Gujarat High Court
Jayantibhai Kevjibhai Chaudhary & vs State Of Gujarat & 2 on 15 January, 2016
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/8298/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8298 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of
the Constitution of India or any order made
thereunder ?
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JAYANTIBHAI KEVJIBHAI CHAUDHARY & 1....Petitioners
Versus
STATE OF GUJARAT & 2....Respondents
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Appearance:
MS VIDHI J BHATT, ADVOCATE for the Petitioners No. 1 - 2
MR V.R.JANI AGP for the Respondents No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 15/01/2016
ORAL JUDGMENT
1. Heard learned counsel appearing for the parties. The petitioners have approached this Court by way of this petition invoking Articles 14, 16 and 226 of the Constitution of India and also provision of Industrial Disputes Act, 1947 with following Page 1 of 16 HC-NIC Page 1 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT prayers;
(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to regularise the services of the petitioners as per the G.R. dated 17.10.1988 and further be pleased to quash and set aside the termination of the services of the petitioners.
(B) Pending admission, hearing and final disposal of this petition, be pleased to direct the respondents, their agents and servants to take the petitioners back in service by staying the oral order of termination.
(C) Be pleased to grant any other
appropriate relief as the facts and
circumstances of the case may require.
Thus, what is essentially under challenge is the termination of their services and further relief of seeking benefits of Government Resolution dated 17.10.1988.
2. Facts in brief, as could be culled out from the memo of petition, would indicate that the petitioners were working as daily-wagers in the respondents' office since 1988-89 till their services were terminated without following procedure of law. The petitioners have placed on record in the memo of the petition at paragraph no.3 the details, which may be reproduced hereunder in order to have ready reference thereof;
Petitioner No.1 Petitioner No.2
Year Days Year Days
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1-10-89 to 30-990 285 1-10-88 to 30-9-89 251
1990-91 365 1989-90 176
1991-92 366 1990-91 365
1992-93 365 1991-92 352
1993-94 365 1992-93 365
1994-95 358 1993-94 285
1995-96 363 1994-95 365
1996-97 362 1995-96 366
1997-98 362 1996-97 365
1998-99 297 1997-98 328
1999-2000 230 1998-99 286
1999-2000 274
2.1 The petitioner no.1 was asked not to come
from 01.07.2000 and petitioner no.2 was asked not to come from 11.07.2000. This oral termination was brought about without there being any procedure of law, much less, in compliance with the provision of Industrial Disputes Act namely; Section 25-F and other provisions qua retrenchment. The petitioners have also extensively relied upon the provision of Government Resolution dated 17.10.1988 popularly known as Daulatbhai Parmar recommendations accepted by the State for seeking benefits of the services rendered as daily-wager, so as to bring them some respite and benefits of regular services. The petitioners have placed on record the orders and communications indicating that they were in fact granted benefit of the Government Resolution dated 17.10.1988 and thereafter relying upon some government resolution of Gujarat Narmada and Water Page 3 of 16 HC-NIC Page 3 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT Resources Department dated 15.04.1997, their services were terminated without following due procedure of law.
2.2 As the said termination is subject matter of challenge in this petition along with a prayer for seeking benefits flowing from the resolution dated 17.10.1988. The State has filed affidavit-in-reply, wherein it has been contended that the joining date of petitioner no.2 had 01.11.1988 and not on 01.10.1988, as sought to be claimed by the petitioner in the petition, and petitioner no.1 had joined on 01.10.1989. The services of the petitioners came to be terminated on account of the resolution of Gujarat Narmada Water Resources Department dated 15.04.1997, however, the said resolution is no where available on the record, nor has the respondents placed the same for consideration of the Court. Suffice it to say that based thereupon the services were terminated and it was a ground taken by the respondents that the said Government Resolution cannot be made applicable to them; and it was submitted that as they were specifically made to understand that they were being engaged their services were put to an end as and when the exigency so warrants.
3. Learned counsel appearing for the petitioners has invited Court's attention to the documents on record namely page no.20,23 and 61, to indicate that in case of both the petitioners the authorities prior to terminating their services had initiated the machinery for granting them the benefit Page 4 of 16 HC-NIC Page 4 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT of the Government Resolution dated 17.10.1988 and, therefore, there is no dispute qua the petitioners being entitled to not only be governed by the provisions of Industrial Disputes Act, so far as the retrenchment compensation and the notice are concerned, but they were also entitled to be governed by the provisions of the Government Resolution dated 17.10.1988.
