Gujarat High Court
Prantij vs Chauhan on 16 June, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/9123/2009 16/ 16 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9123 of 2009
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PRANTIJ
MUNICIPAL BOROUGH - Petitioner(s)
Versus
CHAUHAN
PRABHUDAS SHANKARLAL - Respondent(s)
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Appearance
:
MR
JV JAPEE for
Petitioner(s) : 1,
MR KV GADHIA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/06/2010
ORAL
ORDER
Heard learned advocates appearing on behalf of respective parties.
The petitioner has challenged award passed by Labour Court, Himatnagar in Reference (LCH) No.108 of 2002 Ex.55 dated 29th December 2008. The Labour Court has partly allowed Reference with a direction to petitioner to reinstate respondent workman to his original post with continuity of service without back wages of interim period and award is required to be implemented within a period of 30 days from the date of publication.
According to learned advocate Mr. Japee, respondent had raised industrial dispute against the petitioner inter alia alleging that he was serving as daily wager - Sweeper with petitioner establishment since 5th October 1996 and he had completed 240 days service in each year. The petitioner had paid Rs.75/- as daily wage. According to petitioner, respondent was working in a group which consisted of 3 Sweepers and 2 Daily Wagers. It was the further case of respondent that he was not getting the salary and other benefits equivalent to the salary of permanent employees. Therefore, on 8th October 2000, respondent had further alleged that since he had made frequent demand for various service benefits, his services were orally terminated by petitioner w.e.f. 8th March 2000 without following required procedure under Section 25F and Section 25H of Industrial Disputes Act, 1947. The industrial dispute has been referred for adjudication to Labour Court, Himatnagar.
The statement of claim has been filed by workman. Against which, petitioner had filed written statement. In written statement, contention raised by petitioner that respondent was engaged as daily wager employee without undergoing the procedure of selection in view of influence of the then President of Prantij Nagar Palika Shri Bharatsinh Solanki who belongs to caste of respondent. The respondent was not properly discharging his duties and therefore, there were several complaints against his work, therefore, on 8th March 2000, his services were terminated. The petitioner had not made any fresh recruitment in view of instructions given by Director of Municipalities. As per the details submitted by respondent workman, he had completed an aggregate of 225 days during 1996 to 2000. Even as per the vouchers produced about the payment to the workman, the respondent had completed 225 days service only during the period of four years. This fact is also proved by the monthwise presence statement produced by petitioner. The respondent workman has not disputed before the Assistant Labour Commissioner about the details regarding the working days produced by petitioner. The Labour Court has committed gross error in drawing adverse inference because the documents, whose production was applied by respondent workman, were already produced by petitioner.
Learned advocate Mr. Japee submitted that it is a clear case wherein finding of fact given by Labour Court that Sec.25F is not violated and only Sec.25H is violated. In such circumstances, relief of reinstatement with continuity of service is contrary to provisions of Section 25H of ID Act. He also raised contention before this Court that witness of petitioner who was examined but his cross-examination is not completed and his right to cross-examine has been closed, because, witness was not remained present after some extent in cross-examination made by advocate of respondent. A specific application was made by advocate of respondent to close the evidence of petitioner because Ex.47 witness of petitioner Chief Officer was not remained present subsequent to some extent in cross-examination. Therefore, he submitted that Labour Court has committed gross error in granting relief in favour of respondent. Except that, no other submission is made by learned advocate Mr. Japee before this Court.
