an order on 10th March, 2011 as under:
"1. Heard learned AGP Mr.A.L.Sharma for petitioners and learned advocate Ms.Sudha C. Shukla for respondent.
2. This Court has issued notice on 10.1.2011. In response to it, affidavit-in-reply is filed by respondent.
3. I have considered the submissions made by both learned advocates. The question involved in present petition requires detailed examination. Hence, Rule.
4. Ad-interim relief in terms of Para.10(c) subject to compliance of Section 17(B) of I.D.Act,1947.
5. Notice as to interim relief, returnable on 22.4.2011."
3. Today, I have heard both learned advocates appearing on behalf of respective parties and I have also perused award passed by Labour Court. The main contention raised by learned AGP before this Court is that respondent workman has not proved 240 days continuous service before Labour Court and no documentary evidence was produced by workman before Labour Court that he has completed 240 days continuous service within meaning of Section 25B of Industrial Disputes Act, 1947. Learned AGP Mr. Sharma submitted that details of presence of respondent workman was produced by petitioner which suggests that respondent was daily wager appointed as a 'Chowkidar' w.e.f. 1992 and his service was terminated orally on 30th April, 2003. Thereafter, dispute has been raised after period of six years on 25th August, 2009. The statement of claim was filed vide Ex.3 and against that, reply was filed by petitioner vide Ex.7. Learned AGP Mr. Sharma submitted that as and when work was available, he was engaged as a 'Chowkidar' for canal in Shetrunji Dam and he has not completed service of 240 days in any year from 1992 to 1998. The details of his presence were produced on record by petitioner which has not been properly appreciated by Labour Court. He submitted that documentary evidence was produced and proved by petitioner in respect of respondent workman vide Ex.13 to Ex.16, but, that documents have not been properly considered by Labour Court. Before Labour Court, workman was examined vide Ex.9. Against which, one witness Shri Prahladray Mukundray Bhatt from petitioner was examined vide Ex.17. The Labour Court has considered various decisions in respect of contentions raised by both parties of Apex Court as well as of this Court. However, contentions raised by learned AGP that 240 days continuous service is not established or proved by respondent workman before Labour Court and there was delay of six years in raising industrial disputes. For that, respondent workman has not proved facts before Labour Court that he has completed 240 days continuous service. But, Labour Court has also considered one important fact that in oral evidence of workman Ex.9, at the time when his service was terminated, new employees viz., Devshankar Venishankar Bhatt, Arvind Pranshankar Dhandhalya, Bhupatbhai Pranshankar Dhandhalya, Velubha Danubha Gohil and Santubha Sardarsinh Gohil were remained continue even though they were juniors to respondent and this fact has been deposed by workman in his evidence Ex.9 which was remained unchallenged, because, no cross-examination has been made by petitioner on this aspect. Not only that but Ex.17 witness of petitioner was earlier remained silent in respect of fact that juniors to respondent workman remained continue at the time when respondent workman's service was terminated. No seniority list has been prepared by petitioner. Therefore, Labour Court has considered breach of Section 25G and 25H of ID Act relying upon decision of Apex Court in case of State of Haryana v. Dilbagh Singh reported in 2006 Lab.IC 4283 SC. The relevant observations made by Apex Court in para 3 of aforesaid decision is quoted as under :
"3. We have heard learned counsel for the parties. Learned counsel for the appellant has failed to substantiate that no person junior to the respondent had been retained in the Department. It is a clear finding of the Tribunal that a person like Krishna s/o Dharam Singh who is junior to the respondent is still working with the Management whereas the services of the respondent had been terminated. It is also alleged that another person named Mahabir who is also junior to the respondent is still working with the Management. Therefore, the Tribunal has found violation of Sections 25G and 25H of the Act. This finding of fact has not been controverted by the management and there is no reason to take a different view form the view taken by the Tribunal which was affirmed by the High Court. Hence, we find no merit in this appeal and the same is accordingly dismissed. The respondent shall be reinstated but looking into the peculiar facts and circumstances of this case. He will not be entitled to any back wages. The appellant shall issue order of appointment of the respondent within one month from the date of receipt of this order. There will be no order as to costs."
