Gujarat High Court
Arunbhai Bhopabhai Budhelia vs Bhavnagar Municipal Commissioner on 27 August, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3324 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 13057 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ARUNBHAI BHOPABHAI BUDHELIA
Versus
BHAVNAGAR MUNICIPAL COMMISSIONER
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Appearance:
MR RAJESH P MANKAD(2637) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 27/08/2021
ORAL JUDGMENT
1. Both these petitions have been arisen out of the same award dated 30.06.2009 passed by the learned Judge, Labour Court No.1, Bhavnagar in Reference (L.C.B.) No.84 of 2002 Page 1 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 whereby the Labour Court has granted the relief of reinstatement with continuity of service and 20% back wages to the workman.
2. For the sake of brevity and convenience, the parties are referred to as "workman" and "employer".
3. Being aggrieved and dissatisfied with the said award, the workman has filed Special Civil Application No.3324 of 2010 for enhancement of the back wages from 20% to 100%, whereas, Special Civil Application No.13057 of 2009 has been preferred by the Bhavnagar Municipal Corporation challenging the same impugned award of reinstatement with continuity of service and 20% back wages to the workman.
4. Since both the petitions are filed against the same award and Special Civil Application No.13057 of 2009 has been ordered to be placed with Special Civil Application No.3324 of 2010, the facts of Special Civil Application No.3324 of 2010 are considered as a lead matter and both the petitions are being disposed of by this common judgment.
5. Brief facts of the present petitions are that the workman has joined the service of the employer and he was working for Page 2 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 last four years and getting minimum monthly wages and vide order dated 01.09.2000, his service came to be terminated by the employer without notice being issued or without paying any retrenchment allowance or notice pay. It is contended that the workman has, thereafter, approached the Assistant Labour Commissioner through Union for conciliation, but, conciliation failed thereafter, the Assistant Labour Commissioner has referred the case to the Labour Court. According to the workman, he was working as Sipai. According to the workman, his service came to be terminated without following due procedure of law and after termination of his service, new employees were employed. According to him, the employer has committed breach of Section 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter be referred to as the "I.D. Act"). It is also contended that as he has demanded for attendance card, identity card, pay slip etc., his service came to be terminated. 5.1 The employer has resisted the demand of the workman by filing its written statement wherein it has contended that it has having set-up and as and when required, it called the workman for specific time job which was not on sanctioned post. It is also contended by the employer that it employed the workman for Page 3 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 specific job, days and time and the workman has randomly worked for four years and his demand was not proper one and he cannot be made permanent.
6. The Labour Court has considered the oral as well as documentary evidence on record and ultimately passed, the impugned award.
7. Heard Mr. Rajesh Mankad, learned counsel for the petitioner and Mr. H. S. Munshaw, learned counsel for the respondent through video conferencing.
8. Mr. Rajesh Mankad, learned counsel for the petitioner has vehemently submitted that the observation made by the Labour Court regarding drawing the adverse inference against the employer for not providing the documentary evidence is just and proper. He has submitted that the award of the Labour Court in granting reinstatement with continuity of service is legal and valid. However, according to him, the grant of only 20% back wages is not proper one and the same is required to be enhanced. He has submitted that the Labour Court has erroneously passed such order of granting back wages of 20% Page 4 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 only. He has submitted that the employer has sought for certain documents, which were not produced before the Labour Court. He has submitted that considering the facts of the present case, the Labour Court ought to have granted 100% back wages instead of 20% back wages. He has urged to allow Special Civil Application No.3324 of 2010 and to dismiss Special Civil Application No.13057 of 2009 filed by the employer. 8.1 Mr. Rajesh Mankad, learned counsel for the workman has relied upon the following decision.
