Gujarat High Court
Manavadar Municipality vs Chandrikaben Devshibhai Baraiya on 11 September, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/10025/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10025 of 2016
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MANAVADAR MUNICIPALITY
Versus
CHANDRIKABEN DEVSHIBHAI BARAIYA
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Appearance:
MR MURLI DEVNANI, Advocate for the PETITIONER(s) No. 1
NEHA M KAYASTHA(7609), Advocate for the RESPONDENT(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 11/09/2018
ORAL ORDER
1. Heard learned advocate for the petitioner and learned advocate for the respondent.
2. The petitioner municipality is aggrieved by the award dated 3.10.2015 passed by learned Labour Court at Junagadh in Reference (T) No. 176/2005 whereby the learned Labour Court directed present petitioner to reinstate the claimant on his original post with continuity of service however without backwages. Page 1 of 20 C/SCA/10025/2016 ORDER
3. So far as factual background is concerned, it has emerged from the record that present respondent raised industrial dispute with the allegations that the opponent employer (Manavadar Municipality) illegally terminated her service by oral intimation, in December, 2000. He raised the said dispute in 2005. Appropriate government referred the dispute for adjudication to learned Labour Court at Junagadh, vide order of reference dated 1.8.2005.
4. In her statement of claim before learned Labour Court, the claimant i.e. present respondent alleged that she was serving with the opponent municipality since 1990 as Safai Kamdar and that she worked regularly and continuously till December, 2000 when her service came to be terminated by the opponent Municipality with oral instruction without following procedure prescribed by law. She claimed that she had worked for 240 days in each year and that while she was in service she was not paid salary in Page 2 of 20 C/SCA/10025/2016 ORDER accordance with Rules. The claimant alleged breach of statutory provisions namely Section 25F, Section 25G and Section 25H. With such allegations, the claimant demanded that the opponent should be directed to reinstate her with all benefits.
5. The opponent municipality opposed the reference and the demand. The opponent claimed that the claimant was engaged without following prescribed procedure and that therefore she was not entitled to continue in service. The opponent also claimed that it was the claimant who stopped reporting for duty and that therefore she is not justified in claiming reinstatement. The opponent municipality denied the allegations that while her service came to be terminated her juniors were continued in service and that after her service was terminated the municipality had employed other persons for the same work. The Municipality claimed that the claimant was not entitled for payment of compensation and the Page 3 of 20 C/SCA/10025/2016 ORDER allegation that the municipality committed breach of statutory provisions and/ or her service came to be terminated without following prescribed procedure are incorrect. The opponent municipality also disputed the claim that the workman had worked for 240 days in each year.
6. The learned Labour Court adjudicated the reference. The learned Labour Court reached to the conclusion on the basis of evidence on record that the claimant established breach of Statutory provision. Having reached to such conclusion learned Labour Court passed impugned award with above mentioned direction.
7. Mr. Devnani, learned advocate for the petitioner assailed the award and submitted that the claimant failed to prove that she had worked for 240 days in preceding 12 months. He submitted that learned Labour Court recorded the details of attendance (total number of days for which the claimant worked with the municipality) however Page 4 of 20 C/SCA/10025/2016 ORDER finding with regard to attendance during preceding 12 months is not recorded by the learned Labour Court. He submitted that the learned Labour Court reached to the conclusion that the claimant had worked for 291 days in 1995, for 310 days in 1997, 309 days in 1998 and 289 days in 1999 however any findings with regard to the preceding 12 months i.e. December, 2000 to January, 2000 is not recorded and that therefore the conclusion with regard to Section 25F is incorrect, contrary to record or without evidence and unjustified. With regard to learned Labour Court's conclusion that Municipality committed breach of Section 25G, Rule 81 and Section 25H, learned advocate for the Petitioner submitted that the claimant failed to mention name of any person who according to her allegation, was junior to the claimant but continued in service though her service came to be terminated. He submitted that in absence of such findings learned Labour Court could not have reached to the conclusion about breach of Section 25G. Page 5 of 20 C/SCA/10025/2016 ORDER Similar contention is raised by the petitioner with regard to learned Labour Court's findings about breach of Section 25H. It is claimed that the claimant failed to mention name of any persons who came to be employed after the claimant was relieved. With the said allegation, the learned advocate for the petitioner assailed impugned award. At this stage it is necessary to note that the learned advocate for the petitioner could not point out any error with regard to learned Labour Court's conclusion about breach of Rule 81.