4. The contention raised by learned AGP Mr. Sharma is that Section 25G and 25H both are made applicable only when workman has completed 240 days continuous service. This contention cannot be accepted as raised by learned AGP before Labour Court, because, Labour Court has considered one decision of this Court in case of Rajkot Municipal Corporation v. Chanabhai Amrabhai makwana reported in 2005(3) GLH 291. The relevant discussion is made in para 13 to 15 are quoted as under :
"13. The next question is with regard to the contention raised on behalf of the management relying upon the judgment of the Division Bench of this Court in case of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD, 2003 (3) GLR 2590 that for attracting and applicability of Section-25-G and 25-H of the I.D.Act, retrenchment covered by Section-25-F is must, is required to be considered by this Court. Firstly, it is required to be noted that in the said case, the said controversy was not directly involved and on facts, it was found that there was no retrenchment by the employer at all and the Division Bench was considering the same and has made the passing observations which reads as under :
"Apart from that, the attractability or the applicability of Sections-25-G and 25-H would be dependent on the emergence and existence of the condition precedent of retrenchment."
The aforesaid observation seems to be concerning the facts of that case where it was found that there was no retrenchment at all by the employer. Therefore, contention of Shri Clerk, learned advocate for the management corporation that for applicability and attractability of Sections-25-G and 25-H, retrenchment covered by Section-25-F is must, is not correct and cannot be accepted. Even otherwise, as held by the Hon'ble Supreme Court of India in case of CENTRAL BANK OF INDIA (Supra), benefit of Section-25-H would not be confined to the category of the retrenched workmen covered by Section-25-F alone who have been in continuous service for not less than one year. It appears from the judgment and order passed by the Division Bench of this Court relied upon by Shri A.K.Clerk, learned advocate appearing on behalf of the management corporation, attention of the Division Bench was not drawn to the decision of the Hon'ble Supreme Court in case of CENTRAL BANK OF INDIA (Supra) and the Division Bench has not considered the said binding decision.
14. At this stage, the judgment of the Hon'ble Supreme Court in the case of GOVT OF A.P. V. B. SATYANARAYANA RAO, reported in (2000) 4 SCC 262 is required to be considered. While considering the rule of per incurim, the Hon'ble Supreme Court in the said decision in para-8 has held as under :
"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."
15. There is one another decision of this Court also in case of BHARAT INDUSTRIES V. KHEMIBEN VALJIBHAI AND OTHERS, 1995(1) GLH (UJ) 6 where also, similar view is taken with regard to applicability of Section-25-G and 25-H to those employees irrespective of completion of 240 days and / or retrenchment as envisaged under Section-25-F of the I.D.Act. Considering the fact that the Division Bench of this Court in cited decision of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD, 2003 (3) GLR 2590 has not considered the decision of the Hon'ble Supreme Court in case of CENTRAL BANK OF INDIA (Supra) which is a superior court judgment, assuming that the same meaning is to be given to the judgment of the Division Bench in case of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD as suggested on behalf of the management, in that case also, considering the judgment of the Hon'ble Supreme Court, the same is not required to be considered treating it as per incuriam."
5. Learned AGP Mr. Sharma submitted that without any reason and justification, 20% back wages and consequential benefits have been granted by Labour Court in favour of respondent workman. Against which, learned advocate Ms. Shukla submitted that this Court may set aside direction of granting 20% back wages in favour of workman and for that, she is prepared to give consent. Affidavit in reply is also filed by respondent workman at page 67 to 75.
6. Learned advocate Ms. Shukla submitted that one workman who was junior to respondent viz., Velubhai Danubhai Gohil has also filed one reference against termination being Reference No.358 of 2003 dated 14th February, 2007, where, Labour Court has granted reinstatement with continuity of service with 25% back wages of interim period in favour of Velubhai Gohil whose service was terminated on 1st May, 2003. The award passed by Labour Court as referred above was challenged by filing Special Civil Application No.119 of 2011, wherein, this Court has vide order dated 7th March, 2011 set aside direction of 25% back wages granted in favour of Velubha. Therefore, copy of order passed by this Court on 7th March, 2011 is shown to this Court and relied it and on that basis, learned advocate Ms. Shukla submitted that in present case also, similar direction may be issued and 20% back wages may be set aside and confirmed reinstatement in favour of respondent workman. Paragraph 4 of order passed in Special Civil Application No.119 of 2011 dated 7th March, 2011 is quoted as under :
"4. It is necessary to note that initially, Labour Court has passed an award in Reference No.358 of 2003, dated 14.2.2007, where Labour Court has granted reinstatement with continuity of service with 25% back wages of interim period in favour of respondent. The service of respondent was terminated on 1.5.2003. The award passed by Labour Court, as referred above, was challenged in SCA No.19621 of 2007 wherein this Court has passed an order on 12.12.2007, which is quoted as under :
"1. Heard learned AGP Ms. Bhavika Kotecha on behalf of petitioner, learned advocate Mr. DP Kinariwala appearing for respondent.
2. Rule.
Learned advocate Mr. Kinariwala waives the service of notice of Rule on behalf of respondent.
