Gujarat High Court
Jamnagar Municipal Corporation vs Rajubhai Harshibhai on 21 January, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/14891/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14891 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
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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JAMNAGAR MUNICIPAL CORPORATION
Versus
RAJUBHAI HARSHIBHAI
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR. U.T. MISHRA FOR MR TR MISHRA(483) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 21/01/2020
ORAL JUDGMENT
1. The petitioner Jamnagar Municipal Corporation is before this Court invoking the jurisdiction under Articles 226 and 227 of the Constitution of India questioning the judgment Page 1 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT and award dated 23.04.2010 passed by the Labour Court, Jamnagar in Reference (LCJ) No. 255 of 1996, with the following prayers:
"(A) The Hon'ble Court be pleased to issue appropriate writ, order or direction by quashing and setting aside the impugned judgment and award dated 23.04.2010 passed by Labour Court No.1, Jamnagar in Reference (LCJ) No. 255/1996 at AnnexureA to this Petition;
(B) The pending admission, hearing and final disposal of this petition, the Hon'ble Court be pleased to stay the operation, implementation and execution of the impugned judgment and award dated 23.04.2010 passed by Labour Court No.1, Jamnagar in Reference (LCJ) No. 255/1996 at AnnexureA to this Petition."
2. The brief facts leading to the present petition are as follows:
2.1. As per the case of the petitioner, the respondent was appointed on purely adhoc basis as a dailywager in the year 1996. He was to be engaged as and when the work was available. It is also averred by the petitioner that the respondent had not worked continuously for 240 days in any of the year. Since there was no work available, his services were not required.
According to the respondent, his termination came Page 2 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT on 30.08.1996 in a clear breach of the provisions of the Industrial Disputes Act, whereas, according to the petitioner, there is no supportive documents or oral evidence to indicate that the person had completed 240 days in the year preceding his year of termination or in any of the prior years. Moreover, due to non maintenance of seniority list, no offer as is required under the law has been given to the petitioner at any point of time and his juniors have been hired and continued.
2.2. The dispute was raised by the respondent before the Assistant Labour Commissioner, who referred the matter to the Labour Court, Jamnagar being Reference (LCJ) No. 255 of 1996. After the statement of claim, defense version and evidences, resulted into allowing the same declaring the action of the petitioner being contrary to law and directing the petitioner to reinstate the respondent with continuity of service and 20% of the backwages. This award has aggrieved the petitioner, who has approached this Page 3 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT Court with the abovereferred prayers.
3. This Court has heard learned advocate Mr. H.S. Munshaw for the petitioner Municipal Corporation, who has urged along the line of the memo of the petition. It is his emphatic submission that the respondent has not worked for 240 days. He was engaged on adhoc and daily wage basis for temporary period. He has not been engaged regularly or on continuous basis. It is also denied that the juniors have worked continuously in the service and instead of the respondent, the others had been hired by the petitioner Corporation. He has further urged that the respondent since had not been engaged on permanent basis, in absence of any sanctioned setup, the Court could not had directed the reinstatement with continuity of service.
Moreover, in absence of the working of 240 days, the infraction of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for short) is contrary to law. The Page 4 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT termination would not amount to retrenchment, and therefore, the Court's findings are contrary to the statutory provision and are erroneous and deserves to be quashed.
4. Learned advocate Mr. U.T. Mishra appearing for learned advocate Mr. T.R. Mishra for the respondent has extensively opposed the submissions made by the learned advocate appearing for the petitioner and has urged that the respondent has already proved that he had worked for 240 days and any breach under Section 25F of the Act is impermissible. Here, in the present case, there is not only breach of Section 25F of the Act, but Sections 25G and 25H of the Act have also breached. He has heavily relied upon the decision of this Court rendered in Special Civil Application No. 9676 of 2010 dated 30.06.2017, as according to him, the respondent is similarly situated to the petitioner of that petition. He also pointed out to this Court that on 28.02.2011, while passing the order, this Page 5 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT Court (Coram: Hon'ble Mr. Justice K.M. Thaker) has noted that the present petition is cognate and identical to three other proceedings being Special Civil Application No. 9676 to 9678 of 2010. According to him, Special Civil Application No. 9676 of 2010 has already resulted in favour of the workman, consequently, the award impugned also should be upheld, except 20% backwages which has been voluntarily given up.
