Gujarat High Court
Darshandan Surapdan Gadhvi Expired ... vs Gujarat State Electricity Corporation ... on 27 January, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/LPA/854/2021 ORDER DATED: 27/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 854 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 723 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 854 of 2021
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DARSHANDAN SURAPDAN GADHVI EXPIRED THROUGH LH
Versus
GUJARAT STATE ELECTRICITY CORPORATION LIMITED THROUGH
CHIEF ENGINEER
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Appearance:
MR JEET Y RAJYAGURU(8039) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 27/01/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the judgment and order dated 24.7.2019 passed by the learned Single Judge in Special Civil Application no.723 of 2010, the heirs of workman who expired during pendency of the Writ Petition has preferred this intra-Court appeal under Clause 15 of the Letters Patent.
2. Following facts emerge from the record of the appeal:-
2.1 That the respondent workman worked for 106 days and was terminated in the year 1985. The respondent workman raised a dispute which was Page 1 of 8 Downloaded on : Thu Jan 27 20:53:11 IST 2022 C/LPA/854/2021 ORDER DATED: 27/01/2022 referred to the Labour Court, Bhuj being Reference (LCB) no.82/99. The Labour Court relying upon the circular of the respondent dated 7.11.1986 came to the conclusion that there is breach of Sections 25F, G and H of the Industrial Disputes Act and passed an award directing the authority to reinstate the appellant's predecessor with continuity of service and 25% backwages. The said award dated 27.7.2009 was challenged by the respondent before this Court by way of filing a Writ Petition being Special Civil Application no. 723/10. The same is allowed the present appeal is filed by the heirs of the original workman who expired during pendency of this litigation.
3. Heard Mr. Jeet Rajyaguru, learned advocate for the appellants and Mr. Premal R. Joshi, learned advocate for the respondent.
3.1 It was contended by Mr. Rajyaguru, learned advocate for the appellants that as per the policy decision of the respondent, once the workman completes 90 days, he is entitled to regularization. Referring to the circular dated 7.11.1986, it was contended by the learned advocate for the appellants that similar treatment ought to have been given to the predecessor of the appellant and now that Page 2 of 8 Downloaded on : Thu Jan 27 20:53:11 IST 2022 C/LPA/854/2021 ORDER DATED: 27/01/2022 he has expired though the question of reinstatement does not arise, the appellants would be entitled to some compensation in view of reinstatement. On the aforesaid grounds, it was contended that the appeal requires consideration.
4. Per contra, Mr. Premal Joshi, learned advocate for the respondent has opposed the appeal. Mr. Joshi contended that the Labour Court has committed an obvious error in considering the evidence and has wrongly come to the conclusion that there is breach of relevant provisions of the Act and the learned Single Judge has rightly allowed the Writ Petition filed by the respondent. The learned Single Judge has threadbare considered the issues which arise in this appeal. In Paragraph 4 of the impugned judgment, we find that the learned Single Judge has considered the questions that fall for consideration and has observed thus:-
"5. Having perused the record more particularly the impugned judgement and award with the assistance of the learned counsel for the respective parties, this court is of the opinion that the impugned judgement and award evidences the lack of cardinal principles of law, for the following reasons:
Page 3 of 8 Downloaded on : Thu Jan 27 20:53:11 IST 2022C/LPA/854/2021 ORDER DATED: 27/01/2022 [1] The fact that the workman was not in continuous service for 120 days during the preceding six months or 240 days during the preceding twelve months of the date of termination as the case may be was not in dispute.
Had the court below taken trouble to glance through Section 25B of the I.D.Act, it would have immediately understood that in absence of the satisfaction of one of the above two conditions, retrenchment was permissible without paying compensation or complying with the other conditions contemplated in the said provision. Thus the finding by the Labour Court as regards breach of Section 25F of the I.D. Act is not based upon the legal provision but is outcome of lack of elementary knowledge as to Section 25B of the I.D. Act.
