Gujarat High Court
State vs Babubhai on 7 July, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
SCA/313/2012 13/ 13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 313 of 2012 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= STATE OF GUJARAT - Petitioner(s) Versus BABUBHAI NATHABHAI CHUDASMA & 1 - Respondent(s) ========================================================= Appearance : V.S. Pathak, Asst. GOVERNMENT PLEADER for Petitioner(s) : 1, None for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 13/01/2012 ORAL JUDGMENT
Heard Ms. V. S. Pathak, learned Assistant Government Pleader, who is appearing on behalf of the petitioner-State.
The petitioner-State has brought under challenge the award dated 07.07.2011 passed by the Labour Court, Junagadh in Reference (LCJ) No.37/2002, whereby the Labour Court has directed the petitioner State to reinstate the respondent without back-wages.
So as to appreciate that the challenge taken out by the petitioner against the impugned award, it is necessary to take into account the factual background, which emerges from the record.
It appears that respondent was working as Labourer/ Hamal with the petitioner since August, 1996. The respondent claimed that his service was terminated illegally, therefore, he raised dispute. The dispute was treated as industrial dispute and since conciliation proceedings failed, the appropriate Government referred the said industrial dispute for adjudication to the Labour Court, Junagadh. The said order the Reference culminated into Reference (LCJ) No.37 of 2002. The Reference was resisted by the petitioner-State. During the proceedings before the Labour Court, Junagadh, the petitioner-State examined one Mr. Jaykar Pradumanray as its witness. After the process of evidence was over and submissions of the contesting parties were concluded, the Labour Court, after considering the evidence and submissions, came to the conclusion that the action of the petitioner-State terminating the services of the respondent was in breach of Sections 25F and 25G of the Industrial Disputes, Act, 1947 and that therefore the respondent deserved to be reinstated. However, having regard to the evidence on record, the Labour Court considered it appropriate to not to grant back-wages. The petitioner is aggrieved by the said award.
The respondent workman herein had filed his statement of claim, inter alia, stating that he was engaged by the petitioner as labourer/Hamal in August, 1996 and he had worked with the petitioner till March, 2001. In his statement of claim, he has also claimed that he was continued till 16.03.2001 as Hamal with the petitioner. He claimed that at the time when his services was terminated his salary was Rs.1,350/- and that any disciplinary proceedings/departmental inquiry were not conducted neither he was paid any compensation in the nature of retrenchment compensation and his services was terminated without following any procedure known to law.
In the written statement the petitioner claimed that the respondent workman was very irregular in his employment and despite repeated oral directions, the respondent never became regular in his duties and attendance and that therefore, the petitioner-State was compelled to terminate his service with effect from 16.03.2011.
Accordingly, the petitioner-State admitted that the respondent was in its employment and that the service of respondent was terminated on the ground that he was irregular in duties and attendance (i.e. for misconduct) without conducting any departmental proceedings, though his services was terminated on the ground of misconduct i.e. of being irregular in his services.
Ms.V.S.Pathak, learned Assistant Government Pleader has contended that the award is unsustainable. The Labour Court has committed error in appreciating and evaluating evidence on record and has also committed error in holding that the petitioner-State had committed breach of Section 25F of the Act while terminating the service of the respondent. Ms.Pathak, learned AGP, submitted that there was no material before the Labour Court to arrive at such conclusion and the findings are without any basis.
I have considered the submission and examined the record. As mentioned hereinabove, the petitioner State in its written statement clearly admitted that the services of the respondent was terminated on the ground that respondent was irregular in his service/work and attendance. The said statement/ reply or explanation amounts to admission of the fact that the respondent's services was terminated on ground and allegations of misconduct i.e. absenteeism and being irregular in work. However, though the service of the respondent was terminated on account of misconduct, any show-cause notice or charge-sheet was not issued and served nor any departmental inquiry and disciplinary actions were conducted and without any departmental proceedings, his service was terminated with effect from 16.03.2001.
On the other hand, the details mentioned by the respondent workman in his statement of claim regarding his date of joining and date of termination and other details established that the workman had worked for almost 5 years with the petitioner State which were not disputed by the employer. Despite the said length of service retrenchment compensation was also not paid. Thus, there was breach of Section 25F.
In this background the labour court awarded reinstatement without back-wages and though there was no dispute as to the fact that respondent workman had worked for 240 days (or more) during the proceeding 12 months and undisputedly any procedure prescribed under Section 25F was not followed by the petitioner State, inasmuch as either before or at the time of termination of respondent's service compensation was not paid.
It is not the case of the petitioner State that respondent's services was terminated on account expiry of time limit i.e. fixed tenure employment coming to an end or because the contract period for which he was engaged had come to an end. In fact, the petitioner State admitted that the respondent's service was terminated on account of misconduct.
In that view of the matter, it was obligatory for the petitioner State to conduct departmental proceedings by issuing notice to the respondent. However, the said procedure was not followed.
