Gujarat High Court
Rajkot Municipal Corporation vs Darshan Badrayan Joshi on 3 May, 2023
C/SCA/13825/2008 ORDER DATED: 03/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13825 of 2008
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RAJKOT MUNICIPAL CORPORATION
Versus
DARSHAN BADRAYAN JOSHI
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR GAUTAM JOSHI, Senior Counsel with MR VYOM H SHAH(9387) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 03/05/2023
ORAL ORDER
1. The present Special Civil Application is filed praying for the following reliefs :-
"(a) admit the present Special Civil Application.
(b) allow the present Special Civil Application by way of issuing appropriate writ of mandamus or writ of certiorari or any other writ, direction and order quashing and setting aside the award dtd.8.7.08 passed by the Hon'ble Labour Court at Rajkot in reference (LCR) No.204/07 [old No.275/98] annexed at ANNEXURE-E by way of holding that the same is illegal, unjust, arbitrary, erroneous and contrary to the facts and evidence on record as well as the provisions of the Industrial Disputes Act, 1947 in the interest of justice.
(d) pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay the implementation, execution and operation of the award dtd.
8.7.08 passed by the Hon'ble Labour Court at Rajkot in reference [LCR] No.204/07 [old no.275/98] annexed as ANNEXURE-E in the interest of justice.
(e) Call for the record and proceeding of the case bearing reference [LCR] No.204/07 [old no.275/98] from Hon'ble Labour Court at Rajkot by way of passing appropriate orders in the interest of justice.
(f) pass such other and further orders as the nature and circumstances of the case may require, in the interest of justice."
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2. The brief facts in the present case are that the petitioner Corporation gave an advertisement in the local newspaper for the post of swimming coach in the swimming pools run by the petitioner Corporation purely on temporary and ad-hoc basis for a period of six months. Accordingly, the respondent applied for the same. In the said selection, six candidates were selected and the respondent was at serial No.1. Accordingly, by order dated 14.03.1996, the petitioner Corporation gave the appointment to the respondent as well as other selected candidates for a period of six months on a fixed pay of Rs.1200/- per month. That thereafter, by letter dated 06.11.1997, the services of the respondent as well as one Mr. Harshal Virendrabhai Dave were terminated as swimming coach. Aggrieved, the respondent raised a dispute. The conciliation proceedings failed and by letter dated 20.07.1998, the Assistant Labour Commissioner referred Reference No.275 of 1998 to the learned Labour Court, Rajkot, which thereafter came to be re- numbered as Reference(LCR) No.204 of 2007. The petitioner contested the claim of the respondent. The parties led the evidence in support of their contentions. The learned Labour Court, by the impugned judgment and award, partly allowed the reference and directed that the respondent workman be reinstated in service on his original post with continuity in service and 40% back-wages. Aggrieved, the petitioner Corporation has preferred the present Special Civil Application.
3. Learned advocate Mr. H. S. Munshaw appearing on behalf of the petitioner Corporation submits that the learned Labour Court has not appreciated that the appointment of the respondent was purely temporary and on ad-hoc basis for a period of six months. It is submitted that the respondent workman was on a fixed pay of Page 2 of 6 Downloaded on : Wed May 10 20:30:26 IST 2023 C/SCA/13825/2008 ORDER DATED: 03/05/2023 Rs.1200/- per month without any other benefit. He submits that for administration reasons, the services of the respondent workman were terminated on 06.11.1997 which was as per the terms & conditions of the appointment order. He submits that there is no violation of the provisions of the Industrial Disputes Act as the appointment order was squarely covered under the provisions of Section 2(oo)(bb) of the Industrial Disputes Act. He submits that in view thereof, the provisions of Section 25(F),(G) & (H) as alleged by the respondent were not applicable in the present case. He submits that the learned Labour Court ought to have appreciated that the respondent was terminated on 06.11.1997, whereas the impugned award was passed on 08.07.2008 i. e. after a period of almost 11 years. He submits that the learned Labour Court has erred in granting 40% back-wages for the said period when the appointment order was a contract on a fixed salary. He submits that the respondent workman has worked only for 20 months and therefore also, the learned Labour Court has erred in awarding the continuity of service to the respondent who was appointed purely on temporary and ad-hoc basis. He further submits that the Hon'ble Supreme Court in catena of decisions has also held that the lumpsum compensation can be granted in lieu of reinstatement in service and therefore, the learned Labour Court ought to have awarded a lumpsum compensation instead of reinstatement in service with continuity and back-wages. He, therefore, submits that the present Special Civil Application be allowed.
