Gujarat High Court
For Approval And Signature vs Shyamji Dayashankar Mishra on 29 January, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/9418/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9418 of 2008
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 ?
ASHIMA SPINFAB....Petitioner(s)
Versus
SHYAMJI DAYASHANKAR MISHRA....Respondent(s)
Appearance:
MR.VARUN K.PATEL, ADVOCATE for the Petitioner(s) No. 1
MR TR MISHRA, ADVOCATE for the Respondent(s) No. 1
SERVED BY AFFIX.-(R) for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date :29/01/2018
CAV JUDGMENT
1. Heard Mr. K.M. Patel, learned Senior Counsel and Mr. Page 1 HC-NIC Page 1 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT Mishra, learned advocate for the respondent.
2. In present petition the petitioner has prayed, inter alia that:-
"5(a) Your Lordships be pleased to issue a writ of certiorari and / or any other appropriate writ, order or direction in the like nature quashing and setting aside the judgment and order dated 3.8.2002 passed by the Labour Court in T Application No. 388/1998 at Annexure-G, the judgment and order dated 20.7.2004 passed by the Industrial Court in Appeal (IC) No. 112/2002 at Annexure-H; and the judgment and order dated 24.1.2008 of the Industrial Court passed in Review Application No. 13/2004 at Annexure-J"
3. So far as factual backdrop is concerned it has emerged from the record that the petitioner company engaged present respondent in January 1998. The petitioner company styled the respondent and his appointment as appointment of the respondent as "Trainee". The appointment order dated 29.1.1998 described the respondent as "trainee".
3.1 The appointment order specified that the respondent was engaged for period of three months as trainee and that he shall be paid Rs.80/- per day.
3.2 The company terminated service of the respondent, about 7 months after he was appointed in January 1998, vide order dated 24.8.1998.
3.3 In the said order the company mentioned that the respondent's service was terminated on account of his "unsatisfactory performance".
3.4 Feeling aggrieved by the said order the respondent Page 2 HC-NIC Page 2 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT approached Labour Court and filed application challenging termination of his service. The application was registered as T-Application No. 388 of 1988. After completion of the pleadings Labour Court received and recorded evidence form both sides and when the parties to the proceedings closed their evidence, Labour Court heard rival submissions.
3.5 Thereafter Labour Court allowed said application vide order dated 24.8.1998 with direction to the company to reinstate present respondent (hereinafter referred to as the "claimant") and to pay him 50% backwages.
3.6 Feeling aggrieved by the said decision the company filed appeal before Industrial Court. Learned appellate Court heard the appeal and vide order decision dated 20.7.2004 Industrial Court dismissed the said appeal and confirmed the decision dated 3.8.2002 passed by Labour Court.
3.7 After Industrial Court decided the appeal the company filed application seeking review of the decision dated 20.7.2004. Learned Industrial Court heard the review application. After considering rival submission, learned Industrial Court rejected the said review application vide order dated 24.1.2008, for the reasons mentioned in the said order.
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4. Before Labour Court and before Industrial Court the company claimed that the applicant was engaged as trainee and that therefore he cannot be and should not be considered "employee" within the meaning of said term defined under Section 2(3) of the Bombay Industrial Relation Act. The company also claimed that the claimant was engaged as trainee for period of 3 months but the period was extended at the request of the claimant. It was also claimed that the performance o the claimant was not even satisfactory and despite verbal warning (office memo dated 17.8.1988 annexure E Colly page 79) the claimant did not improve his performance. It is mentioned in the order dated 24.8.1998 that the claimant's performance was not found satisfactory.
4.1 The claimant on the other hand submitted that he was employee of the company and he was engaged as such. He also claimed that actually he was appointed and engaged as R.O. Plant Operator. He denied that he had requested the company to extend the period of trainee. He denied that he was engaged as trainee and that his performance was not satisfactory.
4.2 For the reasons recorded in the orders learned Labour Court and learned Industrial Court did not accept the claim of the company. Both, the learned Labour Court and learned Industrial Court believed and accepted the case placed by the claimant and held that the claimant was Page 4 HC-NIC Page 4 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT engaged as employee and his service was terminated without following procedure prescribed by law.
