Gujarat High Court
The State Of Gujarat vs Presiding Officer on 10 April, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/16565/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16565 of 2015
With
MISC. CIVIL APPLICATION NO. 1 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 16750 of 2015
With
MISC. CIVIL APPLICATION NO. 1 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI SD/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the NO judgment ?
4 Whether this case involves a substantial question of law NO as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== THE STATE OF GUJARAT Versus PRESIDING OFFICER & ANR ========================================================== Appearance:
MR BHARGAV PANDYA AGP for the PETITIONER.MR BJ TRIVEDI(921) for the RESPONDENT No. 2 RULE SERVED(64) for the RESPONDENT(s) No. 1
========================================================== CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 10/04/2018 COMMON CAV JUDGMENT In both these petitions the facts are more or less identical, as also the judgment and award and therefore, for Page 1 of 27 C/SCA/16565/2015 CAV JUDGMENT convenience they are decided together.
2. The facts emerging in Special Civil Application No.16565 of 2015 are thus:
2.1 The respondent workman was employed as daily wager/casual worker on temporary ad-hoc basis with a wage of Rs.600/- per month as wireless operator/gate operator/generator operator cum site supervisor. He raised an industrial dispute under Reference (LCB) No.167 of 2005 complaining termination of his services on 01.01.1996 by oral order; in breach of Section 25F, 25G and 25H of the Industrial Disputes Act (for short, Act), as also the Rules 80(a) and 80(b) and 81 and 82 of the Industrial Disputes Rules (for short "Rules"). He also expressed his desire to work with the petitioner; contending that the establishment is still in existence. His further complaint was that more than 8 hours of work was being taken from him and that he was deprived of the benefits like weekly off, other alternatives, etc. He therefore, prayed for back-wages and related benefits with reinstatement with the cost of Rs.2500/-. After a lapse of about 9 years he raised the demand for reinstatement, etc. by letter dated 05.05.2005 addressed to the petitioner-employer herein.
2.2 Almost identical facts and grievance emerge in Special Civil Application No.16750 of 2015.
3. Both the cases were opposed by the petitioner by contending in the written statement that the workman was a daily wager/casual worker; his services being prone to Page 2 of 27 C/SCA/16565/2015 CAV JUDGMENT termination at the end of the day and thus the question of terminating his services on 01.01.1996 did not arise. That it was for convenience that the salary was paid to him at the end of every month. It was also contended that having regard to the nature of employment of the workmen the maintenance of seniority list and the procedure contemplated under Section 25F was not necessitated and there was no unfair labour practice as pleaded by them and that their employment was seasonal and work which was being done by the respondent-
workmen was being taken now from the regular employee. The claim for related benefit was also opposed on the above premise. Reliance was placed upon Secretary, State of Karnataka Vs. Umadevi and others reported in (2006) 4 SCC 1 in the respective affidavits by the petitioner-employer. The facts pleaded in the statement of claim by each of the workmen were reiterated in their examination-in-chief and in the cross-examination they have reiterated that their efforts to procure alternative job during the pendency of the reference failed. They also contended that the employer defaulted compliance of the order of the Labour Court requiring the production of the specified documents. The workmen also relied upon their letter of demand dated 05.05.2005 addressed to the employer.
4. In defense one Jayendra Rathod came to be examined by the petitioner-employer. It was borne out from his testimony that he had no knowledge about the nature of work and the person/officer who assigned the work to the workmen. It was reiterated that a regular employee was appointed vice the respondent workmen herein. It was also borne out from his testimony that the seniority list of the Page 3 of 27 C/SCA/16565/2015 CAV JUDGMENT workmen herein was not maintained and published and that the original record was destroyed due to fire triggered by short-circuit.
5. Eventually, after appreciating the arguments and the evidence on record the labour court returned the findings that the demand notice dated 05.05.2005 was served upon the petitioner. It also returned the finding that in absence of the documents in relation to the employment of the workmen as also in absence of material evidencing the nature of work of the workmen the employment of the regular employee vice the petitioner was not established. The labour Court also relied upon the statement of the workman that another workman was substituted vice him; albeit without naming the substitute. It was also found that in absence of the maintenance of the record of the workman, as also in absence of publication of seniority list and in absence of the information about the workman employed vice the respondent and his nature of work, the breach of Section 25H was established. The labour court heavily relied upon the oral evidence of the workman.
