Gujarat High Court
Bhavnagar Municipal Corporation vs Parmar Haresh Bothabhai on 10 August, 2001
Author: Ravi R. Tripathi
Bench: Ravi R. Tripathi
JUDGMENT Ravi R. Tripathi, J.
1. All these petitions are filed against the judgement and award passed by the learned Judge of the Labour Court, Bhavnagar, in four different References decided on 30th November, 2000. Details of the respondents in these petitions along with their respective LCB Reference numbers are set out in a tabular form as under :
Sr. S.C.A.No. Name of the LCB Reference No.
respondent No.& Date
1. 4990/2001 Haresh 67/2000
Bothabhai Parmar 30/11/2000
2. 4992/2001 Mangalsinh 72/2000
Devisinh Rathod 30/11/2000
3. 5056/2001 Pratapsinh
74/2000
Mansinh Parmar 30/11/2000
4. 5439/2001 Rajeshbhai 71/2000
Bachubhai Vegad 30/11/2000
All these petitions have common facts and involve a common question and, therefore, the same are decided by this common judgement.
2. The case of the petitioner-Corporation is that the respondents were provided work as a daily wager purely on temporary and ad hoc basis for a period of 60 days. An appointment order dated 1st July, 1987 was issued without following due procedure for the appointment on certain terms and conditions, which are set out in the appointment order and the said appointment was to come to an end on 31st August, 1987. However, before 31st August, 1987 could reach, in the interest of administration and public at large, the services of the respondents were brought to an end by an order dated 6th July, 1987. It is the case of the petitioner-Corporation that the respondents have worked for just six days and after thirteen years, these respondents have approached the Labour Court at Bhavnagar by filing the aforesaid References, which came to be decided by the judgement and award dated 30th November, 2000, impugned in these petitions, whereby the learned Judge of the Labour Court, Bhavnagar was pleased to order reinstatement of the respondents with 50% of back-wages.
3. These petitions were heard on 12th July, 2001 and on that day, an order, "No substance, rejected.", was passed. Thereafter, the learned Advocate for the petitioner-Bhavnagar Municipal Corporation (hereinafter referred to as the petitioner-Corporation) filed note dated 13th July, 2001, wherein it was stated that, "The above mentioned Special Civil Application was heard by the Honourable High Court on _________ on behalf of the petitioner in the petition. Over and above other points, the point of delay of 13 years was also taken up. However, this point of 13 years' delay could not be properly presented before the Honourable Court.
This point goes to the root of the matter and, therefore, the point of delay is required to be considered while deciding the aforesaid Special Civil Application. In view of this position, the above referred Special Civil Application is required to be placed before the Honourable Court for requesting the Honourable Court to consider the above mentioned point of delay of 13 years on part of the respondent to approach the Labour Court.
It is, therefore, requested to place the above mentioned Special Civil Application on the Board of the Honourable concerned Court for passing necessary orders on merits in the main matter."
4. Mr.R.D.Raval, learned Advocate, appeared on caveat on behalf of the respondent-workmen in all the four matters. He filed a reply to the note by titling it as "Response against Speaking to Minutes filed by the learned Advocate for the petitioners". It was contended by the learned Advocate for the respondent-workmen that the note for Speaking to Minutes filed by the petitioner's advocate is not maintainable at law as per the Gujarat High Court Rules and hence, the same may please be rejected. It was further contended by the learned Advocate that, "Without prejudice to the above contention, I beg to place on record again that,
(a) The learned Advocate had argued the matters as per his choice and arguments were made for a considerably substantial period.
(b) On the issue of illegality of termination and violation of section 25H of the I.D. Act, 1947, the learned Advocate had conceded during the course of arguments saying, `I have no defence as to why section 25H had been violated by the Corporation by not offering jobs to the respondent and by giving jobs to other contract labourers and daily wagers, who came to be regularised'."