4.3 In view of said conclusion learned Labour Court allowed the application filed by the claimant and learned Industrial Court confirmed the said judgment.
5. Learned Senior Counsel for the petitioner assailed the decision by learned Labour Court and Industrial Court on the ground that both the Courts failed to take into account and appreciate Clause 3(i) of applicable Standing Orders (which defines the term "Permanent Operative") as well as Clause (v) of standing order (which defines the term "Apprentice"). He would also claim that both the Courts failed to appreciate that burden to prove that he was permanent employee was on the claimant and that the claimant failed to place on record any order confirming his service or any order whereby status of permanent employee was conferred to him or any order appointing the claimant as permanent workman or even appointment order appointing him on probation basis. It is also contended that the claimant was engaged as trainee and that total period of his engagement with the company was hardly six months. It is claimed that in case where total period of engagement is hardly six months, the direction to reinstate the claimant and the decision granting continuity of service for long interregnum and the decision awarding 50% backwages is unjustified and arbitrary. It is Page 5 HC-NIC Page 5 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT also contended that in absence of any order confirming engagement of the claimant and / or in absence of any order conferring status of permanent employee to the claimant, the fact that any order extending training period after 31.3.1998 was not passed, has no relevance and the status of claimant as trainee would continue unless order confirming engagement is passed by the company. It is also claimed that the learned Courts misread and misconstrued evidence by Mr. Bhatt, Deputy Manager and the evidence by Mr. Bhattacharya. The company also contended that the conclusion by learned Courts that the claimant was permanent employee is merely presumption and conjecture of learned Courts and it is not based on any evidence. According to learned Senior Counsel for the petitioner learned Courts ignored that in his cross examination the claimant admitted that his first appointment was as trainee and that the claimant did not place on record any order appointing him as permanent employee and that the finding by the Courts considering that the claimant's appointment and service with company was as permanent employee is perverse. It is also contended that the learned Labour Court has recorded finding about victimization in absence of any evidence and that therefore the said finding is also perverse. According to company there is no basis or justification to award reinstatement, that too in case where total tenure of engagement was only six months and there is no justification to award 50% backwages as Page 6 HC-NIC Page 6 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT well.
6. The submissions by learned Senior Counsel by the company are opposed by learned advocate for the respondent. It is submitted by learned advocate for the respondent that both the Courts have recorded concurrent findings and that therefore there is no need or justification to disturb said concurrent findings. It is further contended that even if the claimants initial appointment is considered as that of trainee, then also, his service, on and from 1.4.1998 (i.e. after expiry of period) was rendered as permanent employee since training period expired on 31.3.1998 and that therefore service of the claimant could not have been terminated without following prescribed procedure. It is also contended that learned Labour Court has rightly held that the performance at the rate less than expected standard cannot be termed misconduct. It is also claimed that the termination of the claimant's service on such ground and / or without following prescribed procedure amount to illegal termination. It is also claimed that since subsequently other person was placed to perform work which the claimant perform established that the service of the claimant was terminated illegally and though work was available the procedure prescribed for retrenchment was not followed. The learned advocate for the respondent submitted that there is no error or illegality in the order passed by both the Courts.
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7. I have considered rival submissions and material available on record including appointment order, identity card (which is relied on by the Court) and the deposition of the witnesses and impugned order as well as other material available on record.
8. At the outset it is necessary to mention that there is no dispute with regard to the date from which the respondent came to be engaged and the date on which he came to be relieved. A copy of the appointment order and copy of the order terminating service of the respondent are available on record. Total period of respondent's engagement with the petitioner company is not disputed even by the petitioner company.
8.1 From the documents i.e. appointment order, joining report and termination order it has emerged that the company issued appointment order dated 29.1.1998 and thereby engaged the respondent as trainee in Engineering Department. The respondent reported for duty on 2.2.1998 (exh.9 i.e. annexure E page 75 of the petitioner) and his service came to be terminated vide order dated 24.8.1998.
8.2 From the said undisputed details it comes out that the respondent was engaged / he worked with the petitioner company from 2.2.1998 to 24.8.1998.