[2] It was sheer misconception of the Labour Court to rely upon the Circular dated 07.11.1986 which was issued under the circumstances noted by the Labour Court itself in paragraph 21. The relevant quotation is as under:
"In the present case there is sufficient evidence to show that the employee has completed 106 day continuous service preceding to his retrenchment as prescribed by the Circular dated 07.11.1986 issued by the Deputy General Manager (Labour) of the opponent, so this Court has no hesitation in holding that the employee has completed continuous service of more than 90 days (106 days) as per the provision of Section 25B(i) of I.D.Act because as per Page 4 of 8 Downloaded on : Thu Jan 27 20:53:11 IST 2022 C/LPA/854/2021 ORDER DATED: 27/01/2022 Circular No. DGM(L)/IV.S.IT-
878/84/NMRWC/1011 dated 07.11.1986 issued by Deputy General Manager ( Labour) of G.E.B., Baroda which was passed as per order dated 13.11.1983 of the Industrial Tribunal, Ahmedabad by which directions were given by the Industrial Tribunal, Ahmedabad, it was clarified that the employees who were employed as NMR employees or workcharge employees after the date of the aforesaid order, but had completed continues service of 90 days would be covered by the injunction order and the Board would not be justified in discharging them from service."
[3] Despite being acquainted with the facts as above, the Labour Court refused to understand the purport of the Circular and construed it as a general policy of the petitioner not to discharge the employees with a specified term of service. From the above quotation, the source of the Circular appears to be the order dated 13.11.1983 passed by the Industrial Tribunal, Ahmedabad in a pending dispute before it and it was clarificatory Circular only concerning the employees involved in the dispute in the Industrial Tribunal, Ahmedabad. The dispute in the instant case was being adjudicated by the Labour Court, BhujKachchh; the Circular was not at all relevant nor did it contain a general policy as above. By misconstruing the circular, serious jurisdictional error was committed by the Labour Court.
[4] The Labour Court also laboured Page 5 of 8 Downloaded on : Thu Jan 27 20:53:11 IST 2022 C/LPA/854/2021 ORDER DATED: 27/01/2022 under a misconception of facts and law when it found breach of Section 25G and 25H in absence of the workman naming and proving the retention of persons junior to him in breach of Section 25H of the I.D.Act.
Concededly no detailed particulars or the name of the employees so retained were given by the workman. His bald statement was accepted as evidence. Similar is the case with Section 25H of the I.D.Act. It is settled law that a bare statement in the oral evidence would not constitute a material much less an evidence. Thus serious jurisdictional error was committed by the Labour Court in recording aforesaid finding.
[5] The issue of delay in raising the dispute was raised by the petitioner but was not addressed. In view of Prabhakar vs. Joint Director, Sericulture Department & Anr. (2015) 15 SCC 1, it was required to be gone into even if not raised. The burden was upon the workman to demonstrate how dispute was alive after so many years. No such burden was discharged.
[6] It was again misconception of law by the Labour Court to expect seniority list under Rule 81 and 82 of the relevant rules in case of workcharge employee. It is held in (2005) 8 SCC 750 Dahyabhai Surendranagar District Panchayat vs. Amarsinh that in absence of regular appointment of workmen, employer is not expected to maintain seniority list of employees engaged on daily wagescasual labour/temporary employment.
Page 6 of 8 Downloaded on : Thu Jan 27 20:53:11 IST 2022C/LPA/854/2021 ORDER DATED: 27/01/2022 [7] Assuming that the appointment of the workman was on a permanent vacant post; that by itself would not invest lien to the post; in the employee in absence of his appointment by a legal procedure. Therefore the findings that he was appointed on permanent vacant post are of no consequence.
[8] The workman has hardly served 106 days before raising the dispute. He could not establish the breach of Section 25F, 25G and 25H of the I.D. Act. The workman was thus not entitled to compensation for retrenchment. Therefore the submission that relief could be moulded on account of belated reference by denying backwages to the workman has no substance."
5. We are in total agreement with the observations made by the learned Single Judge. The predecessor of the appellants had just served for 106 days before raising the dispute and the learned Single Judge has correctly come to the conclusion that the predecessor of the appellants has failed to establish breach of Sections 25G and H of the Act. Even the contention raised by the learned advocate for the appellant that in view of reinstatement, some compensation may be awarded does not bare any merit and the same also deserves to be negatived.
Page 7 of 8 Downloaded on : Thu Jan 27 20:53:11 IST 2022C/LPA/854/2021 ORDER DATED: 27/01/2022
6. The appeal is meritless and the same deserves to be dismissed. As the appeal is dismissed, connected Civil Application also would not survive and the same stands dismissed. However, there shall be no order as to costs.
(R.M.CHHAYA,J) (NIRAL R. MEHTA,J) Maulik Page 8 of 8 Downloaded on : Thu Jan 27 20:53:11 IST 2022