1. R. M. Yellatti Vs. Asstt. Executive Engineer, (2006) 1 SCC 106 = AIR 2006 SC 355;
2. Divisional Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam, 2009 (1) G.L.H. 503;
3. Bharuch Municipality Through Chief Officer Vs. Hitesh Vinodchandra Kayasth, 2011 (0) GLHEL - HC 226196;
4. Rajula Nagarpalika Vs. Kamleshbhai Bhikhubhai Mehta, 2015 (0) AIJEL - HC 233231;
5. Jasmer Singh Vs. State of Haryana and another, (2015) 4 SCC 458;
6. Ramjibhai Virjibhai Chanpa Vs. Paschim Gujarat Vij Company Limited, 2015 (0) AIJEL - HC 236330;
9. Per contra, Mr. H. S. Munshaw, learned counsel for the employer has vehemently submitted that the workman was not Page 5 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 regular employee and there is no evidence on record to suggest that the workman has worked for 240 days continuously. While inviting attention of the Court regarding the deposition of the workman, Mr.Munshaw, learned counsel has submitted that the workman has admitted in his deposition that he has not produced any evidence regarding the facts that he has worked for of 240 days in a year. He has invited the attention of the Court regarding the list produced in the matter, which shows that the name of the workman appeared at Sr.No.56 and has submitted that the workman has not produced any evidence to show that the juniors to him were retained in service and other persons are employed after termination of his service. He has submitted that in absence of evidence on all counts i.e. breach of Section 25-F, 25-G and 25-H of the I.D. Act, the Labour Court ought not to have granted the prayer of reinstatement along with continuity of service and payment of back wages of 20%. According to him, the materials placed on record by the employer have not been taken into consideration by the Labour Court in its proper perspective. He has submitted that the Labour Court has misdirected itself and has misread the evidence of both the sides and has committed serious error of facts and law Page 6 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 in granting the relief in favour of the workman. He has submitted that the impugned award passed by the Labour Court is not sustainable in the eyes of law and it deserves to be quashed and set aside. He has prayed to allow Special Civil Application No.13057 of 2009 filed by employer and to dismiss Special Civil Application No.3324 of 2010 filed by the workman. Regarding reliance placed upon the decisions by the learned counsel for the workman, he has submitted that those decisions are not applicable to the factual aspects of the present case.
10. In the case of R. M. Yellatti (supra), While referring to its earlier decision, the Apex Court has observed in para-12 as under:-
"12. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings u/s. 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on Page 7 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant / workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Art.226 of the Constitution of India will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case."
11. In Divisional Manager, New India Assurance Co. Ltd (supra), the question was arisen of the status of the part-time employee and whether he could be considered as a workman within the terms of Section 2(s) and Section 25-B of the I.D. Act. While referring to the catena of decisions, the Apex Court has observed in para-12 that a workman employed on a part time basis under the control and supervision of an employer is a workman in term of Section 2(s) of the Act, and is entitled to claim the protection of Section 25F thereof, as and when need so arise. The Apex Court has also referred to the judgment of the Division Bench in para-13 which reads as under:-
13. We also find that the preponderance of judicial opinion in the High Count, also to this effect. As a sample we reproduce passages from two such judgment Division Bench of the Punjab and Haryana High Court in Simla Devi's case (supra) has observed as under:Page 8 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021
C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 "A plain reading of the definition of "workman" does not exclude the part-time workmen from the definition of "workman". Such exclusion cannot be read into it ipso facto, except if it is expressly provided or implied that no other interpretation is possible, which is not the case in the case in hand. We find support for our view from the observations made by the Supreme Court in Birdhichand Sharma v. First Civil Judge, (1961 - II - LLJ - 86), wherein the Supreme Court in facts and circumstances of the case, found that the workers even doing the job at their home are still workmen. Thus, we are of the considered view that a part-time workman shall fall within the definition of "workman" and the finding returned by the Labour Court that a part-time worker is not a workman, cannot be sustained. We may hasten to add that nothing has been pointed out that on any principle of equity, justice, good conscience or the technical interpretation of the definition of workman that a part-time workman cannot be termed as a workman is unknown to the industrial world."
12. In the case of Bharuch Municipality Through Chief Officer (supra), considering the factual aspects, the Division Bench of this Court has observed in para-5 as under:-
"5. In our view, while considering the case on merits, the Labour Court has considered that there is breach of Section 25 (F), (G) & (H) of the Industrial Disputes Act. It is further observed by the Labour Court that juniors to the respondent were retained by the appellant Municipality. Hence, in our view, since the appellant being a Local authority and being a State within the meaning of Article 12, should not be allowed to practice such discriminatory treatment in case of employment. Further, it may be a different case where the employer looses his confidence in the employee, but it does not given a handle to the employer to terminate the services of a daily wager on his own whims and ask the employee to take only compensation. In the above view of the matter, we do not find any substance in the arguments advanced on behalf of the appellant. We do not find any illegality in the order of the Learned Single Judge as well as award of the Labour Court."Page 9 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021
C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021
13. In the case of Rajula Nagarpalika (supra), the service of the workman came to be terminated which was challenged by him before the Labour Court which passed the award for reinstatement of the workman with full back wages. Such order was passed in the year 2006 and the same came to be confirmed by the learned Single Judge of this Court. The Division Bench of this Court has observed in paras-6 and 7 as under:-
"6. We do not find any merit in the contention raised by learned advocate for the appellant. The respondent workman has been out of job since 2002. He has been reinstated into service by labour court since 2006 and the learned Single Judge has confirmed the said award of he labour court. But till date the respondent has not been able to enjoy the fruits of the same. Pending appeal no stay was granted to the appellant and the court was trying to find an amicable solution in terms of backwages. However, it appears that the appellant is adamant in its attitude which amounts to flouting the orders passed by the learned Single Judge as well as the labour court.