5. In rejoinder, learned advocate Mr. H.S. Munshaw appearing for the petitioner has not disputed that the matter being Special Civil Application No. 9676 of 2010 involved identical question of law and facts. It is also admitted that, this order has not been challenged before the Appellate Bench.
6. Having thus heard both the sides, at the outset, the decision of this Court in Special Civil Application No. 9676 of 2010 requires to be taken into consideration. The Court has unequivocally held that the respondent had worked Page 6 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT for more than 240 days in preceding twelve months, and therefore, there was a clear breach of Section 25F of the Act. This Court also regarded that principle of seniority i.e. 'last come, first go' at the time of terminating services has also not been followed, which is in breach of Sections 25G and 25H of the Act. These are independent of Section 25F of the Act and on the strength of the evidence adduced, the Court partially set aside and modified the judgment and award. It did not disturb the direction of reinstatement, however, 20% of the backwages had been denied on the ground that the Court without recording any justification and without taking into account the facts and circumstances which would be relevant to decide the issue with regard to the claim of backwages, had so done it.
7. The relevant findings and observations of this Court in the order dated 30.06.2017 passed in Special Civil Application No. 9676 of 2010 are profitably reproduced as under:
Page 7 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020C/SCA/14891/2010 JUDGMENT "10. It is pertinent to note at this stage and in this context tha the Corporation failed to place any evidence before learned Labour Court and the learned advocate for petitioner also failed to show, during hearing of this petition, any material from record to establish that the Corporation maintained and displayed seniority list in accordance with Rule 81 of the Industrial Disputes (Gujarat Rules), 1966 and that the Corporation had followed the principle of seniority i.e. "last come, first go" at the time when the Corporation terminated service of the claimant.
11. Even at the time of hearing, learned advocate for petitioner could not show any evidence from record that all employees junior to the respondent were relieved and principle of seniority was diligently followed and requirement and displaying seniority list in accordance with Rule 81 was complied.
12. In this view of the matter, the conclusion by learned Labour Court with regard to breach of Section 25G cannot be faulted and the said conclusion does not warrant any interference.
13. So far as the contention by learned advocate for petitioner with reference to Section 25F is concerned, even learned Labour Court has rejected the claimant's allegations about breach of Section 25F. Learned Labour Court has held that the claimant failed to prove breach of Section 25F.
14. The learned Labour Court has, on the basis of evidence available on record, reached to the conclusion that after the service of the claimant was terminated, other persons were engaged by the Corporation, however, Corporation failed to offer work to the claimant. From the award it emerges that the Corporation failed to place any material on record to establish that the persons who were subsequently employed, were not employed in the same category/ on the same post. At the time of hearing of the petition, learned advocate for petitioner could not show any document from the record which would convince this Court and which would establish that the persons who came to be subsequently employed in different category/ on different post and, therefore, Section 25H would Page 8 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT not be attracted.
15. In absence of such material, the findings of fact recorded by the learned Labour Court cannot be disturbed by this Court.
16. Therefore, the finding of fact recorded by the learned Labour Court with regard to breach of Section 25H does not warrant interference.
17. Even otherwise, when breach of Section 25G is already established, the conclusion by the learned Labour Court that the termination of claimant's service was illegal and in breach of statutory provisions, is fortified and the said position justifies the order directing the Corporation to reinstate the claimant.
18. In the decision in case of Surendranagar District Panchayat and Another v. Parsottam Manji (2016 3 GLR 1981), this Court has held that Section 25G and 25H are independent of 25h and breach of compliance of Section 25F is not necessary condition for invoking Section 25G to challenge illegal termination. In the said decision, the Court has observed that "14. In this view of the matter, even if the petitioner's contention that the breach of Section 25F is not established, is, for testing the other contention is entertained, then also,the learned Labour Court's conclusion that the petitioner committed breach of Section 25G cannot be faulted.
