Gujarat High Court
Zaveri vs Devchandbhai on 24 January, 2011
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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SCA/14426/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14426 of 2010
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ZAVERI
MANGALJI VAMALJI DISPENSARY - Petitioner
Versus
DEVCHANDBHAI
S RAJGOR 4 & 1 - Respondents
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Appearance :
MR
JV JAPEE for
Petitioner: 1,
MR HRIDAY BUCH for Respondent: 1,
NOTICE SERVED
for Respondent:
2,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 24/01/2011
ORAL
ORDER
Heard the learned advocates for the parties.
The first party Employer in Reference (LCP) No. 72 of 2000 from the Labour Court, Palanpur has approached this Court under Articles 226 and 227 of the Constitution of India challenging the award and order dated 31.3.2010 passed by the Labour Court, Palanpur partly allowing the reference and ordering the first party petitioner hereinabove to reinstate the workman on his original post and pay him only 15% by way of back wages and cost of Rs.500/-.
Facts in brief leading to filing this petition deserves to be set out as under:
It was the case of the workman that he was working as watchman with petitioner establishment since 1987 to 31.3.2003. His services came to be terminated by way of retrenchment as the management wanted to give the work of watch and ward to the private security agency. The workman was paid one month wages in lieu of wages and retrenchment compensation for the service rendered as per the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the I.D. Act' for short). The workman being aggrieved and dissatisfied by the order of retrenchment, which purportedly had been passed in compliance with Section 25F of the I.D. Act, raised industrial dispute that he ought to have been not retrenched for the reasons stated therein and he prayed that he be reinstated in service as watchman. The said dispute was referred to the competent court, wherein, it was marked as Reference (LCP) No. 72 of 2000. The rival parties filed their respective statement of claim and written statement and led evidence based whereupon the Labour Court came to the conclusion that Reference deserves to be partly allowed as the very work which was being performed by the workman had been given to other agency and therefore, breach of section 25H was established. The Labour Court therefore, ordered reinstatement of the workman on his original post with only 15% of back wages and cost of Rs.500/- vide his order dated 31.3.2010, which is subject matter of present petition under Article 227 of the Constitution of India.
Shri Japee, learned advocate appearing for the petitioner contended that in the instant case, the Labour Court erred in invoking provisions of Section 25H of the I.D. Act as it was not the case where the workman after retrenchment had been not called and other freshers were called. He further submitted that the workman was required to be retrenched as there was a resolution passed by the Managing Committee of the Trust, which runs hospital in question, to have the workmen of watch and ward to be performed by the security agency. The Managing Committee has retrenched the employee by exercising their right to choose the methodology of doing its business and non-calling of the workman for doing same job and instead thereof giving the job to the security agency, cannot be said to be breach of Section 25H of the I.D. Act. Shri Japee further submitted that there is no question of breach of Section 25H as could be seen from the records and proceedings that the management has complied with the provisions of Section 25F, as when the management wants to retrench the workman, notice came to be issued to the workman and as a methodology adopted by the petitioner for giving contract to security agency for their need. Therefore it can not be said that there is breach of Section 25H of the I.D. Act. Shri Japee learned advocate for the petitioner relying upon the decision of this Court in case of Gujarat State Cooperative Agri. & Rural Development Bank Ltd. & Anr. Vs. Yoginiben Anilkumar Joshi, reported in 2004(2) GLR p.1618, more particularly paras 5 and 6, contended that in a given situation, there is no breach of Section 25H and contended that employee from the security agency is more professional and skilled persons than the respondent workman and therefore, retrenchment is necessary and therefore, the impugned order deserves to be quashed and set aside.
Shri Buch, learned advocate appearing for the respondent workman contended that the Industrial Disputes Act and Schedule V, especially do not countenance this methodology to be adopted by the employer. He read schedule V, item VI and submitted that even if when the workmen were on strike, the employer is not entitled to engage or give some work to a contractor on a contract base on account of deficiency of the person in strength. In such a situation, the law does not permit employer to give the same work to any contractor in an ordinary natural course. When the employee is performing his duty to the utmost satisfaction of the employer and when there is absolutely no ground for retrenching him, in other words, when there is no change of work and work is the same, then retrenching the workman and placing the workman under retrenchment and engage contractor for doing this work through contract labour, would amount to unfair labour practice. He submits that in any case, section 25H is strictly and straightway applicable and when the Court has recorded its finding thereon, this Court under Article 227 of the Constitution of India, may not interfere with the same. Shri Buch thereafter relied upon the decision of the Apex Court in case of Workmen of the Food Corporation of India Vs. Food Corporation of India reported in (1985) 2 SCC 136 and contended that in a given situation, the workman could not have been treated or could not have been retrenched and contract work could not have been done by the contractor.
This Court has heard learned counsel for the parties and perused the award impugned. The employer, as could be seen from the written statement submitted in response to the statement of claim, has not specifically even attempted to make out a case that there was genuine requirement of engaging the security agency for doing watch and ward work, which otherwise was done by the respondent-workman. The employer petitioner hereinabove, could not at least plead its case for bringing about the valid reasons for supporting retrenchment of the workman. The principle of retrenchment are now well settled but suffice it to say that Section 25F cast duty upon the employer to give reasons for retrenchment in the notice itself. Now this solemn provisions for recording reasons has made the reasons for subject matter of judicial scrutiny and therefore, in a case, the workman is entitled to challenge those reasons and established his case that the retrenchment is nothing but a facade to defeat his service.
The employer is under an obligation to specifically mentioned the reasons for retrenchment which should be in consonance with the provisions of I.D. Act, whereunder, it is by now established position of law that engaging contractor for doing the work which otherwise was done by the employee, is not a healthy practice and in case, there is no other change on situation warranting contractor a way done by the regular employee, then, it is all the more not permitted to the employer to choose that the services of the regular employee can be retrenched and done the said work through contract labour. The provisions of the Contract Labour (Regulation and Abolition) Act, 1970 can be useful in referring to support the aforesaid proposition of law. Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 also enlists at least four situation, which needs to be borne in mind while exercising prohibition and establishing the contract labour. Those concepts need to be viewed in its proper perspective. So far as facts and circumstances of the present case are concerned, it can well be said that, it has come out time and again in testimony of the management witness that the work is perennial and activities of the hospital is not expanded so as to get more force of employee and/or establishment of large contract work through security agency nor has any eminent danger pleaded for engaging any so called skilled and so called professionally managed security personal. In absence of any such requirement, an emboldened submission on the part of the petitioner that it is the decision of the management to contract away the work, instead of continuing the regular employee, who has been serving since last 15 years, would be countenanced as contrary to the healthy labour practice. The provisions of Section 25H of the I.D. Act can certainly not given go by in such a circumstances. Section 25H of the I.D. Act is an independent provisions which operates even if the workman has been retrenched even after due procedure of law of Section 25F is followed. Section 25H of the I.D. Act is an obligatory provisions upon the employer. If the submission as propounded by Shri Japee is taken into consideration then, the employer has a right to choose the methodology of giving contract work through contractor instead of regular employee, ignoring the provisions of ID Act, then, it would be a serious blow to the statutory provisions and scheme of the I.D. Act, especially section 25H of the I.D. Act and therefore, in my view such proposition of law deserves to be rejected outright.
The decision cited at bar, in my view, would be of no avail to the petitioner as that is the case, wherein, an opportunity was offered but was not availed by the retrenched workman, while in the present case, no such opportunity is ever offered and therefore, the petition is being bereft of merits, deserves rejection and is rejected accordingly. Notice discharged. No costs.
(S.R.BRAHMBHATT, J.) pallav Top