SCA/6828/2004 1/57 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6828 of 2004 With SPECIAL CIVIL APPLICATION No. 8067 of 2004 With SPECIAL CIVIL APPLICATION No. 7649 of 2004 To SPECIAL CIVIL APPLICATION No. 7816 of 2004 With SPECIAL CIVIL APPLICATION No. 15208 of 2005 To SPECIAL CIVIL APPLICATION No. 15327 of 2005 With SPECIAL CIVIL APPLICATION No. 15329 of 2005 To SPECIAL CIVIL APPLICATION No. 15340 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ==================================================== 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 ? SCA/6828/2004 2/57 JUDGMENT THAKORE VITHALJI BABUJI & 122 - Petitioner(s) Versus EXECUTIVE ENGINEER & 12 - Respondent(s) ==================================================== Appearance : MR PRAKASH K JANI for Petitioner(s) : 1 – 25. MR KAMAL TRIVEDI, ADDL.ADVOCATE GENERAL WITH MS SANGITA VISHEN AGP for Respondent(s) : 1 - 13. ================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 10/08/2005 CAV JUDGMENT 1.As common question of law and facts arise in this group of petitions and Special Civil Application No.6828 of 2004 and 137 other allied petitions / matters filed by the workmen are as such cross-petitions challenging the very judgment and Award passed by the Labour Court impugned in Special Civil Application No.7649 to 7816 of 2004 and therefore, all these petitions are heard together and disposed of by this common judgment. SCA/6828/2004 3/57 JUDGMENT 2.Special Civil Application No.7649 to 7816 of 2004 are filed by the State of Gujarat (hereinafter referred to as “the Management” for convenience), being aggrieved and dissatisfied with the finding and reasoning recorded by the Labour Court in the Judgment and Award dtd.23/1/2004 in Reference (LCK) Nos.246 to 300 of 2003 and Reference (LCK) Nos.301 to 413 of 2003 with regard to Section 26(F), 25(G) and 25(H) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act” for convenience). 3.Special Civil Application Nos.6828 of 2004 with 8067 of 2004 with Special Civil Application Nos.15208 to 15327 of 2005 with Special Civil Application Nos.15329 to 15340 of 2005 are filed by 132 workmen in number challenging the Judgment and Award passed by the Labour Court, Kalol dtd.23/1/2004 in Reference (LCK) Nos.246 to 300 of 2003 and Reference (LCK) Nos.301 to SCA/6828/2004 4/57 JUDGMENT 413 of 2003 in not passing order with regard to reinstatement and back wages. 4.Heard Shri Kamal B. Trivedi, learned Additional Advocate General with Ms.Sangita Bisan, learned Assistant Government Pleader on behalf of the Management. Shri P.K. Jani, learned advocate appearing on behalf of 132 concerned workman, out of 168 petitions filed filed by the management and so far as the rest of the workmen are concerned, though served nobody appears. 5.It is the case of the Management that for the irrigation network of Dharoi Dam, the concerned workmen were engaged as a daily wager purely on temporary basis and they were to discharge their duties entrusted to them as and when require. It is also the case of the Management that all of them were engaged as such as and when irrigation work was available with the SCA/6828/2004 5/57 JUDGMENT department and availability of work to engage them daily wagers had always been depending upon the availability of the water in the Dam for the purpose of irrigation and thus for all practical purposes, the nature for activities for each of the concerned workmen were engaged can be described to be seasonal wherein the concerned workmen were coming to the work on their own. It was the case of the concerned workmen that they were working as Daily Wagers since many years and their services came to be terminated without payment of retrenchment compensation and without following any procedure as required under secs.25(F), 25(G) and 25(H) of the ID Act and all of them had worked continuously as required under sec.25(B) (1) of the ID Act and therefore, all of them raised Industrial Disputes which were referred to the Labour Court, Kalol for their adjudication being Reference (LCK) Nos.246 to 300 of 2003 and Reference (LCK) Nos.301 to 413 SCA/6828/2004 6/57 JUDGMENT of 2003. During the course of the hearing of the aforesaid References, the Management produced a Statement of days on which each of the concerned workmen had worked right from 1988 till 1999 to show that none of the workmen had worked in 1999 and therefore, there was no question of termination on 15/3/1999, as alleged by the concerned workmen, as in fact, none of the workmen were on duty either on 14/3/1999 or on 15/3/1999. However, considering the fact that most of the workmen were working for more than five years, the Labour Court recorded a finding