Section 25G operates independently and is not dependent on Section 25F and for applicability and operation of Section 25G, it is not necessary to establish breach of Section 25F.
The petitioners' contention against the learned Labour Court's conclusion about breach of Section 25G is based on erroneous reading and construction of Section 25G. When the learned counsel for the petitioners claims that despite the fact that the workman had not worked for 240 days, breach of Section 25F was not established and consequently, the action would not amount to breach of Section 25G, the petitioner ignores the effect, scope, purport and requirements of Section 25G of the Act, the learned Labour Court committed error in holding that the action of relieving the respondent is in breach of Section 25G. According to the petitioner said conclusion is recorded disregarding the fact that the workman had not worked for 240 days and consequently, the petitioner had not violated Section 25F of the Page 9 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT Act. At first blush and on initial reading of Section 25G it strikes that the said provision is part of the same family namely, Chapter VA which comprises Section 25A to Section 25J and that the said Section 25G is intertwined with and closely attached to Section 25F and Section 25H. However, on closure examination of the scheme of Chapter VA and definition of the term "retrenchment" under Section 2(oo) of the Act, it emerges that said Section 25G operates independently and its operation or applicability is not dependent on compliance or breach of Section 25F. It also emerges that for attracting the applicability and operation of Section 25G, it is not necessary to establish breach of Section 25F. It is true that Section 25F, Section 25G and Section 25H collectively provide against arbitrary retrenchment of workman and also provide a safety valve against employer's "pickandchoose" action and against employer's action of "hire and fire at will". It also provides protection to the workman against employer's action of selectively and arbitrarily driving out a workman with a view to making room for and accommodating another person in his place. In many cases, it may so happen that the workman or the post / position may not have become redundant and need for the particular work or operation and the need for the person to perform the said work may continue, but the employer may, for ulterior reasons, want to replace the person manning the post by appointing some other person. The reason for such substitution or replacement may not be necessarily associated with any fault or mistake in performance of duties by the concerned person, but still the employer may want to relieve such person for undisclosed reasons. Section 25G and Section 25H provide protection against such whims and fancy of the employer.
Actually, ingrained in Section 25G, and so also in Section 25H, are the principles of Article 14 of the Constitution of India, namely equality and fairness. Section 25G despises motivated retrenchment and aims at nipping in the bud the tendency of harassing or victimizing one employee by bestowing favour to other person.
When Section 25G is examined in light of this objective and in light of entire scheme of the Act and particularly Chapter VA, then, it comes out, clearly, that it operates independently and it is Page 10 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT not dependent on breach and/or compliance of Section 25F of the Act. Section 25G of the Act does not require compliance of the condition necessary for attracting Section 25F viz. Work / service of minimum 240 days in 12 months preceeding the date of retrenchment. The only requirement for attracting Section 25G is to establish that at the time when the service of the claimant workman came to be terminated, some person(s) junior to him was/were retained in service and the principle of "last come, first go"
was not followed.
If the said fact is established, then, breach of Section 25G would stand established and that would render the action of termination of the workman contrary to and in violation of statutory provision.
The expression "retrenched" used in Section 25G does not refer to the workman retrenched under and as per Section 25F of the Act. The expression "retrenched" employed in section 25G is related to the term "retrenchment" defined under Section 2(oo) of the Act and the retrenchment contemplated under Section 25F cannot and does not circumvent or curtail or restrict either the meaning or the ambit of Section 25G or of the expression "retrenched" in Section 25G of the Act.
