Gujarat High Court
Asif Usmanbhai Piparwadia vs The State Of Gujarat & on 4 March, 2013
Author: Ks Jhaveri
Bench: Ks Jhaveri
ASIF USMANBHAI PIPARWADIAV/STHE STATE OF GUJARAT C/SCA/11176/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11176 of 2008 With SPECIAL CIVIL APPLICATION NO. 901 of 2013 TO SPECIAL CIVIL APPLICATION NO. 924 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ ASIF USMANBHAI PIPARWADIA & 1....Petitioner(s) Versus THE STATE OF GUJARAT & 2....Respondent(s) ================================================================ Appearance: MR PH PATHAK, ADVOCATE for the Petitioner(s) No. 1 - 2 MR MANAN MAHETA ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI Date : 04/03/2013 COMMON ORAL JUDGMENT
1.0. Rule in Special Civil Application Nos. 901 of 2013 to 924 of 2013. Mr. Manan Maheta, learned Assistant Government Pleader waives service of notice of rule on behalf of the respective respondents.
2.0 The captioned petitions have been filed against the common award dated 12.03.2008 passed in different references by the learned Presiding Officer, Labour Court, Surendranagar whereby the references of the petitioners came to be rejected.
3.0 The facts of the case, in brief, are that after following the selection procedure, petitioners were appointed to discharge clerical and other various duties under respondent No.2 in October 1994. They were rotated as temporary employees on 29 days appointment basis and artificial break in services were given. Therefore, the petitioners filed Special Civil Application No. 8677 of 1997 before this Court. This Court passed order not replacing the petitioners by adhoc or temporary appointees. The department did not respond to the order of this Court. Therefore, the petitioners filed another Special Civil Application No. 8928 of 2001 and the order was passed in favour of the petitioners.
3.1 According to the directions of the this Court, Reference was made to the Labour Court and Labour Court rejected the references of the petitioners-workmen. Hence, the present petitions.
4.0 Learned advocate appearing for the petitioners contended that Labour Court erred in holding that the respondent-institution does not fall within the definition of Industry as defined under Section 2(j) of the Industrial Disputes Act, 1947. ( hereinafter referred to as the Act ). He further submitted that the respondent department is an industry so far the activities performed by the respondents. It is not sovereign function which cannot be handed over to any private persons. In support of his submission he placed reliance on the decision of the Hon ble Supreme Court in case of the Corporation of the City of Nagpur versus its employees reported in AIR 1960 SC 675.
Clause (xviii) of para 20 reads as under:
....
(xviii) General Administration Department: This Department co- ordinates the functions of all the other departments. The State Industrial Court, describes the functions of this department thus: This department consists of treasury, accounts section, records section in which are kept records of all the different departments and public relations section. It also consists of a committee section the duty of which is to look after the convening of meetings, to draw up agenda, minutes of proceedings and to draft by-laws. In the record section are kept records of most of the departments including health and engineering.
Every big company with different sections will have a general administration department. If the various departments collated with this department are industries, this department would also be a part of the industry. Indeed the efficient rendering of all the services would depend upon the proper working of this department, for otherwise there would be confusion and chaos. The State Industrial Court in this case has held that all except five of the departments of the Corporation come under the definition of industry and if so, it follows that this department, dealing predominantly with industrial departments, is also an industry. Hence, the employees of this are also entitled to the benefits of this Act.
5.0 Learned advocate for the petitioner contended that the on 30th and 31st days, the petitioners were called for work and copies of the orders showing working of the petitioners workmen on 30th and 31st of the months are produced on record. In support of his submission, he placed reliance on the decision of this Court in case of Surat Mahila Nagrik Sahakari Bank Ltd. versus Mamtaben Mahendrabhai Joshi reported in 2002 (1) GLR 755 wherein in paragraph 27 it is held as under:
27.
Considering the various case law and considering the facts of the case, especially when we have gone through the evidence, which was led by the parties, we are of the opinion that the respondent employee was given tenure appointment orders from time to time for a long period, which extended beyond 240 days. It is no doubt true that the respondent has not specifically pleaded that the power exercised by the Management was nothing but a colourable exercise of power. However, the facts of the case as well as the evidence on the record clearly establish that such temporary orders were given from time to time and, thereafter, the services of the respondent were terminated even though the work in question was still in existence. There is nothing on record to show that such work was not in existence at the relevant time when her services were terminated. In fact, at the time of argument, Mr.Patel himself has stated that if her work were found to have been satisfactory, she would have been given permanent appointment. Therefore, it is not possible to believe that since the work, for which she was appointed, was not in existence, her services were not continued further. In so far as the unsatisfactory work is concerned, there is absolutely no reliable material for coming to the conclusion that her work was not satisfactory. Few orders on which reliance was placed by Mr.Patel do not inspire confidence to reach the conclusion that really, the work of the concerned employee was not satisfactory. In our opinion, it is not open for the Management to take the benefit of the nature of appointment order, i.e. tenure order, with a view to depriving the employee the benefit available under the Industrial Law. This is not a case, wherein only for a fixed type of work, like a Project, etc., an appointment is given and on completion of such work or project, the services of such employee is not required any further. On the contrary, the respondent-employee could have been continued in service even as per the say of Mr.Patel, if her services were found to be satisfactory. That shows that the work in question is still available and other similarly situated employees, who were appointed with the respondent, have been continued in service by the Management.
