Gujarat High Court
Gujarat Electricity Board vs Narshibhai Kalubhai Sindhav on 20 March, 2015
Author: Jayant Patel
Bench: Jayant Patel
C/SCA/8430/2005 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8430 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
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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 or any order
made thereunder ?
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GUJARAT ELECTRICITY BOARD....Petitioner(s)
Versus
NARSHIBHAI KALUBHAI SINDHAV....Respondent(s)
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Appearance:
MR MD PANDYA, ADVOCATE for the Petitioner(s) No. 1
MR KISHOR M PAUL, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 20/03/2015
CAV JUDGMENT
1. The present petition is directed against the Page 1 of 8 C/SCA/8430/2005 CAV JUDGMENT judgement and award dated 23.8.2004 passed by the Labour Court in Reference (LCJ) No.1383 of 1990 (Old Reference No.1802/1988), whereby the Labour Court has directed for reinstatement of the respondent workman with 50% back-wages.
2. The short facts of the case appear to be that the respondent workman was initially taken on apprenticeship by the petitioner at Khambhalia Division from 8.9.1982 to 7.9.1983. Thereafter, as per the Condition No.9 of the apprenticeship order, it was provided that there was no obligation on the part of the Board to give any regular appointment. However, after the apprenticeship is over, Board may at its discretion offer employment if it considers suitable. It appears that thereafter the respondent workman was relieved after the completion of apprenticeship, but in February 1985, appointment orders were issued for posting of the respondent with one R.J. Patel. Such position continued and on 10.4.1985 the respondent was again engaged on the post of Calculator on temporary and ad hoc basis. Such period was extended from time to time and he was Page 2 of 8 C/SCA/8430/2005 CAV JUDGMENT continued up to 4.1.1986 and abruptly his services came to be terminated. The respondent workman raised the dispute under the Industrial Disputes Act (hereinafter referred to as the "ID Act"). The said dispute came to be referred to the Labour Court for adjudication. The Labour Court, at the conclusion of the Reference, passed the above referred judgement and award. Under these circumstances, the present petition before this Court.
3. We have heard Mr.Munshaw, learned Counsel appearing for the petitioner and Mr.Kishore Paul, learned Counsel appearing for the respondent workman.
4. Mr.Munshaw, learned Counsel for the petitioner, contended that the workman was engaged purely on temporary and ad hoc basis on leave vacancy and, therefore it could not be said that he worked on regular basis or on regular set up. When the workman was engaged on leave vacancy purely on temporary and ad hoc basis, he will have no right for the post. Thereafter as the vacancy was not available he was not continued. He submitted that all the appointment orders were from a Page 3 of 8 C/SCA/8430/2005 CAV JUDGMENT particular date to a particular date and, therefore, upon expiry of the period, if one is relieved as the workman, it cannot be said to be retrenchment in view of the definition of Section 2(oo)(bb) of the Act. In spite of the same, the Labour Court passed the award, which is illegal and hence, this Court may quash and set aside the same.
5. Whereas, Mr.K. M. Paul, learned Counsel for the respondent workman contended that it is true that the appointment was against the leave vacancy, but the service of the workman was continued. Only aspect was that the extension was granted by different orders. He submitted that workman was appointed on temporary basis, may be against leave vacancy, but he was not discontinued on account of the fact that the leave vacancy was not available. Therefore, he submitted that the Labour Court has rightly appreciated the evidence and passed the award to which this Court may not interfere.
6. It appears that from the discussion made by the Labour Court in the award and even from the appointment orders that the first appointment Page 4 of 8 C/SCA/8430/2005 CAV JUDGMENT order issued in favour of the respondent workman it was only mentioned that as 'temporary appointment'. It is true that the appointment was initially for a period of one month from 4.2.1985 and his service was liable to be terminated within 24 hours' notice, but such period of appointment came to be extended from time to time. The last appointment order was dated 11.12.1985 and the period of engagement was expiring on 11.1.1986, but abruptly on 4.1.1986 the services are discontinued. Therefore, it was not a case where upon the expiry of the period of service was put to an end, but it was a case where the service was put to an end prior to the expiry of the period, which can be said as illegal. Further, every appointment order shows that the appointment is for one month and the orders for appointments were issued not prior to the expiry of the period, but in the midst of the period of one month with retrospective date, extensions are given. Such shows that it was only for the purpose of making a show by an artificial break on paper, the extension orders for services were issued, but in reality, as per Page 5 of 8 C/SCA/8430/2005 CAV JUDGMENT the deposition of the workman, which was not contradicted in the cross-examination, the services were in continuity. In any case, the workman had already completed 240 days, if the continuity is considered for the period from 4.2.1985 to 4.1.1986. Under these circumstances, read with the reasons recorded by the Labour Court, it appears that the Labour Court did not commit any error in recording the findings that the termination was in breach of the provisions of Section 25F of the I.D. Act.
7. However, on the aspect of back-wages, the petition deserves consideration, inasmuch as too vague and too general statement has been made by the workman that he had tried to get the employment, but the relevant aspect is that the after a period of two years, the dispute was raised by the workman and the statement of demand was submitted in 1991 and in 1994 the deposition was recorded. No satisfactory evidence was produced, nor any statement was made by the workman about the attempts made to get employment at the other places and if yes, at which places. Under these circumstances, it can be said that Page 6 of 8 C/SCA/8430/2005 CAV JUDGMENT the primary burden for entitlement of the back- wages has not been satisfactorily discharged by the respondent workman. Not only that, as stated above, but the appointment came to be renewed from time to time and it was not in the regular set up. Under these circumstances, the Labour Court ought not to have exercised the discretion for awarding back-wages. At the most, the workman would be entitled to the wages, after the award, if he has not been reinstated or until the actual reinstatement has taken place.
8. It appears that the Labour Court committed error in awarding continuity in service, because once the person was not in regular set up, there was no question of continuity in service coupled with the aspect that the dispute is raised after two years from the date of termination. Once the person was not in the regular set up and was only by way of stop-gap and temporary arrangement, the continuity in service ought not to have been awarded by the Labour Court, but the revision of the pay-scale in the post may be available at the time of reinstatement.
9. In view of the aforesaid observations and Page 7 of 8 C/SCA/8430/2005 CAV JUDGMENT discussion, the award passed by the Labour Court, so far as reinstatement in service is concerned, the same is not interfered with, but the award shall stand set aside so far as it relates to back-wages and continuity in service awarded by the Labour Court.
10. The petition is partly allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) vinod Page 8 of 8