Gujarat High Court
Deputy Executive Engineer vs Nileshbhai Babubhai Lakkad on 7 March, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/95/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 95 of 2015
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 ?
DEPUTY EXECUTIVE ENGINEER
Versus
NILESHBHAI BABUBHAI LAKKAD
Appearance:
RC JANI & ASSOCIATE for the PETITIONER(s) No. 1,2
MR PARITOSH CALLA for the RESPONDENT(s) No. 2
NOTICE NOT RECD BACK for the RESPONDENT(s) No. 1,2
NOTICE SERVED for the RESPONDENT(s) No. 1,2
RULE NOT RECD BACK for the RESPONDENT(s) No. 1,2
RULE SERVED for the RESPONDENT(s) No. 1,2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 07/03/2018
ORAL JUDGMENT
Heard learned advocate for the petitioners. For the respondent, no one is present. Though served, respondent has not entered appearance himself or through learned advocate and also having regard to the order dated 1.3.2018, the Page 1 C/SCA/95/2015 JUDGMENT Court deems it proper to pass final order in this matter though respondent is not present (even after service of process).
2. In this petition, the petitioner Board has challenged award dated 23.9.2014 passed by learned Labour Court in Reference (LCJ) No.125 of 2006 whereby learned Labour Court directed petitioner Board to reinstate the claimant on his original post with continuity of service, however, without backwages.
3. So far as factual background is concerned, it has emerged from the record that with the allegation against present petitioner (opponent employer) that the Board illegally terminated his service w.e.f. 15.10.2006, present respondent (claimant before learned Labour Court) raised industrial dispute. Appropriate government referred the dispute for adjudication to learned Labour Court at Junagadh. Learned Labour Court registered the dispute as Reference (LCJ) No.125 of 2006.
3.1 In his statement of claim, the claimant alleged that he joined the service with opponent Board from 15.3.2002 and that the Board illegally terminated his service on 15.10.2006. He alleged that the Board terminated his service in Page 2 C/SCA/95/2015 JUDGMENT violation of Section 25-F, Section 25-G and Section 25-H. With such allegations, the claimant demanded that he should be reinstated in service with all benefits.
3.2 The opponent Board i.e. present petitioner opposed the reference. In its reply, the Board claimed that engagement of the claimant was discontinued w.e.f. 11.10.2006. It also claimed that the claimant was engaged on ad-hoc and daily wage basis for casual work and that he was being engaged only when need arose or on account of exigency of work/additional work. The Board also claimed that the appointment of the claimant was not regular appointment and that though the statutory obligation under Section 25-F was not applicable in case of the claimant, the Board had followed said procedure and paid compensation to the claimant which he received/accepted and subsequently, the claimant raised the dispute. On that premise, the Board submitted that the reference should be rejected.
3.3 Upon conclusion of evidence by both sides, learned Labour Court heard rival submissions and thereafter passed impugned award with above mentioned directions.
4. The petitioner Board has challenged the award Page 3 C/SCA/95/2015 JUDGMENT on the ground that learned Labour Court committed error in holding that the Board committed breach of Section 25-G and Section 25-H. The Board contends that the said provision are not attracted or applicable in present case and learned Labour Court also ignored specific admission by the claimant that he is not in position to mention names of any person who, allegedly, came to be engaged for same work in the same department and on same post, after he was relieved. He further submitted that learned Labour Court ignored the said evidence and erroneously held that the Board committed breach of Section 25-H. According to the Board, the learned Labour Court committed error in holding that the Board committed breach of Section 25-G. To support his submission, learned advocate for the petitioner Board relied on the decision in the case between Range Forest Officer v. S.T.Hadimani [2002 (3) SCC 25] and in the case between Surendranagar District Panchayat v. Dahyabhai Amarsinh [(2006) 2 GLR 1014].
5. As mentioned above, though served, the respondent (original claimant) has not entered appearance.
6. I have considered impugned award and other material available on record as well as Page 4 C/SCA/95/2015 JUDGMENT submission by learned advocate for the petitioner Board.
Since the respondent claimant is not present, the Court has taken into account the statement of claim filed by the claimant and the details of evidence recorded by learned Labour Court in the impugned award.
7. So far as claimant's allegation with regard to breach of Section 25-F is concerned, the said issue does not call for any discussion in view of the fact that the said allegation by the claimant is not accepted even by learned Labour Court.
7.1 Actually, from the observations, findings and conclusion recorded by learned Labour Court, more particularly in paragraph Nos.9 to 9.2, it emerges that after examining evidence of both sides, more particularly specific admission by the claimant, learned Labour Court reached to the conclusion that the claimant failed to establish that the Board committed breach of Section 25-F when he came to be relieved from service.
7.2 The learned Labour Court has specifically recorded admission by the claimant wherein he accepted, in his affidavit (in lieu of chief examination), that he has not mentioned the fact that he accepted cheque for retrenchment Page 5 C/SCA/95/2015 JUDGMENT compensation which was paid to him by the Board on 11.10.2006 and that alongwith the order dated 11.10.2006 when he came to be relieved, the amount of compensation was paid.