As observed by Hon'ble Apex Court in para 9 of the decision in the case of Central Bank of India v. S. Satyam & Ors. [(1996) 5 SCC 419], the Section 25G borrows and applies the concept of "last come, first go" but the term "retrenchment"
is not and cannot be restricted only to the cases covered by Section 25F. In the said decision, Apex Court has observed, inter alia, that: "9. The plain language of Section 25H speaks only of re employment of 'retrenched workmen'. The ordinary meaning of the expression 'retrenched workmen must relate to the wide meaning of 'retrenchment' given in Section 2(oo). Section 25 F also uses the word 'retrenchment' but qualifies it by use of the further words 'workman' who has been in continuous service for not less than one year'. Thus, Section 25F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words workman. Who has been in continuous service for not less than one year. It is clear that Section 25F applies to the retrenched workman who has been in continuous Page 11 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT service for not less: one year and not to any workman who has bean in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less the one year. Chapter VA deals with all retrenchments while Section 25F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25G prescribes the principle for retrenchment and applies ordinarily the principle of 'last come first so' which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25F."
Under the circumstances, in present case, when breach of Section 25G is established, it translates into factsituation, and leads the Court to the conclusion that the petitioner's action viz. terminating the respondent's service while retaining juniors to him, is illegal and in violation of statutory provision.
The termination of respondent's service in violation of statutory condition/provision would invite and justify the direction to reinstate the respondent. Therefore, the direction by the learned Labour Court requiring the petitioner to reinstate the respondent cannot be faulted and the petitioner's contention against said direction is not sustainable and does not deserve to be entertained. The said contention fails and that therefore, it is, accordingly, rejected. By the impugned award, the learned Labour Court has not granted benefit of backwages and the order is restricted to the direction to reinstate the respondent without backwages. The learned Labour Court has not committed any error on that count. Therefore, the petition filed by the panchayat, i.e. Special Civil Application No.25413 of 2006, fails and it is hereby rejected."
19. In this view of the matter, the said conclusion by learned Labour Court cannot be faulted.
20. When the breach of Section 25G is established, it means that the termination of Page 12 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT claimant's service was effected in breach of statutory provision. This would entail natural and normal consequence namely reinstatement in service.
21. This is one reason in light of which the order by learned Labour Court directing the Corporation to reinstated the claimant does not warrant interference."
8. In the instant case also, the facts are almost identical, the person had already worked for 240 days, and therefore, it will not be possible for the Court to intervene and quash and set aside the direction of reinstatement in wake of the breach of Section 25F of the Act. It is also a matter of record that no notice or notice pay or retrenchment compensation has been given to the respondent, and therefore, it is a clear stand of the respondent having completed 240 days in the preceding year and petitioner having not paid any amount while retrenching the person, the Court does not find any requirement to interfere in the findings of the Labour Court that there has been a clear breach of Section 25F of the Act.
Page 13 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020C/SCA/14891/2010 JUDGMENT
9. Admittedly, no seniority list has been maintained by the petitioner. The Court, therefore, also after a detailed discussion has held that, there is a breach of Sections 25G and 25H of the Act, the same would also apply to the case of the present petitioner, and hence, all these aspects cumulatively led the Court to reinstate the respondent who is admittedly working from the year 2011 with continuity of service, there will no requirement for the Court to interfere in the judgment and award passed by the Labour Court.
10. The only issue that remains is of 20% of the backwages, in the instant case. Learned advocate Mr. Mishra, on instructions of the respondent, forgone his 20% of backwages, and in wake of that, there will be a requirement of modifying the award to that extent.
11. Resultantly, the petition is partly allowed. The judgment and award dated 23.04.2010 passed by the Labour Court, Jamnagar in Reference Page 14 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020 C/SCA/14891/2010 JUDGMENT (LCJ) No. 255 of 1996 is partly quashed and set aside and stands modified, where the direction of reinstatement is not in any manner interfered with. The said direction of reinstatement since had already been implemented, further direction will not be necessary.
11.1. So far as payment of 20% of the back wages is concerned, as per the request of the learned advocate Mr. Mishra appearing for the respondent, the same having been foregone voluntarily, the same is accordingly, at his instance quashed and set aside. The judgment and award is accordingly, modified, with no order as to costs.
12. Rule is made absolute to the aforesaid extent.
(MS SONIA GOKANI, J) pradhyuman Page 15 of 15 Downloaded on : Mon Jun 15 00:41:51 IST 2020