Gujarat High Court
Kiritchandra Dahyalal Dave vs Gujarat Electricity Board on 27 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12804/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12804 of 2015
KIRITCHANDRA DAHYALAL DAVE
Versus
GUJARAT ELECTRICITY BOARD
Appearance:
MR UT MISHRA(3605) for the PETITIONER(s) No. 1
NANAVATI & CO.(7105) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 27/04/2018
ORAL ORDER
1. Heard Mr. Mishra, learned advocate for the petitioner and Mr. Dave, learned advocate for Nanavati & Co. for the respondent.
2. In present petition the petitioner has prayed, inter alia, that:-
"9(A) That Your Lordships be pleased to issue an order, direction and / or writ in the nature of certiorari / mandamus and / or any other appropriate writ, order or direction, directing the respondent to extend the benefit of Establishment Circular No. 446 to the petitioner on completion of 900 days from his initial date of appointment with the respondent and be further pleased to direct the respondent to pay the arrears arising out of the not granting the said benefit timely to the petitioner, with 10% interest."
3. So as to justify the relief prayed for in the petition, the petitioner has averred and stated that:-
"2. The petitioner respectfully submits that the respondent employer has challenged the aforesaid order before the Hon'ble High Court of Gujarat, by filing SCA No. 12567/2004. This Hon'ble court (Coram; Ravi R. Tripathi,J) vide Order dated 28-9- 2004, dismissed the petition.......The petitioner respectfully submits that thereafter the petitioner was reinstated on 1-4-2005. The petitioner respectfully submits that petitioner was initially appointed as NMR Helper in the year 1983 and according to the Establishment Circular No.446, the petitioner is required to be made permanent Page 1 of 11 C/SCA/12804/2015 ORDER on completion of 900 days.....
3. The petitioner respectfully submits that since the labour court has ordered reinstatement on original post without backwages, the continuity of service ls deemed to have been granted and therefore, the petitioner services is required to be treated continuous from his initial date of appointment i.e. from 1-5-1983. The petitioner has not been granted the benefit of said Circular No.446 timely on completion of 900 days as NMR Helper and the petitioner has been extended the said benefit from 1-4-2005. It is in this view of the matter the present writ petition is required to be filed.
4. The petitioner respectfully submits that the petitioner has made several representation to the respondent authority to grant the said benefit but the respondent has not extended the said benefit. ......... The petitioner respectfully submits that despite making such representation the respondent has not considered the case of the petitioner and has not been extended the said benefit. The impugned action of the respondent in not extending the said benefit is discriminatory and violative of Articles 14 & 16 of the Constitution of India and the petitioner is entitled for the said benefit on completion of 900 days from his initial date of appointment.
5. The petitioner respectfully submits that the Hon'ble Supreme Court has decided the said issue and has held that when the labour court has ordered reinstatement the petitioner is required to be treated as continuous in the employment for all purposes..........
6. The petitioner respectfully submits that the labour court in terms held that the termination order passed by the respondent on 1-1-1984 is illegal and the respondent was directed to reinstate the petitioner on his original post without backwages and therefore, the petitioner services is deemed to be continued for all purpose and the petitioner is entitled for the benefit of Establishment Circular No.446 on completion of 900 days from initial date of his appointment. The petitioner respectfully submits that without any cogent and proper reason the said benefit has not been extended to the petitioner on completion of 900 days from his initial date of appointment."
4. On the strength of above mentioned details the petitioner claims that he is entitled for the benefit in accordance with and under Establishment Circular No. 446. 4.1 According to the petitioner said circular provides that the employee who completes service for 900 days with the respondent company, shall be entitled for regularization in service and also for being considered permanent employee. 4.2 To demonstrate that he has completed 900 days of service with the employer the petitioner has claimed that he came to be appointed as Helper on 1st May, 1983. Page 2 of 11 C/SCA/12804/2015 ORDER 4.3 In January 1984 the petitioner's service was terminated. 4.4 Feeling aggrieved by the termination of service the petitioner raised industrial dispute.
4.5 Appropriate government referred the dispute for adjudication to learned Labour Court, Jamnagar. The dispute was registered as Reference (LCJ) No. 1268 of 1990. Learned Labour Court partly allowed the reference vide award dated 14.4.2004. By the said award learned Labour Court directed the respondent company to reinstate the claimant, however, learned Labour Court did not grant any other consequential relief including backwages and / or benefit of continuity of service.
4.6 The company felt aggrieved by said award and direction. The company preferred Special Civil Application No. 12567 of 2004 and challenged said award.