Under the circumstances, the termination would amount to discharge simplicitor and consequentially it would tantamount to retrenchment. However, the procedure prescribed for retrenchment was also not followed and subsequently other person was engaged in place of the respondent.
In this context reference can be made to the decision of the Apex Court in the case of State Bank of India v. N.Sundaramoney, reported in 1976 (1) Labour Law Journal 478 wherein the Apex Court observed that:
9. Without further ado, we reach the conclusion that if the workman swims into the harbour of s. 25F, he cannot be retrenched without payment, at the time of retrenchment, compensation computed as prescribed therein read with s.25B(2). But, argues the appellant all these obligations flow only out of retrenchment, not termination outside that species of snapping employment. What, then, is retrenchment? The key to this vexed question is to be found in s. 2(oo) which reads thus:
"2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of super-annuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
(c) termination of the service of a workman on the ground of continued ill-health;
For any reason whatsoever-very wide and almost admitting of no exception. Still, the employer urges that when the order of appointment carries an automatic cessation of service, the period of employment works itself out by efflux of times, not by act of employer. Such cases are outside the concept of 'retrenchment' and cannot entail the burdensome conditions of s. 25F. Of course, that a nine-days' employment, hedged in with an express condition of temporariness and automatic cessation, may look like being in a different street (if we may use a colloquialism) from telling a man off by retrenching him. To retrench is to cut down. You cannot retrench without trenching or cutting. But dictionaries are not dictators of statutory construction where the benignant mood of a law and, more emphatically, the definition clause furnish a different denotation. Section 2(oo) is the master of the situation and the Court cannot truncate its amplitude.
10.A break-down of s.2(oo) unmistakably expands the semantics of retrenchment. 'Termination. For any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is-has the employee's service been terminated ? Verbal apparel part, the substance is decisive. A termination takes place here a term expires either by the active step of the master of the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of s.25F and s.2(oo). Without speculating on possibilities, we may agree that 'retrenchment' is no longer terra incognita but area covered by an expansive definition. It means 'to end, conclude, cease'. In the present case the employment ceased, concluded, ended on the expiration of nine days automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from s.25F(b) is inferable from the proviso to s. 25F(1). True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract s. 25F and automatic extinguishment of service by effluxion of time cannot be sufficient. An English case, Rex v. Secretary of State(1973) 2 A.E.R 103, was relied on where Lord Denning MR observed:
"I think that the word 'terminate' or 'termination' is by itself ambiguous. It can refer to either of two things either to termination by notice or to termination by effluxion of time. It is often used in that dual sense in landlord and tenant and in master and servant cases. But there are several indications in this paragraph to show that it refers here only to termination by notice."
Buckley L.C., concurred and said:
"In my judgment the words are not capable of bearing that meaning. As counsel for the Secretary of State has point-ed out, the verb 'terminate' can be used either transitively or 166 intransitively. A contract may be said to terminate when it s comes to an end by effluxion of time, or it may be said to be terminated when it is determined at notice or otherwise by some act of one of the parties. Here in my judgment the 7 word 'terminated' is used in this passage in para 190 in the transitive sense, and it postulates some act by somebody which is to bring the appointment to an end, and is not applicable to a case in which the appointment comes to end merely by effluxion of time."
Words of multiple import have to be winnowed judicially to suit the c social philosophy of the statute. So screened we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision.
11. What follows? Had the State Bank known the law and acted on it, half-a-month's pay would have concluded the story. But that did not happen. And now, some years have passed and the Bank has to pay, for no service rendered. Even so, hard cases cannot make bad law. Reinstatement is the necessary relief that follows. At what point ? In the particular facts and circumstances of this case, the respondent shall be put back where he left off, but his new salary will be what he would draw where he to be appointed in the same post today de novo. As for benefits, if any, flowing from service he will be rank below all permanent employees in that cadre and will be deemed to be a temporary hand upto now. He will not be allowed to claim any advantages in the matter of seniority or other priority inter se among temporary employees on the ground that his retrenchment is being declared invalid by this Court. Not that we are laying down any general proposition of law, but make this direction in the special circumstances of the case. As for the respondent's emoluments, he will have to pursue other remedies, if any."
Thus, it was established before the labour court that the petitioner State had committed breach of Section 25F and 25H.
When in view of such material and evidence on record, the Labour Court found that the action of the petitioner-State was contrary to provisions of Industrial Disputes Act, 1947 and such action was unsustainable and that therefore directed the petitioner State to reinstate the respondent, then such direction cannot be said to be arbitrator or perverse.
Learned Counsel for the petitioner has failed to point out any material or the record which could persuade the Court to take different view or to hold that the finding of the Labour Court is contrary to evidence on record or are perverse. In present petition, this Court has no cause to interfere with the award passed by the Labour Court. Having regard to the merits of the case, the Labour Court has moulded the relief by directing only reinstatement and has denied the back-wages to the respondent.
Under the circumstances, there is no justification or base to interfere with the award passed by the Labour Court.
Therefore, the petition fails and is not entertained. The petition stands disposed of accordingly.
(K.M.THAKER, J) mehul