SCA/4571/1999 1/24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4571 of 1999 With CIVIL APPLICATION No. 7164 of 2005 In SPECIAL CIVIL APPLICATION No. 4571 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= GUJARAT STATE FOREST DEVELOPMENT CORPORATION LTD. & 1 - Petitioners Versus MANUBHAI RAMSINH SANGADIA - Respondent ========================================================= Appearance : MR PRABHAV MEHTA for Petitioners MR NILESH A PANDYA for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/05/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of SCA/4571/1999 2/24 JUDGMENT the Constitution of India, the petitioners have prayed for an appropriate writ, order or direction, quashing and setting aside the impugned judgment and award dated 30.1.1999 passed by the Labour Court, Bharuch in Reference (LCB) No.191 of 1990 by which the Labour Court, Bharuch has partly allowed the said reference directing the petitioners to reinstate the respondent to his original post with 35% back wages. 2. The respondent herein - workman was initially appointed as Assistant Bidi Instructor at Rajgadh (Palla) on a temporary basis for a period from 10.2.1981 to 30.3.1981 and thereafter the same was extended from time to time by various orders upto the date of termination and his last extension was upto 28.8.1986. During 1981 to 1986 the workman worked at different places and on a different projects and even different posts. Vide order dated 28.8.1986 workman came to be terminated, and as the same was in breach of the provisions of the Industrial SCA/4571/1999 3/24 JUDGMENT Disputes Act (hereinafter referred to as the “I.D.Act”) more particularly Section 25-F of the I.D.Act, and without following any procedure under law and without even paying any retrenchment compensation, therefore the workman raised an industrial dispute and vide order dated 27.7.87 the dispute was referred to the Labour Court, Vadodara under Section 10(1) of the I.D.Act which was numbered as Reference (LCV) No.474/87. On establishment of Labour Court, Bharuch, the said reference was transferred to Labour Court, Bharuch which was numbered as Reference (LCB) No.191/90. 2.1 It was the contention on behalf of the workman that the petitioner No.1 – Gujarat State Forest Development Corporation Limited has different branches in different Districts and his first appointment was under Baria Division at Panchmahals District as Assistant Bidi Instructor and that thereafter he was transferred to Dharampur Taluka of Valsad District as Bidi Instructor and thereafter he was transferred to SCA/4571/1999 4/24 JUDGMENT Village Ambawadi, Taluka Dediyapada, District Bharuch as Production Supervisor. It was the case on behalf of the workman that he worked approximately for six years continuously, and all of a sudden, by order dated 28.8.86 of the Project Manager, Rajpipla, his services came to be terminated without following any due procedure and in a most arbitrary manner and without making payment of retrenchment compensation. It is also the case on behalf of the workman that he could have been transferred at any other place/project and still his services have been terminated arbitrarily, illegally and therefore it was requested to pass an appropriate order to reinstate him. 2.2 A statement of claim has been submitted by the applicant at Exh.4. 2.3 Vide Exh.14 the petitioners submitted reply to the statement of claim denying the averments in the statement of claim. It was denied that the workman was serving as a permanent employee SCA/4571/1999 5/24 JUDGMENT since six years. It was the case on behalf of the petitioners that the workman was appointed on temporary basis and for a particular project as Assistant Bidi Instructor and he was appointed only for the training as an Assistant Bidi Instructor in the Training Centre, and as the Bidi Project was closed and the appointment of the workman was a particular Bidi Project, his services have been terminated which cannot be said to be illegal and, therefore, it was requested to dismiss the reference. 2.4 Workman came to be examined at Exh.15. The workman was also cross-examined. Documentary evidences were produced by the petitioners vide Exh.25 mainly related to the appointment of the workman. Witness on behalf of the petitioners came to be examined at Exh.26. Written submissions were submitted by the learned advocates appearing on both the sides. After appreciating the evidence on record, the Labour Court, Bharuch vide impugned judgment and order partly allowed the said reference by holding SCA/4571/1999 6/24 JUDGMENT that, before terminating the services of the workman, procedure as required to be followed under the Act, more particularly neither the retrenchment compensation has been paid nor any notice pay has been paid and further passed an order that the petitioner-Corporation has other departments, and by closing only one project, it has not affected the other working of the Corporation and the Corporation is not closed permanently and thereby passed the order to reinstate the workman. However, considering the fact that the workman was doing some labour work and earning Rs.20 to Rs.25 per day, passed an order of back wages to the extent of 35%. 