4. Learned counsel appearing for the petitioners relied upon the following decisions in support of her submission;
(i) in case of State of Gujarat & Ors. Vs. PWD Employees Union & Ors. Etc., reported in 2013 (8) SCALE 579;
(ii) in case of Devinder Singh Vs. Municipal Council, Sanaur, reported in (2011) 6 Supreme Court Cases 584. Especially relied on paragraph nos.17 and 18.
(iii) in case of Anoop Sharma Vs. Executive Engineer, public Health Division No.1, Panipat (Haryana), reported in (2010) 5 Supreme Court Cases
497. Especially relied on paragraph nos.16, 17 and
19.
(iv) in case of Kutchh District Panchayat Vs. Mangalbhai K. Rabari and Other passed by this Court in S.C.A. No.15670 of 2005 on 08.10.2014;
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(v) in case of Kutchh District Panchayat Vs.
Mangalbhai K. Rabari and Other passed by Division Bench of this Court in L.P.A. on 04.01.2016;
5. It was urged on behalf of the petitioners that looking to the Government Resolution of 1989 and subsequent resolution as well as the facts prevalent, would indicate that the Government Resolution dated 17.10.1988, though originally intended to be applicable to the daily-wagers appointed prior thereto, was in fact followed and made applicable to all daily-wagers subsequently appointed also. She placed reliance upon the decision of this Court in case of Kutchh District Panchayat (supra) as well as decision of the Division Bench passed in L.P.A. in the aforesaid case on 04.01.2016.
6. Learned AGP appearing for the respondents contended that the petition is not required to be entertained and allowed in view of the fact that efficacious statutory remedy in form of Industrial Disputes Act machinery is available to the petitioners and, therefore, the Court may not exercise discretionary power in favour of the petitioners for considering the petition, as the petition involves disputed question of facts, which can well be decided and adjudicated by the competent labour Court under the Industrial Disputes Act only. In support of his proposition learned A.G.P. relies upon the decision of the Supreme Court in case of State Bank Of India Vs. Narendra Kumar Pandey, Page 6 of 16 HC-NIC Page 6 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT reported in (2013) 2 Supreme Court Cases 740.
7. Learned AGP further submitted that the employment was purely on the basis of daily wage and petitioners were daily-wagers, who could not be considered to be in employment so as to grant them any benefits including that of Government Resolution dated 17.10.1988.
8. Learned AGP further submitted that petitioners also cannot claim any consequential benefits. In case, if the Court is inclined to reinstate, as the pleadings are missing qua there being unemployment for these long period of 15 years, the petitioners' services came to be terminated in the year 2000 and in these long period of 15 years, the petitioners could have been earning their wages by employing themselves gainfully for survival and, therefore, there is a strong presumption militating against their claim for back wages, the same may not be granted.
9. Learned AGP further submitted that the petitioners were said to be engaged on daily wage basis and they had a knowledge that their services could be brought to an end without even notice and infact the communications placed on record namely; letters dated 01.07.2000, 21.07.2000, 10.07.2000, would indicate that both the petitioners were infact informed and called upon to collect the notice pay and the compensation. Therefore, it cannot be said Page 7 of 16 HC-NIC Page 7 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT that it was a case of no notice or no compensation.
10. The Court has heard learned counsels appearing for the parties and perused the documents on record. The few indisputable aspects emerging therefrom needs to be set out as under in light of the submissions of the learned counsels.
(i) The petitioner no.1 has claimed that he was appointed on 01.10.1989 i.e. not disputed by the respondents. Petitioner no.2 was appointed on 01.10.1988, which has been disputed by the respondents, as according to the respondents the petitioner no.2 was appointed on 01.11.1988.
(ii) The Government Resolution dated 17.10.1988 was promulgated and implemented in respect of the daily-wagers appointed prior thereto.
(iii) The documentary evidence coming forward on record in form of the documents on page nos.20, 23, 61 would indicate that the process of according benefits of Government Resolution dated 17.10.1988 had in fact been started at the end of the respondents.
In the aforesaid factual backdrop, question arises as to whether this Court should relegate the petitioners to seek redressal of the grievances in the alternative forum, as provided under the Industrial Disputes Act, 1947.