7.3 After taking into account the said admission by the claimant and also after taking into account the details of the amounts paid to the claimant towards retrenchment compensation, the details of cheque number and the date, etc., learned Labour Court held that the Board did not commit breach of Section 25-F and the claimant failed to prove said allegation.
8. Now, so far as allegation about breach of Section 25-G and Section 25-H are concerned, learned Labour Court has held that employer committed breach of said provision.
8.1 In this context, it is relevant to note that from the award it comes out that the claimant failed to give any specific details which would be necessary to establish that persons junior to him were continued in service by the Board at the time when his service came to be discontinued on 11.10.2006.
8.2 The claimant did not and could not mention name of any person who according to his Page 6 C/SCA/95/2015 JUDGMENT allegation was junior to him, but was continued in service after 11.10.2006, i.e. the date on which his service came to be discontinued. Differently put, the claimant failed to prove that the Board did not follow principle of Last- Come-First-Go".
8.3 On this count, it is pertinent to note that the learned Labour Court has recorded, in the award, evidence by both sides and on the basis of the evidence, learned Labour Court has derived gist of the evidence, which gives out that from the admission of the claimant and from evidence by the Board, it was established that the claimant was engaged frequently, but it was also proved fact that the claimant was engaged intermittently for casual work on daily wage basis. The learned Labour Court has also taken note of the admission by the claimant wherein he accepted the fact that he was not able to give name of any person who was engaged by the Board after he came to be relieved from the work which he was performing.
8.4 From the discussion of the evidence by the claimant,it also comes out that the claimant failed to even claim that any junior person was continued in service. The claimant also failed to mention names of any person who was junior to him Page 7 C/SCA/95/2015 JUDGMENT but was continued in service. In absence of such evidence, there was no base or justification for the learned Labour Court to hold that the Board committed breach of Section 25-G i.e. breach of principle of seniority. Under the circumstances, said finding of fact cannot be sustained.
9. So far as allegation about breach of Section 25-H is concerned, it is relevant to note that the claimant himself in his deposition, admitted the fact that there are about 200 sites were the Board undertakes different activities. He also admitted that he is not able to give name of any person who came to be engaged by the Board for the same work after and in same capacity (as that of the petitioner) and in same department and at same site where he (petitioner) worked and he was relieved.
9.1 Despite the fact that there was no evidence on record to establish that the Board had engaged any other person after reliving the claimant to perform same work which the claimant performed and/or whether the Board had engaged any person for same work at the same site where the claimant was engaged after he was relieved, and in absence of relevant evidence, the learned Labour Court assumed and without any material held that the Board committed breach of Section 25-H. Page 8 C/SCA/95/2015 JUDGMENT 9.2 Unless and until, it is established that the work which the claimant performed continued after he was relieved and that any other person was engaged by the Board to perform the same work at same site/department without first giving opportunity to the claimant to re-engage him, any conclusion about breach of Section 25-H cannot be recorded and cannot be justified. For the said purpose, specific evidence to above mentioned effect must be available on record.
10. In this context, a profitable reference can be had to the observation by Hon'ble Apex Court in case of Surendranagar District Panchayat v. Dahyabhai Amarsinh (supra) wherein Hon'ble Apex Court observed, inter alia, that:-
"7. On the basis of the rival contention, it is necessary for us to consider the scope and ambit of the relevant provisions, namely Section 2 (oo), Section 25B and Section 25F of the Industrial Disputes Act. The appropriate provisions are reproduced below :
Section 2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-
a) voluntary retirement of the workman; or
b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or bb) termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
c) termination of the service of a workman on the ground of continued ill-health;
Section 25B: Definition of Continuous Service :- For the Page 9 C/SCA/95/2015 JUDGMENT purposes of this Chapter-
(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or as strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer not less than-
(i) ninety five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty five days, in any other case.
Explanation- For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall Include the days on which
(i) he has been laid-off under an agreement or as permitted by Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment ; and
(iv) in the case of a female, she has been on maternity leave; so however, that the total period of such maternity leave does not exceed twelve weeks.
Section 25F - Conditions precedent to retrenchment of workmen :- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Page 10 C/SCA/95/2015 JUDGMENT Official Gazette.
As per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947 (hereinafter referred to as Act). Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself, they are :-
i) a voluntary retirement of a workman; ii) retirement of a workman on reaching the age of superannuation; iii) termination of the service of a workman as a result of non-
renewal of the contract of employment; or iv) termination of the service on the ground of continued ill-health of the workman. Unless these reasons are existed and proved, termination by the employer of the service of a workman for any reason, would constitute retrenchment. Therefore, if the employer is to retrench the workmen employed in his industry who is in continuous service has to follow the provisions of Section 25F of the Act. To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee; that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provisions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act. The Section postulates three conditions to be fulfilled by an employer for getting a valid retrenchment, namely :-
i) One month's clear notice in writing indicating the reasons for retrenchment or that the workman has been paid wages for the period of notice in lieu of such notice;
ii) payment of retrenchment compensation which shall be equivalent to 15 days average pay for every completed year of continuous service or any part thereof, in excess of six months;
iii) a notice to the appropriate Government in the prescribed manner.
