Gujarat High Court
Hadmatiya Grampanchayat vs Babulal Mavjibhai Kalsariya on 9 June, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/11783/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11783 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HADMATIYA GRAMPANCHAYAT....Petitioner(s)
Versus
BABULAL MAVJIBHAI KALSARIYA....Respondent(s)
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Appearance:
MS SEJAL K MANDAVIA, ADVOCATE for the Petitioner(s) No. 1
MR NIRAV C THAKKAR, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 09/06/2017
ORAL JUDGMENT
1. Heard Ms.Mandavia, learned advocate for the petitioner and Mr.Yash H. Joshi, learned advocate Page 1 of 15 HC-NIC Page 1 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT for Mr.Thakkar, learned advocate for the respondent.
2. Rule. Rule returnable forthwith. Learned advocate for the respondent has waived service of Notice of Rule for the respondent. At the request of learned counsel appearing for both the sides the petition is taken up for hearing and decision today.
3. In present petition, the petitioner has challenged award dated 2.4.2008 passed by the learned Labour Court at Junagadh in Reference No.140 of 2002.
4. After considering the submissions by learned advocate for the petitioner, this Court passed below quoted order on 16.1.2009:
"Notice pending admission returnable on 05.02.2009. In the meantime and till the returnable date, by way of Adinterim relief, the award impugned shall remain stayed.
5. The record reflects that after the said order dated 16.1.2009, any order admitting the petition or extending interim relief is not passed. The Page 2 of 15 HC-NIC Page 2 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT petition has remained at the stage of notice and ex parte adinterim relief (for limited tenure) for almost 9 years and without further proceedings. The ex parte adinterim relief has, thus, lapsed and expired.
6. So far as factual background is concerned, it has emerged from the record that the respondent herein raised industrial dispute with the allegation that the petitioner panchayat terminated his service illegally and arbitrarily and in violation of principles of natural justice and statutory provisions.
7. Appropriate government referred below quoted dispute for adjudication to the learned Labour Court at Junagadh:
"Whether Babulal Mavjibhai Kalsariya should be reinstated on his original post with back wages?"
8. Before the learned Labour Court, the claimant filed statement of claim with the allegation that he joined service with the petitioner panchayat as Operator on 14.8.1995. He also claimed that he Page 3 of 15 HC-NIC Page 3 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT discharged his duties regularly, continuously and diligently, however, the panchayat terminated his service with oral instructions on 11.6.2002 and that the panchayat terminated his service without any notice or without granting any opportunity of hearing and without payment of compensation. He also alleged that the procedure prescribed by law was not followed before terminating the service. With such allegations, the claimant demanded that he should be reinstated in service with consequential benefits.
9. Learned advocate for the petitioner panchayat opposed the reference. The panchayat filed its written statement at Exh.5 and denied the assertions and allegations by the claimant. The panchayat claimed that the respondent was engaged for operating Valve / Water Pump and his duty was to operate (i.e. start and shut off the valve / water pump). The panchayat also claimed that the claimant was irregular in his work and attendance and that the panchayat received several Page 4 of 15 HC-NIC Page 4 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT complaints against him from residents of the village. Since many complaints were received against the claimant, he was relieved and therefore he raised dispute. With the said claim the panchayat opposed the reference.
10. After the parties concluded the pleadings, the learned Labour Court received evidence from both sides and when the claimant and the opponent closed their evidence, the learned Labour Court heard rival submissions and after considering material available on record, the learned Labour Court passed impugned award. The learned Labour Court reached to the conclusion that the petitioner panchayat committed breach of Section 25F and Section 25H and that, therefore, the learned Labour Court directed the panchayat to reinstate the claimant to pay 50% backwages.
11. Feeling aggrieved by the said direction and award, the panchayat has taken out this petition.
12. Ms.Mandavia, learned advocate for the Page 5 of 15 HC-NIC Page 5 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT petitioner panchayat vehemently assailed impugned award and submitted that the learned Labour Court has nowhere recorded finding that the petitioner had worked for 240 days in preceding 12 months and there was no material on record to establish such fact and the claimant did not place any evidence on record to support his claim that he had worked for 240 days. According to learned advocate for the petitioner, despite such fact, the learned Labour Court reached to the conclusion that the panchayat committed breach of Section 25F. She submitted that the said finding by the learned Labour Court is incorrect and without support of evidence. She also submitted that the direction to reinstate the claimant and more particularly the direction to pay 50% is unjustified.
13. Learned advocate for the petitioner, however, could not deal with and/or could not refute and could not show any material contrary to the finding of fact recorded by the learned Labour Page 6 of 15 HC-NIC Page 6 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT Court that after the service of the claimant was terminated, other person was engaged for performing the duties which the claimant performed and at that time the panchayat had not called the claimant for work and work was not offered to the claimant and thereby the panchayat committed breach of Section 25H.
14. Learned advocate for the respondent supported the award. He submitted that the learned Labour Court has recorded findings of fact which are based on evidence available on record. He submitted that the claimant was the only person engaged by the petitioner panchayat as Operator and that the petitioner was continuously engaged from 14.8.1995 to 11.6.2002 i.e. for almost 7 years and that, therefore, the submission that the petitioner did not work for 240 days in a year is incorrect and such situation could, otherwise, also not arise. He submitted that there is no denial of the fact that the petitioner was engaged for almost 7 years, i.e. Page 7 of 15 HC-NIC Page 7 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT from August 1995 to June 2002. He submitted that the claimant had also categorically and with cogent evidence established that after his service was terminated, one Mr.Savjibhai was employed by the petitioner panchayat for the same work which the claimant used to perform and before engaging other person, the panchayat had not complied the provision under Section 25H and that, therefore, the findings recorded by the learned Labour Court are just and proper.