The learned Advocate also stated in the said reply that, `before the learned Advocate for the petitioner-Corporation start his arguments, he wants to make his point clear', that the so-called delay has already been argued and condoned at the stage of proceedings before the Labour Commissioner at the time of making reference. He submitted that the order of making reference amounts to `condonation of delay' and the said order of `making reference' is not challenged by filing appropriate proceedings, hence, the same cannot be agitated now. Besides, the Labour Court has taken care of the aspect of delay by suitably moulding the reliefs and has granted only 50% of back-wages. The learned Advocate for the respondents submitted that he has filed affidavit-in-reply in Special Civil Application No. 4990 of 2001 and a copy of the same is served to the learned Advocate for the petitioner, wherein, all major points are agitated. The learned Advocate, Mr.Raval, submitted that Mr.Munshaw for the petitioner had not touched the issue of delay of 13 years, hence, the statement in the `note' saying that, "The point about delay of 13 years was also taken up", is not true and hence, the note for speaking to minutes may not be entertained unless incorrect statement is corrected. It is also submitted that entertaining the `note for speaking to minutes' in the present form will mean that, `the point was raised and yet not decided', and in that case, a full-fledge `review application' should have been filed in accordance with law.
5. After taking into consideration the contents of the note and the reply, on 18th July, 2001, the following order was passed :
"The order dated 12th July, 2001 is recalled. The matter be listed for hearing on 30th July, 2001."
The matters were listed on 1st August, 2001. On that day, the Court passed the order as under :
"Rule, returnable on 7th August, 2001. Mr.R.D.Raval, learned Advocate, waives service of Rule on behalf of the respondent-workmen."
On 7th August, 2001, the following order was passed :
"Matters be heard peremptorily on 9th August, 2001. In case matter is not heard on 9th August, 2001, it will be open for the petitioner to press interim relief"
The matters were heard on 9th August, 2001.
6. The learned Advocate appearing for the petitioner-Corporation, submitted that the present respondent-workmen were appointed in Health Department as `Daily Wager Sepoy' by orders dated 1/7/1987, copies of which are produced at Annexure-A to the petitions, at minimum wages of Rs.12.13 ps. with prevalent dearness, i.e. daily special allowance of Rs.7.80 ps., totaling to Rs.19.93 ps. The appointment was from the day on which the respondent-workmen report for duty and was to continue upto 31st August, 1987. He emphasised that it was mentioned in the order itself that, on 31st August, 1987, on completion of the duty of the respondent-workmen, the employment will come to an end automatically. By way of condition no.5 of the appointment order, it was provided that, `in case the respondent-workmen are found to have been indulging in any misconduct or breach of duty or insubordination, in that event, the Corporation will be empowered to terminate the employment at any time prior to the aforesaid date without any notice, notice pay or retrenchment compensation'. The condition no.8 of the appointment order provided that, `after the date on which the respondent-workmen report for duty till 31st August, 1987, for which they are employed as daily wager, the Municipal Corporation will provide work to the respondent-workmen only on the days when services of the respondent-workmen are required'. It is clarified in the said condition that, `during that period, if the Municipal Corporation does not require the services of the respondent-workmen, then, the Municipal Corporation is not under an obligation to provide work for such days.' While condition no.10 provided that, `if the Corporation is not in need of the services of the respondent-workmen, then, even prior to the aforesaid date, the respondent-workmen can be terminated'.
7. The learned Advocate for the petitioner-Corporation submitted that by office orders dated 6th July, 1987, copies of which are produced at Annexure-B to the petitions, the services of the present respondent-workmen were terminated. It is stated therein that, `by orders under reference from Serial No. 1 to 5, appointments were given in Health Department on the post of `Daily Wager Sepoy'. By an order bearing No.163/1, 163/22, under reference at serial no.5, total 32 persons were appointed as `Daily Wager Sepoy'. That the appointments of the persons, who were employed as `Daily Wager Sepoy' by the orders under reference at serial no.1 to 5, are cancelled from today's date, that is, from 06/07/1987', and that, `this order is to be implemented with immediate effect'. This office order is issued by the Chief Personnel Officer as per the order of the Municipal Commissioner. The same was sent to the Health Officer for information and implementation with an endorsement that all `Daily Wager Sepoys' should be terminated with immediate effect and report should be made by evening.
