Gujarat High Court
Dilipkumar Mansukhlal Trivedi vs Dhoraji Municipality on 4 July, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/10144/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10144 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7122 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DILIPKUMAR MANSUKHLAL TRIVEDI
Versus
DHORAJI MUNICIPALITY
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Appearance:
MR PANKAJ R DESAI(3120) for the PETITIONER(s) No. 1
MR PREMAL R JOSHI(1327) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 04/07/2018
ORAL JUDGMENT
1. The captioned two petitions are, in effect and in substance, cross petitions, inasmuch as both the parties in the complaint (IT) No.9 of Page 1 of 25 C/SCA/10144/2016 JUDGMENT 2006 (i.e. the workman and the employer concerned in the said complaint) have, upon feeling aggrieved by the award dated 7.11.2015 passed by learned Industrial Tribunal at Rajkot in said complaint (IT) No.9 of 2006 in reference (IT) No.44 of 1999 have taken out captioned petitions.
2 By the said order the learned Tribunal held that the termination of claimant's service on 16.2.2000 was effected by committing breach of Section 33 of the ID Act and that therefore, the complainant is entitled for consequential relief.
2.1. Having reached such conclusion, learned Tribunal directed the employer (Dhoraji Nagarpalika) to reinstate the claimant with continuity of service. The learned Tribunal, however, denied the backwages.
3. As mentioned above, both sides concerned in the said complaint are aggrieved by the award.
3.1 The concerned workman (complainant) is aggrieved because the learned Tribunal has denied backwages for entire period, whereas the employer is aggrieved by the direction to reinstate the claimant and also with the direction granting benefit of continuity of service.
4. So as to appreciate the grievance of the petitioners in captioned two petitions and also Page 2 of 25 C/SCA/10144/2016 JUDGMENT to appreciate rival submissions, it is necessary to take into account relevant facts.
4.1. From the record and from rival submissions, it has emerged that the workman (hereinafter referred to as "the complainant") joined the service with Dhoraji Municipality (petitioner in Special Civil Application No.7122 of 2006) (hereinafter referred to as "the municipality") in April 1996.
4.2 Subsequently, somewhere in 1999, the complainant raised industrial dispute so as to demand regularization in service. He claimed that he is illegally and arbitrarily continued as daily wager though he is regularly and continuously performing duties of permanent nature and that he has worked for more than 240 days in every year.
4.3 On the said and such other contentions, the complainant demanded regularization in service.
4.4 The municipality did not accept the demand. Therefore, the complainant raised industrial dispute which came to be referred for adjudication to learned Tribunal at Rajkot.
4.5 The learned Tribunal registered the reference (demand) as Reference (IT) No.44 of 1999.
Page 3 of 25C/SCA/10144/2016 JUDGMENT 4.6 At this stage, it is pertinent to note that during pendency of the said demand/dispute [for regularization which was subject matter of Reference (IT) No.44 of 2009], the municipality entered into overall settlement with the complainant, concerned workman and by virtue of said settlement, the municipality accepted to regularize service of the claimant i.e. to grant benefit of regularization. Accordingly, a pursis (settlement) came to be filed before the learned Tribunal on record of said reference (IT) No.44 of 1999. In view of the said settlement and in light of joint pursis filed by both sides, the reference came to be allowed in terms of the settlement.
4.7. However, subsequently, according to the workman, the municipality backed-out from the said settlement.
4.8 Having decide to not honour the settlement, the municipality decided to challenge the award passed by the learned Tribunal in terms of and in light of the settlement and on the strength of joint request which was made at the relevant time by both sides.
4.9 In view of said decision of the municipality, the petition (Special Civil Application No.4577 of 2001) came to be filed. In the said petition, Page 4 of 25 C/SCA/10144/2016 JUDGMENT the municipality challenged the award passed by learned Tribunal in terms of the settlement and on the strength of the joint request purshis which was, at the relevant time, filed by both sides.