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11. The Court has in fact noticed that the
petitioners were appointed on the date mentioned by both the parties, which in any case, would not militate against the petitioners' contention of they being continuously performing their duties so as to attract the provisions of Industrial Disputes Act, 1947.
12. It is also not disputed that the petitioners had not completed 240 days, when the oral termination was being brought about, nor it is a case of the State-respondent hereinabove, that the petitioners were required to be non-suited only on the ground that they had worked for more than 240 days when their services came to be terminated. On the contrary, the respondents' affidavits are conspicuously silent on this aspect and the documentary evidence, which have been brought on record including the correspondents under which the process is established, have been initiated for according the benefit of Government Resolution dated 17.10.1988 to the petitioners. The petitioners have unequivocally established that they had been continuously working for more than 240 days prior to the oral termination so as to be entitled to receive the protection under the provision of Industrial Disputes Act, 1947, namely; the retrenchment process, the notice prior to the termination and the compensation in the form of retrenchment compensation before effecting the termination by way of Page 9 of 16 HC-NIC Page 9 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT retrenchment.
13. The Court is of the view that the documentary evidence in form of the communications, which the respondents are annexed namely communications dated 01.07.2000, 21.07.2000 and 11.09.2000, indicating that the petitioners were called upon to collect the wages and the compensation itself would indicate that the Industrial Disputes Act provisions were not strictly complied with, as the date of termination has been clearly mentioned and the communication is subsequently dated. Meaning thereby, the conditions precedent for bringing about valid termination by way of retrenchment had remained to be fulfilled. In other words, it can well be said that the documentary evidences coming forward from the respondents' side well establishes that the respondents have by way of afterthought sent a communication to the petitioners so as to infuse some semblance of legality in their action of termination of services, which in fact was brought about without following any procedure of law, much less, procedure of Section 25-F of the Industrial Disputes Act and other provisions.
14. Against the factual backdrop of these findings, question arises as to whether any purpose would be served relegating the petitioners to the alternative remedy. The answer would be emphatic 'No', as the relegating of the petitioners to alternative remedy is a self imposed restriction or Page 10 of 16 HC-NIC Page 10 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT modality, which in a given case may not warrant its adoption. On the contrary, the facts of the case speaks for themselves, so far as present case is concerned, which would persuade this Court not to adopt the path of relegating the petitioners to the alternative forum. Besides, the long time elapsed from the date of the termination and filing of the petition till the date when the matter is heard, is also being a relevant factor, in case, if the submission canvassed on behalf of the State is accepted, then it would add number of years to the realm of uncertainty, which has been fasten upon the petitioners, which would rather amounting to deny them the opportunity of seeking appropriate relief at appropriate stage and time. Thus, this also being a relevant factor in not relegating the petitioners to the alternative remedy under the Industrial Disputes Act. Therefore, the Court is not inclined to accept the submission canvassed on behalf of the respondents for non-suiting the petitioners on the ground of alternative remedy and proposes to embark upon the adjudication so far as all the aspects are concerned, at this stage, in this petition.
15. The Court has already recorded hereinabove that the breach of Section 25-F is established beyond doubt, as the documents indicate that the subsequent action of proposing to pay the compensation and the notice pay would be of no avail in light of the judgment cited at the bar namely; in case of Devinder Singh Vs. Municipal Council, Sanaur, (supra) and in Page 11 of 16 HC-NIC Page 11 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT case of Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) (supra). From the case of Devinder Singh Vs. Municipal Council, Sanaur, (supra), paragraph nos.17 and 18 are reproduced as under;
Para-17: Section 25-F is couched in a negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.
Para-18: This Court has repeatedly held that the provisions contained in Sections 25-F(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative.
Thus, the condition precedent for bringing about valid retrenchment being not fulfilled the termination by way of retrenchment would be of no consequence and the same is void ab initio. This brings the Court to consider the case of the petitioners so far as the other relief of 17.10.1988 resolution recommendations are concerned. The reliance is placed upon the decision of this Court Page 12 of 16 HC-NIC Page 12 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT passed in S.C.A. No.15670 of 2005 on 08.10.2014 as well as that of Division Bench passed in L.P.A. No.1381 of 2015 on 04.01.2016 and Supreme Court, to indicate that the petitioner even if presume to have been appointed a month or year after the date of the resolution, the same would be of no consequence as their case much more better than number of employees who have in fact been appointed after the year 1988 and who have granted benefits. This Court's observations as well as Division Bench's observations are set out hereinbelow;
S.C.A. No.15670 of 2005 Para-11: The Court is of the considered view that the GR dated 17/10/1988 was no doubt containing reference to the future employment but the subsequent course of action and developments as it indicate that the Government continued employing daily wagers, temporary hands irrespective of those conditions which gave rise to a situation where litigations came up and hence as Shri Pathak has pointed out clarificatory GR came to be issued and over all facts & circumstances of the case indicate that the benefits of GR dated 17/10/1988 were to be extended to all, else it would have meant to Government employing unfair labour practice which would have been highly depreciable.