2.5 Being aggrieved and dissatisfied with the impugned judgment and order passed by the Labour Court, Bharuch dated 30.1.1999 passed in Reference (LCB) No.191/90, the petitioners- employer Corporation has preferred the present Special Civil Application under Article 227 of the Constitution of India. SCA/4571/1999 7/24 JUDGMENT 3. Mr.Prabhav Mehta, learned advocate has appeared on behalf of the petitioners. He has submitted that the impugned judgment and award passed by the Labour Court, Bharuch is illegal and same deserves to be quashed and set aside. It is submitted that the Labour Court, Bharuch has failed to appreciate that the workman was appointed as an Assistant Bidi Instructor for a particular Bidi Project on a temporary basis for a contractual period, and therefore, he does not acquire a substantive right to the post. It is submitted that, admittedly on closer of the Bidi Project, the services of the workman was terminated. It is submitted that the termination of the services of the workman is a result of non-renewal of the contract of employment between the employer and employee concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein, does not amount to retrenchment in view of Section 2(oo)(bb) of the I.D.Act, and therefore, Section 25-F of the I.D.Act will not be applicable. SCA/4571/1999 8/24 JUDGMENT 3.1 It is submitted by Mr.Mehta, learned advocate appearing on behalf of the petitioners that, by different orders the workman was appointed for a fixed period of 29 days, and on completion of each 29 days, there was a fresh contract and as Bidi Project was totally closed and there was no further renewal of the contract and/or any further order of extension of his service, and therefore there was no question of any notice, notice pay and/or retrenchment compensation. Therefore, it is submitted that, in view of Section 2(oo)(bb) of the I.D.Act, no notice of termination was required, and therefore, the impugned judgment and award requires to be quashed and set aside. 3.2 It is further submitted that assuming that, Section 25-F of the I.D.Act would be applicable, still in the last preceding year i.e. 1985 the workman has not worked for 240 days and more and therefore also notice and/or notice pay is not required. SCA/4571/1999 9/24 JUDGMENT 3.3 Mr.Mehta, learned advocate appearing on behalf of the petitioners has heavily relied upon various orders produced at Annexure “A” to Annexure “K” (pages 22 to 86) in support of his submissions that the workman was appointed only as Assistant Bidi Instructor for a particular Bidi Project only. He has also heavily relied upon the statement showing the date of appointment, place of appointment and period of appointment of the workman in support of his submission that the workman was appointed only as an Assistant Bidi Instructor only. It is submitted that admittedly when the appointment of the workman was as an Assistant Bidi Instructor for a Bidi Project only and the Bidi Project being closed and the services of the workman has been terminated, there is no question of reinstatement of the workman to the original post as ordered by the Labour Court, Bharuch. Therefore, it is requested to allow the present Special Civil Application. SCA/4571/1999 10/24 JUDGMENT 3.4 Mr.Mehta, learned advocate appearing on behalf of the petitioners has relied upon the following decisions in support of his prayer to allow the present Special Civil Application and to quash and set aside the impugned judgment and award. (i) Mohan Lal vs. Management of M/s.Bharat Electronics Limited reported in (1981) 3 SCC 225. (ii) U.P.State Co-operative Land Development Bank Limited vs. Taz Mulk Ansari and others reported in 1994 Supp(2) SCC 745. (iii) Morinda Coop. Sugar Mills Limited vs. Ram Kishan and others reported in (1995) 5 SCC 653. (iv) Surendranagar District Panchayat vs. Dahyabhai Amarsinh reported in AIR 2006 SC 110. SCA/4571/1999 11/24 JUDGMENT (v) M.P.Housing Board and Another vs. Manoj Shrivastava reported in (2006) 2 SCC 702. 3.5 By making the above submissions and relying upon the above decisions, it is requested to allow the present Special Civil Application and to quash and set aside the impugned judgment and award. 4. Petition is opposed by Mr.Nilesh Pandya, learned advocate appearing on behalf of respondent-workman. It is submitted that the contention on behalf of the petitioners that the workman was appointed only for a particular project and for a particular period is factually incorrect. Relying upon the appointment orders produced by the petitioners, it is submitted that, even in the said orders it is specifically mentioned that service of the workman is transferable and he can be transferred from one office to another office or one project to another project. It is further submitted that SCA/4571/1999 12/24 JUDGMENT even sometime the workman was also appointed as Assistant Production Supervisor in another project (other than Bidi Project). It is submitted that the workman has worked continuously from February 1981 till his termination and the workman was given artificial break, and as the workman has completed more than 240 days in each year, the petitioners were required to follow the procedure as required under Section 25-F of the I.D.Act before terminating the services of workman, and as the termination of the workman is found to be in breach of Section 25-F of the I.D.Act and when the Labour Court, Bharuch has passed an order of reinstatement, the same cannot be said to be illegal which requires interference of this Court in exercise of powers under Article 227 of the Constitution of India. It is submitted that as the services of the workman were transferable from one office to another office or one project to another project even on closer of Bidi Project, the workman