6. The case of Secretary, State of Karnataka Vs. Umadevi (supra) was distinguished and the back-wages were restricted to 30% as the industrial dispute was belatedly raised by the workmen.
7. Having considered the rival contentions, the questions for consideration with this Court are: (i) whether a belated reference in the year 2005 for the retrenchment effected in the year 1996 represented a live industrial dispute;
Page 4 of 27 C/SCA/16565/2015 CAV JUDGMENT(ii) whether the facts on record warranted an inference about the breach of Section 25F and 25H and rules above-stated.
8. Before answering the issues on hand, it would be appropriate to refer to relevant case laws:
8.1 In Prabhakar Vs. Joint Director, Sericulture Department And Another reported in 2015 15 SCC 1 it has been settled by the Apex Court that for a successful reference, the industrial dispute must be a live industrial dispute on the date of its reference and that mere filing of an application or raising demand by the employer without religiously perusing it would not be sufficient to infer the existence of live industrial dispute. It was further held that the issue about the existence of live industrial dispute is justiciable issue and can be gone into even after making of reference.
8.1.2 Similar view has been reiterated in Raghubir Singh Vs. General Manager, Hariyana Roadways, Hissar reported in (2014) 10 SCC 301 thus:
"28. The aforesaid case law depicts the following: 28.1. The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947. 28.2. The words "at any time" used in Section 10 would support that there is no period of limitation in making an order of reference.
28.3. At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused. 28.4. Whether dispute is alive or it has become stale/non-existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and Page 5 of 27 C/SCA/16565/2015 CAV JUDGMENT circumstances of each case and there cannot be any hard-and-fast rule regarding the time for making the order of reference."
8.2 From Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota V/S. Mohan Lal reported in (2013) 14 SCC 543, two principles emerge being (i) it is obligatory for judicial forum to go into the issue of delay, irrespective of it being raised, (ii) that before exercise of the discretion, relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground of termination must be borne in mind.
8.3. In Ajaib Singh Vs. The Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and another reported in AIR 1999 SC 1351, the settled legal position that the provisions of the Limitation Act are not applicable to the proceedings under the Industrial Disputes Act came to be reiterated. It was further held that the relief to a workman cannot be denied on the mere ground of delay and the judicial forum in case of delay, can mould the relief and may deny the back-wages to the workmen. However, in Prabhakar (Supra) in paragraph 43, it was held thus:
"43. We may hasten to clarify that in those cases where the court finds that dispute still existed, though raised belatedly, it is always permissible for the court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters."Page 6 of 27 C/SCA/16565/2015 CAV JUDGMENT
8.4 In Gujarat Forest Producers, Gatherers and Forest Workers Union Vs. State of Gujarat reported in (2004) 2 GLH 302 (Full Bench) activity of irrigation and canal work undertaken by Narmada Water Resources and Water Supply Department of the State was held to be industrial activity as defined under Section 2(j) of the Act.
8.5 In Surendranagar District Panchayat Vs. Dahyabhai Amarsinh reported in (2005) 8 SCC 750, the Apex Court after referring to Sections 2(OO), 25B and 25F it was held thus in paragraph 8:
"8. To attract the provisions of Section 25-F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be less that one year. Section 25-B of the Act defines continuous service for the purpose of Chapter V-A "Lay- off and Retrenchment". The purport of this section is that if a workman has put in uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorised leave, an accident, a strike which is not illegal, a lockout or cessation of work, that is not due to any fault on the part of the workman, shall be said to be continuous service for that period. Thus the workman shall be in continuous service for one year i.e. 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25-B. However, the workman must have been in service during the period i.e. not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned not only on the days he has actually worked but also on the days on which he has not worked. The import of sub-section (1) of Section 25-
B is that the workman should be in the employment of the employer for the continuous, uninterrupted period of one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) Page 7 of 27 C/SCA/16565/2015 CAV JUDGMENT of Section 25-B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of clause (i) of Section 25-B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses
(a) and (b) of sub-section (2). By the legal fiction of sub- section (2)(a)(i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the section postulate that if the workman has out in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25-F."