8. To attract the provisions of Section 25F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retrenchment". The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lock-out or Page 11 C/SCA/95/2015 JUDGMENT cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workman shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of sub-section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25-B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and (b) of sub-section (2). By the legal fiction of sub- section 2(a) (i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workman has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.
9. For the purposes of calculation of number of days worked by the employee, by fiction his days of absence from work have been included if the workman has been laid off under an agreement or as permitted by Standing Orders made under the Industrial Employment (Standing Orders) Act 1946 (20 of 1946), or under the Industrial Disputes Act 1947, or in any other law applicable to the industrial establishment; (ii) has been on leave with full wages, earned in the previous year; (iii) has been absent due to temporary disablement caused by accident arising out of and in the course of employment ; and (iv) has been on maternity leave, in case the employee is a female, however, that the total number of such maternity leave does not exceed 12 weeks.
10. In S.K. Verma v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi, AIR 1981 SC 422, speaking for three Judges Bench, O. Chinnappa Reddy, J. while considering the original provisions of Section 25B and the amendment brought about by Act 36 of 1964 of Section 25B of the Act, has said that Section 25F requires that a workman should be in a continuous service for not less than one year under an employer before that provision applies. While so, present, S.25-B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one Page 12 C/SCA/95/2015 JUDGMENT year, if he has actually worked under the employer for 240 days in the preceding period of twelve months.
11.In the matter of Mohan Lal v. Management of M/s. Bharat Electronics Ltd., (1981) 3 SCC 225, this Court has said that sub-section (2) of Section 25B comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of 12 months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. It is not necessary for the purpose of sub-section (2)
(a) that the workman should be in service for a period of one year and that his service is continuous service within meaning of sub-section (1). If his case is governed by sub- section (1) then it need not be covered by sub-section (2). Sub-section (2) envisages a situation not governed by sub- section (1) and sub-section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for one year but has rendered service for a period of 240 days during the period of 12 Calendar months counting backwards and just preceding the relevant date, being the date of retrenchment.
12.In the matter of Workman of American Express International Banking Corporation v. Management of American Express International Banking Corporation reported in 1985 (4) SCC 71, the Court has said that the explanation of Section 25B is not exhaustive. It does not purport that only those days which are mentioned in the Explanation to Section 25B(2) of the Act should be taken into account for the purpose of calculating the number of days on which the workman had actually worked though he had not worked on those days. The Court said that the expression "actually worked under the employer" is only clarificatory and cannot be used to limit the expanse of the main provision. The expression "actually worked under the employer" is capable of comprehending the days during which the workman was in employment and was paid wages by the employer and there is no reason why the expression should be limited by the explanation.
13.In the matter of Standard Motor Products of India Ltd. v. Parthasarthy, (1985) 4 SCC 78, this Court has said that the actual working for less than 240 days would include Sundays and other paid holidays if the workman is in employment of the employer although for less than a period of 12 months.
14. These decisions in unambiguous words laid down that sub- section (1) and (2) of Section 25B comprehends different situations for the calculation of continuous service for not less than one year and continuous service which is less than one year but for 240 days in 12 months preceding the date of termination under an employer.
15.In Mohan Lal v. Management of M/s. Bharat Electronics Page 13 C/SCA/95/2015 JUDGMENT Ltd., (1981) 3 SCC 225, it is said by this Court that before a workman can claim retrenchment not being in consonance of section 25F of the Industrial Disputes Act, he has to show that he has been in continuous service of not less than one year with the employer who had retrenched him from service.
16.In Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25
- (At Page 26, Para 3), this Court held that "In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
17. More recently, in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan and another, (2004) 8 SCC 161, Municipal Corporation, Faridabad v. Siri Niwas, (2004) 8 SCC 195 and M.P. Electricity Board v. Hariram, (2004) 8 SCC 246, this Court has reiterated the principle that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer.
18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of Page 14 C/SCA/95/2015 JUDGMENT continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact and situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non-compliance of Sections 25G and 25H suffice is to say that witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The Courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the Court. In order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved."
11. The said observation by Hon'ble Apex Court supports and fortifies the conclusion by this Court with regard to award impugned in present petition.
For the reasons mentioned above and in light of foregoing discussion, it has become clear that the impugned award cannot be sustained. The impugned award deserves to be set aside and is, accordingly, set aside.
The petition is, consequently, allowed. Rule is made absolute to aforesaid extent.
Sd/-
((K.M.Thaker, J.) KDC Page 15