4.10. In said petition, this Court passed order dated 9.1.2006 in Special Civil Application No.4577 of 2001 and this Court set aside the award in terms of the settlement and restored the reference (IT) No.44 of 1999 to its file and status and remanded the proceedings of said reference case for fresh adjudication and fresh award.
4.11. Accordingly, by virtue of the order dated 9.1.2006, the reference proceedings related to Reference (IT) No.44 of 1999 came to be remanded.
4.12. At this stage, it is interesting as well as pertinent to note that while the said reference (IT) No.44 of 1999 was pending (after remand) before the learned Tribunal, the municipality terminated service of the complainant (concerned workman) in February, 2000.
4.13. In light of said facts and from the submissions by learned advocates, it appears that since the discussion for overall settlement of Page 5 of 25 C/SCA/10144/2016 JUDGMENT the complainant's demand for regularization was in progress with the competent authority, the complainant did not immediately initiate any action against the municipality when his service abruptly came to be terminated in February 2000.
4.14. However, when the High Court, vide order passed in January, 2006 in the petition set aside the award and the settlement, the settlement was rendered infructuous and was set aside and that therefore the complainant, after January 2006, had no option, but to take action against the termination effected in February 2000.
4.15. Therefore, the complainant filed complaint No.9 of 2006 and challenged the termination on the ground that it was effected in breach of Section 33 of the ID Act.
4.16. The learned Tribunal, Rajkot registered the complaint filed by concerned workman as Complaint (IT) No.9 of 2006.
4.17. At this stage, it is necessary to recall the fact that when the complainant filed the said complaint No.9 of 2006, the Reference (IT) No.44 of 1999 pending before the learned Tribunal. Therefore, the said complaint (IT) No.9 of 2006 came to be registered in said Reference case i.e. in reference (IT) No.44 of 1999.
Page 6 of 25C/SCA/10144/2016 JUDGMENT 4.18. Upon the remand of reference case and on submission of the complainant by the workman, the learned Tribunal decided the complaint.
5. The learned counsel for the municipality assailed the direction to reinstate the workman and the order granting continuity of service. The learned counsel for the municipality submitted that the learned Tribunal failed to appreciate that the complaint was filed after 6 years and in view of said delay complaint should not have been entertained but it should have been rejected on ground of delay. However, learned Tribunal committed error in rejecting said contention. The Tribunal exercised jurisdiction arbitrarily.
6. According to learned counsel for the workman, the learned Tribunal has not committed any error and the petition deserves to be rejected. He further submitted that despite the reference proceedings his service came to be terminated by the Municipality without following procedure under Section 33 of the Act. The claimant claimed that since the employer committed breach of Section 33 of the Act, he is entitled to consequential benefit and therefore he should be reinstated with back wages and other benefits.
7. I have considered impugned award, rival submissions and material on record.
Page 7 of 25C/SCA/10144/2016 JUDGMENT
8. At the outset it is pertinent and appropriate to mention at this stage that when the service of the complainant came to be terminated on 16.2.2000, the reference (IT) No.44 of 1999 was pending. There is no dispute on this count. In this view of the matter, it is also relevant to note that:
(a) the demand for regularization in service which was raised by the workman was referred for adjudication in Reference (IT) No.44 of 1999;
(b) the said reference (IT) No.44 of 1999 and demand for regularization was pending before the learned Tribunal in February 2000;
(c) despite pendency of the said reference and demand for regularization of the service, the municipality terminated service of the complainant (concerned workman) on 16.2.2000 i.e. during pendency of said reference case;
(d) there is no dispute about the fact and the municipality also accepts the fact that it terminated the service of the complainant (concerned workman) on 16.2.2000.
Page 8 of 25C/SCA/10144/2016 JUDGMENT
(e) it is also not in dispute that though the demand and reference (dispute) with regard to workman's claim for regularization of his service was pending, his service came to be terminated without seeking permission or without seeking approval of the action from the learned Tribunal i.e. without following procedure under Section 33 of the Industrial Disputes Act, 1947;
(f) it is not the case even of the
municipality that at the time when it
terminated the service of the complainant (concerned workman) on 16.2.2000, it had filed necessary application in accordance with Section 33 of the ID Act for permission for approval. Undisputedly such application was not filed.