The Apex Court after referring to Surendra Kumar Vs. Central Government Industrial Tribunal- cum-Labour Court reported in (1980) 4 SCC 443, Mohan Lal Vs. Bharat Electronics Ltd. reported in (1981) 3 SCC 225, Workmen Vs. American Express International Banking Corporation reported in (1985) 4 SCC 71, Standard Motor Products of India Ltd. Vs. A Parthasarathi reported in (1985) 4 SCC 78, held thus in paragraph 14:
"14. These decisions in unambiguous words laid down that sub-sections (1) and (2) of Section 25-B comprehend different situations for the calculation of continuous service for not less than one year and continuous service which is less than one year but for 240 days in 12 months preceding the date of termination under an employer."
The Apex Court after referring to Mohanlal Vs. Bharat Electronics (Supra), Range Forest Officer Vs. S.T. Hadimani reported in (2002) 3 SCC 25 and Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Page 8 of 27 C/SCA/16565/2015 CAV JUDGMENT Rajasthan reported in (2004) 8 SCC 161, returned the findings in paragraph 18 thus:
"18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of twelve calender months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that the workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25- F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25-B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman- respondent is not entitled for the protection or compliance of Section 25-F of the Act before his service was terminated by the employer. As regards noncompliance of Sections 25-G and 25-H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when Page 9 of 27 C/SCA/16565/2015 CAV JUDGMENT seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved."
(emphasis supplied) 8.6 In Manager, Reserve Bank of India, Bangalore Vs. S. Mani and Others reported in (2005) 5 SCC 100 , the Apex Court was concerned with the doctrine of adverse inference and burden of proof in a case where the workmen were "Ticca Mazdoors" (contract labourers); not engaged everyday or continuously but the engagement was need based and were not regarded as regular mazdoors. On behalf of the employer it was contended that the workmen had failed to prove that they had completed 240 days of service during a period of 12 months preceding the date of the order of termination and that in that view of the matter question of compliance with Section 25F of the Act did not arise. It was further contended on behalf of the employer that no adverse inference could have been drawn for non-production of attendance register as sufficient explanation had been furnished. Reliance was placed on Municipal Corporation Faridabad Vs. Sri Niwas reported in (2004) 8 SCC 195. It was further contended that the burden of proof in that behalf lay upon the respondents; reliance was placed upon M.P. Electricity Board Vs. Hariram reported in (2004) 8 SCC
246. Per contra following contentions were raised in paragraph 8 (i), (ii), (iii), (iv), (v), (vi) and (vii):
"8. Mr. N.G. Phadke, learned counsel appearing on behalf of the Respondents, on the other hand, supported the award of the Tribunal and consequently the judgments of the learned Single Judge and the Division Page 10 of 27 C/SCA/16565/2015 CAV JUDGMENT Bench of the Karnataka High Court contending that:
(i) the Respondents' contentions that they continued in service, from March 1980 to August 1982 as disclosed in their pleadings and representations, having not been denied, the same must be held to have been admitted.
(ii) as the Appellant herein could not prove its case that the Respondents had abandoned their services, the Tribunal rightly placed the onus of proof on it;
(iii) as despite an order made in this behalf the Appellant did not produce attendance registers, the impugned award could have been passed upon drawing an adverse inference. Reliance in this behalf has been placed on H.D. Singh Vs. Reserve Bank of India.
(iv) in any event, the Appellant never raised a contention that the Respondents had not worked for more than 240 days during preceding 12 months.
(v) the order of the Division Bench being a consent order, no appeal lies thereagainst.
(vi) although by reason of the Respondents' being reinstated in service, they would continue to have the status of Ticca Mazdoors, but having regard to the intervening circumstances, viz., the settlement arrived at by and between the Appellant and the Union, they would be entitled to be regularized in services in terms of the decision of this Court in Chief G. M., RBI Vs. General Secretary, Reserve Bank Workers Organisation.
(vii) section 25-F of the Industrial Disputes Act being mandatory in nature, the provisions thereof are required to be complied with even when the workmen were employed as Badli Workers or Ticca Mazdoors as daily wager. Reliance in this behalf has been placed on State Bank of India Vs. N. Sundara Money, H.D. Singh, Willcox Buckwell India Ltd. Vs. Jagannath, L. Robert D'Souza Vs. Executive Engineer, S. Rly., Samishta Dube Vs. City Board, Etawah and Moolchand Kharati Ram Hospital K. Union Vs. Labour Commr."