and held that all the concerned workmen had worked continuously as contemplated under Sec.25(B)(1) of the ID Act and therefore, as no retrenchment compensation was paid before terminating the services of the concerned workmen, there is breach of Sec.25(F) of the I.D. Act. Considering the fact that subsequently the work of distribution of the water to the farmers was given to other SCA/6828/2004 7/57 JUDGMENT Cooperative Societies (Piyat Mandalies formed by the farmers themselves), which was being done by the concerned workmen earlier, the Labour Court recorded a finding and held that there is breach of Sec.25(G) and 25(H) of the I.D. Act also. However, holding that each concerned workman were offered the work as and when the work was available and that the work was available when there is water for distribution for irrigation, the Labour Court did not pass any order with regard to reinstatement. However, directed the Management – State of Gujarat to prepare a Seniority List of all the daily wagers and as and when the work is available and there is irrigation season, to offer work as per the seniority list. Being aggrieved by and dissatisfied with the finding recorded by the Labour Court in the impugned Judgment and Award with regard to breach of Sec.25(F), 25(G) and 25(H) and that the concerned workman have worked continuously SCA/6828/2004 8/57 JUDGMENT as contemplated under sec.25(B)(1) of the I.D. Act, the Management – State of Gujarat has assailed the Judgment and Award passed by the Labour Court. 6.Shri K.B. Trivedi, learned Additional Advocate General has submitted that except the above findings, the State Government is not aggrieved by the directions issued by the Labour Court in the impugned Judgment and Award i.e., with regard to preparation of Seniority List and offering work as and when the work is available as per the Seniority List etc. 7.On the other hand, the concerned workmen have also assailed the very Judgment and Award passed by the Labour Court in not passing order of reinstatement inspite of recording a finding that the concerned workmen have worked continuously as contemplated under sec.25(B) (1) of the I.D. Act and that there is breach of SCA/6828/2004 9/57 JUDGMENT Sec.25(F), 25(G) and 25 (H) and not passing any order with regard to back wages. 8.Shri K.B. Trivedi, learned Additional Advocate General has submitted that all the concerned workmen were engaged as Daily Wagers purely on temporary basis in the network of Dharoi Dam and as and when the irrigation work was available with the department, they were engaged. The availability of the work to engage them as Daily Wager had always been depending upon the availability of the water in the Dam for the purpose of irrigation. And thus, for all practical purposes, the nature of the activities for which each concerned workmen were engaged, was seasonal. It is further submitted by him that the concerned workmen were coming on their own and stopping to come for work on their own and the phenomena of recession of work which used to occur in this case with the concerned workmen, cannot be SCA/6828/2004 10/57 JUDGMENT attributed to the Management – State of Gujarat. It is further submitted that in fact, the Labour Court in the impugned judgments and Awards had specifically recorded finding while considering the question of reinstatement and back wages that all the concerned workmen were serving as Daily Wagers and as and when there was a need and the requirement, the concerned workmen were offered work. It is also further held that the nature of the work offered to the concerned workmen was depending upon the irrigation and availability of the water and the work which was being done by the concerned workman was distributing water from Canal to the farmers and water was distributed for irrigation only when the water is available upon to certain level in the Dam. Mr.Trivedi has also further submitted that merely because of some of the concerned workmen had worked for 5 years or more for some days with break the Labour Court has come to the conclusion that SCA/6828/2004 11/57 JUDGMENT the concerned workman had continuously worked as contemplated under sec.25(B)(1) of the I.D. Act and therefore, though the concerned workmen had not worked for 240 days in the last preceding year, counting from 15/3/1999 then also, the Labour Court has held that there will be breach of sec.25(F) of the I.D. Act. Mr.Trivedi, has further submitted that such a finding is not only erroneous but misinterpreting sec.25(B)(1) of the I.D. Act. Mr.Trivedi, has drawn the attention of this Court to the statement of the days for which the concerned workman had worked and has submitted that none