Gujarat High Court
Bhavnagar Municipal Corporation vs Husenbhai Umarbhai Kazi on 28 February, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/25366/2007 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 25366 of 2007
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BHAVNAGAR MUNICIPAL CORPORATION....Petitioner(s)
Versus
HUSENBHAI UMARBHAI KAZI....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
MR PRABHAKAR UPADYAY, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 28/02/2017
ORAL ORDER
1.The petitioner-Bhavnagar Municipal Corporation has challenged by way of the present petition under Article 226 & 227 of the Constitution of India, the award passed by the labour court at Bhavnagar in reference (LCB) No. 210 of 1995 directing the petitioner to reinstate the respondent in service with continuity but without back wages.
2. Brief facts leading to the present petition as follows:
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HC-NIC Page 1 of 6 Created On Mon Aug 14 01:29:57 IST 2017 C/SCA/25366/2007 ORDER 2.1. The respondent was provided the work according to the petitioner on ad-hoc daily basis for spraying the D.D.T. and other insecticide. The respondent was provided the work according to the petitioner without following the procedure of recruitment and it was purely temporary and ad-hoc employment. It was not given against the permanent sanctioned post and the respondent did not work for 240 days in a year.
2.2. The respondent approached the Assistant Labour Commissioner, Bhavnagar raising a grievance of the wrongful termination without following any procedure under the Industrial Dispute Act, 1947 ('I.D.Act' for short). It was given reference No. (LCB) No.210 of 1995, where statement of claim was submitted by the respondent challenging the order of termination dated 01.12.1994. After the petitioner filed its reply after allowing the party to adduce the evidence, the labour court passed an award on 21st March, 2007 Page 2 of 6 HC-NIC Page 2 of 6 Created On Mon Aug 14 01:29:57 IST 2017 C/SCA/25366/2007 ORDER with aforementioned reliefs which is impugned in the present petition.
3. This court has heard learned advocates on both the sides and also has examined the material placed on the record. It emerges from the award which is assailed in this petition, that the labout court held that the petitioner continue to work between 1989 to 01.12.1994 and the termination was contrary to the provision of Section 25 F, G and H of the I.D.Act. The coordinate bench in Special Civil Application No. 21757 of 2006 in case of another employee with similar facts has granted the reinstatement in the service by partly allowing the petition giving the following reasons.
"9.I have considered the submissions by learned counsel for the petitioner and the respondent and the material on record and the award.
10.So far as the petitioner's contention against the learned Labour Court's conclusion about breach of Section 25 F is concerned, the said contention appears to be justified in view of the nature of the orders which were issued by the petitioner corporation.
11.Under the circumstances, there is no Page 3 of 6 HC-NIC Page 3 of 6 Created On Mon Aug 14 01:29:57 IST 2017 C/SCA/25366/2007 ORDER material on record to hold that the learned Labour Court's conclusion that the petitioner's action amounts to violation of Section 25H, is incorrect or unjustified.
In that view of the matter, the learned Labour Court's direction to reinstate the workman cannot be faulted.
12.However, so far as the direction requiring the petitioner corporation to pay 50% backwages is concerned, the said direction is not justified. The learned Labour Court has not recorded any reasons for directing the petitioner corporation to pay 50% backwages.
It is true that the learned Labour Court recorded the conclusion that the action of the petitioner corporation amounts to breach of Section 25H. However, it is necessary to note that the details which are placed on record of present petition by way of affidavit dated 14.3.2014 was not placed on record before the learned Labour Court and what was claimed before the learned Labour Court was merely an unsubstantiated allegation that certain junior persons were reinstated and were continued by the petitioner corporation while the respondent's service was terminated. In absence of any evidence, the learned Labour Court ought not have readily accepted the allegation with regard to alleged breach of Section 25H.
Further, when it was established before the learned Labour Court that the respondent had worked only for 100 days in different slots from 1989 to 1994, then, in that event, the direction for payment of 50% Page 4 of 6 HC-NIC Page 4 of 6 Created On Mon Aug 14 01:29:57 IST 2017 C/SCA/25366/2007 ORDER backwages could not have been passed.
13.For similar and same reasons, the direction requiring the petitioner corporation to consider the respondent's service as continuous, i.e. to reinstate the respondent with continuity of service, is also unjustified.
In light of the facts and
circumstances of the case, the
direction by the learned Labour Court granting continuity of service is unjustified and unsustainable. A person who worked only for 100 days during different slots over a span of about five years, i.e. from 1989 to 1994, and has been reinstated on account of breach of Section 25H, does not deserve benefit of continuity of service more so when raised dispute after delay. Therefore, the said direction deserves to be set aside and is, accordingly, set aside.
At this stage, it is relevant and necessary to mention that even during the hearing of present petition, Mr. Tolia, learned advocate, submitted that the workman waives the claim/right for backwages and he submitted that the relief of reinstatement may be maintained and the workman consents for setting aside the relief/direction granting backwages.
14.In the result, the petition is partly allowed. The direction obliging the petitioner corporation to reinstate the respondent is confirmed, however, the direction granting 50% backwages and continuity Page 5 of 6 HC-NIC Page 5 of 6 Created On Mon Aug 14 01:29:57 IST 2017 C/SCA/25366/2007 ORDER of service is set aside.
The petition stands disposed of accordingly. Rule is made absolute to the aforesaid extent."
4. As the petitioner is identically situated in his case also, the award passed by the court needs to be upheld. It is to be noted that in the award which was assailed in Special Civil Application No. 21757 of 2006, back wages were also granted by the court. However, the court had allowed only reinstatement of the workman and in the instant case, the court has already granted only the reinstatement and therefore,no change is required.
5. As required under Section 17 B of the I.D.Act, the petitioner continued to pay to the respondent workman during the pendency of this petition.
Accordingly, the petition is dismissed, Rule is discharged. Interim relief stands vacated.
(MS SONIA GOKANI, J.) MIRZA Page 6 of 6 HC-NIC Page 6 of 6 Created On Mon Aug 14 01:29:57 IST 2017