The Apex Court inter alia pointed out that status of the employees was "Ticca Mazdoors" and after referring to Section 25-F of the Act as also the findings of the Industrial Page 11 of 27 C/SCA/16565/2015 CAV JUDGMENT Tribunal inter alia that; witnesses examined on behalf of the employer conceded that the workmen had worked for 240 days as also after referring to the contentions of the workmen that they had completed 240 days of service in preceding 12 months of their termination it was inter alia held that the initial burden of proof was on the workmen to show that they had completed 240 days of service.
8.7 Cimco Birla Limited Vs. Rowena Lewis reported in (2014) 15 SCC 192 was the case arising under the provisions of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, wherein the order of termination was set aside while returning the findings that the employer was guilty of unfair labour practice; the said award had attained finality and in absence of its implementation, the complaint preferred by the workmen came to be accepted and directions were issued to comply with the said award.
8.8 In State of Punjab and others Vs. Des Bandhu reported in (2007) 9 SCC 39 on facts, it was found that the delay in raising the industrial dispute was explained and the court modified the award by substituting the order of reinstatement and back-wages with a payment of a lump sum of Rs.60,000/- to the workmen.
8.9 Sudarshan Rajput Vs. U.P. State Road Transport Corporation reported in (2015) 2 SCC 317 the learned counsel for the workmen contended that the industrial dispute was live inasmuch as the record summoned by the court; but not produced by the petitioner employer, Page 12 of 27 C/SCA/16565/2015 CAV JUDGMENT would have shown that the juniors of the workmen on and after the date of their termination, were in the employment as permanent employees.
9. Atlas Cycle (Haryana) Ltd. Vs. Kitab Singh reported in AIR 2013 SC 1172 by the learned counsel for the workmen to buttress the submission that the High Court while exercising jurisdiction regarding writ of certiorari would not assume the role of the Appellate Court and in absence of the perversity in the findings of the Labour Court, it has no power of interference with the award.
9.1 S.M. Nilajkar & Ors. Vs. Telecom District Manager, Karnataka reported in AIR 2003 SC 3553 is sought to be relied upon with the submission that the delay would certainly be fatal if the material evidence relevant to adjudication is lost site of or rendered unavailable.
9.2 Reliance is placed upon Harjinder Singh Vs. Punjab State Warehousing Corporation reported in AIR 2010 SC 1116; with an emphasize on paragraph 17 which reads as under:
"17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality Page 13 of 27 C/SCA/16565/2015 CAV JUDGMENT between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J., opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."
9.3 While relying upon Shahaji Vs. Executive Engineer, P.W.D. reported in 2007 (115) FLR 675 it is contended that the case was entertained by the court after 16 years delay in seeking reference.
9.4 Kuldeep Singh Vs. G.M. Instrument Design Development & Facilities Center & anr. reported in 2010 AIR SCW 7233 is relied upon with a proposition of law that once the reference is made, the Court cannot go beyond the order of reference.
10. Bearing in mind the above-referred legal proposition, the case on hand is required to be appreciated:
11. There can be no dispute on the proposition of law that the jurisdiction of the High Court under Article 227 of the Constitution of India would be circumscribed and the Court would not be sitting in appeal over the impugned decision. Lack of evidence, perversity and non-application of mind are some of the areas which can be inquired into, under Article 227 of the Constitution of India.
12. There is no dispute that the retrenchment was effected in the year 1996 and the letter of demand for Page 14 of 27 C/SCA/16565/2015 CAV JUDGMENT reinstatement, etc., by the workman was addressed to the employer in the year 2005 i.e. after a gap of nine years. Admittedly, the workman did nothing during the period of said nine years. Having regard to the proposition of law pronounced in Prabhakar (supra), heavy burden lay upon the workman to demonstrate the live nature of dispute during the said period of nine years. As can be noticed from paragraph 43 of Prabhakar (supra), the question of moulding the relief in belated references would arise only if the dispute is demonstrated as the live industrial dispute on the date of its raising. In absence of the demonstration by the workman that the industrial dispute raised by him was a live dispute on the date he raised, the government ought to have refused the reference and in absence of such refusal, the Labour Court ought to have addressed itself whether the dispute was a live industrial dispute irrespective of such issue being raised in the light of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota (supra). Thus, in the opinion of this Court, in absence of the demonstration that the dispute was a live industrial dispute as aforesaid, the Labour Court lacked the jurisdiction to adjudicate it.