(g) it is also not in dispute that the complainant's service was not terminated for any misconduct and any inquiry was not conducted, any opportunity of hearing was not granted and the service was abruptly terminated without following the procedure prescribed under Section 33 of the Act.
9. Above mentioned facts demonstrate and establish that all ingredients for attracting provision under Section 33 of the ID Act with Page 9 of 25 C/SCA/10144/2016 JUDGMENT regard to the termination of complainant's service on 16.2.2000 viz. (a) pendency of dispute and (b) termination of service of a workman by employer; and (c) the workman should be concerned workman in pending dispute; and (d) termination of service or change in service condition connected or not connected with pending dispute, existed and were present at relevant time.
10. In this context, reference may be had to the observation by Hon'ble Apex Court in case of Bhavnagar Municipality vs. Alibhai Karimbhai wherein Hon'ble Apex Court has observed, inter alia, that:-
"10. In order to attract Section 33 (1) (a), the following features must be present:
(1) There is a proceeding in respect of an industrial dispute pending before the Tribunal.
(2) Conditions of service of the workmen applicable immediately before the commencement of the Tribunal proceeding are altered.
(3) The alteration of the conditions of service is in regard to a matter connected with the pending industrial dispute.
(4) The workmen whose conditions of service are altered are concerned in the pending industrial dispute.
(5) The alteration of the conditions of
service is to the prejudice of the
workmen.
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11. The first feature is admittedly present in this case since action has been taken by the appellant in retrenching the respondents during the pendency of the proceeding before the Tribunal. The point that requires consideration is whether the other features are also present in the instant case.
12. Before we proceed further we should direct our attention to the subject-matter of the industrial dispute pending before the Tribunal. It is sufficient to take note of the principal item of the dispute, namely, the demand of the respondents for conversion of the temporary status of their employment into permanent. To recapitulate briefly the appellant employed daily rated workers to do the work of boring and hand pumps in its Water Works Section. These workers have been in employment for over a year. They claimed permanency in their employment on their putting in more than 90 days' service. They also demanded two pairs of uniform every year, cycle allowance at the rate of Rupees 10/- per month. Provident Fund benefit and National Holidays and other holidays allowed to the other workers. While this particular dispute was pending before the Tribunal, the appellant decided to entrust the work, which had till then been performed by these workers in the Water Works Section, to a contractor.
On the employment of the contractor by the Municipality for the self-same work, the services of the respondents became unnecessary and the appellant passed the orders of retrenchment. It is, therefore, clear that by retrenchment of the respondents even the temporary employment of the workers ceased while their dispute before the Tribunal was pending in order to improve that temporary and insecure status.
13. Retrenchment may not, ordinarily, under all circumstances, amount to alteration of the conditions of service. For instance, when a wage dispute is pending before a Tribunal Page 11 of 25 C/SCA/10144/2016 JUDGMENT and on account of the abolition of a particular department the workers therein have to be retrenched by the employer, such a retrenchment cannot amount to alteration of the conditions of service. In this particular case, however, the subject-matter being directly connected with the conversion of the temporary employment into permanent, tampering with the status quo ante of these workers is a clear alteration of the conditions of their service. They were entitled during the pendency of the proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication. And if the appellant wanted to effect a change of their system in getting the work done through a contractor instead of by these temporary workers, it was incumbent upon the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to retrenchment of their services. The alteration of the method of work culminating in termination of the services by way of retrenchment in this case has a direct impact on the adjudication proceeding. The alteration effected in the temporary employment of the respondents which was their condition of service immediately before the commencement of the proceeding before the Tribunal, is in regard to a matter connected with the pending industrial dispute."
11. The municipality opposed the complaint on only one ground namely delay.
11.1 Since the other relevant facts viz. that service of the complainant was undisputedly terminated at the instance of the order of Municipality and that the complainant's service came to be terminated from 16.02.2000 any other ground was not even available to the Page 12 of 25 C/SCA/10144/2016 JUDGMENT Municipality.