Learned advocate Mr. Gadhia appearing on behalf of respondent workman submitted that after award is published, respondent workman was reinstated in service as per order dated 26th March 2009 passed by Resolution from President of Prantij Nagar Palika with signature of Chief Officer. This Resolution has been passed in Special General Board Meeting and accepted the award passed by Labour Court and accordingly, respondent was appointed as Class-IV employee as Daily Wager in Sanitation Department. Accordingly, resume report submitted by respondent workman on 30th March 2009. But, subsequently, his service has been terminated by petitioner Nagar Palika, because, petitioner wants to challenge the award passed by Labour Court, Himatnagar. The relevant documents of order passed in Special General Board Meeting of Prantij Nagar Palika and order of reinstatement issued in favour of respondent dated 26th March 2009, Resume Report dated 27th March 2009 and letter from Chief Officer dated 30th March 2009 are produced on record. The respondent has also produced on record letter dated 2nd April 2009, where, his service was terminated w.e.f. 31st March 2009 only on the ground that petitioner wants to challenge award passed by Labour Court, Himatnagar. Therefore, learned advocate Mr. Gadhia submitted that Special General Board has accepted the award and accordingly, reinstatement order has been passed in favour of respondent and he was reinstated as a Class-IV employee daily wager in Sanitation Department. That resolution has been cancelled and directed the respondent workman not to remain present in service w.e.f. 31st March 2009 by petitioner. Against that, complaint has been made to Chief Officer by respondent on 2nd April 2009. He submitted that service of respondent was terminated by violating the provisions of Section 25F and Section 25H of ID Act. His service was terminated on 8th March 2000. Against which, dispute was raised and statement of claim was filed in support of his case by respondent vide Ex.7. Against which, written statement was filed by petitioner vide Ex.20. Thereafter, purshis was filed by respondent workman vide Ex.8 that without prejudice to his rights and contention, respondent is prepared to resume duty with petitioner. The respondent workman was examined vide Ex.11 and vide Ex.22, one application was made by respondent before Labour Court, Himatnagar calling certain documents from petitioner which has been referred in Para 6 by Labour Court. In support of Ex.22 application, affidavit vide Ex.23 has been also placed on record by respondent. Vide Ex.39, two documents have been produced by petitioner i.e. total working days of respondent has been produced on record by petitioner and details of monthwise presence of workman which comes to 225 days in a period from 1996 to 2000. Thereafter, vide Ex.47, one Mr. Dave, Chief Officer of petitioner was examined, but, his cross-examination is not completed and for that, documentary evidence is to be produced by witness. That cross-examination has been adjourned or postponed and accordingly, note has been made by Labour Court, Himatnagar to that effect. Vide Ex.48, application has been given by respondent to consider the evidence of witness Ex.47 is not completed, because, witness was not remained present subsequently and therefore, the stage of witness of petitioner has been closed by Labour Court vide Ex.52. That application Ex.52 is submitted by advocate of respondent. Vide Ex.53, written arguments have been produced on record along with certain decisions by petitioner. The Labour Court has considered undisputed facts between both parties that workman is appointed in October, 1996 as a Sweeper Daily Wager and his service was terminated on 8th March 2000. The question has been considered by Labour Court whether workman has completed continuous service of 240 days or not. For that, Labour Court, in terms, has come to conclusion that workman has failed to establish 240 days continuous service within 12 preceding months from date of termination. Such finding has been given by Labour Court based on facts at Page 39, internal page 17 of the award. But, he submitted that Labour Court has examined another question whether provisions of Section 25H of ID Act has been complied by petitioner or not ? After evidence of witness of petitioner Ex.47, documents demanded by respondent's advocate from witness of petitioner to produce the details of employees - daily wagers those who have been recruited or appointed subsequent to termination of respondent workman and their date of joining as per Mark 22/5, but, these documents have not been produced by witness of petitioner Ex.37. The respondent workman has produced a list of 36 daily wagers those who have been recruited or appointed subsequent to termination of respondent workman. Therefore, why the said list of 36 workmen have not been produced on record by witness of petitioner ? For that, no affidavit to that effect is filed by responsible officer from petitioner. Considering the evidence of workman Ex.11, after his termination as a Sweeper Daily Wager, new 10 to 15 persons have been recruited or appointed and they are still continue in service with petitioner and they were recruited in the same manner as recruited the respondent workman by petitioner. The witness of petitioner has admitted in his cross-examination as discussed at Page 44, internal page 22 of the award that he will produce details of 36 employees whose who have been recruited/appointed subsequent to termination of respondent workman as per Mark 22/5. These documents, though admitted by witness Ex.47 of petitioner that he will produce it before Labour Court, have not been produced by witness of petitioner as per Mark 22/5 and because of cross-examination which is remained incomplete and thereafter, witness has not entered into the witness box, therefore, learned advocate Mr. Gadhia submitted that Labour Court has rightly drawn adverse inference in light of the facts that documents have not been produced on record by petitioner. Even no affidavit is filed that why such documents have not been produced on record. Therefore, learned advocate Mr. Gadhia submitted that order of termination has been held to be violated the provisions of Sec.25H of ID Act which is mandatory in nature and not complied with by petitioner. Therefore, Labour Court has rightly granted reinstatement in favour of workman. He submitted that when reinstatement order has been passed in favour of respondent, it includes continuity of service, otherwise, Labour Court can pass an award of re-employment. He submitted that under Sec.25H of ID Act; after retrenchment of respondent workman, if any employee is recruited or appointed in the same manner in a same category, then, it is a legal obligation upon employer to recall the services of respondent workman, which was not recalled by petitioner. Therefore, he submitted that Labour Court has rightly granted relief of reinstatement with continuity of service to original post of daily wager.