Page 8 HC-NIC Page 8 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT 8.3 Meaning thereby total tenure of his service was of about six months. The said fact translates into the fact that the respondent was engaged and he worked with the petitioner for period less than 12 months and less than 240 days.
8.4 Even if it is assumed that he worked every day during the period from 2.2.1998 to 24.8.1998 (without any holiday or weekly off) then also the total tenure would not reach to requisite 240 days. Therefore the contention that the termination of respondent's service was effected without following procedure prescribed is not sustainable.
8.5 At this stage it is appropriate to take into account the appointment order issued by the company. The said order reads thus:-
DT: 29/01/98 To, Shyamji Dayashankar 11/234, Gayatri Nagar Soc.
Near Krishna Kesav Leb.
Amraiwadi Ahmedabad-380026 Dear Mr. Shyamji With reference to your application and personal interview you had with us, we are pleased to engage you as Trainee Engineering Department of our Organization purely on temporary basis from 29.01.98 to 31.9.1998.
1. Your shall be paid Rs.80/- per day during this period.
2. You shall have to report on your job on 29.1.98.
This letter is being issued in duplicate and your are requested to return the duplicate copy of the same duly signed in token of by acceptance of the above."
8.6 Along with the said order it is also relevant to take into account internal office memo which reflects the details of respondent's joining of the petitioner company.
The said memo reads thus:-
Page 9 HC-NIC Page 9 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT Internal Memo From: J.A. Suthar To, V.P. (F & A) & H.J. Sheth Spinfab Ref:- Date:2/2/98 Please note that Shri Shyamji Dayashankar has resumed the duty as a trainee (R.O. Plant Operator) on dt. 2/2/98 in Ashima Spinfab unit please find herewith joining letter dated 29/1/98."
9. Both the documents more particularly the appointment order dated 29.1.1998 bring out that the respondent's initial appointment was as trainee and that the said appointment order for was for fixed period i.e. from 29.1.1998 to 31.3.1998 and that the respondent had reported for duty on 2.2.1998.
9.1 Thus, the fact that the respondent came to be initially appointed as trainee cannot be disputed and could not have been ignored by both the Courts.
10. On the other hand the fact is also borne out from the record that upon expiry of training period on 31.3.1998 any order extending said period (beyond 31.3.1998) was not passed / was not placed on record.
10.1 It is not even the case of the respondent that such order was passed. Of course the petitioner company has claimed that period was extended because the respondent requested to extend his training period. The claimant has denied said version of the petitioner company.
11. Therefore, the question which arose before learned Page 10 HC-NIC Page 10 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT labour Court was whether in absence of any order extending period of training coupled with absence of any order conferring status of permanent employee or in absence of order converting respondent's engagement into appointment on probation basis or on permanent basis or any order appointing the respondent as permanent employee, the Court could have assumed that the respondent was permanent employee of the company or that upon expiry of training period mentioned in appointment order the respondent's appointment automatically got converted into permanent appointment.
12. In this context the petitioner company has placed reliance on provision under Standing Orders i.e. clause 3(i) and 3(v). The said provisions read thus:-
"3(i) -A permanent operative is (1) one whose name has been entered in the muster roll and who has been given a permanent ticket; or (2) one who has completed a period of six months on a permanent vacant post and is either a senior most badli worker or is selected to fill in the post for reasons to be recorded in writing"
Standing Order 3(v) as follows:-
"Apprentice- An apprentice is a person who is appointed as an apprentice under the Apprentice Act, 1961.
One who is employed with or without any allowance to learn a job other than unskilled one and who is not a probationer, badli or temporary; Provided that no workman shall be classified as an apprentice if he has had training for an aggregate period of one year for that job"
13. On reading the decision by learned Labour Court as well as Industrial Court it comes out that the Courts have not taken into account said provisions.
13.1 It also comes out from the said decision that learned Courts did not take into account the fact that any order appointing the respondent as permanent employee or Page 11 HC-NIC Page 11 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT conferring status of permanent employee was not placed on record by the respondent. Differently put, the learned Courts failed to consider that there was no material on record to support the conclusion or to justify the inference that the respondent was permanent employee of the company.
14. Despite this position learned Courts proceeded on the premise i.e. on the presumption and inference that the respondent was permanent employee.