11.2 It was also not in dispute that at the time when the service of the claimant came to be terminated, Reference (IT) No.44 of 1999 wherein the claimant demanded regularization service, was pending.
12. Similarly, before terminating the service, the municipality, undisputedly did not file any application under Section 33 of the Act to seek permission the tribunal.
13. Even after terminating service of claimant on 16.02.2000, the Municipality did not file any application seeking approval action i.e. termination of service on 16.02.2000.
14. Since above mentioned aspect are not in dispute, the Municipality did not have any contention or defence or ground on merits available to defend its action and that therefore, the only contention which was available to the municipality is about delay. Therefore, the municipality opposed the complainant on the ground of delay.
15. During adjudication of the complaint, the learned Tribunal found that relevant fact which would attract the provision under Section 33 of the Act, were not in dispute. Learned Tribunal Page 13 of 25 C/SCA/10144/2016 JUDGMENT also found that (a) service of complainant was terminated without approval or permission application i.e. without following procedure under Section 33 of the Act; and (b) that at the time when service of complainant was terminated, the demand for regularization of service, was pending before the learned Tribunal; and (c) that the complainant was concerned workman in the reference. Therefore, the learned Tribunal reached to the conclusion that the municipality committed breach of Section 33 of the Act.
16. Having reached such conclusion, the learned Tribunal passed the award dated 07.11.2015 which is challenged.
17. Before this Court also, the Municipality has challenged the award on the ground of delay and it is contended that the workman filed the complaint after delay of six years.
18. Even before this Court, the Municipality has not disputed the fact that (i) complainant came to be terminated on 16.02.2000,(ii) in February, 2000, the said reference (IT) No.44 of 1999 and demand for regularization were pending before the learned tribunal; (iii) despite such fact undisputedly any application under Section 33(1) or any application under Section 33(2) was not filed.
Page 14 of 25C/SCA/10144/2016 JUDGMENT 19. The said undisputed fact attracts the
provision of Section 33 and also establish breach of Section 33 of the Act.
20. This conclusion is fortified by the observation by the Hon'ble Apex Court in the case of Bhavnagar Municipality (1977) 2 SCC 350.
21. In this view of the matter, now this Court has to proceed on the premise that undisputedly breach of Section 33 is established and therefore, consequences should follow (see Jaipur Zilla Shahkari Bhoomi Vikas Bank Ltd. reported in (2002) 2 SCC 244).
22. As mentioned above, the award impugned is challenged by the Nagarpalika on the ground that the award is unjustified because the tribunal ignored the fact that the complainant filed the complaint after delay of six years.
22.1 So far as the said contention is concerned, it is necessary to note that said contention is raised by a party/ (the employer Nagarpalika), who, while the Reference No.44 of 1999 was pending, convinced the workman to enter into the settlement.
22.2 Then, as mentioned above, settlement came to be arrived at between the parties.
Page 15 of 25C/SCA/10144/2016 JUDGMENT 22.3 The municipality agreed to regularize the
service of the claimant and joint pursis came to be filed before the learned Tribunal whereby reference (IT) No.44 of 1999 came to be disposed of in terms of the settlement.
22.4 Thereafter, as mentioned above, the municipality decided to not implement the settlement and instead, it challenged the award in terms of the settlement. Consequently, Special Civil Application No.4577 of 2001 came to be filed which came to be allowed by High Court vide the decision in January, 2006 and the award in terms of the settlement came to be set aside.
22.5 Until then, he was under illusion of the protection under the settlement and award in terms of the settlement. However, the benefit which the complainant derived by virtue of the settlement i.e. the award in terms of the settlement did not survive after the decision in Special Civil Application No.4577 of 2001 in January, 2006.
