Gujarat High Court
A.K. Joshi vs The Executive Engineer on 7 September, 2017
Author: M. R. Shah
Bench: M.R. Shah, B.N. Karia
C/LPA/813/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
LETTERS PATENT APPEAL NO. 813 of 2016 In
SPECIAL CIVIL APPLICATION NO. 12500 of 2007
With
CIVIL APPLICATION NO. 8402 of 2016 In
LETTERS PATENT APPEAL NO. 813 of 2016
With
LETTERS PATENT APPEAL NO. 738 of 2016 In
SPECIAL CIVIL APPLICATION NO. 12501 of 2007
TO
LETTERS PATENT APPEAL NO. 741 of 2016 In
SPECIAL CIVIL APPLICATION NO. 12504 of 2007
With
CIVIL APPLICATION NO. 7707 of 2016 In
LETTERS PATENT APPEAL NO. 738 of 2016
TO
CIVIL APPLICATION NO. 7710 of 2016 In
LETTERS PATENT APPEAL NO. 741 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
==========================================================
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 ?
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4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== A.K. JOSHI....Appellant(s) Versus THE EXECUTIVE ENGINEER....Respondent(s) ========================================================== Appearance:
MR SHALIN MEHTA, SR. ADVOCATE WITH MS VIDHI J BHATT , ADVOCATE for the Appellant(s) No. 1 MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE B.N. KARIA Date : 07/09/2017 COMMON JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. As common question of law and facts arise in this group of Letters Patent Appeals and as such arise out of the impugned common judgment and order passed by the learned Single Judge passed in respective Special Civil Applications ie., Special Civil Page 2 of 23 HC-NIC Page 2 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT Applications No. 12500/2007 to 12504/2007, all these Appeals are decided and disposed of together by this common judgment and order.
2. Admit. Learned AGP Shri Dhawan Jayswal appears and waives service of notice of admission on behalf of the respondent no.1 in respective Letters Patent Appeals. In facts and circumstances of case, with the consent of the respective parties, all these appeals are heard today.
3. Being aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge dated 13.01.2016 partly allowing the respective Special Civil Applications No. 12500/2007 to 12504/2007 preferred by the original petitioners/appellants herein awarding reinstatement, however, without any back-wages and without continuity of service, the original petitioners have preferred the present Appeals under Clause 15 of the Letters Patent Act, 1865. Page 3 of 23
HC-NIC Page 3 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT Shri Shalin Mehta, learned Senior Advocate appearing on behalf of the appellants has stated at the bar that the present appeals be confined and restricted to not granting continuity of service only and the appellants do not challenge the common judgment and order of the learned Single Judge denying backwages. Therefore, the present Appeals are confined to denying continuity while quashing and setting aside the termination and/or reinstatement.
4. The facts pleaded in the present Appeals in nut shell are as under:
4.1 That, all the original petitioners were appointed as Class-IV (Helpers) with the respondent. They worked as daily wagers for approximately 4 years.
Service of all the concerned workmen were terminated orally and without following any procedure required under the Industrial Disputes Act (In short "the Act") and such an act was in Page 4 of 23 HC-NIC Page 4 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT breach of Section 25F and 25G of the Act. The concerned workmen raised an industrial dispute which was referred for adjudication to the Labour Court, Valsad, which was numbered as Reference No. 51 of 1986. At this stage, it is required to be noted that the service of the concerned workmen were terminated in the year 1985 and immediately thereafter, they raised an industrial dispute in the year 1986. That thereafter, by judgment and award dated 26.04.1988, the learned Labour Court partly allowed the aforesaid Reference directing the Department to pay legal dues of the workers, but their demand with regard to reinstatement and backwages was rejected.
4.2 Feeling aggrieved and dissatisfied with the order dated 26.04.1988 passed by the Labour Court, Valsad the concerned workmen preferred Special Civil Application No. 6854 of 1988 before this Court. By judgment and order dated 20.04.2001, this Court Page 5 of 23 HC-NIC Page 5 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT partly allowed Special Civil Application and remanded the matter back to the Labour Court for deciding the Reference afresh. On remand, Reference was re-numbered as Reference LCV/348/2001. That, in the reference, the Department/management submitted an application vide ex. 50 raising a dispute that Department in which the concerned workmen were working cannot be said to be an "Industry". That, vide order dated 26.12.2001 passed below application Ex. 50, the Labour Court allowed the said application and rejected the Reference on the ground that the Department in which the concerned workmen were working cannot be said to be an "Industry" under the Act.
