LPA/350/2003 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 350 of 2003 In SPECIAL CIVIL APPLICATION No. 1217 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= AHMEDABAD DISTRICT PANCHAYAT & ANOTHER. Versus MUKESHKUMAR PRAHLADBHAI PATEL. ========================================= Appearance : MR HS MUNSHAW for the Appellants. MR TR MISHRA for the Respondent. ========================================= CORAM : HONOURABLE MR.JUSTICE A. L. DAVE and LPA/350/2003 2/12 JUDGMENT HONOURABLE MR.JUSTICE S. D. DAVE Date : 09/01/2008 ORAL JUDGMENT:- (Per : A. L. DAVE, J.) 1. The appellants herein challenge the order dated 25th February, 2003, passed in Special Civil Application No.1217 of 2003, dismissing their petition, which was preferred to challenge the judgment and award passed by Labour Court, Ahmedabad, in Reference (LCA) No.1293 of 1997 dated 17th July, 2002, by which the Labour Court ordered reinstatement of the respondent- workman to his original post with 70 per cent back wages and continuity in service within a period of 30 days from the date of pronouncement of the award. 2. The facts of the case, in brief, can be stated thus: 2.1 The respondent was working as driver with the appellant. According to him, he was appointed in the month of May 1990 and he joined the duty on 22nd May, 1990. His services came to be terminated on 24th August, 1991 without any reason. There was no allegation of any misconduct, no departmental inquiry and the services were terminated. He, therefore, raised an industrial dispute in the year 1996, which was referred to the Labour Court and Reference No. (LCA) 1293 of 1997 came to be registered. LPA/350/2003 3/12 JUDGMENT 2.2 The Labour Court considered the question and, ultimately, found some substance in the Reference and, therefore, allowed the Reference in part, directing the appellant to reinstate the respondent with 70 per cent back wages and continuity of service. 2.3 The case of the appellant before the Labour Court was that the respondent abandoned the service from 24th August, 1991. It was also contended that a regularly recruited driver has been absorbed by the appellant in place of the respondent. It was also the case of the appellant that the respondent was employed on temporary and adhoc basis without following the requisite procedure of recruitment; that he was appointed for 29 days on each occasion; and, therefore, he cannot be absorbed as a regular employee. It was also contended that the respondent raised the dispute after a lapse of about six years, which should be considered to reflect abandonment of service and gainful employment thereafter. 2.4 The Labour Court negatived all the contentions raised by the appellant and, ultimately, passed the award on 17.7.2002, directing reinstatement with continuity of service and 70 per cent back wages. 2.5 Aggrieved by the said award, the appellant preferred Special Civil Application No.1217 of 2003. The said petition came to be dismissed at the stage of admission while observing that the LPA/350/2003 4/12 JUDGMENT Labour Court took care of the delay aspect in raising the dispute by not awarding back wages for the period which is alleged to have been whiled away by the workman by not approaching the Court. The learned Single Judge also observed that the appellant, petitioner before him, did not produce any material about the gainful employment of respondent-workman and, therefore, the award of 70 per cent back wages cannot be said to be on higher side and, ultimately, the petition was dismissed. 2.6 Aggrieved by the dismissal of the petition, the petitioner-employer establishment has preferred this appeal mainly on the ground that the learned Single Judge failed to appreciate that the case was that of abandonment of work by the employee and, therefore, it will be covered by Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (“the Act” for short) and, therefore, provisions of Section 25-F of the Act were not required to be complied with. It is a ground in appeal that the learned Single Judge failed to appreciate that the respondent approached the Labour Court after six years and, therefore, the Reference ought not to have been entertained by the Labour Court on that ground alone. It is also contended that the learned Single Judge erred in not appreciating that the respondent was provided work purely on temporary and adhoc basis for a period of 29 days and was issued such type of appointment orders and, therefore, his case would be covered under Section 2(oo)(bb) of the Act. Non-explanation of delay on the part of the respondent was also not considered by the Labour Court and the learned Single Judge failed to appreciate that aspect. LPA/350/2003 5/12 JUDGMENT 3. We have heard learned Advocate, Mr. Munshaw, for the appellant and learned Advocate, Mr. Mishra, for the respondent. 