7. So far as the proposition of granting some compensation is concerned, we are of the view that considering the fact that the respondent is around 45 years of age and the fact that he still has 15 more years to serve and also the fact that he has been running from pillar to post for this litigation and though the orders were in his favour he was not granted reinstatement by the appellant, we do not think it fit to award compensation to the respondent workman at this stage. The respondent workman shall not be able to get any other job at this age and the compensation shall be meager enough for him to survive. Hence we are of the opinion that the judgment and order passed by the learned Single Judge is required to be confirmed."
14. In the case of Jasmer Singh (supra), while dealing with the Page 10 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 provisions contained in Section 25-F, 25-G and 25-H, the Apex Court has observed that when the order of termination is void ab initio, the workman is entitled to reinstate with full back wages.
15. In the case of Ramjibhai Virjibhai Chanpa (supra), this Court has observed in para - 4.01 and 4.02 as under:-
"4.01 As observed hereinabove, the only question which is required to be considered by this Court in the present petition is denial of back wages to the petitioner workman to the extent of 75%, as by the impugned judgment and award the learned Tribunal / Labour Court has awarded only 25% back wages, that too, at the wages which was being paid to the petitioner workman at the time of his termination i.e. in the year 1997. As observed hereinabove, the date of termination is 28/1/1997 and the date of judgment and award passed by the Labour Court is 3/2/2004. In the meantime and during the interregnum period of 7 (seven) years, there might be release of increment and/or grant of revision of pay / wages. Considering the impugned judgement and award passed by the Labour Court awarding 75% back wages only, it appears that what has weighed with the learned Labour Court is the question put to the workman in his cross- examination that he was warning Rs.2000 to Rs.3000 per month. However, it is required to be noted that the workman has denied the said question and has specifically denied that after his termination he was earning Rs.2000 to Rs.3000 per month. Merely asking a question is not enough or sufficient to deny back wages on the aforesaid ground. In the cross-examination, the workman has specifically denied that by doing some work he was earning Rs.2000 to Rs.3000. As observed by the Hon'ble Supreme Court in catena of decisions and more particularly in the recent decision in the case of K. S. Ravindran, once termination is held to be illegal, necessary consequences of wages, revision of pay etc. must follow. Even otherwise, merely because after the termination, for survival and/or maintaining his family, if some work / labour work is done, the same is no ground to deny virtually entire back wages. Even otherwise, the impugned judgement and award passed by the Labour Court even granting 25% back wages Page 11 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 only that too at the rate which the workman was getting at the time of termination, cannot be sustained. As observed hereinabove, during the period from year 1997 to 2004, there must be increase in pay, pay revision and/or increment etc. which cannot be denied to the petitioner workman while awarding back wages. There is no justification whatsoever even granting 25% back wages that too considering the wages which was being paid to the workman at the time of his termination. In the case of K. S. Ravindran the Hon'ble Supreme Court ordered 50% back wages from the date of termination till the date of reinstatement, calculating the same on the basis of increase / revision of pay of the workman and other consequential benefits.
4.02. At the same time, considering the fact that the petitioner workman remained absent for approximately 17 years prior to termination, of course, the termination is held to be illegal, the petitioner cannot be awarded full / 100% back wages. In the facts and circumstances of the case and considering the evidence, this Court is of the opinion that if the petitioner is awarded 75% back wages, it will meet the ends of justice. To the aforesaid extent, the impugned judgement and award passed by the learned Labour Court is required to be modified."
16. Now, considering the submissions canvassed by learned counsel for both the sides and the materials placed on record as well as the aforesaid decisions cited at the Bar and the impugned award, it appears that an industrial dispute was raised by the workman that he has served for four years before termination of the service by an oral order. It also appears that before approaching the Labour Court, he has issued notice to the employer and, thereafter, he has filed reference wherein he has filed the statement of claim alleging that without following due process, his service came to be terminated without issuing notice Page 12 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 or paying any notice pay or retrenchment allowance. The workman has contended that he has served for 240 days in every year. According to him, no documentary evidence like attendance card, identity card, pay slip was issued to the employee and as he has demanded the same, his service came to be terminated.
17. The employer has resisted the same by filing written statement. The stand taken by the employer is that the workman was engaged for specific work and, thereafter, after completion of that work, the workman has left the job voluntarily. It is averred that there is permanent set-up and the workman was not appointed on set-up and it was only a daily wager and the workman was called as and when the work is available. It is also averred that the workman has not worked for 240 days. According to the employer, the workman has worked for four years randomly.