15. I have considered rival submissions and I have also considered material available on record as well as the impugned award.
16. From the award it comes out that the petitioner had, in its written statement, contended and claimed that the panchayat had received several complaints from the residents of the village and that, therefore, the panchayat had discontinued the claimant and had stopped giving work to the petitioner. The petitioner also claimed in its reply that the petitioner was Page 8 of 15 HC-NIC Page 8 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT irregular in work and attendance.
17. The said submission, explanation and reply by the panchayat bring out and establish the fact that the service of the claimant was discontinued on account of alleged irregularity in attendance and work and on account of complaints allegedly received by the panchayat against the claimant.
18. In this view of the matter the panchayat ought to have granted opportunity of hearing to the claimant. The claimant should have been confronted with the complaints and his attendance record and he should have been given opportunity to offer his explanation in response to the compliance allegedly received by the panchayat. Differently put principles of natural justice should have been followed and complied. However, the claimant's service came to be terminated in stark and blatant violation of principles of natural justice. Therefore, the panchayat's action deserved to be set aside.
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C/SCA/11783/2008 JUDGMENT
19. This is one reason in light of which the case of the petitioner against the impugned award cannot be accepted.
20. It is also borne out from the record that the claimant was engaged in 1995. According to the case of the claimant, his service came to be terminated in June 2002.
21. The said facts are not disputed or denied by the panchayat. Therefore, it emerges that the claimant worked for almost 7 years with the panchayat.
22. It is not in dispute that the petitioner was only employee who was engaged as Operator to operate the water pump / valve. Under the circumstances, ordinarily, his daily presence would be required.
23. The respondent alleged that he was the only employee engaged for said work.
24. Any contrary evidence was not placed on Page 10 of 15 HC-NIC Page 10 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT record by the panchayat and said claim remained uncontroverted.
25. In that view of the matter, as such, the finding of fact by the learned Labour Court with regard to attendance of the claimant and/or the finding that the claimant worked for 240 days and/or the conclusion that the panchayat committed breach of Section 25F, do not deserve to be disturbed.
26. However, even if it is assumed that the said finding recorded by the learned Labour Court is erroneous and if the contention by the petitioner pancahayat that there was no evidence on record before the learned Labour Court about the total attendance of the claimant and/or in support of the claim that the workman had worked for 240 days in preceding 12 months and therefore the learned Labour Court could not have reached to the conclusion in breach of Section 25F, is assumed to be correct and justified, then also the undisputed fact that the panchayat had Page 11 of 15 HC-NIC Page 11 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT engaged another person for the same work, will continue to stare in the face of the panchayat.
27. On this count, it is pertinent to note that the claimant, during his evidence, specifically asserted that after his service was terminated, the panchayat engaged one Mr.Savjibhai for the same work, which he was performing.
28. The said assertion by the claimant and his evidence is not disputed or denied by the panchayat.
29. Even during hearing of present petition learned advocate for the petitioner panchayat could not show any material from the record to establish that the said assertion and claim by the workman is incorrect.
30. Actually, learned advocate for the petitioner panchayat could not dispute the said assertion by the claimant and the fact that contrary evidence in not available on record which can establish that Mr.Savjibhai was employed by the petitioner Page 12 of 15 HC-NIC Page 12 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT panchayat after the claimant's service came to be discontinued.
31. Thus, the fact that another person was engaged for performing the same work which the petitioner was performing prior to his termination is an established and proved fact.
32. The said fact, in turn, establishes breach of Section 25H inasmuch as it is not the case even of the panchayat that before engaging the said other person, the panchayat had offered the work to the claimant and he was called for the same work however he failed to report for work.
33. Under the circumstances, the finding recorded by the learned Labour Court about breach of Section 25H cannot be faulted.
34. In this view of the matter, even if this Court proceeds in this case, by accepting the petitioner's contention and objection against the learned Labour Court's finding with regard to Section 25F, the finding based on statutory Page 13 of 15 HC-NIC Page 13 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT provision viz. Section 25H cannot be faulted.
35. Once the breach of statutory provision is established, then the relief by way of reinstatement in service cannot be denied. In this context, reference can be had to the observations by Hon'ble Apex Court in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) (2013) 10 SCC 324.
36. In present case, violation of principles of natural justice as well as breach of Section 25H are established. Therefore direction to reinstate the workman and/or to pay backwages cannot be faulted.
37. Besides this, there is no evidence on record to establish that in the interregnum, the claimant was gainfully employed.
38. Under the circumstances, when the learned Labour Court exercised discretion and awarded 50% backwages while directing the panchayat to reinstate the claimant, this Court has no reason Page 14 of 15 HC-NIC Page 14 of 15 Created On Fri Aug 18 06:59:48 IST 2017 C/SCA/11783/2008 JUDGMENT or justification to interfere with the said discretion by the learned Labour Court.
39. In the facts of the case, the discretion exercised by the learned Labour Court for quantifying awarding backwages at 50% does not warrant interference.
In the result, the petition fails and is rejected. Rule is discharged. As such interim relief has already come to an end, however, by way of abundant caution, it is clarified that ad interim relief granted earlier stands vacated.
Sd/-
(K.M.THAKER, J.) Bharat Page 15 of 15 HC-NIC Page 15 of 15 Created On Fri Aug 18 06:59:48 IST 2017