of the 168 workmen has ever worked for 240 days in the preceding year with reference to their alleged termination i.e. 15/3/1999. It is also further submitted that as many as 93 workmen out of 168 were in fact admittedly never there in the year 1999 and therefore, even otherwise, their arise no question of their alleged termination on SCA/6828/2004 12/57 JUDGMENT 15/3/1999. It is also further submitted on the basis of said statement that as may as 134 workmen out of said 168 had never put in 240 days of work at any point of time right from the beginning their initial engagement till 1999. It is also further submitted that as many as 35 workmen out of said 168 have have never worked in last 5 years. It is, therefore, submitted that as none of the workmen had worked for 240 days in the preceding year with reference to their alleged date of termination i.e. 15/3/1999,there is no question of violation of Sec.25(F) of the I.D.Act more particularly as stated hereinabove, the workmen were coming on their own and stopping to come for work on their own, considering the availability of work and the water being available for distribution for irrigation and as such there is no retrenchment at all by the Management – State of Gujarat. SCA/6828/2004 13/57 JUDGMENT It is further submitted by Mr.Trivedi that as stated hereinabove, in fact, none of the workman was working on 15/3/1999 and/or 14/3/1999 and therefore, there was no question of any retrenchment by the Management -State of Gujarat as alleged on 15/3/1999. Therefore, it is submitted that when there was no retrenchment at all as alleged on 15/3/1999, there was no question of breach of sec.25(F) of the I.D. Act. 9.Mr.Trivedi has further submitted that as stated hereinabove, none of the workman has completed and/or worked for 240 days in the preceding year with reference to their alleged date of termination i.e. 15/3/1999 and therefore, there is no question of breach of sec.25(F) of the I.D.Act. Mr.Trivedi, has further submitted that none of the daily wager can be said to have put in one year continuous service within the meaning of sec.25(B) of the I.D. Act in view of SCA/6828/2004 14/57 JUDGMENT the fact that they were coming for work on their own and when season used to start on the availability of the water for irrigation in the Dharoi Dam and they used to stop coming for work on their own on completion of the irrigation work. He has further submitted that the interpretation occurred because of cession cannot be described as part of uninterrupted service as per sec.25(B)(1) of the I.D.Act. He has further submitted that the expression of recession of work occurring in sec.25(B)(1) takes it colour for its meaning from the earlier expression used in the said sections i.e. (a) sickness (b) unauthorized leave (c) an accident (d) strike which is illegal and lock out. It is submitted that in the present case intermittent cession of work was directly attributed to the factum of the said daily wagers having stopped to come to work on their own on various occasions and the same was not within the control of the employer. It is SCA/6828/2004 15/57 JUDGMENT further submitted that none of the daily wager can be said to have completed 1 year of the continuous service within the meaning of sec.25(B)(2) of the I.D. Act, inasmuch as none of them have put in 240 days during the period of 12 calender months preceding the alleged date of termination dtd.15/3/1999. So far as the finding given by the Labour Court with regard to sec.25(G) of the I.D. Act is concerned, it is submitted by Mr.Trivedi that there is no breach of said provisions since after 15/3/1999, no junior workman was retained and after 15/3/1999, initially a contract system and thereafter Piyat Mandalies of farmers' themselves have been looking after the irrigation work as and when required and therefore, the finding of the Labour Court with regard to the breach of sec.25(G) of the I.D. Act is erroneous and requires to be quashed and set aside. SCA/6828/2004 16/57 JUDGMENT The sum and substance of the arguments advanced and submissions made on behalf of the Management – State of Gujarat is as under; (1)There is no retrenchment by the Management – State of Gujarat as alleged on 15/3/1999 at all. (2)There is no evidence that the concerned workmen were not offered work due to cession of work. (3)None of the workmen had completed more than 240 days in the preceding year with reference to their alleged date of termination i.e. 15/3/1999. (4)There is no evidence that there is any retrenchment as alleged on 1/3/1999 and/or that any of the workmen were on duty and/or working on 15/3/1999. There is no retrenchment as contemplated under sec.2(o)(o) of