13. Kuldeep Singh (supra) holding that the case of the workman could not have been dismissed only on the ground of delay cannot come to the aid of the petitioner in the light of the fact that a convincing explanation for delay of about 5 ½ years was given by the workman as is evident in paragraph 12 of the rolling, which reads as under:
"12. The Labour court has concluded that the workman Page 15 of 27 C/SCA/16565/2015 CAV JUDGMENT had raised the demand of reference after more than five and a half years of his termination and has not offered plausible and convincing explanation. On the other hand, it is the claim of the workman that though his services were terminated on 26.05.1992, all along, he was agitating the issue with the Government in one form or the other and by making representation to various authorities. Having found the termination void and contrary to the provisions of the Act, the Labour Court dismissed the claim of the workman only on the ground of delay."
14. Similarly, S.M. Nilajkar (supra) also cannot come to the aid of the petitioner since it was found therein that the workmen were waiting for formulation of a scheme for absorption of casual labourers who had rendered more than one year of service as directed by the Supreme Court in Daily Rated Casual Labour Employees under P & T Dept. Vs. Union of India reported in AIR 1987 SC 2342. Thus the delay was convincingly explained.
15. In Gauri shanker v. State of Rajasthan [(2015) 12 SCC 754], the principal question was whether the High Court was justified in interfering with the factual findings rendered by the Labour Court and the said question, under Article 227 of the Constitution of India, was answered in negative.
16. In U.P. State Electricity Board v. Rajesh Kumar [(2013) 12 SCC 548], it has been held that the facts and circumstances of each case are to be considered in dealing with the stale claims and appropriate reliefs are to be granted. In fact, the Hon'ble Supreme Court refrained from examining the question of stale claims in the light of the facts involved in that case. As elaborated herein above, Prabhakar Page 16 of 27 C/SCA/16565/2015 CAV JUDGMENT (Supra), the said issue has been answered.
17. In Jasmer Singh v. State of Haryana & Another [(2015) 4 SCC 458], the principle that no limitation prescribed under the Limitation Act is applicable to the disputes arising under the Industrial Disputes Act was reiterated and while referring to Harjinder Singh Vs. Punjab State Warehousing Corporation (supra), it was observed that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular mandating the State to secure a social order for the promotion of welfare of the people, and ensuring equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues.
17.1 In the said case, the dispute raised by the workman, after three years, was contested on the ground of delay by the employer which contest was negated.
18. This Court is concerned with the fact as to whether the dispute raised after nine year is stale dispute in absence of the evidence that it was a live dispute for the said period of nine years. In the opinion of this Court, Prabhakar (Supra) can be applied to the facts of the present case.
Page 17 of 27 C/SCA/16565/2015 CAV JUDGMENT19. In State of Gujarat & 2 v Jitendrabhai Gaurishankar Bhatt & 1 decided in SCA No.18931 of 2011 with CA No.7980 of 2014 on 21/11/2017, it has been observed thus:
"7. This Court has considered the submissions made by both the sides. The fact that the workman has been employed in the year 1987 is not in dispute. He was continued to work till 1991. Thereafter, his services seems to have been terminated. The respondent approached various authorities for redressal of his grievance. However, when he was not able to get justice, he approached Assistant Labour Commissioner and reference was made to the Labour Court in the year 2005. Award came to be passed in favour of the respondent-workman in the year 2011. It will be relevant to note that the respondent- workman is in services since 2011 with the interim directions given by this Court. If we count from the beginning, the respondent-workman has been fighting for his job since 1981 i.e. from last 27 years. This Court is of the considered opinion that if a person is asked to leave his job at the fag end of his career, it will be great injustice especially under the circumstances when juniors to this respondent-workman have been continued in service and some of them have been regularized. The contentions raised by the learned Assistant Government Pleader have been taken care of by the Labour Court while passing an award with only 10% of back wages.
8. One of the main contention raised by the learned Assistant Government Pleader pertains to the non- completion of continuous service of 240 days in a period from 1987-1991. Such arguments cannot be appreciated, especially under the circumstances when these appointments are under the control of employer and the work in Irrigation Department is a continuous work. It cannot be said that the Irrigation Department has closed their office after 1991 or no other junior to the respondent- workman are not retained.