22.6 In this background the complaint came to be filed in 2006.
22.7 It is also pertinent to note that the workman is a labourer. The workman would not know the technicality or intricacy of hierarchy in a Page 16 of 25 C/SCA/10144/2016 JUDGMENT municipality and he would also not know and understand as to whether President of Municipality has the authority to enter into settlement or not and whether a President of Municipality can enter into any settlement. The workman was not knowing that it would be Chief Officer of Municipality or Director of Municipality or some other authority who alone can take such decision and enter into settlement.
22.8. According to the municipality, the President entered into settlement with the workmen but the President had no authority in law to arrive at such settlement.
23. It is pertinent to note that the President did not inform and did not disclose to the workman that he does not have authority to enter into such settlement. The President lured the workman with the assurance that his service will be regularized and with such promise he continued with workman to enter into settlement and thereupon the reference came to be disposed. The settlement was jointly placed before the learned Tribunal and even the learned Tribunal passed award in terms of the settlement. The said award strengthened the belief of workmen that his demand is granted accepted.
23.1 However, subsequently the Municipality
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resiled from the settlement and decided to
challenge the award in the settlement.
23.2 In pursuance of such decision, the Municipality filed Special Civil Application No.4577 of 2001. The said petition came to be filed in the year 2001 and came to be disposed of in the year 2006.
24. During the pendency of said settlement, the workmen did not take any action against the termination.
25. Mr. Desai, learned advocate for the workman submits that the workman bonafide believed that ultimately he will get benefit of settlement. However when the petition came to be disposed of, the settlement came to be set aside and then the workman realized that he will not get benefit of the settlement. Therefore, workman has filed the complaint and that therefore it cannot be said that the workman committed delay in filing complaint.
26. In light of such facts and rival submissions by contesting parties, the question which is now to be considered is as to whether the said Section 33A of the Act prescribes any period of limitation. Further issue which would arise is as to whether it can be said, in view of above discussed facts that the workman committed delay Page 18 of 25 C/SCA/10144/2016 JUDGMENT in filing the complaint and if at all, it can be said that the workman committed delay in filing the complaint, is the delay so gross that it would vitiate the complaint and render it untenable.
27. On reading Section 33A, it emerges that the said section does not prescribe period of limitation for filing the complaint. The only condition for invoking Section 33A is that the workman should demonstrate contravention of Section 33 and that precisely at the time when the employer contravenes Section 33. Further, when the contravention occurs, the dispute must be pending. Once Section 33 is contravened during pendency of dispute, a complaint would lie. However, any time limit for filing complaint under Section 33-A of the Act is not provided. Section 33A confers valuable right to a workman to directly approach the learned Labour Court or learned Tribunal (where the dispute has been pending) without passing through the rigmarole of raising the dispute and then seeking order of reference from appropriate government. The right to invoke the provisions and to file the complaint would arise upon the contravention of Section 33. Thus, unless and until, such contravention occurs the complaint would not lie. However, the moment contravention or breach of Section 33 is committed cause to file complaint Page 19 of 25 C/SCA/10144/2016 JUDGMENT under Section 33-A would arise and such right would accrue to the employee. That is all, so far as Section 33-A is concerned.
28. Beyond said requirement legislature has not prescribed any time limit for filing the complaint. The provision is silent with regard to limitation. The language of Section 33-A of the Act, does not prescribe and does not even indicate such requirement. There is nothing in the said provision which would warrant such inference. There is nothing in said Section 33-A to even suggest that such condition or requirement viz. limitation - is implied or that it should be found or read into in said Section 33-A of the Act. In said provision period of limitation is not found either expressly or even by necessary implication. Under the circumstances such provisions or requirement cannot be read into in Section 33-A of the Act.
29. Of course, if the complaint is filed after inordinate delay, such delay could be one of the factors which can be taken into account by the learned Tribunal while rendering final decision. Once contravention of Section 33 is established the complaint has to be tried as substantive reference and therefore, while passing final direction, the learned Labour Court or learned Tribunal can take into account the factor of Page 20 of 25 C/SCA/10144/2016 JUDGMENT delay and mould final decision and final relief accordingly. However, when the provision does not prescribe period of limitation, the complaint cannot be invalidated and cannot be thrown-out merely on the ground of delay and it cannot be dismissed at threshold without considering the workman's explanation but the Court may exercise the authority and discretion to appropriately mould final relief and the final orders.