the I.D. Act. Merely because some of the workmen had worked for some years for some days as a Daily wagers, and not completed 240 days in the preceding SCA/6828/2004 17/57 JUDGMENT year with reference to their alleged date of termination i.e. 15/3/1999, it cannot be said that the workmen had continuously worked as contemplated under sec.25(B) (1) of the I.D. Act. (5)The action of termination is missing as there was no work. They themselves have stopped coming. (6)The availability of the work for irrigation in Dharoi Dam was depending upon the availability of water that too up to a certain level in the Dam and the concerned workmen were performing the duty of distributing water to the farmers for irrigation. Therefore, the work was seasonal work. None of the daily wagers can to be said to have completed 1 year service within the meaning of sec.25(B)(2) inasmuch as none of them have put in 240 days service in 12 calender month preceding the date of alleged termination. (7)The provisions of sec.25(B)(1) and 25(B)(2) is SCA/6828/2004 18/57 JUDGMENT as such is in aid to Sec.25(B)(1) and clarificatory in nature inasmuch as for considering sec.25(F) it is to be proved that the concerned workmen ought to have worked continuously in the last preceding year inclusive of service which may be interrupted on account of eventuality such as sickness etc. as mentioned in sec.25(B)(1) and what is meant by sec.25(B)(2) is that if in the entire preceding year the workman has worked for 240 days in all, but not continuously, it should be deemed to be a continuous service within the meaning of sec.25(B)(1) of the I.D. Act. Therefore, even for considering sec.25(B)(1), completion of 240 days in the preceding year is must. (8)After 1999, earlier system of irrigation work where the daily wagers were working, is dispensed with and no juniors to the concerned workmen are retained as such in the same cadre of daily wager in service and now after 1999 SCA/6828/2004 19/57 JUDGMENT the farmers themselves by forming Piyat Mandali carry out the said work and many of the concerned workmen are already engaged by the said Piyat Mandalies. 10.Mr.K.B. Trivedi, learned Additional Advocate General has relied upon the following decisions in support to his above submissions;- (i)Delhi Cloth & General Mills Company Limited Vs. Its workmen and Ors., reported in AIR 1967 SC 469. (ii)Jaipur Udyog Limited Vs. CWK Sangh, reported in 1972 SC 1352. (iii)Judgment of the Division Bench of this Court in the case of Executive Engineer (Mechanical) Vs. Chetan P. Oza, rendered in LPA No.899 of 1998 in SCA No.3806 of 1999. (iv)G. Yadi Reddi Vs. the Management of Brooke Bond India Ltd., reported in 1994 LAB I.C. 186. (v) Essen Deinki Vs. Rajive Kumar, reported in (2002) 7 SCC 400. SCA/6828/2004 20/57 JUDGMENT (vi)U.P. Drug and Pharmaceutical Company Ltd. Vs. Ramanuj Yadav, reported in (2003) 8 SCC 334. (vii) Range Forest Officer Vs.ST Hadimani, reported in (2002) 3 SCC 25. (viii) Manager, Reserve Bank of India, reported in (2005) 5 SCC 122. (ix) Madhyamik Shiksha Parishad,reported in (2005) 5 SCC 122. (x) State of Gujarat Vs. Ramesh Rathod, reported in 44(3) GLR 2590. (xi) Workmen of Sudder Workshop of Jorehaut Tea Co.Ltd., reported in (1980) 3 SCC 406. (xii) Union of India Vs. Uma Maheswari,reported in (1997) 11 SCC 228. (xiii) Haryana Tourism Corporation Ltd. Vs. Fakir Chand, reported in (2003) 8 SCC 248. (xiv) Amreli Municipality Vs. GPME Union, reported in (2004) 2 GLH 692 (FB). (xv) Koodaranji Service Co.Op.Bank Vs. M.M. Lissy, reported in 1994 (II) LLJ 97. (xvi) State of Haryana Vs. Om Prakash, reported SCA/6828/2004 21/57 JUDGMENT in (1998) 8 SCC 733. (xvii) Himanshu Kumar Vs. State of Bihar, reported in 1998(II) LLJ 15 SC. 11.1.Relying upon the judgment and order passed by the Division Bench of this Court, in the case of the Executive Engineer (Mechanical) (Supra) rendered in LPA No.899 of 1998, it is submitted that while considering the term “continuous service”, if the workman has not worked for 240 days in last preceding year, he holds no right for reinstatement. In another words, if the workman has not completed 240 days in the last preceding year with reference to their alleged date of termination, benefits of the provisions of sec.25(F), 25(G) and 25(H) of the I.D. Act are not available to him. 11.2.Replying upon the judgment of A.P. High Court, in the case of G.Yadi Reddi (Supra), it is submitted that the expression “cession of SCA/6828/2004 22/57 JUDGMENT work” occurring in sec.25(B)(1) takes its colour for its meaning from earlier expression used in the section viz. [i] sickness, [ii] unauthorized leave [iii] an accident [iv] strike which is illegal and [v] lock out. And in the present case the intermittent cessation of work was directly attributable to the factum of the said daily wagers having stopped to come to work on their own on various occasions and the same was not within the control of the employer. 