4. Learned Advocate, Mr. Munshaw, has raised the same grounds as narrated in the memo of appeal and has additionally indicated that subsequent to the abandonment of the job by the respondent, the appellants have appointed a regularly recruited driver on the post and no post is vacant. Mr. Munshaw has submitted that the respondent, after abandoning the job, was gainfully engaged and he raised the dispute after six years. Till then, he did not take any action against the so called or alleged termination of service. Mr. Munshaw has also submitted that it is a matter of record of the petition and even admitted by the respondent that he served with the appellants between 22nd May, 1990 and 24th August, 1991 and that, during that period, he was given fixed term appointments of 29 days periodically. Differently put, the respondent was not recruited by following requisite or prescribed procedure of recruitment. His appointment was also to make a stop gap arrangement till a regularly recruited driver is appointed, so that health services can be rendered by the appellants. Further, Mr. Munshaw has submitted that delay of six years in taking action was not at all explained by the respondent, which aspect was not considered either by the Labour Court or by the learned Single Judge. According to Mr. Munshaw, if the order is permitted to subsist, it would create administrative problems in the sense that the post of driver is not vacant as regularly recruited driver came to be appointed and it would unsettle a situation LPA/350/2003 6/12 JUDGMENT which is settled for nearly 15 years. Mr. Munshaw has submitted that this may lead to further litigation as well. He has, therefore, submitted that this appeal may be allowed. 5. Learned Advocate, Mr. Mishra, on the other hand, has submitted that this appeal itself is not maintainable as the petition was under Article 227 of the Constitution of India. He has contended that the appellants did not take a plea either before the Labour Court or before the learned Single Judge that a regularly recruited driver is appointed on the post and that this plea is coming up for the first time in this appeal. Mr. Mishra has also submitted that the respondent's delay in approaching the Labour Court has been appropriately dealt with by the Labour Court by awarding the back wages from the date of Reference rather than from the date of termination. Mr. Mishra has further submitted that the appellants did not comply with the provisions contained in Section 25-F of the Act and, therefore, the order passed by the Labour Court is just, legal and reasonable and may not be interfered with. 6. In rejoinder to the reply by learned Advocate, Mr. Mishra, learned Advocate, Mr. Munshaw, for the appellants as submitted that the petition was preferred under Articles 226 and 227 of the Constitution of India and not only under Article 227 of the Constitution of India. The prayer is also for a writ of certiorari which can be issued only in exercise of jurisdiction under Article 226 of the Constitution of India and, therefore, it cannot be said that the appeal would not be maintainable. LPA/350/2003 7/12 JUDGMENT 7. We have considered rival side submissions. It is clear and not even disputed by the respondent that his first appointment was by virtue of an order dated 22nd May, 1990, which was passed on the basis of an order dated 20th April, 1990. It is also not in dispute that the appointment was made, initially, for a period of 29 days, which was, thereafter, followed by periodical appointments for 29 days at a time and, on the basis of last such appointment, the respondent continued to work upto 24th August, 1991. 7.1 It is, thus, clear from the record that the appointment of the respondent was made for a fixed period purely on temporary and adhoc basis only with a view to see that health services were not discontinued for want of driver of the vehicle. Thus, the appointment of the respondent was temporary and adhoc and not a regular appointment made after following prescribed procedure for recruitment. 7.2 It also appears that subsequent to discontinuation of work by the respondent, a regularly recruited driver came to be appointed. It is contended by learned Advocate, Mr. Mishra, that this plea is taken up, for the first time, in this Court. However, it is not possible to accept this contention for the reason that ground (ii) of the petition clearly indicates that a plea was taken both before the Labour Court as well as the learned Single Judge on this aspect. In clause (ii) of paragraph 4 of the petition, it is averred thus: LPA/350/2003 8/12 JUDGMENT “(ii)......It ought to have been appreciated that even a regular driver was available with effect from 10th September, 1991 as per the certificate on the record of the Labour Court.” It is, thus, clear that the plea that the respondent was appointed on temporary and adhoc basis and that a regularly recruited driver came to be appointed was raised both before the learned Single Judge as well as the Labour Court. 7.2.1 As a consequential development, it has to be noted that the post is not vacant and is filled in by a regularly recruited employee as against temporary and adhoc appointment of the respondent. 