8. The learned Advocate for the petitioner-Corporation submitted that it is after 1987 that only in the year 2000, the respondent-workmen raised disputes, which were referred by the Assistant Labour Commissioner, Bhavnagar, by his orders, details of which are set out herein below, to the Labour Court, Bhavnagar.
Sr. No. S.C.A.No. Name of Order No.
Respondent
(i) 4990/2001 Parmar Haresh KH/SSM.C/BHA/AJD/
Bothabhai IDR/70/2000/2689
(ii) 4992/2001 Mangalsinh KH/SHMC/BHA/AJD/
Devisinh Rathod IDR/72/99/2604
(iii) 5056/2001 Pratapsinh KH/SHMC/BHA/AJD/
Mansinh Parmar IDR/73/2000/2694
(iv) 5439/2001 Rajeshbhai KH/SMMC/BHA/AJD/
Bachubhai Vegad IDR/71/2000/2679
It was after long 13 years that the respondent-workmen raised the dispute which was referred to the Labour Court and the Labour Court was pleased to partly allow the references of the respondent-workmen and ordered reinstatement on the original post and also ordered to pay 50% of back-wages and consequential benefits, though the respondent-workmen were given the appointment, specifically for a fixed period, on specific terms and conditions mentioned in the appointment orders. In view of condition Nos.1, 5, 8 and 10, the present respondent-workmen have no right, whatsoever, and therefore, the learned Judge has committed an error in allowing the reference of the respondent-workmen even partly by ordering reinstatement with 50% back-wages and consequential benefits.
9. The learned Advocate for the petitioner-Corporation, to contend that delay and latches are required to be taken into consideration even if the Limitation Act, as such, does not apply to the cases under the Labour Laws, relied upon the following judgements :
(i) ESIC Scheme vs. Natverlal Shah, reported at 1996(2) GLH 161;
(ii) State of Orissa, etc. vs. Shri Arun Kumar Patnaik and another, etc., reported in AIR 1976 SC 1639; and,
(iii) Nedungadi Bank Ltd. vs. K.P. Madhvankutty and others, reported at AIR 2000 SC 839, He submitted that when the petitions are filed after long and inexplicable delay and the grievance is too stale, it does not merit redress. He strenuously submitted that when a complaint is made after a long delay, it does not give rise to an industrial dispute or it can be said that an industrial dispute is apprehended. He submitted that reference of such dispute is bad both on the ground of delay as well as `lack of industrial dispute existing or apprehended and when an industrial dispute is not existing or apprehended', as the appropriate Government lacks power to make any reference in such circumstances.
10. Mr.R.D.Raval, learned Advocate appearing for the respondent-workmen, submitted that these petitions under Article 226 and 227 of the Constitution of India are not maintainable because no fundamental or legal rights are violated. No jurisdictional or any other error is committed by the learned Judge of the Labour Court. He also submitted that the petitioner-Corporation has not produced any documents before the Labour Court and has produced the order of termination dated 06/07/1987 for the first time before this Court at Annexure-B. He submitted that in the statement of claim, the respondent-workmen had stated that the workmen had entered the service of the petitioner-Corporation, in Health Department from 01/06/1987 and that they were discharging their duties with utmost sincerity, honesty and zeal and during their service period, they were never served with any chargesheet or memo; and, their service record was absolutely good and clean. Still, their services were terminated with effect from 01/09/1987 without any notice, notice pay or any retrenchment compensation. He submitted that in the common reply to the statement of claim and application for condonation of delay, the petitioner-Corporation has not denied the aforesaid case of the respondent-workmen. He submitted that in fact, the reply, a copy of which is produced along with further reply at Annexure III, page 64, is in the nature of a general denial and there is no denial to this specific case pleaded in the statement of claim by the workmen, therefore, the case of the petitioner-Corporation that the respondents were appointed on 01/07/1987 and that their services were terminated on 06/07/1987, as pleaded in the petition, for the first time before this Court deserves to be rejected as the said case was never pleaded or placed before the Labour Court.