3. In the present petition, petitioner has challenged the award passed by Labour Court, Bhavnagar in reference no. 358/2003 dated 14/2/2007, where Labour Court has granted reinstatement with continuity of service and with 25% back wages of interim period in favour of respondent.
4. When the matter is taken up for hearing, learned advocate Mr. Kinariwala has received instruction from the respondent that respondent is not claiming the benefit of 25% back wages, which has been granted by Labour Court, Bhavanagar in his favour. Therefore, now only question is remained to be examined by this Court for granting reinstatement with continuity of service.
5. I have considered the submission made by both the learned advocates. Before the Labour Court, respective parties have produced relevant records and evidence was made by both parties.
6. According to workman, he was working with the petitioner from 1981 as a Chowkidar and his service was terminated on 1/5/2003. At the time of termination, Section 25F of I. D. Act 1947 is violated by petitioner. According to workman, he has completed 240 days continuous service. The petitioner has examined one witness Shri Madhubhai Babubhai Desai, vide exh 15 and produced relevant records from 1994 to 1999, i.e. Muster Roll before Labour Court.
7. Thereafter, Labour Court has examined the matter on merits. The Labour Court has come to conclusion after appreciating the evidence on record that respondent workman has remained continued in service preceding twelve months from the date of termination and he has completed 240 days continuous service. This conclusion is based on adverse inference drawn by Labour Court against petitioner.
8. Therefore, Labour Court has considered Section 25(B)(2) of I.D. Act 1947, and according to that section workman has remained continued in service with petitioner. At the time of terminating the service of respondent, section 25F is not followed by petitioner.
9. The finding given by Labour Court that Section 25G and 25H of I. D. Act, 1947 is not violated by the petitioner. Therefore, only on that ground Labour Court has considered that only Section 25F of I. D. Act 1947 is violated by petitioner at the time of terminating the service of respondent and Labour Court has granted reinstatement with continuity of service.
10. The Labour Court has considered gainful employment of respondent and granted 25% which has not been pressed by respondent as per statement made by learned advocate Mr. Kinariwala.
11. Considering the reasoning given by Labour Court and drawing adverse inference against petitioner as relevant record was not produced before Labour Court. The finding of fact recorded by Labour Court that respondent has completed 240 days continuous service within preceding twelve months from the date of termination. For that, Labour Court has not committed any error which require interference by this Court while exercising the power under Art 227 of the Constitution of India.
12. The reasoning given by Labour Court has not baseless and perverse and finding recorded is based on legal evidence. Therefore, no error is committed by Labour Court which require interference by this Court.
13. Recently, the Delhi High Court has considered the power of this Court of judicial review while examining the award passed under the provision of I.D. Act 1947.
14. The view taken by Delhi High Court in case of Sushil Sharma v. Pawan Sharma reported in 2007-II-LLJ (Delhi) 865. The relevant observation made by Delhi High Court in para 11 and 12 are quoted as under:
"11.
The settled position of law in respect of interference by thewrit 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 Vs. Delhi Transport Corporation AIR 1984 SC 1967.
(ii) Harbans Lal Vs. Jag Mohan, (1985) 4 SCC 333.
(iii) Calcutta Port Shramik Union Vs. Calcutta River Transport Association and Ors. 1988 (supp.) SCC 768.
(iv) Ramniklal N.Butta and another Vs.State of Maharashtra and others, (1997) 1 SCC 134.
(v) Indian Overseas Bank Vs. I.O.B.Staff Canteen Workers' Union and Anr.
AIR 2000 SC 1508.
(vi) Master Marine Services (P) Ltd. Vs. Metcalfe and Hodgkinson (P) Ltd. And Anr., (2005) 6 SCC 138.
12. 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 hereinabove, 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."
15. In view of the above observations made by Delhi High Court while relying upon various decision of Apex Court, similarly, in this case also Labour Court has not committed any error which require interference by this Court while exercising the power under Art 227 of the Constitution of India.
16. However, order passed by Labour Court is modified in view of the statement made by learned advocate Mr. Kinariwala on behalf of respondent that respondent is not claiming the amount of 25% back wages which has been granted by Labour Court in his favour. Now, petitioner is required to implement only award of reinstatement with continuity of service and petitioner has not to pay any amount of back wages of interim period to respondent. Therefore, award in question is modified to that extent.
17.Rule is made absolute to that extent.""
7. The contention which has been raised by learned AGP Mr. Sharma cannot be accepted that in case only 240 days is established by workman, then, Section 25G and 25H of ID Act is made applicable otherwise not. Recently, this aspect has been considered by Apex Court in case of Harjinder Singh v. Punjab State Warehousing Corporation reported in 2010(1) Scale 613.