4.3 Being aggrieved and dissatisfied with the order passed by the learned Labour Court rejecting the Reference on the ground that the respondent Department cannot be said to be an "Industry", the Page 6 of 23 HC-NIC Page 6 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT concerned workmen preferred Special Civil Application No. 4420 of 2003 before this Court. That, by judgment and order dated 18.11.2005, this Court allowed Special Civil Application No. 4420 of 2003 and quashed and set aside the judgment and award passed by the Labour Court rejecting Reference on the ground that respondent Department cannot be said to be an "Industry" and remanded the matter back to the learned Labour Court for fresh consideration/ reconsideration. 4.4 That thereafter, by judgment and order, which was impugned before the learned Single Judge, the Labour Court though held and observed that the termination of the concerned workmen w.e.f. 20.08.1985 was illegal, however, denied them reinstatement and awarded compensation in lieu of reinstatement by quantifying the same at Rs. 25,000/- per concerned workmen.
4.5 Feeling aggrieved and dissatisfied with the
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judgment and award passed by the Labour Court dated 27.06.2006, the concerned workmen preferred Special Civil Applications No. 12500 of 2007 to 12504 of 2007 before this Court and by the impugned common judgment and order, the learned Single Judge has partly allowed the said writ Applications and thereby quashed the judgment and award passed by the learned Labour Court denying reinstatement and has held that the concerned workmen are entitled to reinstatement. However, learned Single Judge has denied backwages for the interregnum period and also denied continuity of service.
4.6 Feeling aggrieved and dissatisfied with the common judgment and order passed by the learned Single Judge denying back-wages and continuity of service, the respective petitioners/ concerned workmen have preferred the present Appeals under Clause 15 of the Letters Patent.
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5. Heard Shri Shalin Mehta, learned Senior
Advocate with Ms. Vidhi J. Bhatt, learned advocate appearing on behalf of the appellants/original petitioners and Shri Dhawan Jayswal, learned AGP appearing on behalf of the respondent .
6. Shri Shalin Mehta, learned Senior Advocate appearing on behalf of the appellants/original petitioners has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in denying continuity of service for the interregnum period ie., from the date of their illegal termination till they are reinstated. It is vehemently submitted by Shri Shalin Mehta, learned Senior Advocate for the appellants that the learned Single Judge has specifically observed and held that the termination of concerned workmen was in breach of Section 25F of the Act. It is submitted that learned Single Judge has specifically observed and held that even Juniors Page 9 of 23 HC-NIC Page 9 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT to the concerned workmen were continued in service. It is submitted that even the concerned workmen raised an Industrial Dispute immediately after their illegal termination. It is submitted that however, because of Orders passed by this Court, twice the matter was remanded back to the Labour Court, and therefore, a long time had taken in finally deciding the dispute. It is submitted that therefore, the delay in disposing of the Reference cannot be attributed to the concerned workmen at all. It is submitted that so far as concerned workmen are concerned, from the very beginning they are vigilant and have raised Industrial Dispute immediately after their oral illegal termination. It is submitted that therefore, when once the learned Single Judge has held their termination as illegal and in breach of provisions of the I.D. Act, and thereafter, when the learned Single Judge has ordered reinstatement, the learned Single Judge Page 10 of 23 HC-NIC Page 10 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT ought to have atleast granted continuity of service from the date of their illegal termination till they are reinstated in service. In support of his above submission, learned Senior Advocate Shri Shalin Mehta appearing on behalf of the appellants has relied upon decision of the Hon'ble Apex Court reported in (2013)10 SCC 324 in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidhyalaya (D.ED) & Ors., and a recent decision of this Court passed in Letters Patent Appeal No. 1416 of 2016 dated 12th July, 2017. Making above submissions and relying on the aforesaid decisions, he has requested to allow the present Appeals, and consequently modify the impugned common judgment and order passed by the learned Single Judge in so far as denying continuity of service is concerned.
7. All these Appeals are vehemently opposed by Shri Dhawan Jayswal, learned AGP appearing on Page 11 of 23 HC-NIC Page 11 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT behalf of the respondent. It is submitted that as such all the concerned workmen were serving as daily wagers and that too on a project. It is submitted that they hardly worked for 3 years as daily wagers. It is submitted that therefore, even if termination is held to be in breach of provision of the Industrial Disputes Act, in that case also, the reinstatement as such was not warranted and the concerned workmen even if are ordered to be reinstated, they are not entitled for backwages for the interregnum period and continuity of service.
8. It is further submitted by learned AGP that in such a situation and as per the catena of decisions of Hon'ble Supreme Court and this Court, as concerned workmen as such were serving as daily wagers were entitled to lumpsum compensation in lieu of reinstatement. It is submitted that however still, learned Single Judge has ordered reinstatement, which has been accepted by the Page 12 of 23 HC-NIC Page 12 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT Department. It is submitted that therefore, in the facts and circumstances of the case, no error has been committed by the learned Single Judge denying continuity of service. It is submitted by learned AGP that assuming the termination of concerned workmen was in breach of provisions of Industrial Disputes Act, in that case also, as the concerned workmen were serving as daily wagers, they can at the most be ordered to be reinstated, but without continuity and backwages. Making above submissions, it is requested to dismiss present appeals.