9. There are series of judgments passed by the Apex Court wherein, such type of exploitation of the workers has been condemned and deprecated."
The facts of this case would rather justify the ratio Page 18 of 27 C/SCA/16565/2015 CAV JUDGMENT laid in Prabhakar (Supra).
20. The fact that the respondent-workman was a daily wager and not regularly appointed in accordance with the statutory recruitment procedure was not in dispute. The daily wager has no unequivocal right to continue in employment, more particularly, when the regular workman is appointed vice him. Service of a daily wager would automatically come to an end, at the end of the day. Therefore, when regular workman substitutes him, it would not be open for the industrial forums to superimpose the daily wager upon the employer. At the most, retrenched daily wager can be compensated to an extent indicated in Section 25-F of the ID Act, if the said provision is breached. No material was brought on record by the workman demonstrating that he had worked for more than 240 days in preceding 12 calender months of his retrenchment; except his oral assertion. In the light of the settled legal position that the initial burden to bring on record the said facts lay upon the workman (paragraph 8.6 above), in the opinion of this Court, the industrial forum fell in serious error in shifting the said burden to the employer and drawing adverse inference against the employer's failure to produce the material on record in this regard.
21. When it was pointed out to the industrial forum that the regular workman substituted the daily wager- respondent, it could not have invoked either Section 25G or 25H of the ID Act; inasmuch as, it would be absurd to say that non-regular daily wage workman would have a preference over the regularly appointed workman. Section 25G and 25H were mechanically applied by the industrial forum without Page 19 of 27 C/SCA/16565/2015 CAV JUDGMENT applying the mind to the facts on record and legal position indicated above.
22. The Labour Court unfortunately was oblivious of the legal position emerging from Section 25-H that the provision cannot be invoked where a daily wager is substituted with a regular employee. A regular employee is an employee who after undergoing the rigours of the competition gets selected in accordance with the recruitment rules. A daily wager who has no better right than the regular workman cannot be heard to contend that he should be preferred over regular workman. The provision can be invoked only under two situations being (i) in case of substitution of non-regular employee with other non-regular employee; (ii) in case of substitution of regular employee with other regular employee. The fact situation on hand did not warrant the finding that the provision was breached on the mere oral bald statement of the workman. The burden lay upon the workman to prove the following facts: (i) that he was retrenched, (ii) that the employer after his retrenchment proposed to take into his employ other person similarly situated in status etc. i.e. his substitute was also a non-regular employee, (iii) that before such substitution, no opportunity was given to him for the employment and that his right to preference under Section 25H was violated. No evidence was rendered by the workmen except making a bald statement; that too without naming his substitute. The labour court fell in serious error in ignoring the evidence required under Section 25H of the Act and thus the finding was rendered in absence of the required evidence; requiring interference from this Court.
Page 20 of 27 C/SCA/16565/2015 CAV JUDGMENT23. The industrial forum was also in error in seeking the seniority list of the workman from the employer for the purpose of Section 25G and 25H of the ID Act. The provisions can be invoked qua similarly situated workman. For Section 25G to operate inter alia category of workman would be relevant. Such a category may be in relation to work and / or in relation to the nature of rights or the status of the employee or the workman. For example, if a workman is a daily wager belonging to a particular category, then in cases of retrenchment, the junior most daily wager in the same category can be retrenched. Similarly, if the regular workman is sought to be retrenched from a particular category, it must be shown that he is the junior most regular workman. But it would be absurd to say that a daily wage workman cannot be replaced by a regularly appointed workman under Section 25G of the ID Act.
24. Similarly, Section 25H of the ID Act would come into play when the workman is similarly situated to the one proposed to be employed, after retrenchment, and not when a regular workman is proposed to be employed for non-regular workman like daily wagers. Therefore, if Section 25G and 25H are found to be inapplicable, the question of maintaining the seniority list under the rules above-stated of daily wagers or non-regular employees would be inconsequential.
25. The perversity and non-application of mind by the industrial forum achieved the height when it accepted a bald statement of the workman that other workman was substituted vice him, even though the workman did not name the substitute.
Page 21 of 27 C/SCA/16565/2015 CAV JUDGMENT26. The workmen have filed MCA (for breach of Order) No.3612 of 2016 in SCA No.16565 of 2015 and MCA (for breach of Order) No.3613 of 2016 in SCA No.16750 of 2015 wherein several orders were passed from time to time.