8. Learned advocate for the respondent i.e. original claimant opposed the submission by learned advocate for the petitioner. She submitted that the findings of fact recorded by learned Labour Court with regard to breach of statutory provisions are based on evidence before learned Labour Court. She submitted that the claimant established before the learned Labour Court that she had worked for 240 days in each Page 6 of 20 C/SCA/10025/2016 ORDER year and that other persons who were continued in service while her service came to be terminated that the claimant's service was terminated without issuing notice and without payment of compensation. She further submitted that the claimant could also establish breach of Section 25H with the help of relevant evidence and that there is no error with regard to findings of fact recorded by learned Labour Court. According to learned advocate for the respondent, the petition should be rejected.
9. I have considered rival submissions as well as material available on record and the award challenged in present petition.
10. The learned Labour Court has not granted benefit of backwages, while directing the municipality to reinstate the claimant with continuity of service.
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11. The workman has accepted the award inasmuch as the award is not challenged by the workman. 11.1 The direction of refusal of backwages is not disputed by the workman and any grievance with regard to the said denial is not raised by the claimant. The said decision by learned Labour Court has, thus, attained finality. 11.2 In that view of the matter and also in light of the fact that in the petition filed by the Municipality, the learned Labour Court's decision which is not challenged by the workman cannot be disturbed. Since the learned Labour Court's decision with regard to refusal of backwages for the period from date of termination till the date of award is not challenged by the workman and that therefore the propriety or legality of said decision is not required to be and cannot be considered/ examined, more particularly in the petition filed by Municipality.
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12. Now, so far as the direction to reinstate the claimant with continuity of service is concerned, it is relevant to note that the learned Labour Court has passed the said direction in light of the findings of fact recorded in the award with regard to breach of Section 25F, Section 25G and Section 25H.
13. So far as alleged breach of Section 25F is concerned, it is relevant to note that the municipality undisputedly did not serve any notice to the claimant before terminating claimant's service nor the municipality paid notice pay at the time when the service of the claimant came to be discontinued. The Municipality also, undisputedly, did not pay retrenchment compensation in accordance with Section 25F of the Act. Therefore, on first impression it would emerge that the breach of Section 25F is established.
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14. However, learned advocate for the petitioner would submit that the claimant did not establish that she had worked for 240 days in preceding 12 months.
15. On this count, it is relevant to mention that the claimant was, undisputedly, employed as daily wager. She was not regularly selected permanent employee of the Nagarpalika on regular establishment. The claimant alleged that she worked with the Nagarpalika for almost 10 years i.e. from 1990 to 2000.
16. For attracting and applying Section 25F to any case of termination, a daily wager must establish that (a) he/ she served with the employer continuously for atleast 12 months; and that (b) during preceding 12 months he/ she had worked for 240 days. From the award it comes out that the learned Labour Court reached to the findings of fact, on the basis of evidence that in 1995, 1997, 1998, 1999 the claimant worked for Page 10 of 20 C/SCA/10025/2016 ORDER more than 240 days. The said findings of fact is based on evidence available on record. Even the petitioner could not show any material from the record which can dislodge the said findings of fact by learned Labour Court.
17. However the fact remains that even learned Labour Court has not recorded findings with regard to number of days for which the claimant worked during preceding 12 months i.e from December, 2000 to January, 2000 or from November, 2000 to December, 1999.
18. In absence of such evidence learned Labour Court could not have reached to the findings about breach of Section 25F, even though other part of the condition namely service of notice and payment of compensation, was undisputedly not complied by the Municipality.