14.1 Another aspect which emerges from the record is that learned Court has recorded finding that the respondent was victimized. In this context it is relevant to note that on reading the evidence of the respondent it comes out that entire examination-in-chief of the respondent comprises 10 points / paragraphs. No where the claimant has asserted that he was victimized or even alleged that he was victimized. He has not mentioned name of any person who allegedly subjected him to victimization.
15. Actually there is no evidence much less any cogent and conclusive evidence to establish victimization and to justify conclusion by the Court that the workman was victimized.
16. Above mentioned errors by learned Courts and Page 12 HC-NIC Page 12 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT defects in impugned decisions are apparent on face of the decisions.
16.1 However, simultaneously it is also true that company failed to establish that it was the respondent who requested for extension of training period and company also failed to place on record any order to establish that training period was extended.
17. Of course the issue as to whether, in absence of extension of training period, it can be assumed that the said failure automatically converted the respondent's appointment into category of permanent employee.
17.1 The orders impugned in the petition do not reflect any discussion in this context.
17.2 Actually it appears that the Courts failed to frame and decide said issue.
17.3 Any provision, either from standing order or other applicable rules is also not shown to the Court wherefrom it can be derived that upon expiry of period of training / apprenticeship coupled with the absence of order of confirmation in service, a trainee should be presumed to have been confirmed in service as permanent employee.
18. Since the impugned decisions are silent on this Page 13 HC-NIC Page 13 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT aspect and any evidence or any provision is also not available on record of present petition it would not be proper or permissible for this Court to venture to presume anything on this count.
18.1 Since the Courts have recorded findings or observations that the respondent was permanent employee and that such finding is recorded without taking into account above mentioned provision of the standing order and without inquiring as to whether there is any provision which allows presumption of automatic confirmation of service and when it is also found that the Courts failed to even frame said issue, proper course would be to remand the proceedings for further consideration in light of relevant evidence.
18.2 However, in view of the fact that service of the respondent was terminated in 1998 this Court is not inclined to remand the proceedings.
19. There is another reason which also persuade the Court to not remand the proceedings. It has emerged from the record that from other perspective the conclusion by the Court that termination was not in accordance with law can be sustained and in light of certain undisputed facts, the final decision and the relief can be appropriately moulded without remanding the proceedings after such long period.
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20. From the record of the petition, more particularly from the termination order and the document dated 17.8.1998 which was on record of learned Labour Court exh. 29 (annexure-E page 79 of this petition) it has emerged that the supervisor / head of the department had intimated the manager that the respondent's performance was unsatisfactory and even after verbal warning the respondent was unable to achieve expected level and standard of performance. Besides this, even the termination order records that the performance was not found satisfactory. Actually the appointment order reflects that unsatisfactory performance was the ground and motive for the termination which is evident from said documents. The internal memo dated 17.8.1998 reads thus:-
"SUB:- Termination of services training of Mr. Shaymgi Dayashanker Mishra of spin fab.
Sir, We recommend termination of training / services of Mr. Shaymgi Dayashanker Mishra with effect from 21/8/98. Mr. Shaymgi Dasyanker Mishara had been found unsuitable for our requirement as R.O. Planer Operator. The performance of Mr. Shaymgi Dayashaker Mishara has been far below normal expected level and inspite of several verbal warning they have failed to improve their performance.
Kindly do the needful accordingly.
Regards."
20.1 In light of and pursuant to said memo the company passed termination order dated 24.8.1998
21. The said two documents give out that the reason and motive for termination was alleged "unsatisfactory performance". Therefore the said order can be construed as stigmatic order. Such stigmatic order is passed without Page 15 HC-NIC Page 15 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT issuing notice to the respondent and without granting any opportunity to the respondent. The said position emerge from the material available on record and it is also undisputed fact that the petitioner had not issued any notice and not called for any explanation from the respondent and not granted any opportunity for explanation or hearing to the respondent before passing order of termination.
21.1 However, the company would contend that since the respondent was merely trainee such procedure was not required.
21.2 When order is stigmatic minimum opportunity of hearing by calling for explanation ought to have been granted before terminating the claimant with such stigmatic order [see paragraph No.9 in D.K. Yadav vs. J.M.A. Industries Ltd. 1993 (3) SCC 259].