Para-12: The Court is also of the view that the decision cited at the bar in case of State of Gujarat And Others Vs. PWD Employees Union And Others will have applicability to the facts & circumstances of the case and counsel of the petitioner's submission qua some of the workmen were employed after GR dated 17/10/1988 would be of no avail as the judgment itself has answered that contention squarely.
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L.P.A. No.1381 of 2015
Para-6: The Labour Court has directed for conferment of benefits by the impugned award as per the Govt. Resolution dated 17.10.1988. We do not find that the learned single Judge has committed any error in not interfering with the said award. Under the circumstances, no case is made out for interference. Hence, the appeal is dismissed.
In view thereof, the Court is of the view that the respondents have to grant benefits of 17.10.1988 resolution to the petitioners after taking into consideration their services.
16. The Court is, therefore, of the considered view that the termination being void ab initio, is required to be quashed and set aside and as a result thereof the order of reinstatement is required to be made. However, at this stage, the question arises as to whether the petitioners' claim of backwages would be just and proper, as the learned counsel for the petitioners Ms. Bhatt submitted that the back wages are required to be granted as a matter of course, as could be seen from the decision in case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) And Others, reported in (2013) 10 Supreme Court Cases 324; and in case of Mackinon Mackenizie & Company Ltd. Vs. Mackinnon Employees Union, reported in AIR 2015 Supreme Court 1373; the backwages in such a situation is a matter of course.
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Learned AGP has contended that the back
wages cannot be granted for asking in absence of any particular pleadings. There was no opportunity to the employer-respondents to produce evidence to show that the employees were gainfully employed besides the passage of time, would indicate that the employees-petitioners cannot be presumed to have been without any earnings for sustaining themselves and the family members.
The Court is of the considered view that the affidavits have been on the record to cover the contentions, so far as, the merits of the case are concerned. One of the petitioner had filed affidavit in the year 2014 to bring on record the clarificatory circular or resolution, which was submitted today itself by Ms. Bhatt, which was permitted to be taken, as nothing really turned upon it so as to delay the hearing of the matter. But even on that affidavit also and the memo of the petition there exists no, even plain averments on oath, stating that they have not been gainfully employed. Though, at this stage, Ms. Bhatt, did inquire of one of the petitioner, who is present in the Court, who indicate that he was not gainfully employed. But that in itself was not found to be sufficient, as the bare statement if not coming forward on record when the final hearing started, would not be accepted to be taken on record, as it would deny opportunity to the otherside for bringing their evidence on record. At the same time, it is required to be noted that the pendency of the matter Page 15 of 16 HC-NIC Page 15 of 16 Created On Thu Jan 21 00:07:18 IST 2016 C/SCA/8298/2000 JUDGMENT for 15 years, would indicate that the petitioners could not have remained idle without their efforts to earn their wages and their sustenance.
17. Therefore, the Court is inclined to accept the submission of learned AGP, so far as, back wages are concerned. In absence of any pleadings on affidavit or proper submission qua the petitioners remaining unemployed, the Court would not be in a position to order back wages. Hence, the back wages are not ordered.
18. In view of the aforesaid facts and circumstances, the petition is partly allowed. Rule is made absolute to the aforesaid extent.
19. The termination is declared to be null and void, which will have effect of reinstating the petitioners and continuing them with all consequential benefits, but back wages shall not be granted. The petitioners are to be reinstated forthwith and the continuity of service to be granted based thereupon. The benefits flowing from 17.10.1988 are to be worked out and accorded to the petitioners. The reinstatement be made within a week from the date of receipt of this order and the benefits be granted within two weeks therefrom.
Direct service is permitted.
(S.R.BRAHMBHATT, J.) Pankaj Page 16 of 16 HC-NIC Page 16 of 16 Created On Thu Jan 21 00:07:18 IST 2016