19. In this view of the matter, the question which would arise is that merely because the Page 11 of 20 C/SCA/10025/2016 ORDER findings of learned Labour Court with regard to breach of Section 25F is found to be defective and erroneous, does it render award unsustainable. The reply to the said question is, in negative.
20. This is so because the learned Labour Court has recorded specific finding of fact with regard to breach of Section 25G, Rule 81.
21. To cut the matter short, even if it is assumed that any cogent evidence with regard to breach of Section 25G or Section 25H was not available on record and that the petitioner did not mention names of any person who were junior to her but were continued in service after her service came to be discontinued, the fact remains that before the service of the claimant came to be discontinued the municipality had not prepared and published seniority list in accordance with the Rule 81. Section 25G and Section 25H are mandatory. Requirement prescribed under Rule 81 Page 12 of 20 C/SCA/10025/2016 ORDER flows from and it is related to Section 25G. In that view of the matter breach of said Rule 81 or noncompliance/ contravention of procedure prescribed by said Rule, would render the termination/ retrenchment invalid.
22. In case of Rajkot Municipal Corporation vs. Kishor Govind 1996 (2) G.L.R. 246 this Court has held that Section 25G and 25H are independent of Section 25F. It is observed in the decision that: "On close scrutiny of Sections 25F, 25G and 25H of the Act, it becomes abundantly clear that though they are part of the same scheme, of providing against arbitrary retrenchment of workman by the management and to curb the tendency of hire and fire and also to provide for reemployment of such retrenched workman in case same employer again employs new person so that retrenchment simpliciter is not used as a tool merely to make room for somebody else by removing person whose services are otherwise required. Viewing in this light it cannot be said that on plain reading of the language of the provisions of the Statute and also keeping in view the object of various provisions of Chapter VA of the Act, that rule envisaged under Section 25G is also subject to same condition as are the provisions of Section 25F. It may be noticed that Section 25G necessarily has within it ingredients of Article 14 which provides equality as fundamental right guaranteed to the citizens and Article 16 which provides for equal opportunities in the matter of employment. Section 25G is meant to guard against arbitrarily motivated retrenchment. The provision curbs the tendency of conferring favour on one Page 13 of 20 C/SCA/10025/2016 ORDER employee by retaining his service while discharging the senior. Section 25G does not refer to 'such workman falling under Section 25'. Had Section 25G been dependent upon Section 25F for its operation terminology used by the legislature would have been different. In that event, instead of the words' any workman', the legislature would have used 'such workman'.
I am fortified in my aforesaid conclusions by a Division Bench of the Rajasthan High Court in the case of Bhanvarlal & Ors. v. Rajasthan State Road Transport, reported in (1985ILLJ111) and another Division Bench of the Bombay High Court in the case of Navbharat Hindi Daily v. Navbharat Shramik Sangh, reported in (1985ILLJ474) with which, I am in respectful agreement.
In this connection, learned Counsel for the petitioner relied on the following passage from the decision in the case of Indian Air Lines v. Sebastian, reported in 1991 (1) GLR No. 43 :
"It should be remembered that Sections 25E, 25F and 25H are all interlinked provisions and they all come under Chapter VA. Section 25E dealt with definition of 'continuous service'. Under Section 25E(2)(a)(ii), unless a person had worked for 240 days continuously in a year, he cannot be deemed to be in continuous service. Section 25F deals with 'conditions precedent to retrenchment of workmen' and it mentions that no workman employed in any industry who has been in continuous service for not less than one year, shall be retrenched ... Section 25G deals with procedure for retrenchment of retrenched workmen. In view of the fact that these workmen were not in continuous service as contemplated under Section 25B and as they do not satisfy requirement of Section 25F, they are not entitled to the benefits of Section 25H."