22. The fact that the order is stigmatic is writ large on face of the order. Since this aspect has emerged from the record and from undisputed facts, this Court, while hearing the petition against orders passed by learned Labour Court and Industrial Court, can certainly take into account such undisputed facts. The said facts would, even otherwise lead the Court to the conclusion that the termination order does not deserve to be and cannot be sustained.
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23. In light of foregoing discussion and above mentioned reasons there is no justification to interfere with the findings and conclusion recorded by the learned Labour Court and Industrial Court, though on different grounds. So long as final conclusion with regard to termination order is justified and legally sustainable, this Court would not upturn the conclusion.
23.1 This would leave behind the petitioner's objection with regard to final direction passed by the learned Labour Court and Industrial Court. The question which, therefore, arise, is about appropriate relief.
24. Now so far as the relief granted by the learned Labour Court and Industrial Court is concerned it is necessary to recall that foregoing discussion has brought certain apparent errors in the impugned decision.
24.1 In that view of the matter one course of action which can be followed is to remand the proceedings. However long passage of time since the respondent's termination from service and the fact that on other undisputed facts the final conclusion can be maintained would persuade the Court that the procedure to remand the proceedings can be avoided. Other course of action which is available at this stage is that while confirming and accepting final conclusion the relief can be moulded and alternative relief Page 17 HC-NIC Page 17 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT viz. granting reasonable lumpsum compensation can be granted. Actually the facts of the case establish that this is fit case to adopt said option and to mould the relief.
24.2 On this count it is necessary to recall that the respondent's initial engagement was, undisputedly, as a trainee. Further, total tenure of respondent's engagement with the petitioner is only six months. By now almost 18 years have passed since service of respondent came to be terminated. The respondent possess technical knowledge. During pendency of the petition, the company has paid last drawn wages to the respondent (so as to comply with the requirement under Section 17B of the Industrial Disputes Act, 1947).
24.3 The reason which would appeal to the Court more than any other reason is the nature of initial engagement and very short duration of respondent's engagement with the company i.e only six months and that the respondent had not worked even for 240 days with the company.
25. From above mentioned facts, more particularly the fact that respondent's initial appointment was as "trainee" and total tenure of respondent's engagement with the petitioner was only six months, it emerges that the order directing the petitioner company to treat the respondent's service as continuous does not appear to be justified. The said direction grants benefit of continuous service to the Page 18 HC-NIC Page 18 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT respondent for entire interregnum and ignores the fact that before the date on which the respondent came to be relieved he had worked with the petitioner only for six months. Therefore, the said direction deserves to be set aside. For similar reason the direction to pay 50% backwages is also not justified. Having regard to long passage of time from the date of termination until now coupled with short duration for which the respondent was engaged by the petitioner company it appears that if final relief is modified and the respondent is granted reasonable compensation then equity would be balanced.
26. Therefore, following order is passed;-
The conclusion by the learned Courts with regard to illegality of the termination is, though for different reason not disturbed. However in lieu of reinstatement and backwages, lumpsum compensation in the sum of Rs.5 lakhs appears appropriate and therefore lumpsum compensation in sum of Rs.5 lakhs is awarded.
The said amount is deemed to be inclusive of all dues /retiral benefits, backwages /compensation etc. however, it shall exclude the amount paid to the respondent towards last drawn wages under Section 17B of the I.D. Act from 2008 to 2017. The amount which is paid to the respondent is not included in the said amount of compensation (Rs. 5 lakhs) and the said last drawn wages to the respondent shall not be adjusted against the said compensation amount.
Page 19 HC-NIC Page 19 of 20 Created On Mon Jan 29 23:08:21 IST 2018 C/SCA/9418/2008 CAV JUDGMENT With the aforesaid modification the petition is partly allowed. The impugned decisions by learned Labour Court and Industrial Court are appropriately modified.
Orders accordingly.
Sd/-
(K.M.THAKER, J.) Suresh* Page 20 HC-NIC Page 20 of 20 Created On Mon Jan 29 23:08:21 IST 2018