Relevant discussion is made in para 13 to 15 which are quoted as under :
"13. It is true that in the writ petition filed by it, the corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the corporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for construction work on 5.3.1986 and he worked in that capacity and also as Work Munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months' specified in order dated 5.2.1987, the appellant continued to work till 5.7.1988 when first notice of retrenchment was issued by the Managing Director of the corporation. Therefore, it was not open for the corporation to contend that the appellant had not completed 240 days service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of `last come first go' without any tangible reason. In Central Bank of India v. S. Satyam (1996) 5 SCC 419, this Court considered an analogous issue in the context of Section 25-H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis. It was argued on behalf of the bank that an offer of re-employment envisaged in Section 25-H should be confined only to that category of retrenched workmen who are covered by Section 25-F and a restricted meaning should be given to the term `retrenchment' as defined in Section 2(oo). While rejecting the argument, this Court analysed Section 25-F, 25-H, Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957, referred to Section 25-G and held:
"Section 25-H then provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re-employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention. Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not present any difficulty. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 25-F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re-employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available. Application of Section 25-H to the other retrenched workmen not covered by Section 25-F does not, in any manner, prejudice those covered by Section 25-F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25-F is available for re-employment. There is, thus, no reason to curtail the ordinary meaning of "retrenched workmen"
in Section 25-H because of Rules 77 and 78, even assuming the rules framed under the Act could have that effect. The plain language of Section 25-H speaks only of re-employment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate to the wide meaning of `retrenchment' given in Section 2(oo). Section 25-F also uses the word `retrenchment' but qualifies it by use of the further words "workman ... who has been in continuous service for not less than one year". Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words "workman ... who has been in continuous service for not less than one year". It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F." (emphasis supplied)
14. The ratio of the above noted judgment was reiterated in Samishta Dube v. City Board Etawah (1999) 3 SCC 14. In that case, the Court interpreted Section 6-P of the U.P. Industrial Disputes Act, 1947, which is pari materia to Section 25-G of the Act, and held:
Now this provision is not controlled by conditions as to length of service contained in Section 6-N (which corresponds to Section 25-F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by Section 6-N. In Kamlesh Singh v. Presiding Officer in a matter which arose under this very Section 6-P of the U.P. Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. See also in this connection Central Bank of India v. S. Satyam.
Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers. There is no such restriction in Section 6-P of the U.P. Act read with Section 2(z) of the U.P. Act which defines "workman".
It is true that the rule of "first come, last go" in Section 6-P could be deviated from by an employer because the section uses the word "ordinarily". It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of confidence, etc., as held in Swadesamitran Ltd. v. Workmen. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act.
15. The distinction between Sections 25-F and 25-G of the Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar (2006) 13 SCC 28, in the following words:
"We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Sections 25-G and 25-H thereof he may not have to establish the said fact. See: Central Bank of India v. S. Satyam, Samishta Dube v. City Board, Etawah, SBI v. Rakesh Kumar Tewari and Jaipur Development Authority v. Ram Sahai.""
8. In view of observations made by Apex Court in recent decision as referred above, even a workman who has not completed 240 days continuous service as required under Section 25B of ID Act, 1947, then, Section 25G and 25H of ID Act both are considered to be independent mandatory provision and in case, at the time of terminating service of workman if junior employees are remained in service and subsequent to termination new employees are recruited, then, it amounts to breach of Section 25G and 25H of ID Act. At that occasion, it is not necessary to establish 240 days continuous service by workman. Therefore, according to my opinion, Labour court has rightly examined matter and in this case, it has been established by workman that at the time of terminating service, junior employees are remained continue in service and this facts remained unchallenged before Labour Court, therefore, violation of Section 25G and new employees have been appointed, therefore, violation of Section 25H by petitioner. Against which, respondent was remained silent. Therefore, granting reinstatement in favour of respondent workman would not require interference by this Court. However, considering consent given by learned advocate Ms. Shukla, direction of 20% back wages with consequential benefits are required to be set aside.
9. Therefore, contentions raised by learned AGP Mr. Sharma are not required to be accepted and while confirming reinstatement with continuity of service in favour of respondent workman and setting aside direction of granting 20% back wages in favour of respondent workman, award in question is accordingly hereby modified to that extent.
10. It is directed to petitioner to reinstate respondent workman in service from date of award as early as possible within a period of six weeks from date of receiving copy of present order.
11. Accordingly, rule is made absolute to aforesaid extent. No order as to costs.
[H.K. RATHOD, J.] #Dave Top