Gujarat High Court Case Information System Print SCA/8664/2009 12/ 12 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8664 of 2009 [ENTITY] - Petitioner(s) Versus [ENTITY] - Respondent(s) Appearance : MS [ENTITY] for Petitioner(s) : 1, MR [ENTITY] for Respondent(s) : 1, CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 11/05/2010 ORAL ORDER
1. Heard learned AGP Ms.[ENTITY] for petitioner State of Gujarat and learned advocate Mr.[ENTITY] for respondent.
2. In present petition, petitioner has challenged award passed by Labour Court, Palanpur in [CASE NUMBER], Exh.47, dated 1.4.2008 whereby Labour Court has granted reinstatement with continuity of service without back wages of interim period.
3. Learned AGP Ms.[ENTITY] has given facts of present case, which are as under :
3.1 That the respondent workman was terminated by the petitioner and therefore he gave demand notice and raised the dispute before the conciliation officer. Upon the failure of the conciliation proceedings referred under [SECTION] of the [ACT] to be made to the Labour Court, Palanpur being [CASE NUMBER]. As per the allegation made in the statement of claim that workman was working as daily wager under petitioner department from 1989. He has also alleged that he has worked for more than 240 days in every year and the work was taken by the petitioner from 6 AM to 6 PM. In the season of summer he had to stayed for 24 hours in the Gujarat Bhavan and when pilgrims called the workman, he had to remain present in the service of pilgrims and in the season of summer the petitioner has taken the work for 24 hours. The respondent has worked in the petitioner department with spirit and faithfully. That there was no unsatisfactory report against him by the petitioner and there was no complaint against the respondent, though from 20.9.1991 he was terminated orally by the petitioner department. That before the termination he was not given notice or notice pay and even not retrenchment compensation was paid to him and it is also alleged that without having any fault and having any reason the petitioner terminated him orally on 20.9.1991 which is illegal. That respondent workman is unemployed from the date of termination. And also alleged that he is also facing the difficulties for survival for his family.
That it was alleged that before the Labour Court by petitioner herein that respondent workman was working as daily wager on a daily pay at Gujarat Bhavan Mountabu. That when the rush of the pilgrims was increased in the season of summer, he was called for work. That the respondent workman has worked for 234 in the year 1990 and in the year 1991 he has worked for 174 days and therefore as per the Government Road and Building Department Resolution No.DRE/2188/ 39009115/G/2 dated 30.5.1989. In Issue No.2 that daily wager has to completed 240 days in the last year under [SECTION] of the [ACT] and to take the benefits by the account from the resolution dated 17.10.1988. Thus the respondent workman has not completed 240 days in both the year therefore he cannot be regularized and there is no question arise to give any benefits. That the petitioner has taken work from respondent from 8 to 12 am and 14 to 18 pm in a day. The present petitioner department is a Government department and working as per the rules and regulations of the Government. It is respectfully submitted that the present petitioner department is doing activity like social welfare and in the interest of public at large. It is also stated that the present petitioner department is not doing any type of business activity. Therefore, present petitioners do not fall under the definition of the Industry which is defined under [SECTION] of the [ACT] There is no relation between the petitioner and respondent workman as employer and employee. Therefore, Labour Court has no jurisdiction to entertain the said reference and reference filed by present respondent workman was prayed to rejected on the ground of want of jurisdiction. That respondent workman was allotted the work as a daily wager, as and when as per the necessity of department. As and when the respondent workman worked, he was paid salary for that particular period. The respondent workman has not completed 240 days in any of the calendar year.