27. On 21/12/2016 the following order was passed:
"The principal grievance made in this application is regarding non-compliance of the order passed by this Court in SCA No.16565 of 2015 on 26/07/2016. A further prayer to dismiss the petition or to vacate the interim-relief ordered by this Court on 26/07/2016 is also sought.
It is pointed out that the said order required the opponent to comply with Section 17-B of the Industrial Disputes Act, 1947 and it is only in partial compliance of the said order that the last drawn wages at the rate of Rs.624/-have been paid to the workmen November, 2016. For the period of July, August, September and October, 2016, as also from the date of petition, nothing has been paid and it is stated by the learned AGP under the instructions of one Mr.D B Naria, Deputy Executive Engineer, Irrigation Sub-Division, Bhavnagar that such payment would be released alongwith wages payable in January, 2017. The said statement must be complied with; failing which Mr.D B Naria, Deputy Executive Engineer, Irrigation Sub-Division, Bhavnagar should personally remain present before the Court on 09/01/2017 and further necessary orders will be passed on that day.
Issue Notice returnable on 09/01/2017. Direct Service is permitted."
28. On 09/01/2017 following order was passed.
"This Court had issued notice returnable on 9.01.2017. It is stated that the opponent has been served with the notice on 4.1.2017 during the winter holidays. Learned AGP seeks time to file a reply to this application.
One of the reliefs prayed for in the application is Page 22 of 27 C/SCA/16565/2015 CAV JUDGMENT under the Contempt of Court Act, 1971. In response to a query as to whether the proceedings under the Contempt of Court Act, 1971, would lie before the Single Judge, the learned counsel for the applicant also seeks an adjournment.
In view of the above, S.O. to 18.01.2017. On the said date, the Executive Engineer Shri N.D.Solanki who is stated to be a responsible officer for making the payment under Section 17-B of the Industrial Disputes Act to the petitioner, shall personally remain present before this Court. Shri D.B.Naria shall also remain present before this Court on the said date."
29. On 18/01/2017, following order was passed:
"As directed by this Court, learned AGP states that both the officers are present in the court. Reply is sought to be filed by the learned AGP today. Respondent seeks adjournment. S.O. to 30.1.2017."
30. Thereafter, the parties agreed to address the SCA itself on merits and the grievance regarding non-compliance of Section 17-B was also proceeded alongwith the said two petitions.
31. While referring to Section 17-B of the Act it was contended that the workman would be entitled to the wages under the said provision from the date of institution of the petition. While relying upon Vrajlal P. Dhorajiya v. Gujarat Kelavni Trust and others [Civil Application (For Direction) No. 4497 of 2017 in Special Civil Application No. 6651 of 2015 decided on 1.5.2017] it was argued by the learned AGP that if at all the case for wages under Section 17-B of the Act is made out, the workman would be entitled to the same from the date of injunction i.e. 26.7.2016 and not from the date of institution of the petition.
Page 23 of 27 C/SCA/16565/2015 CAV JUDGMENT32. This Court in Vrajlal's case (supra) considered the legal position in this regard in para 11 thus:
"11. While passing order in CA NO.6805 OF 2016 in SCA No.17000 of 2015, this Court has held in paragraph Nos.10, 11 and 12 thus:
10. Having considered the rival contentions on this issue it appears that the answer to the above question would depend upon the facts and situation of each case as noticed in Rang Pharmaceutical Through Partner versus Ramprakash R. Upadhyay (supra). The Court was examining the above question in the light of the fact that the award passed by the Labour Court was stayed by the High Court and in such circumstances, it was held that if the award is stayed, the relevant date would be the date of filing of the affidavit before the Court and not the date of the award. So far as Airport Authority of India and Another versus Bharat H. Parmar (supra) is concerned, in absence of the facts of that case on record, it is not possible to say as to whether the order of reinstatement was stayed by the High Court. The proposition of law laid down in the said case is that the benefit under section 17B would accrue to the workman from the date of institution of the proceedings before the High Court. In the facts of Sureshkumar Valjibhai Bariya versus Divisional Controller in Civil Application No. 8805 of 2015, the date of applicability of the benefit under Section 17B was reckoned from the date of filing of the affidavit.