could have been transferred to other projects which are admittedly continued. SCA/4571/1999 13/24 JUDGMENT It is further submitted that even the statement which has been produced by the petitioners Annexure “M” (page 88-89) is also factually incorrect. It is submitted that in the statement for the period between 2.5.84 to 30.5.84, 1.6.84 to 29.6.84, 2.7.84 to 29.7.84, 31.7.84 to 28.8.84, 30.8.84 to 27.9.84, 29.9.84 to 27.10.84, the workman is shown to have been appointed and working as Assistant Bidi Instructor. However, the same is factually incorrect. In fact, for the aforesaid periods, the workman was appointed and working as Assistant Production Supervisor. Thus, the petitioners have tried to mislead this Court making out a case that workman was appointed as Assistant Bidi Instructor only in the Bidi Project. It is, therefore, submitted that as the petitioners have produced the incorrect statement and thereby tried to mislead the Court, the petitioners are not entitled to the discretionary relief under Article 227 of the Constitution of India. By making the above submissions, it is requested to dismiss the present Special Civil SCA/4571/1999 14/24 JUDGMENT Application. 5. Heard the learned advocates appearing on behalf of the respective parties. 6. At the outset, it is required to be noted that the respondent workman was appointed initially vide order dated 6.2.1981 as Assistant Bidi Instructor for the period between 10.2.1981 to 30.3.1981 in the pay-scale of Rs.210-4-250-5- 270. Looking to the first order, and even subsequent orders as per clause 3, the services of the workman was transferable from one post to another post, one place to another place, one office to another office or one project to another project. Therefore, it is not that the respondent workman was appointed only as an Assistant Bidi Instructor in the Bidi Project as sought to be contended in this behalf. Even looking to the various orders produced by the petitioners themselves, the workman was even appointed and working as Assistant Production Supervisor also. In spite of the fact that the SCA/4571/1999 15/24 JUDGMENT workman has worked for more than 240 days in each year and as such worked continuously since February 1981 till the date of termination i.e. February 1986, the service of workman is terminated without following due procedure and without any notice and/or notice pay and/or without making payment of retrenchment compensation. 6.1 It is not the case on behalf of the petitioners that entire Corporation is closed and/or other departments are also closed. Only case on behalf of the petitioners is that the workman was appointed on a purely temporary basis as Assistant Bidi Instructor in the Bidi Project and as the Bidi Project is closed and the appointment of the workman was in a specific project for a specific period, they are not required to follow any procedure as required under Section 25-F of the I.D.Act. It is not in dispute that the workman had worked since February 1981 till the date of termination i.e. 28.8.1986 by various orders and the appointment SCA/4571/1999 16/24 JUDGMENT of the workman has been extended from time to time by giving one day artificial break after each extension. Even on considering the statement of the working days of the workman produced by the petitioners at Annexure “M”, the last appointment of the workman was upto 28.8.1986, and considering one year prior thereto i.e. 28.8.85 till 28.8.86 i.e. just preceding one year, it appears that admittedly the workman has worked for not less than 240 days. Under the circumstances, the contention on behalf of the petitioners' that the workman has not worked for not less than 240 days in the last preceding year is factually incorrect and is contrary to the facts and the evidence on record. Thus, it is proved and established that, even in the last preceding year from the date of his termination the workman has worked for not less than 240 days. 6.2 As stated hereinabove, in the facts and circumstances of case, Section 2(oo)(bb) of the Act would not be applicable and there is a clear SCA/4571/1999 17/24 JUDGMENT breach of Section 25-F of the I.D.Act. The workman has not worked as Assistant Bidi Instructor only but has also worked as Assistant Production Supervisor, and even as per the appointment order, his services were transferable from one place to another place, one office to another office and one project to another project. Under the circumstances, when the Labour Court has held that there is a breach of Section 25-F of the I.D.Act and has passed the order of reinstatement, it cannot be faulted and it cannot be termed as illegal. It is an admitted position that, before terminating the services of the workman, no notice, notice pay and/or retrenchment compensation has been paid. 6.3 Learned advocate appearing on behalf of the workman is right in making the grievance that the petitioners have not produced the correct statements at Annexure “M”, and though whenever the workman has worked as Assistant Production Supervisor, he is shown to have worked as Assistant Bidi Instructor and thus the SCA/4571/1999 18/24 JUDGMENT petitioners have tried to mislead the Court. 