4. Learned AGP Ms.[ENTITY] submitted that Labour Court has committed gross error in coming to conclusion that workman has completed 240 days continuous service within a preceding 12 months from date of termination. She also submitted that Labour Court has not properly appreciated evidence which are on record and also not properly appreciated documentary evidence which are on record. She further submitted that respondent workman was daily wager and as and when work is available, he was being called by petitioner and therefore, question of termination by petitioner does not arise. She submitted that from respondent workman, no over time work has been taken by petitioner and his working hours are only 8 hours and not more than that. She submitted that written statement filed by petitioner vide Exh.13 and denying facts as mentioned in statement of claim by workman. She also submitted that it was denied by petitioner that respondent was working for 24 hours in the summer season and for 12 hours in other seasons. She also submitted that workman was not a permanent employee and not satisfied requirement of [SECTION] of the [ACT] even though Labour Court has passed an award contrary to law laid down by Apex Court. She submitted that [ACT] not applicable to petitioner establishment. For that, certain decisions have been relied upon by petitioner before Labour Court as referred in Para.9. She also submitted that Labour Court has not properly considered question of Industry and decided the matter contrary to record.
5. Learned advocate Mr.[ENTITY] for respondent workman submitted that before Labour Court vide Exh.46, statement of presence of workman was produced by petitioner and according to that statement, from March,1990 to September,1991, workman was remained in continuous service and during that period, workman has in all completed 251 days' service. But at the time of terminating the service of workman, no notice / notice pay was paid and no retrenchment benefit was paid to workman by petitioner. Therefore, he submitted that Labour Court has rightly examined Issue No.2 while considering Exh.46 which has been produced by petitioner and accordingly, in case of breach committed by petitioner of [SECTION], then Labour Court has rightly granted reinstatement in favour of respondent workman. For that, according to him, Labour Court has not committed any error which requires interference by this Court.
6. I have considered submissions made by both learned advocates and also perused the award passed by Labour Court. The Labour Court has come to conclusion looking to facts that workman was working in Gujarat Bhavan, Mountabu where Gujarat Bhavan is taking charge of room which has been occupied by certain pilgrims and also receiving rent from said customers and also receiving amount for supplying meals and breakfast. The Labour Court has also considered that this being a commercial activity being carried out by petitioner while maintaining Gujarat Bhavan Rest House. Therefore, it cannot consider to be a sovereign function of the State. Therefore, Labour Court has considered a decision of Division Bench of this Court in case of PWD Employees' Union through [PRECEDENT] where this question has been examined in detail and come to conclusion that public works department is an Industry within the meaning of [SECTION] of the [ACT] Therefore, contentions raised by learned AGP Ms.[ENTITY] cannot be accepted.
7. The Labour Court has also considered certain decisions which have been relied by both parties as discussed in Para.9 and also the Labour Court has rightly examined Issue No.2 while considering Exh.46 and ultimately, has come to conclusion that from March,1990 upto September, 1991, workman was remained in continuous service and considering presence details given by petitioner Exh.46, in October, 1990 for 27 days, in November,1990 for 26 days, in December, 1990 for 26 days, in January, 1991 for 17 days, in February,1991 for 24 days, in March,1991 for 26 days, in April,1991 for 18 days, in May,1991 for 12 days, in June for 24 days, in July,1991 for 18 days, in August,1991 for 16 days and in September 1991 for 17 days and in all, it comes to 251 days continuous working of respondent workman within a preceding 12 months from date of termination. Undisputedly, at the time when termination order has been passed, [SECTION]G of the [ACT] not been followed by petitioner. Therefore, order of termination is ab initio void. The Labour Court has examined factual aspect and given finding of fact and decided Issue No.2 that workman has completed continuous service of 240 days and [SECTION] has been violated. Therefore, order of termination has been set aside by Labour Court. According to my opinion, contentions raised by learned AGP Ms.[ENTITY] cannot be accepted because facts have been otherwise proved on the basis of documents produced by petitioner vide Exh.46.