In fact, to continue a person for a very long time under temporary orders may amount to Unfair Labour Practice within the meaning of the Fifth Schedule of the Industrial Disputes Act, 1947. Clause 10 of the Fifth Schedule lays down that employment of workmen as "badlis", casuals or temporaries and continuing them as such for years, with the object of depriving them of the status and privileges of permanent workmen, may amount to Unfair Labour Practices. The Industrial Court, Surat, in appeal, has considered in paragraph 14 of its order, various appointment orders, which are 16 in number. The appellate court has observed that with a break of one or two days, fresh orders were used to be given to the respondent. The Court has also considered the evidence of the Management, wherein the Bank Manager has said that she cannot state whether any other employees have been continued in service after the termination of service of the respondent. The Industrial Court has not believed the evidence of this Bank Manager on the ground that it is difficult to believe that she is not aware about the aforesaid facts even after serving since 20 years. The Industrial Court has also found in the said paragraph that one Ashaben Pachhigar, who was also given temporary appointment from 8.1.1991 to 7.2.1991, was the sister-in-law of the Manager of the Bank and the said Ashaben was made permanent. Mention is made by the Industrial Court in paragraph 14 of the judgment about similar types of appointments given to others. Considering the aforesaid benefit given to other similarly situated employees as well as considering the fact that the work in question was of a permanent nature, and the employees similarly appointed with the present respondent and even subsequently appointed, have also been made permanent, the Industrial Court has found that the action of the Management was deliberate and intentional not to give status of permanency to the present respondent with an object of depriving her the benefit of law. Under these circumstances, the appellate court has given a finding of fact that the action of management is not bona fide and by keeping prejudice, she has not been given appointment in order to provide employment to others and that the work in question has continued even after the termination of service of the respondent. Considering the totality of the evidence, therefore, the Industrial Court has given detailed reasons starting from paragraph 14 onwards. It is no doubt true that the applicant, in her application or even in her approach letter before filing the application to the Court or in her evidence, has not clearly stated that the action in question is by way of colourable exercise of power. Still, the appellate court has considered the benefit given by the Bank to others and has also come to the conclusion that this is a case of victimization, as observed in the concluding part of paragraph 14 of the order. Therefore, it is not possible for us to believe that the learned single Judge has given the said finding even though there is absolutely no evidence on the record, because, ultimately, the reasoning of the Industrial Court also is on the same line. Therefore, once it is found by the fact finding court, i.e. the Industrial Court, that the order in question is not bona fide and that it is passed by way of victimization and the said reasoning is based on appreciation of evidence and when attention of the parties is focused on this question, it cannot be said that the said finding of fact is based on no evidence or that the point is wrongly decided even though it was not in issue before the Court. In that case, even if there is no specific issue and if the evidence is already available on the record, such finding cannot be said to be vitiated. While exercising extraordinary powers under Article 226 of the Constitution of India, therefore, it is not possible for this Court to set aside the aforesaid finding of fact, and it cannot be said that the same is without any foundation worth the name. Though it is, no doubt, true that in case of a fixed term appointment, in view of Section 2(oo)(bb), the provisions of Section 25-F may not have any application, the Court, exercising powers under the Industrial Disputes Act, can very well go into the questions whether the powers are exercised bona fide, whether it is by way of victimization or whether it is passed solely with the object of depriving the employee the benefit available under the Industrial Disputes Act. It cannot be said that even if the order is passed by way of victimization or in an arbitrary manner, or even if it is an unfair labour practice, then also simply because the appointment is for a fixed term, provisions of Section 25-F are not to be looked into at all. In our view, therefore, the said provision cannot be brushed aside if it is brought to the notice of the Court that the order in question was passed by way of victimization or has not been passed with a bona fide intention. When the appellate court has specifically come to the conclusion, on appreciation of the evidence, it would hardly make any difference whether the concerned employee has pleaded that case in her application or not.
As stated earlier, certain facts are not in dispute that various appointment orders of temporary nature were issued from time to time to the respondent and similar orders were issued to other employees and, thereafter, even persons junior to the respondent were made permanent, coupled with the fact that there is no material except some few lines written in some of the temporary orders that the employee may increase her speed of work, and from the same, ipso facto, it cannot be said that her work was not satisfactory during the temporary period and, therefore, the action of not continuing her in service was not a bona fide and genuine action. Therefore, in our view, it is not open for the appellant to take benefit of tenure appointment unless such action is found to be reasonable, bona fide and genuine. The material on the record do not satisfy our conscience that the non-continuance of the respondent in service was bona fide. In view of the positive finding given by the appellate court, we are not in a position to accept the say of Mr.Patel, and as stated earlier, said provision of Section 2(oo)(bb) cannot be made applicable in all cases, where, based on evidence, it is found that the action of the employer is by way of victimisation or, in any case, is not bona fide.