9. Heard learned advocates appearing on behalf of the respective parties at length.
10. At this stage, it is required to be noted that as such by impugned judgment and order, the learned Single Judge has specifically observed and held that the oral termination of the concerned workmen was in breach of provisions of the Industrial Disputes Page 13 of 23 HC-NIC Page 13 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT Act, particularly Section 25F of the Act. It is also required to be noted that even the learned Single Judge has also specifically observed that juniors to the concerned workmen were continued in service. Learned Single Judge has observed and held that nothing is on the record and/or no evidence is laid to show that the concerned workmen were appointed on project. On the contrary, there is a specific finding by the learned Single Judge that after the particular project was completed, the concerned workmen were shifted to another Department. Thereafter and after observing and holding so, the learned Single Judge has set aside the judgment and award passed by the learned Labour Court denying reinstatement and has ordered reinstatement. At this stage, it is required to be noted that as such so far as respondent is concerned, the impugned common judgment ordering reinstatement has attained finality. While Page 14 of 23 HC-NIC Page 14 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT passing impugned judgment and order, though the learned Single Judge held that termination is illegal and in breach of provisions of Section 25F of the ID Act, the learned Single Judge had denied the backwages and continuity of service for the interregnum period ie., from the date of illegal termination till reinstatement.
11. From the impugned common judgment and order passed by learned Single Judge, it appears that while denying the backwages and continuity of service for the interregnum period, learned Single Judge has observed that as the termination was in the year 1985 and thereafter, almost 13 years have passed and long time has been passed since the termination, it would not be proper to grant continuity. However, on the aforesaid ground, more particularly, when the delay caused in the present case cannot be attributed to the appellants at all, the concerned workmen cannot be denied at least Page 15 of 23 HC-NIC Page 15 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT the continuity of service. As observed herein-above, the concerned workmen were terminated orally and illegally in the year 1985 and immediately thereafter, they raised Industrial Dispute, which was referred to the learned Reference Court in the year 1986 itself. However, because of three rounds of litigation referred to hereinabove, the delay has occurred in disposing and deciding the Reference by the learned Labour Court. At no point of time concerned workmen cannot be said to be responsible for any delay.
12. In light of the aforesaid facts and circumstances, impugned common judgment and order passed by the learned Single Judge denying continuity of service is required to be considered.
13. In case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidhyalaya (D.ED) & Ors.(supra) wherein, in paragraphs 38.1 to 38.7, the Apex Court has observed and held as under;
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"38. The propositions which can be culled out from the aforementioned judgments are :
38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages.
If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed Page 17 of 23 HC-NIC Page 17 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/ Industrial Tribunal finds that the employee or workman is not at all guilty of Page 18 of 23 HC-NIC Page 18 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrong doings by relieving him of the burden to pay to the employee/workman his Page 19 of 23 HC-NIC Page 19 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT dues in the form of full back wages.
38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalized. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis- a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Page 20 of 23 HC-NIC Page 20 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT Limited v. Employees of Hindustan Tin Works Private Limited (supra).
38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." After following the aforesaid decision of Hon'ble Apex Court, Division Bench of this Court in a recent decision in Letters Patent Appeal No. 1416 of 2016 in Special Civil Application No. 85 of 2011 has set aside the order passed by the learned Single Judge denying backwages and continuity of service.
14. Applying the law laid down by the Hon'ble Supreme Court and in the facts and circumstances of the case, this court is of the opinion that learned Single Judge has materially erred in denying Page 21 of 23 HC-NIC Page 21 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT continuity of service to the concerned workmen; more particularly, as stated above delay in finally deciding and disposing of the reference is at all not attributable to the concerned workmen. To the aforesaid extent, impugned common judgment and award passed by the learned Single Judge is required to be modified.
15. In view of the above and for the aforestated reasons, all these Appeals succeed in part. Impugned common judgment and order passed by learned Single Judge Special Civil Applications ie., Special Civil Applications No. 12500/2007 to 12504/2007 is hereby quashed and set aside in so far as it denies continuity of service to the concerned workmen, while ordering reinstatement. Meaning thereby, the concerned workmen shall be entitled to continuity of service from the date of their illegal termination till they were reinstated in service. All these Appeals are partly allowed to the Page 22 of 23 HC-NIC Page 22 of 23 Created On Sun Oct 01 16:03:01 IST 2017 C/LPA/813/2016 JUDGMENT aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
16. In view of disposal of the main Appeals, respective Civil Applications stand disposed of.
(M. R. SHAH, J) (B.N. KARIA, J) ksdarji Page 23 of 23 HC-NIC Page 23 of 23 Created On Sun Oct 01 16:03:01 IST 2017