10.1 The learned Advocate for the respondents submitted that the respondent-workmen, for the first time in the year 1997, came to know that the petitioner-Corporation is employing `badli daily wagers' on contract basis. A copy of the order dated 5th April, 1997 is produced at Annexure-I to the reply. He further submitted that it was only on 6th January, 2000, when the petitioner-Corporation granted status of `temporary workers' to the persons, who were employed as daily wager on contract basis, a cause of action arose, as the said action of the petitioner-Corporation was in clear violation of Section 25H of the Industrial Disputes Act,1947. He submitted that the respondent-workmen are coming from the lowermost strata of the society, having their own limitations and also lack of resources, so as to have information of the actions of the petitioner-Corporation. After having known about the aforesaid two orders dated 5th April, 1997 and 6th January, 2000, they raised an industrial dispute, which came to be referred and adjudicated. The learned Judge of the Labour Court, suitably moulding the relief and granting only 50% of back-wages, partly allowed their references ordering their reinstatement on their original posts.
11. The learned Advocate for the respondents submitted that Section 25H of the Industrial Disputes Act, 1947, provides for reemployment of retrenched workmen. For the ready perusal, the provisions of Section 25H is reproduced hereinbelow :
"25H. Reemployment of retrenched workmen : --
Where any workmen are retrenched and the employer proposes to take into his employ any persons, he shall, in such manner as may be persons, he shall, in such manner as may be workmen who are citizens of India to offer themselves for reemployment, and such retrenched workmen who offer themselves for reemployment shall have preference over other persons."
He submitted that in view of that, the present petitions are required to be dismissed and if deemed fit, the judgement and award of the Labour Court may be modified recording the concession of the respondent-workmen. He submitted that the order granting 50% back-wages be quashed, but, then, they be given their source of livelihood, which they are wrongfully denied for all these years.
12. Mr.Raval relied upon the following judgements of the Honourable Apex Court and other Courts:
(i) Ajaib Singh Vs. Sirhind Co-op. Marketing Ltd. & Anr. reported at 1999(I) CLR 1068.
(ii) Nityanand M. Joshi & Anr. vs. The Life Insurance Corporation of India & Ors. reported at AIR 1970 SC 209;
(iii) M.P. State Cooperative Federation, Bhopal Vs. Presiding Officer, Labour Court, Bhopal & Ors. reported at 1993 II CLR 903; (iv) Kutch District Panchayat vs. Kishore D. Varu, reported at 1998 (II) CLR 575;
(v) K.B. Biddappa vs. Management of Karnataka State Road Transport Corporation & Anr., reported at 1999 LIC 1352;
(vi) Central Bank of India vs. S. Satyam & Ors. reported at 1996(II) CLR 1095; and,
(vii) State of Rajasthan vs. Smt. K. Lassi & Anr. reported at 1997(1) LLN 1009.
13. The learned Advocate for the respondents submitted that this Court has taken a view that in case when some senior workmen are retrenched, juniors are continued and afterwards, new recruitment is made, the action is violative of Section 25-G and 25H of the Act and the retrenched workmen are entitled to "reinstatement" instead of "reemployment". He submitted that this Court has considered in detail the provisions of Sections 25-F, 25-G and 25H.
14. Mr.Raval, learned Advocate, relied upon a judgement of this Court in the matter between Rajkot Municipal Corporation vs. Sidik Akbar & etc., reported at 1996 LIC 1685, in which, this Court, while considering the provisions of Sections 25-F, 25-G and 25H, observed in paragraph 6 of the judgement as under :
"6. On close scrutiny of Sections 25-F, 25-G 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 re-employment of such retrenched workman in case same employer again employs new person so that retrenchment simplicitor is not used as a tool merely to make room from 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 25-G is also subject to same conditions as are the provisions of Section 25-F. It may be noticed that Section 25-G 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 25-G is meant to guard against arbitrarily motivated retrenchment. The provisions curb the tendency of conferring favour on one employee by retaining his service while discharging the senior. Section 25-G does not refer to `such workman falling under Section 25'. Had Section 25-G to be dependent upon Section 25-F 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'."
The Court, while considering the relief granted by the Labour Court, held that the Labour Court was justified in ordering reinstatement instead of reemployment.