6.0 Learned advocate for the petitioner submitted that the Labour Court erred in holding that the petitioners have not been appointed with the respondent institution on sanctioned post as a permanent employee. Learned advocate for the petitioner relied upon the decision of the Hon ble Supreme Court in case of Annop Sharma versus Executive Engineer, Public Health, Division No. 1, Panipat ( Haryana) reported in (2010) 5 SCC 497 wherein in para 12 and 13 it is read as under:
12.
A reading of the impugned order shows that the Division" Bench of the High Court set aside the award of the Labour Court without even adverting to the fact that challenge to similar award passed in the cases of other employees was negatived by the High Court and this Court. We have no doubt that if the Division Bench had taken the trouble of ascertaining the status of the disputes raised by other employees, then it would have discovered that the award of reinstatement of similarly situated employees has been upheld by the High Court and this Court and in that event, it may not have passed the impugned order. That apart, we find that even though the Division Bench did not come to the conclusion that the finding recorded by the Labour Court on the issue of non-compliance of Section 25-F of the Act is vitiated by an error of law apparent on the face of the record, it allowed the writ petition by assuming that the appellant's initial engagement/employment was not legal and the respondent had complied with the conditions of a valid retrenchment.
13. In our view, the approach adopted by the Division Bench is contrary to the judicially recognized limitations of the High Court's power to issue writ of certiorari under Article 226 of the Constitution - Syed Yakoob v. K.S. Radhakrishnan, Municipal Board, Saharanpur v. Imperial Tobacco of India Ltd., Lakshmi Precision Screws Ltd. v. Ram Bhagat , Mohd. Shahnawaz Akhtar v. Ist ADJ Varanasi Mukand Ltd. v. Mukand Staff and Officers' Association, Dharamraj and others v. Chhitan and CIT v. Saurashtra Kutch Stock Exchange Ltd.
7.0 Learned advocate appearing for the petitioner placed reliance on the decision of the Hon ble Supreme Court in case of Harijnder Singh versus Punjab State Warehousing Corporation reported in (2010) 3 SCC 192 wherein in para 11 it is held as under:
11.
We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction of the High Court under Articles 226 and/or 227 of the Constitution- Syed Yakoob v. K.S. Radhakrishana and Surya Dev Rai v. Ram Chander Rai.
8.0 Learned advocate for the petitioner further contended that the Labour Court erred in holding that the appointment of the petitioners was back door entry. He further submitted that the activities on which the petitioners were employed is permanent nature, and regular work was/is available. Once the names were called from from Employment Exchange and they were selected the names of such employee is struck
-off from the unemployment list. The respondent District Collector by issuing the orders on 29 days or temporary appointment kept a hanging sword on the head of the employees and when they requested for better conditions of services their services were terminated.
9.0 Learned advocate for the respondent relied upon the decision in case of State of Gujarat versus Pratamsingh Narsinh Parmar reported in 2001(9) SCC 713= JT 2001 (3) SC 326.
Learned Assistant Government Pleader further placed reliance on the decision of the Hon ble Supreme Court in case of Haryana State Co-operative Land Development Bank Ltd. versus Neelam reported in 2005(5) SCC 91= AIR 2005 SC 1843 and in the case of Pondicherry Khadi & Village Industries Board versus P.Kulothangan reported in 2004(1) SCC 68= AIR 2003 SC 4701.
10.0 On the facts of the case it is evident that the nature of employment of the petitioners is permanent, and regular work was available. Once the names were called for from Employment exchange and after selection their names are struck-off from the employment list. The petitioners were given temporary employment for 29 days and artificial break was given in the employment. It is required to be noted that in the present case various appointment orders of temporary nature were issued from time to time and the respondent authority cannot take benefit of tenure appointment. It is well settled law that to continue a person for a very long time under temporary orders may amount to unfair labour practice within the meaning of the Fifth Schedule of the Industrial Disputes Act, 1947. Considering these facts, it appears that the Labour Court has not considered the ratio laid down by this Court in the case of Gujarat Forest Producers, Gatherers and Forest Workers Union reported in 2004 (2) GLH 302. In that view of the matter it would be appropriate to remand the matter to the Labour Court for consideration of the matter afresh.
11.0 In the premises aforesaid and in light of the above cited decision of the Full Bench of this Court, the impugned judgment and awards passed by Labour Court is hereby quashed and set aside and the present matters are remanded to the concerned Labour Court for fresh decision. The Labour Court is directed to reexamine the evidence afresh keeping in mind the ratio laid down by this Court in the above cited decision. Both the the parties shall be afforded opportunity to lead evidence. It will be open to both the parties to raise their respective contentions before the Labour Court. The question whether 'Collector' is an industry or not is also will be considered. Rule is made absolute to the aforesaid extent.
12.0 If the parties cooperate with hearing of the matter, the Labour Court is directed to dispose of the matter within a period of one year from the date of receipt of writ of this Court.
(K.S.JHAVERI, J.) niru* Page 12 of 12