4.7. The petition came to be rejected.
4.8 After learned Labour court rendered said award, the petitioner came to be reinstated in service on 1st April, 2005. Page 3 of 11 C/SCA/12804/2015 ORDER 4.9 It is necessary to note that the workman accepted the award and the workman did not challenge said award. 4.10 In this view of the matter qua workman, the award attained finality and on dismissal of the petition the award attained finality qua respondent company as well. 4.11 After being reinstated in April 2005 the petitioner continued his service with the respondent and he retired from service in February 2017.
4.12 About two years before he attained age of superannuation, the petitioner filed petition and prayed for above quoted relief.
5. The petition is opposed by the respondent. The respondent company has filed affidavit wherein it is averred and stated that:-
4. I say that petitioner came to be appointed as a 'Temporary' worker by the Gujarat Electricity Board in May 1983. His engagement was extended for a short period of time till January 1984, and an expiration of the said period of time his services were not continued by the Board. The petitioner challenged his 'termination' from service by filing Reference (LCJ) No. 1268 of 1990. The Labour Court, Jamnagar partly allowed the reference case by award dated 14.04.2004 and ordered reinstatement of the petitioner without grant of any back wages. No order was passed by the Labour Court granting continuing of service. A copy of the award has been annexed by the petitioner with the petition.
5. The Gujarat Electricity Board challenged the legality and propriety of the award before this Hon'ble Court by filing Special Civil Application No. 12567 of 2004. No challenge was made by the petitioner to the award. This Hon'ble Court, by order dated 28.09.2004, dismissed the petition and confirmed the award of the Labour Court. A copy of the order passed by this Hon'ble Court has been annexed to the Page 4 of 11 C/SCA/12804/2015 ORDER petition.
6. In terms of award of the Labour Court, as confirmed by this Hon'ble Court, the petitioner was reinstated in 2005, and has been working with the answering respondent. The petitioner has been extended all permissible benefits in the same manner as have been granted to other similarly placed employees of the company.
7. I submit that claim of petitioner to be given benefit of permanency has already been provided by appointing him on regular post w.e.f. 01.04.2005 and he has receiving all benefits, which are given to other regular employees of this company.
8. I submit that the Labour Court has reinstated the petitioner, but has not ordered that he should be given the benefit of continuity of service. Ordinarily. the Labour Court and/or Courts of Law specifically declare that the petitioner shall be reinstated with or without back wages on his original post (post held at the time of termination) and order that he be given the benefit of continuity of service. In the present case.
such direction is absent. The award of the Labour Court has not been challenged by the petitioner, and is thus binding upon him.
9. I submit that in absence of any specific direction of the Labour Court that the petitioner should be given the benefit of continuity of service it is not open for the petitioner to insist upon being granted such benefit.
10. I submit that the action of the company is just and proper, and in consonance with the award passed by the Labour Court and the provisions of law. t submit that grant of benefit as claimed by the petitioner would be unfair and unjust and contrary to the object of the Circular. Also: it would grant undue benefit to the petitioner. and seriously prejudice other employees in the company."
6. Learned advocate for the petitioner submitted that since learned Labour Court directed the employer to reinstate the employee, he should be deemed to be continued in service and that therefore with passage of time from 83 to 2004 (when the award came to be passed) the petitioner is bound to be continued in service and that therefore the petitioner should be deemed to have completed service of 900 days during the said period, consequently the petitioner would be entitled for the benefits flowing from the Establishment Circular No. 446. However, the respondent has arbitrarily denied the said benefit. Therefore the workman has taken out present petition.
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7. Learned advocate for the petitioner submitted that in light of said circular the petitioner is entitled for benefit of regularization of his service and status of permanent employee and consequently the said benefit should be granted from the date when he completed service of 900 days.
8. Mr.Dave, learned advocate for the respondent company opposed the submission. He submitted that the respondent company has rescinded the said circular since April 1991 i.e. long time before learned labour court passed award and that therefore, the petitioner cannot seek to derive benefit on the basis of the said circular which is not in existence since April 1991. Learned advocate for the respondent submitted that the petitioner has retired from service and that therefore after retirement the claim for regularization and / or status of permanent workman and consequential benefits would not survive and therefore also the petition may not be entertained. Mr. Dave, learned advocate for the respondent relied on the order dated 17.6.2005 passed in Special Civil Application No. 5436 of 2005 wherein this Page 6 of 11 C/SCA/12804/2015 ORDER Court considered similar claim by the workman and the fact that the company has rescinded the Circular no. 446 by issuing Circular No. 553 dated 25.4.1991. On the strength of the said decision learned advocate for the respondent submitted that the claim of the petitioner cannot be granted.