Learned advocate Mr. Gadhia relied upon the decision of this Court in case of Pratikshaben B. Utrankar and Anr. v. State of Gujarat & Ors. reported in 2004(1) GLH 501. The relevant discussion is made in Para 8 and 9 which are quoted as under :
8. The controversy involved in the present petition has been earlier dealt with by this Court in the order dated 7th March, 2002 passed in Special Civil Application No.13758 of 1993. The relevant observations made by this Court in aforesaid decision are referred as under :
"I have considered the submissions made by both. I have considered the submissions made by both the learned advocates. There are ways of granting order of reinstatement by the labour court. If the order of reemployment would have been passed by the labour court, then, naturally, continuity of service would not have been there but once reinstatement has been granted, it would include continuity of service too, impliedly. This aspect has been considered by the apex court in case of Sanat Kumar Dwivedi versus Dhar Jila Sahakari Bhoomi Vikas Bank Maryadit and Others reported in 2001 AIR SCW 2430. In para 3 of the said decision, the apex court has observed as under :
"3. It is clarified that this order will not be treated to be resulting in any break in service of the appellant. He will be deprived of only the back wages. The continuity of service and all other notional benefits on that basis will be available to him. It appears that when the order of reinstatement was granted, except depriving him of back wages, it necessarily meant that the continuity of service was implicit in the reinstatement. Even condition Nos. 1 and 2 of the order of reinstatement clearly indicate that he is reinstated in service with continuity as pay scales and other benefits were also directed to be given."
It is further observations that;
"Recently, the apex court has considered the same question in case of Gurpreet Singh and State of Punjab and others reported in 2002 (92) FLR 838. The relevant observations made by the apex court in 1 and 2 of the said judgment are reproduced as under :
"Leave granted.
The Plaintiff is in appeal against the impugned judgment of the High Court of Punjab and impugned judgment of the High Court of Punjab and services stood terminated and he filed the suit for declaring the order of termination null and void. The suit was dismissed. The lower appellate court, however, on reappreciation of the materials on record, came to the conclusion that the order passed by the D.I.G. must be held to be illegal and consequently directed that the plaintiff should be reinstated in service. Having directed so, the first appellate court categorically held that the plaintiff will not be entitled for any arrears of salary for the period for which he has not served. The plaintiff assailed the appellate decree by filing a second appeal claiming that he would be entitled to the arrears of salary. The High Court by the impugned order not only confirmed the decree of the lower appellate court that the plaintiff will not be entitled to any arrears of salary but also further added that the plaintiff will not get his continuity of service. The plaintiff therefore is in appeal before this Court.
2. Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside that part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity in the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above."
9. Thus, in the above decision, this Court has examined the question and observed that once reinstatement has been granted and accepted by the the employer, meaning thereby, it impliedly includes continuity of service. In such circumstances, continuity of service cannot be denied to the workman. Unless there is negative direction issued by the labour court, otherwise, continuity of service must have to be impliedly covered in case when reinstatement has been granted by the labour court. In the facts of this also, reinstatement has been granted by the labour court on 13th March, 1992 which remained intact and upheld by the Division Bench of this Court and therefore, the effect of that award still remained continued till even in between two termination orders upto reinstatement has been granted by the respondent. Therefore, according to my opinion, the workmen are entitled to all the benefits of continuity of service under the Service Rules which are available to the petitioner.
Learned advocate Mr. Gadhia also relied upon another decision of this Court in case of Gurpreet Singh v. State of Punjab & Ors. reported in JT 2002 (1) SC 409, where, relevant discussion is made in Para 2 and 3 which are quoted as under :
2. The Plaintiff is in appeal against the impugned judgment of the High Court of Punjab & Haryana in a second appeal. The plaintiff's services stood terminated and he filed the suit for declaring the order of termination null and void. The suit was dismissed. The lower appellate Court, however, on re-appreciation of the material on record, came to the conclusion that the order passed by the D.I.G. must be held to be illegal and consequently directed that the plaintiff should be reinstated in service. Having directed so, the first appellate court categorically held that the plaintiff will not be entitled to any arrears of salary for the period for which he has not served. The plaintiff assailed the appellate decree by filing a second appeal claiming that he would be entitled to the arrears of salary. The High Court by the impugned order not only confirmed the decree of the lower appellate court that the plaintiff will not be entitled to any arrears salary, but also further added that the plaintiff will not get his continuity of service. The plaintiff, therefore, is in appeal before this Court.
3. Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment, but, it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside that part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity with the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stand allowed in part to the extent indicated above.
I have considered submissions made by both learned advocates appearing on behalf of respective parties. The Labour Court has rightly come to conclusion that workman is failed to prove 240 days continuous service in 12 preceding months, therefore, Section 25F of ID Act is not violated, but, Labour Court has also rightly discussed the evidence which are on record and evidence of witness of petitioner Ex.47. The documents/details have been demanded as per Mark 22/5 by advocate of respondent in respect to 36 employees, those have been recruited or appointed in the same manner subsequent to the date of termination of respondent workman, have not been given or produced on record by the petitioner. Not only that, no affidavit has been produced on record in support of facts that why such documents as demanded by workman vide Mark 22/5 have not been produced by petitioner. The case of respondent workman was as per Ex.11 in his evidence, certain new persons have been recruited or appointed in same manner as he was appointed in the post of Sweeper subsequent to termination of workman. Therefore, at that occasion, as per Sec.25H of ID Act, it was a legal obligation upon petitioner to recall the service of respondent workman, but, in fact, it was not recalled by petitioner. Therefore, breach of mandatory provision has been committed by petitioner. Sec.25H being an independent Section, which applies even in case where workman has not completed 240 days continuous service. Section 25H is made applicable in case of retrenchment. Whether workman has completed 240 days continuous service or not, that facts are totally irrelevant while question of compliance of Sec.25H is considered by Labour Court. [See : 2010 (1) SCALE 613 Harjinder Singh v. Punjab State Warehousing Corporation] In light of these facts, Labour Court has rightly come to conclusion that petitioner establishment has violated Sec.25H, because, no details have been produced on record in spite of demand made by workman as per Mark 22/5. No affidavit to that effect is filed by officer of petitioner as to why such documents have not been produced. Therefore, adverse inference has been rightly drawn by Labour Court that after termination of services of respondent workman in the same post as a daily wager, new persons have been recruited/appointed in the same manner as respondent was appointed, therefore, Sec.25H has been violated.
The Labour Court has also considered certain decisions which have been relied upon by advocate of petitioner in written arguments at Ex.53 i.e. 2007-II-CLR 859 Rameshwar Dayal v. Presiding Officer, Labour Court No.VI and Others of Delhi High Court. The Labour Court has also considered decision of Apex Court in case of Central Bank of India v. S. Satyam & others reported in 1996-II CLR 1095 and also considered decision of Apex Court in case of Jaipur Development Authority v. Ram Sahay & Others reported in 2006-II Scale 95.
Therefore, considering the reasoning given by Labour Court and also keeping in mind that details though admitted by witness of petitioner Ex.47 that he will produce details as demanded by respondent as per Mark 22/5 in cross-examination, but, that has not been produced, even though, incomplete cross-examination has been closed and right to lead further evidence of petitioner has been closed. No affidavit in support of that as to why documents have not been produced by petitioner, is filed. Therefore, considering the facts, Labour Court has rightly come to conclusion that petitioner establishment has violated mandatory provisions of Sec.25H of ID Act, therefore, respondent workman is entitled right of reinstatement in service. Accordingly, direction order has been set aside and ordinary relief of reinstatement has been granted. The Labour Court has rightly not granted relief of re-employment, therefore, the relief of reinstatement has been granted which includes continuity of service and accordingly, Labour Court has rightly granted benefits of continuity of service in favour of respondent workman. Therefore, contentions raised by learned advocate Mr. Japee cannot be accepted, because, there is no error committed by Labour Court in granting relief in favour of respondent workman. The Labour Court has rightly not awarded any amount of back wages in favour of respondent workman, because, only Sec.25H of ID Act has been violated by petitioner establishment.
Therefore, according to my opinion, Labour Court has rightly discussed oral as well as documentary evidence which are on record and Labour Court has not committed any error in deciding reference and Labour Court has given correct reason in support of its conclusion. For that, no interference is required by this Court while exercising the powers under Article 227 of the Constitution of India.
Hence, there is no substance in present petition. Accordingly, present petition is dismissed. No order as to costs.
[H.K. RATHOD, J.] #Dave Top