7. Mr.Prabhav Mehta, learned advocate appearing on behalf of the petitioners when faced with the above situation submitted that there is a typographical error but typographical error cannot be at more than one place. Attention of the learned advocate appearing on behalf of the petitioners was drawn to the appointment orders produced by the petitioners which suggest that the workman was appointed and has worked as Assistant Production Supervisor also, he had no other option but to accept it but has no other answer. Thus, on this ground also, apart from the fact that the petitioners have no case on merits, they are disentitled to any relief in the present Special Civil Application which is under Article 227 of the Constitution of India. It is to be noted at this stage that and it is already held hereinabove that there is a clear violation of Section 25-F of the I.D.Act, and this will be an additional ground to dismiss the present Special Civil Application. SCA/4571/1999 19/24 JUDGMENT 7.1 Mr.Prabhav Mehta, learned advocate appearing on behalf of the petitioners has relied upon the decision of the Hon'ble Supreme Court in the case of Mohanlal (supra). However, considering the same, it appears that the said decision will be helpful to the workman rather than to the petitioners. As held by the Hon'ble Supreme Court in the said decision if immediately preceding the date of termination of service, such workman actually worked for not less than 240 days within a period of 12 months under the employer, he will be deemed to be in `continuous service' for one year under Section 25-B(2)(a)(ii) and therefore would be entitled to retrenchment compensation under Section 25-F of the I.D.Act. It is also held by the Hon'ble Supreme Court in the said decision that the termination of the services of workman without complying Section 25-F of the I.D.Act would render the order of termination void ab initio entitling him to a declaration for continuation in service with full back wages. In the case on SCA/4571/1999 20/24 JUDGMENT hand, as stated above, the workman has actually worked for not less than 240 days within a period of last 12 months. 7.2 Mr.Mehta, learned advocate appearing on behalf of the petitioners has also relied upon the decision of the Hon'ble Supreme Court in the case of Surendranagar District Panchayat (supra). However, the same would not be of any assistance to the petitioners in the facts and circumstances to the present case. The controversy before the Hon'ble Supreme Court in the said case was whether the burden lies upon whom i.e. whether workman or employer to prove that the workman has worked for 240 days in the last preceding year. In the case before the Hon'ble Supreme Court the workman did not produce any proof and failed to discharge his burden that he was in employment for 240 days during the preceding of 12 months from the date of termination of his service. In the present case, even on the basis of the statement produced by the petitioners at Annexure “M” and various orders produced, it is SCA/4571/1999 21/24 JUDGMENT established that the workman had worked for more than 240 days during the preceding of 12 months from the date of termination of his service. 7.3 Mr.Mehta, learned advocate appearing on behalf of the petitioners has also relied upon the decision of the Hon'ble Supreme Court in the case of Taz Mulk Ansari and others (supra). However, the question before the Hon'ble Supreme Court in the said case is with respect to claim of the workman for regularisation of his employment on completion of 240 days in a year and that is not the case in the present case. 7.4 Mr.Mehta, learned advocate for the petitioners has also relied upon a decision of the Hon'ble Supreme Court in the case of Manoj Shrivastava (supra). However, the said decision is also not helpful to the petitioners in the facts of the present case as the controversy before the Hon'ble Supreme Court was whether a workman who has worked for more than 240 days can have a legal right for regularisation in SCA/4571/1999 22/24 JUDGMENT service. 7.5 Mr.Mehta, learned advocate for the petitioners has also relied upon the another decision of the Hon'ble Supreme Court in the case of Morinda Coop. Sugar Mills Ltd. (supra). However that was a case where the workman was a seasonal worker and that is not the case in the present case. 8. Considering the facts stated hereinabove and considering the fact that the workman has worked since February 1981 till 28.8.1986, and it is also proved and established that in the last preceding year from the date of his termination i.e. 28.8.1986 i.e. for the period between 28.8.1985 to 28.8.1986 he has worked for more than 240 days, and therefore, there is a clear breach of Section 25-F of the I.D.Act, and considering the above, when the Labour Court has passed an order of reinstatement with only 35% back wages, it cannot be said that the order passed by the Labour Court is in any way illegal SCA/4571/1999 23/24 JUDGMENT and/or contrary to the evidence on record which requires interference of this Court in exercise of powers under Article 227 of the Constitution of India. There is no error much less an error of law committed by the Labour Court which is required to be corrected by this Court in exercise of powers under Article 227 of the Constitution of India. On the contrary, the Labour Court has tried to balance the situation by not awarding full back wages and has awarded only 35% back wages. No interference is required. 9. For the reasons stated above, the petition deserves dismissal and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier shall stand vacated forthwith. 10. In view of the disposal of main Special Civil Application, no order in Civil Application No.7164 of 2005. ( M.R. SHAH, J. ) SCA/4571/1999 24/24 JUDGMENT syed/