Having carefully gone through the aforesaid decision, I am of the opinion that the aforesaid observation, in no way, helps the contention of the petitioner. It was not a case in which the provisions of Section 25G were at all involved and considered. It was a case in which person whose services were terminated had not completed one year's continuous service and his case did not fall within the scope of Section 25F of the Act. The Page 14 of 20 C/SCA/10025/2016 ORDER termination of the services of the workman was not held to be illegal for breach of Section 25G of the Act. Thereafter, when the question of giving appointment to fresh hands in the same establishment arose, whether benefit of Section 25H for giving preference to such person can be extended or not was the only issue raised and decided that Section 25H can only operate in case where there is valid retrenchment. Nowhere the Court stated nor the Court was called upon to decide whether the termination which is thought not attracting Section 25F but is in breach of Section 25G could be sustained, nor was it an issue before the Court nor the Court decided whether continuous service for a period of one year or more within the meaning of Section 25B, as is required for the purpose of Section 25F, is also necessary for the purpose of invoking the provisions of Section 25G. In my, opinion, therefore, the aforesaid decision does not help the petitioner."
23. In this view of the matter, it is established that the Municipality committed breach of Rule 81 inasmuch as it did not prepare and publish seniority list, 7 days before termination of claimant's service and that therefore, the findings of fact recorded by learned Labour Court that municipality committed breach of Rule 81 cannot be faulted.
24. Once it is established that the employer committed breach of Rule 81, breach of statutory condition/ requirement would stand established. Page 15 of 20 C/SCA/10025/2016 ORDER
25. As mentioned above, learned advocate for the petitioner failed to even put forward any submission with regard to the findings of fact recorded by learned Labour Court in respect of Rule 81.
26. The learned advocate for the petitioner failed to show any document from record which would establish compliance of Rule 81.
27. Therefore the findings of fact by learned Labour Court that the employer had not published seniority list cannot be faulted and consequently the findings of fact recorded by learned Labour Court that the employer committed breach of Rule 81 also cannot be faulted.
28. When the said findings of fact is taken into account in light of the decision of Hon'ble Apex Court in case of Rajkot Municipal Corporation vs. Kishor Govind (supra) it would emerge that the Page 16 of 20 C/SCA/10025/2016 ORDER learned Labour Court is right in holding that the service of the claimant came to be terminated in breach of applicable statutory provision and that therefore termination is bad in law.
29. Once the said findings of fact is arrived at, question would arise about appropriate relief.
30. In present case, the learned Labour Court has denied backwages.
31. As mentioned above, the said decision is not under challenge.
32. The challenge is with regard to direction to reinstate the claimant and with regard to the direction granting continuity of service.
33. When breach of statutory provision is established and consequently it is also established that the termination of service is illegal, then the direction by learned Labour Page 17 of 20 C/SCA/10025/2016 ORDER Court granting reinstatement cannot be faulted. [See Dipali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.)(2013) 10 SCC 324]
34. However, so far as the direction granting continuity of service is concerned, claimant's case cannot be equated with the case of Dipali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (supra) inasmuch as the facts of the present case are materially different from the facts involved in case of Dipali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (supra). The concerned employee in the cited decision, was undisputedly, permanent employee whereas the workman concerned in present case was a daily wager who was engaged irregularly.
35. A case of irregularly appointed daily wager cannot be equated with case of termination of permanent employee, more particularly with regard to the claim for continuity of service. The said Page 18 of 20 C/SCA/10025/2016 ORDER direction benefit cannot be sustained. The said direction deserves to be set aside.
36. In present case there is another point which persuades and convinces the Court to not approve the decision granting continuity of service. It has emerged from the record that the service of the claimant came to be terminated in 2000 whereas the claimant raised the dispute after almost 5 years i.e. in 2005.
37. In this view of the matter also the benefit by way of continuity of service cannot be sustained. Therefore, said direction is, hereby, set aside.
38. In light of the foregoing discussion and in light of the facts and circumstances of present case following order is passed:
a. The order passed by learned Labour Court directing present petitioner to reinstate the claimant is not disturbed. The said direction Page 19 of 20 C/SCA/10025/2016 ORDER granting reinstatement in service on original post is confirmed.
b. However, so far as the direction granting continuity of service is concerned, the said direction is set aside.
c. Accordingly the award is partly modified.
With said direction and modification the petition stands disposed of. Orders accordingly.
(K.M.THAKER, J) saj Page 20 of 20