11.3.Relying upon the judgment of the Hon'ble Supreme Court in the case of Essan Deinki (Supra), it is submitted that for proving the contention with respect of 240 days as contemplated under sec.25(B), burden of proof lies on him. 11.4.Relying upon the judgment of the Hon'ble Supreme Court in the case of U.P. Drugs and SCA/6828/2004 23/57 JUDGMENT Pharmaceuticals Co.Ltd. (Supra) more particularly para 6 to 10 of the said judgment, Mr.Trivedi has submitted that for getting benefit of Sec.25(B) of the I.D. Act it must be shown that the workman was employed for a period of not less than 12 calender months and during those 12 calender months he has worked for not less than 240 days. 11.5.Relying upon the judgment of the Hon'ble Supreme Court in the case of Range Forest Officer(Supra), it is submitted that it is for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination and filing of an affidavit is only his own-statement in his favour and that cannot be recorded as sufficient evidence or thing or direction to come to the conclusion that the workman had in fact worked for 240 days in a year. SCA/6828/2004 24/57 JUDGMENT 11.6.Relying upon the judgment of the Hon'ble Supreme Court in the case of the Manager, Reserve Bank of India (Supra) more particularly para 19, 30 to 32, it is submitted by Mr.Trivedi that as held by the Hon'ble Supreme Court the workman has to prove by documentary evidence that he has worked continuously for 240 days in a preceding year of his alleged termination. 11.7.Mr.Trivedi relying upon the judgment of the Hon'ble Supreme Court in the case of Madhyamik Shiksha Parishad (Supra) more particularly para 5 of the said judgment, has submitted that as held by the Hon'ble Supreme Court completion of 240 days does not under the Industrial Dispute Act import the right of regularization. 11.8.Relying upon the judgment of the Division Bench of this Court in the case of State of Gujarat Vs. Ramesh Bhopabhai Rathod (Supra), it SCA/6828/2004 25/57 JUDGMENT is submitted by Mr.Trivedi that unless the retrenchment is proved, there would not arise any question of violation of statutory provisions of sec.25(F) and for that purpose, the provisions of sec.25(G) as well as 25(H). 11.9.Relying upon the judgment and the order of the Hon'ble Supreme Court in the case of Workmen of Sudder Workshop of Jorehaut Tea Co.Ltd. (Supra), it is submitted that the departure from sec.25(G) on justifiable ground is always permissible. 11.10.Relying upon the judgment of the Hon'ble Supreme Court in the case of Union of India Vs. Uma Maheshvari (Supra), and Hariyana Tourism Corporation (Supra), Mr.Trivedi has submitted that considering the nature of work performed by the concerned workmen and now the earlier work of irrigation Network which the daily wagers were working, is totally dispensed with SCA/6828/2004 26/57 JUDGMENT and nobody like the concerned workman has been retained as such in the same cedar of daily wager in service and now the farmers themselves by forming Piyat Mandali presently carry out the said work, it is requested that no relief in favour of the concerned workmen is required to be granted. 11.11.Relying upon the judgment of the Full Bench of this Court in the case of Amreli Municipality (Supra) it is submitted by Mr.Trivedi that when initial appointment of the concerned workmen were de-hors the rules and/or by not following regular procedure for selection, the concerned workmen are not entitled to any regularization. 11.12.Relying upon the judgment of the Hon'ble Supreme Court in the case of Himanshu Kumar (Supra), it is submitted that as held by the Hon'ble Supreme Court in the aforesaid SCA/6828/2004 27/57 JUDGMENT decision, when the appointments are regulated by statutory Rules, the concept of “industry” to that effect stands excluded and disengagement from service of temporary employees on daily wages cannot be construed as retrenchment. Mr.Trivedi, learned Additional Advocate General has, therefore, requested to quash and set aside the finding and the reasoning recorded by the Labour Court with regard to Sec.25(B), 25(F), 25(G) and 25(H) of the I.D.Act and allow the present petitions filed by the Management – State of Gujarat accordingly. 12.Per-contra, Mr.P.K. Jani, learned advocate appearing on behalf of the workmen has submitted that most of the workmen are working since many years and as many as 25 workmen out of 168 have completed 240 days in different years and