9. I have considered rival submission and material available on record.
10. The fact that the circular no. 446, on strength of which the petitioner has raised the claim and taken out this petition, is not in existence since April 1991 is not in dispute.
11. Actually this Court has taken into account the said fact in the decision dated 17.6.2005 in Special Civil Application No. 5436 of 2005. In this said decision this Court observed that:-
In this petition under Article 226 of the Constituition of India, the petitioner has prayed for quashing and setting aside the letter/communication dated 7.8.2004 Annexure 'D' to the petition by which the proposal for absorption of the petitioner as supernumerary Watchman is rejected. The claim of the petitioner is based upon a Circular No. 446 and it is pointed out that so far as the said Circular No. 446 is concerned the same is rescinded and a new circular being Establishment Circular No. 553 dated 25.4.1991 has been issued. Therefore the contention made on behalf of the petitioner to absorb him on the basis of the Circular No. 446 cannot be accepted. The learned advocate for the petitioner has failed to show any right in his favour to absorb him as supernumerary watchman on completion of 960 days as contended. Under the circumstances, in absence of any right in his favour to absorb him as Page 7 of 11 C/SCA/12804/2015 ORDER 'Supernumerary Watchman' on completion of 960 days, the prayer of the petitioner cannot be granted. There is no illegality committed by the respondents. Under the circumstances, the present Special Civil Application requires to be dismissed and the same is accordingly dismissed. Notice is discharged."
12. So far as facts of present petition are concerned it has emerged from the record that the petitioner came to be engaged as temporary workman in May 1983.
13. Within short time i.e. in January 1984 his service was terminated. Thus, prior to the date of termination in January 1984 the petitioner had rendered service for hardly 7 moths.
14. Feeling aggrieved by the termination of his service the petitioner raised industrial dispute. The said dispute was adjudicated by the learned Labour Court in Reference (LCJ) Case No. 1268 of 1990. Learned labour Court vide award dated 14.4.2004 partly allowed the reference. A copy of the said award dated 14.4.2004 is available on record at annexure B pages 14 to 30.
15. From the said award it emerges that the learned Labour court granted reinstatement simplicitor i.e. without any consequential benefit.
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16. Learned Labour Court consciously did not grant benefit of continuity of service and / or backwages.
17. In view of the fact that the claimant was not regular and permanent employee of the company, in absence of specific direction by learned Labour Court (granting benefit of continuity of service) such inference i.e. learned Labour Court has granted such benefit and / or that the workman should be deemed to be in continuous service upon being reinstated by the court, cannot be drawn. Such adverse inference in case of temporary workman /daily wager is impermissible and unjustified. Such inference may be available or may be drawn by the court in case of regular and permanent workman but not in case of daily wager.
18. Learned advocate for the petitioner, on this count, placed reliance on the decision in case of V.R. Dalia vs. Baroda Municipal Corporation 1987 (3) GLR 1879. The facts involved in cited case are materially different from the facts of present case inasmuch as the employee in the said case was regular and permanent employee working with the opponent municipal corporation in the category / cadre of Page 9 of 11 C/SCA/12804/2015 ORDER Stenographer.
18.1 It was having regard to the fact that the concerned employee in the said case held existing post on regular establishment of the corporation thereby he possessed status of regular and permanent employee, the Court held that during period from termination to reinstatement the workman should be deemed to be in service after rendition of the award granting reinstatement.
18.2 However, as mentioned above, such inference would not be available and is not justified the case of the daily wager.
19. Even otherwise, in view of the fact that the circular on strength of which the petitioner has based his claim is not in existence in 1991 i.e. long time before the learned Labour Court passed award dated 14.4.2004.
20. The solitary basis on which the petitioner has raised his claim, is said circular no. 446.
20.1 However in view of undisputed fact that the said circular is not in existence since April 1991, the petitioner Page 10 of 11 C/SCA/12804/2015 ORDER cannot be granted any benefit on the basis of rescinded circular.
20.2 This Court has in above mentioned decision dated 17.6.2005 has observed to the said effect.
21. Therefore, even if other aspects including the fact that inference about continuity cannot be drawn in case of daily wager / temporary workman which stares in face of the petitioner, are not taken into account then also the petitioner would not be entitled for the claim in view of the fact that the circular on basis of which the claim is raised is not in existence since April 1991.
22. On the said ground alone the petition should fail.
23. Consequently following order is passed:-
In light of foregoing discussion and in light of facts of present case and for reasons mentioned above, the petition is not accepted and accordingly the same is hereby rejected.
Notice is discharged. Ad-interim / interim relief if any, stands vacated forthwith.
(K.M.THAKER, J) SURESH SOLANKI Page 11 of 11