7.3 It is also a matter of record that the respondent, admittedly, worked only upto 24th August, 1991. His first appointment was on 22nd May, 1990. It is also clear from the record and not disputed up-till this time that, periodically, fresh appointments were given to the respondent. Therefore, on the date on which the services of the respondent were discontinued, he was not a regularly appointed employee and his services were periodical, temporary and adhoc. In light of this situation, it cannot be said that the respondent came to be retrenched from service, if provision contained in Section 2(oo)(bb) of the Act is taken into consideration, which runs as under :- '(oo) “retrenchment” means the termination by the employer LPA/350/2003 9/12 JUDGMENT of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include- (a) ... (b) ... (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or such contract being terminated under a stipulation in that behalf contained therein;' It is of no consequence whether, on 24th August, 1991, the respondent abandoned the service or whether his services were terminated so far as the aspect of retrenchment is concerned. The fact remains that the services rendered by the respondent was discontinued from 24th August, 1991 and, prior thereto, his appointment was for a fixed term, temporary and adhoc. If the termination of service does not fall within the definition of retrenchment, there is no question of compliance of Section 25F of the Industrial Disputes Act. The finding of the Labour Court that there is non-compliance of Section 25F, therefore, cannot be upheld. 8. We notice that a dispute came to be raised and Reference made in the year 1996 against the termination of service on 24th August, 1991, i.e. nearly after five years. If the respondent LPA/350/2003 10/12 JUDGMENT was terminated from service, he would not have waited for such a long spell before raising a dispute and getting it referred to the Labour Court for adjudication. It appears that the respondent accepted the loss of job as a fact of life and, then, later on, had a second thought and raised the dispute after a lapse of about six years. No attempt is made to explain the delay. The law helps the vigilant. It appears that after the discontinuation of services of the respondent from 24th August, 1991, a regularly recruited driver came to be appointed on the said post and this aspect was made part of the record of the Labour Court. That action was prior to the Reference and, now, if the order impugned is sustained, it may result into unsettling a lawfully settled situation. 9. So far as maintainability aspect of the appeal is concerned, we may note here that the petition was preferred not only under Article 227 of the Constitution but also under Article 226 of the Constitution. The petitioner challenged the order of the Labour Court and prayed for a writ of certiorari and any other appropriate writ or direction and the order of the learned Single Judge does not clearly state as to under which jurisdiction the order is passed, whether under Article 226 or under Article 227 or both. In such a situation, in our view, it would not be proper or legal to throw away the appeal on the ground of non- maintainability. 10. Learned Advocate, Mr. Mishra, has relied on an order of the Apex Court dated 1st December, 2006, passed in S.L.P. No.20351 of 2006, where dismissal of L.P.A. on the ground of LPA/350/2003 11/12 JUDGMENT maintainability came to be upheld by the Apex Court. In that matter, a Co-ordinate Bench of this Court came to a conclusion that the petition was preferred under Article 227 of the Constitution and, therefore, appeal was not maintainable. We may refer to decision in the case of Ishwarbhai Narottambhai Patel v. K. H. Trivedi, reported in 2003(3) GLR 1878, where a view is taken that, if petition is both under Articles 226 and 227 of the Constitution, an appeal would be maintainable under Clause 15 of the Letters Patent Clauses. We, therefore, do not accept the contention by learned Advocate for the respondent on maintainability aspect. 11. The fact of that matter is that the appointment of the respondent was temporary and adhoc; that there is no material to to show that his services were terminated; that there is material to show that the appointment of the respondent was made from time to time on temporary basis; that he raised dispute, for the first time, after six years; and that there was total inaction on the part of the respondent for a period of six years. If the respondent was really in service and wanted to continue as such, he would have raised a dispute about the termination of service promptly and he would not have waited for a long period of six years. No attempt appears to have been made to explain total inaction on the part of the respondent for a period of six years, which would further weaken the case of the respondent. 12. The above aspects have not been properly appreciated or considered by the Labour Court and the award of the Labour LPA/350/2003 12/12 JUDGMENT Court has been upheld by the learned Single Judge. We are, therefore, of the view that the award of the Labour Court as well as the order of the learned Single Judge cannot be permitted to stand. It may, ultimately, result into unsettling a situation which is settled for more than a decade, namely, appointment of a regularly recruited driver. 13. In the result, the appeal is allowed. The award of the Labour Court dated 17th July, 2002, passed in Reference (LCA) No.1293 of 1997 and the order of the learned Single Judge dated 25th February, 2003, passed in Special Civil Application No.1217 of 2003 are hereby quashed and set aside. No costs. [ A. L. DAVE, J. ] [ S. D. DAVE, J. ] gt