4. Per contra, learned senior counsel Mr. Gautam Joshi appearing with learned advocate Mr. Vyom Shah on behalf of the respondent workman submits that the respondent workman came to be appointed after due selection process which involves Page 3 of 6 Downloaded on : Wed May 10 20:30:26 IST 2023 C/SCA/13825/2008 ORDER DATED: 03/05/2023 publication of advertisement, calling for applications and selection thereafter in which the respondent workman was placed first in the select-list. He submits that six candidates were selected for the post of swimming coach. He submits that initially, the appointment order was for a period of six months on a fixed pay, however thereafter, the respondent as well as other selected candidates were continued in service. He, however, submits that today also, except the respondent herein, all the five selected candidates are working on the establishment of the petitioner Corporation. He submits that in view thereof, it could not be said that the employment was purely temporary and ad-hoc in nature. He submits that the respondent workman has brought on record the cogent evidence to show that the selected candidates who were placed below him, are being continued as swimming coach in services of the petitioner Corporation. He, therefore, submits that the said post and the nature of job is permanent. He submits that the learned Labour Court, by the impugned judgment and award, has properly appreciated the evidence on record and has passed a just and proper award. He, therefore, submits that the present Special Civil Application be dismissed.
5. Heard learned advocates for the respective parties and perused the documents on record.
6. In the present case, the evidence reveals that pursuant to the advertisement for the post of swimming coach, six candidates came to be selected and the respondent was at serial No.1. The witness of the respondent Corporation in his cross-examination has stated that except the respondent, all other five candidates who were selected as swimming coach, are working on the establishment of Page 4 of 6 Downloaded on : Wed May 10 20:30:26 IST 2023 C/SCA/13825/2008 ORDER DATED: 03/05/2023 the Corporation since their appointment. It was further stated that one more candidate viz. Harshal Virendrabhai Dave was terminated along with the respondent and he was also taken back in service. Further, the evidence reveals that after the termination of the respondent workman, 12 new swimming coaches have been appointed after giving due advertisement and they are in service. It was also admitted that while selecting 12 new swimming coaches, the respondent workman was not called to join the service. In the present case, it is an admitted position that no notice, notice pay or any retrenchment compensation has been given to the respondent workman.
7. Further, in respect of the contention of learned advocate for the petitioner that the provisions of Section 2(oo)(bb) would apply in the present case, it is seen from the evidence that the contract was initially for a period of six months, but thereafter, all the selected candidates have been continued permanently. In addition, 12 new posts of swimming coach came to be advertised and they have also been appointed on the establishment in the swimming pools run by the petitioner Corporation. In the present case, after the six months period, the petitioner had also been continued for 14 months thereafter without any new contract being executed. Even in the case of the other candidates selected along with respondent, no new contract is placed on record. Therefore, it has to be assumed that like in cases of other candidates selected along with the respondent herein, the appointment was continuous and permanent. No error has been pointed out in the findings recorded by the learned Labour Court. The findings are based on cogent evidence brought on record. The learned Labour Court has properly appreciated the evidence and come to the appropriate Page 5 of 6 Downloaded on : Wed May 10 20:30:26 IST 2023 C/SCA/13825/2008 ORDER DATED: 03/05/2023 conclusion. In view thereof, no interference is called for in the impugned judgment and award.
8. In the present case, it is the contention of learned advocate for the petitioner that the learned Labour Court ought to have awarded a lumpsum compensation instead of reinstatement. As per the law laid down by the Hon'ble Supreme Court in the catena of judgments, it has been held that once it is proved that there is a violation of Section 25(F), (G) and (H) of the Industrial Disputes Act, then the normal rule is reinstatement with continuity in service and award of back-wages. In view thereof, the contention of learned advocate for the petitioner is rejected.
9. In view of aforesaid observations, the present Special Civil Application is devoid of merits and the same is dismissed accordingly. Rule is discharged. No order as to costs.
(ANIRUDDHA P. MAYEE, J.) cmk Page 6 of 6 Downloaded on : Wed May 10 20:30:26 IST 2023