30. In light of facts of present case, it emerges that the period from February, 2000 to 2006, the complainant was waiting for the outcome of the petition and therefore, he had good and bonafide reason and justification for not initiating any action during the pendency of the petition. Therefore, the said period from February, 2000 to 2006 could not be and should not be considered as delay (on the part of the workman) in filing the complaint and in initiating the proceeding.
31. Even if the said period is to be considered as delay there is bonafide reason and strong justification which satisfactorily explains the delay. Therefore, the said period cannot be made a ground for opposing or for disturbing the award. More so when the award is in consonance with the provision under Section 33 of the Act and it is also in consonance with the decision of Hon'ble Apex Court in the case of Bhavnagar Page 21 of 25 C/SCA/10144/2016 JUDGMENT Municipality.
32. Learned advocate for the municipality submitted that even after rendered judgment in Special Civil Application No.4577 of 2001, the complainant filed the complaint after 9 months.
32.1 The said contention by the municipality is nothing but a desperate attempt by sinking man to hold on the last straw.
32.2 In absence of any strong fact or legally sustainable ground the municipality is, desperately, clinging to the only objection which could be raised.
32.3 In light of facts of this case the said objection, however, does not appeal to the Court and it actually lacks conviction from the Municipality, as well.
32.4 In view of facts of the matter, the contention raised on the ground of delay fails and does not deserve to be sustained.
33. As mentioned above, the factors which would attract applicability of Section 33 of the Act are present in this case and relevant facts are not in dispute.
34. Under the circumstances, there is no ground Page 22 of 25 C/SCA/10144/2016 JUDGMENT to hold that the decision by the learned Tribunal that the Municipality committed breach of Section 33 of the Act is incorrect or perverse. The said decision and conclusion by the learned tribunal cannot be faulted.
35. The fact of the case, in view of this Court, bring out that the officer of the Municipality have acted in arbitrary manner which has caused loss not only to the workman but even to the municipality and therefore, the Director of Municipality should conduct inquiry/ investigation in this case and against the concerned officer (i.e. the President) who took such decision though he, according to the municipality, did not have the authority to enter into the settlement and convinced the workman to enter into settlement and got the reference disposed of by such misrepresentation and the officer who without following procedure prescribed under Section 33 of the Act, terminated service of the workman and the Director should take appropriate action against the officer/s who are found guilty of wrong decision, misuse of position and illegal action (of terminating service of workman without complying the provision of law).
36. There is one more reasons, in light of which the Municipality's objections on the ground of Page 23 of 25 C/SCA/10144/2016 JUDGMENT delay should not be entertained at this stage.
36.1 It is pertinent to note that the learned Tribunal has, while determining final relief, appropriately moulded the relief and denied the claim for back wages.
36.2 Actually, the learned Tribunal would be justified in refusing backwages upto 2006 but learned Tribunal should have considered the workman's claim for backwages for the period after 2006. However, the Tribunal has not granted the said benefit.
37. In this view of the matter, this Court would not interfere the said discretion and decision by the learned Tribunal.
38. So far as the direction by granting continuing service is concerned, in light of the facts facts of the case, the said direction requires some modification. Therefore, it is clarified that benefit of continuity of service shall be available to the petitioner from 2006 and not from the date of joining. Further such continuity shall be available in the same category-cadre in which he was employed before termination.
38.1 Thus, the petition filed by the claimant i.e. Special Civil Application No.10144 of 2016 Page 24 of 25 C/SCA/10144/2016 JUDGMENT is disposed of as rejected. Demand for backwages is not accepted.
38.2 So far as the petition filed by Municipality i.e. Special Civil Application No.7122 of 2016 is concerned, it is disposed of with above mentioned clarification with regard to direction regarding continuity of service. Accordingly with the said modification in the above award. Notice stands discharged.
Sd/-
(K.M.THAKER, J) JIGNESH Page 25 of 25