11. In the instant case no injunction was operating before institution of the application under Section 17B of the I.D. Act by the workman. In absence of injunction it was obligatory for the employer to reinstate the workman and therefore in absence of such reinstatement, when the petition was instituted the liability on the employer to implement the impugned judgement and award rested on its shoulder. An affidavit has been filed by the workman stating that right from the date of termination he is unemployed and therefore as held by the Division Bench of this Court in Airport Authority of India and Another versus Bharat H. Parmar (supra) that having regard to the clear language in Section 17B, the benefits must accrue to the workman in the facts of the present case from the date of institution of petition.Page 24 of 27 C/SCA/16565/2015 CAV JUDGMENT
12. This application therefore must succeed and accordingly it is directed that the applicant workman shall be paid full wages last drawn by the workman inclusive of any maintenance allowances admissible to him under the law for the period during which the Special Civil Application No. 17000 of 2015 remains pending before this Court. Accordingly it is ordered that the said benefit shall be paid to the workman from 14.10.2015 i.e. the date of the institution of the petition."
33. Section 17-B obliges the workman to file an affidavit indicating his non-employment during the pendency of the petition.
34. The law emerging as to the date of applicability of Section 17-B is elaborated hereinabove, and it appears that in absence of stay, the entitlement of the workman to the last drawn wages would commence from the date of petition, and if stay is granted the relevant date would be the date of affidavit by the workman. In the peculiar facts of the present case where the order is already passed for complying with Section 17-B of the Act, the workman shall be entitled to the wages under Section 17-B of the Act from the date of his affidavit.
35. The affidavit has been filed on 1.8.2016 stating that the workman has not been gainfully employed. This fact is not controverted by the petitioner. Having regard to the ratio laid down in the above-referred case, in the opinion of this court, since injunction was operational, the workman would be entitled to the wages under Section 17-B of the Act from 1.8.2016 i.e. date of his affidavit.
Page 25 of 27 C/SCA/16565/2015 CAV JUDGMENT36. The grievance is made that the workman has not been paid the wage under Section 17B in compliance with law. It is contended that the last drawn wages referred in Section 17-B would be the wages revised from time to time, as may be applicable to other similarly situated workmen. On the other hand, it is contended that plain and simple meaning conveyed by expression, "wages last drawn" in Section 17B would be wages at the time of termination.
37. It is not in dispute that full last drawn wages are required to be paid to the workman under Section 17B in the cases where there is a direction of reinstatement of the workman. Therefore, as on the date of preferring the proceedings against the award in the High Court or the Supreme Court, the wages for the workman must be fixed as if he is in employment. "Full wages last drawn" would not mean the static wage as on the date of the retrenchment or termination of the service of the workman. The expression has to be understood in the context of the direction of "reinstatement" and thus whatever wages the workman was entitled to draw on reinstatement, would be the full wages last drawn by him. This interpretation gets fortified from the proviso to Section 17B of the Act, according to which the workman receiving "adequate remuneration" during the period indicated in Section 17B would not be entitled to full wages last drawn. Therefore, receipt of adequate remuneration only would deprive the workman of the benefits under Section 17B and if his remuneration is inadequate, the workman would be still entitled to full wages last drawn less the remuneration received by him. Thus, the full wages last drawn should be adequate and not the one which the Page 26 of 27 C/SCA/16565/2015 CAV JUDGMENT workman might have drawn years back i.e. in the year 1996 in the present case.
38. The full wages last drawn must be in compliance with the prevalent law including the Minimum Wages Act. The wage under Section 17B would be the wage payable to the workman similarly situated to the respondent-workman herein. If the said wage is revised, from time to time, then it goes without saying that the workman would be entitled to revised wage and if the Minimum Wages Act or other relevant law is applicable to the workman, it goes without saying that the employer will apply Minimum Wages Act or other relevant law and compute and pay to the workman the wages he is entitled to. Thus, the petitioner is under an obligation to compute and pay to the workman the wages in accordance with law in light of the above discussion. Accordingly, ordered.
39. In the result, both these petitions succeed and the impugned judgment and order in both the petitions are quashed and set aside subject to the above observations. Accordingly, MCAs are also disposed of. It is directed that the petitioner will pay to the workman the daily wage in accordance with Section 17B after applying the law applicable to the respondent in relation to his wage, within a period of three months from the date of this order. Rule is made absolute to the aforesaid extent.
(G.R.UDHWANI, J) SOMPURA Page 27 of 27