15. Mr.Raval, while meeting with the contention raised by the learned Advocate, Mr.Munshaw, for the petitioner-Corporation, that the appointment was for a limited period and the appointment order was issued for a particular period, submitted that when the work is of perennial nature, the issuance of appointment order for a limited period is of no consequence. In support of his submission, Mr.Raval relied upon a judgement of this Court in the matter between Surat Mahila Nagrik Bank Ltd. vs. Mamtaben Mahendrabhai Joshi, reported in 2001 (II) CLR 505. Mr. Raval placed reliance on paragraph 6 of the judgement which reads as under :
"6. Before the Labour Court, certain documents were produced by the applicant in the nature of various appointment orders. The opponent also produced certain documentary evidence before the Labour Court, such as Resolutions of the Committee, etc. Both the sides also led oral evidence before the Labour Court. After considering the oral as well as documentary evidence on record and after considering various case laws cited on behalf of both the sides and ultimately after hearing both the sides, in detail, the Labour Court came to the conclusion that the applicant was given artificial breaks from time to time and that she has completed 240 days continuously and, therefore, the Labour Court came to the conclusion that the work which the applicant was discharging with the Bank was of a permanent nature and that, along with the applicant, other employees were given such tenure orders by the Bank and they were subsequently confirmed by the Bank and as against that, the services of the applicant were terminated. The Labour Court also found that the impugned action of the Bank would amount to illegal retrenchment and that since the employee has worked for more than 240 days, her services could not have been terminated without following the procedure under Section 25-F of the Industrial Disputes Act. Ultimately, the Labour Court passed an order of reinstatement with full back wages by the judgement and order dated 11.2.1998."
He also submitted that in the present case also, the witness of the petitioner-Corporation has admitted that the work done by the respondent-workmen was of permanent nature and that the work had subsisted even at the time of and after the termination of the respondents-workmen. He also submitted that the witness has admitted that there was violation of Section 25-H inasmuch as he has stated that new persons were taken in service. He submitted that a detailed list of junior workmen, who joined after the termination of the respondents-workmen right upto year 2000, is produced.
16. From the above discussion, it is clear that the respondents herein were appointed by the appointment order dated 1st July, 1987, for a limited period and their appointment was to come to an end on 31st August, 1987. It is also clear that the said appointment was on such terms and conditions as set out in the appointment order - Annexure-A to Special Civil Application No. 4990 of 2001. It is contended by the petitioner-Corporation that the services of these respondents were terminated by an order dated 6th July, 1987, Annexure-B to Special Civil Application No.4990 of 2001. Submissions of Mr.Munshaw, learned Advocate for the petitioner, that the respondents approached after a long period of time almost 13 years and, therefore, they should not have been granted any relief by the Labour Court, is not totally without substance, but then, it is equally true that the petitioner-Corporation has not challenged the order of making reference, and to that extent, the submission of Mr.Raval, learned Advocate for the respondents, that the petitioner-Corporation accepted the order of making reference which, in effect, amounts to order of condonation of delay, can't be negatived. Not only that even before the learned Judge of the Labour Court, the petitioner-Corporation did not produce any document including the order of termination dated 6th July, 1987, which is produced for the first time before this Court. This reflects the working of the petitioner-Corporation. It is also true that the Labour Court, being conscious of the fact that there is delay on the part of respondents in approaching the Labour Court, but then in view of the fact that the cause of action arose in favour of the respondent-workmen only recently when there was violation of the provisions of Section 25H of the I.D.Act, after which the respondents resorted to the remedy available to them, exercising its discretion, awarded only 50% of back-wages.
17. Taking into consideration the overall facts of the case and taking into consideration the concession made by Mr.R.D.Raval, learned Advocate for the respondent-workmen, in paragraph-11, it is felt that interest of justice will be met if the judgement and award of the Labour Court is modified to an extent that the order granting 50% back-wages is quashed and the order of reinstatement is upheld.
18. In the result, it is directed that the order of reinstatement on the original post, with continuity of service, shall stand while the order awarding 50% of back-wages is quashed and se With these directions, all these petitions are disposed of. Rule is made absolute to the aforesaid extent only. The petitioner-Corporation is directed to reinstate the respondent-workmen within four weeks from the date of the receipt of writ of this order. No order as to costs.