18. On perusal of the materials placed on record, it appears that after considering the evidence on record which was led by both the sides and documentary evidence, ultimately, the Labour Page 13 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 Court has passed the impugned award granting reinstatement with continuity of service and 20% back wages. The Labour Court has drawn adverse inference against the employer for non- production of the documentary evidence, which were in their possession. Now, so far as drawing of adverse inference is concerned, it appears from the document at Exhibit 9, copy of which is produced at Annexure - D to the petition, that the workman has filed an application for production of various documents which consists of muster roll from 30.08.1996 to 01.09.2000, salary slip for the above period, seniority list of the year 1996 and various orders issued for appointment of the workmen. Now, on that application, the Labour Court has passed an order as "to comply or reply" by the otherside. Now, on perusal of the materials placed on record, it transpires that the employer has not filed any reply nor has produced any such documents. Thus, the documentary evidence has been withheld by the employer from the Court. The documentary evidence sought for by the workman is of the period during which he was working. Now, on perusal of the oral evidence of both the sides, it clearly transpires that the person who has been examined by the employer has no personal knowledge as he has been Page 14 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 appointed by the Bhavnagar Municipal Corporation prior to ten month of his deposition. Against this, the workman has supported his case. He has specifically referred to the names of the other persons. Of course, in the cross-examination, he has admitted that no documentary evidence regarding the engagement of those persons has been produced by him. He has also specifically deposed that the authority has supplied incomplete information regarding his presence as well as payment of wages to him. He has stated that after his service, he has tried to get employment but he did not get the same. Of course, during his cross-examination, he has stated that he was maintaining his family by selling milk. He has admitted the fact that he has no any documentary evidence to support his version that he has served for four years and he has no any information as to whether attendance sheet, identity card, salary slip were being issued to any other persons or not.
19. Now, considering the materials placed on record, it is crystal clear that the employer has suppressed the documentary evidence from the Court and, therefore, the adverse inference as drawn by the Labour Court is well founded. When the workman Page 15 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 has already filed an application for production of documents which consists of muster roll, order of appointment etc., during the period of his alleged four years of service and his version that he has completed 240 days of service in the Bhavnagar Municipal Corporation, then, the burden is shifted to the employer to dislodge this version. The opportunity was available with the employer to rebut these facts by producing the documents which were sought for by the workman by filing application wherein the Labour Court has directed either to comply or to produce the documents on record, however, the employer has chosen not to produce those documents. Under these circumstances, the stand of the workman regarding his service for 240 days in a year can be believed. Further, when the workman has stated in his oral evidence that juniors to him were retained in services as well as other persons were employed after termination of his service by providing name of such persons, it was for the employer to rebut the versions by way of production of oral and documentary evidence. However, as observed herein the employer has suppressed the materials from the Court. Under these circumstances, the stand put forward by the employee for breach of Section 25-F, 25-G and 25-H of the Page 16 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 I.D. Act is acceptable.
20. The Labour Court has considered the aforesaid facts vide awarding reinstatement and continuity of service. It is pertinent to note that so far as the awarding of back wages is concerned, the Labour Court has taken into consideration the fact that after termination of his service, the workman was maintaining his family by way of selling milk. Thus, the factum of some sort of earning by the workman, after termination of his service is established. Now, so far as the issue of back wages is concerned, it is well settled that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside his dismissal / termination order. In other word, the workman has no right to claim back wages from the employer as of right only because the Court has set aside his dismissal / termination order in his favour and directed reinstatement in service. The granting of back wages is depending upon the facts and circumstances of each case. There is no straitjacket formula for granting back wages in case of setting aside of the order of dismissal or termination. In the present case, the Labour Court has considered the oral evidence of the workman. Now, it is well Page 17 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021 C/SCA/3324/2010 JUDGMENT DATED: 27/08/2021 settled that back wages is not automatic. Under these circumstances, the decision of the Labour Court in granting 20% back wages is in consonance with the facts and circumstances of the case as well as it is legally sustainable. Therefore, the impugned award passed by the Labour Court is just and proper. There is no need of any interference in the said award.
21. In view of the above, both the petitions are liable to be dismissed. Accordingly, both the petitions are hereby dismissed. The employer is hereby directed to comply with the award dated 30.06.2009 passed by the learned Judge, Labour Court No.1, Bhavnagar in Reference (L.C.B.) No.84 of 2002 within a period of two months from the date of receipt of the writ of this Court. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.
Sd/-
(DR. A. P. THAKER, J) V.R. PANCHAL Page 18 of 18 Downloaded on : Sun Aug 29 00:42:54 IST 2021