8. In case when [SECTION] has been violated, then workman is entitled the right of reinstatement. In such circumstances, the Apex Court has considered the scope of [SECTION] of the [ACT] case of [PRECEDENT]. Relevant observations of aforesaid decision are in Para.13, 14 and 15, which is quoted as under :
It is true that in the writ petition filed by it, the corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the corporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for construction work on 5.3.1986 and he worked in that capacity and also as Work Munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months' specified in order dated 5.2.1987, the appellant continued to work till 5.7.1988 when first notice of retrenchment was issued by the Managing Director of the corporation. Therefore, it was not open for the corporation to contend that the appellant had not completed 240 days service. Moreover, it is settled law that for attracting the applicability of [SECTION] of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of `last come first go' without any tangible reason. In [PRECEDENT], this Court considered an analogous issue in the context of [SECTION] of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis. It was argued on behalf of the bank that an offer of re-employment envisaged in [SECTION] should be confined only to that category of retrenched workmen who are covered by [SECTION] and a restricted meaning should be given to the term `retrenchment' as defined in [SECTION]. While rejecting the argument, this Court analysed [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT], referred to [SECTION] and held:
"[SECTION] then provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. [SECTION] and [SECTION] of the [ACT] prescribe the mode of re-employment. [SECTION] requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. [SECTION] prescribes the mode of re-employment of retrenched workmen. The requirement in [SECTION] is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment. Shri [ENTITY] contends that [SECTION] and [SECTION] are unworkable unless the application of [SECTION] is confined to the category of retrenched workmen to whom [SECTION] applies. We are unable to accept this contention.
[SECTION] requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom [SECTION] applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. [SECTION], therefore, does not present any difficulty. [SECTION] speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of [SECTION] are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re-employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by [SECTION] can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available. Application of [SECTION] to the other retrenched workmen not covered by [SECTION] does not, in any manner, prejudice those covered by [SECTION] because the question of consideration of any retrenched workman not covered by [SECTION] would arise only, if and when, no retrenched workman covered by [SECTION] is available for re-employment. There is, thus, no reason to curtail the ordinary meaning of "retrenched workmen" in [SECTION] because of [SECTION] and [SECTION], even assuming the rules framed under the Act could have that effect.
The plain language of [SECTION] speaks only of re-employment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate to the wide meaning of `retrenchment' given in [SECTION]. [SECTION] also uses the word `retrenchment' but qualifies it by use of the further words "workman who has been in continuous service for not less than one year". Thus, [SECTION] does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words "workman who has been in continuous service for not less than one year".
It is clear that [SECTION] applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. [SECTION] deals with all retrenchments while [SECTION] is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. [SECTION] prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by [SECTION]"
(emphasis supplied)
14. The ratio of the above noted judgment was reiterated in [PRECEDENT]. In that case, the Court interpreted [SECTION] of the [ACT], which is pari materia to [SECTION] of the Act, and held:
Now this provision is not controlled by conditions as to length of service contained in [SECTION] (which corresponds to [SECTION] of the [ACT]). [SECTION] does not require any particular period of continuous service as required by [SECTION] In [PRECEDENT] in a matter which arose under this very [SECTION] of the [ACT], it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. See also in this connection [PRECEDENT].
Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers. There is no such restriction in [SECTION] of the [ACT] read with [SECTION] of the [ACT] which defines "workman".
It is true that the rule of "first come, last go" in [SECTION] could be deviated from by an employer because the section uses the word "ordinarily". It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of confidence, etc., as held in [PRECEDENT]. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of [SECTION] of the [ACT].
15. The distinction between [SECTION] and [SECTION] of the Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd. v. [PRECEDENT], in the following words:
"We are not oblivious of the distinction in regard to the legality of the order of termination in a case where [SECTION] of the Act applies on the one hand, and a situation where [SECTION] thereof applies on the other. Whereas in a case where [SECTION] of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of [SECTION] and [SECTION] thereof he may not have to establish the said fact. See: [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT]."
(See : [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT], reported in 2010-II-CLR-1)
9. It is necessary to note that service of workman was terminated in the year 1992, even though Labour Court has not granted any amount of back wages for a long period and only granted continuity of service to workman. Therefore, according to my opinion, Labour Court has passed balanced award where finding of fact has been decided which cannot be disturbed by this Court while exercising the powers under [SECTION] of the [ACT]. (See : [PRECEDENT].)
10. Therefore, according to my opinion, Labour Court has not committed any error which requires interference by this Court. Therefore, contentions raised by learned AGP Ms.[ENTITY] cannot be accepted and hence, rejected. Therefore, there is no substance in present petition. Accordingly, present petition is dismissed.
([ENTITY],J.) (vipul)