1. The petitioner-Municipality, by way of this petition under Articles 226 and 227 of the Constitution of India, has prayed for the following reliefs:-
“(a) Allow this Special Civil Application;
(b) Issue a Writ of Certiorari or any other appropriate Writ, Order and/or Directions quashing and setting aside the 'ex-parte' award passed by the Labour Court in Reference (LCA No.1627/86) on 22.12.1995 (Annexure-'A'-) and the order passed in Restoration application (being Misc. Appln.No.45/96) on 20.08.1996 (Annexure-'B'-).
(c) Pending admission hearing and final disposal of this petition, the execution, implementation, operation and/or giving effect in any manner whatsoever to the Award passed in Reference (LCA No.1627/87) on 22.12.1995 by the Trial Court and also the order passed by the Trial Court in restoration Application (Misce. Appln.No.45/96) on 20.08.1996), Annexures-'A'-&-'B'- respectively be stayed;
AND
(d) Pass any other and further just and necessary orders as YOUR LORDSHIPS may be pleased to deem fit and proper looking to the facts and circumstances of this case.”
2. The short facts which are relevant for the purpose of deciding this petition can be enumerated as under.
2.1. That the respondent-workman was engaged as a daily wager for the work of recovery of seasonal taxes from 13.05.1986. It appears from the record that the services of the respondent-workman came to be discontinued with effect from 27.05.1987. The respondent-workman raised a dispute as the conciliation proceedings were failed. The same has been referred to the learned Labour Court, Ahmedabad, which came to be registered as Reference (LCA) No.1627 of 1987. The learned Presiding Officer, Labour Court, Ahmedabad, on the basis of the evidence on record, vide judgment and award dated 22.12.1995, was pleased to allow the reference directing the petitioner to reinstate the respondent-workman on his original post with all the consequential benefits along with the back wages. The learned Labour Court was also pleased to award cost of Rs.500/-.
3. It bornes out from the record that as the petitioner did not remain present before the learned Labour Court after a particular stage of the reference proceedings, the petitioner filed restoration application under the provisions of Section 26(A) of the Gujarat Industrial Disputes Rules which came to be registered as Restoration (Fari) Application No.45 of 1996. The learned Labour Court vide order dated 20.08.1996, was pleased to dismiss the said application with cost of Rs.250/-.
4. Being aggrieved by the impugned judgment and award as well as the order passed in the restoration application, the present petition is filed by the petitioner-Municipality.
5. The petition came to be admitted by this Court (Coram: Jayant Patel, J.) vide order dated 20.01.2004 and ad-interim relief was also granted subject to compliance of the provisions of Section 17-B of the Industrial Disputes Act, 1947 (for short, the 'Act').
6. Both the learned counsel appearing for the parties have declared before this Court that as far as compliance of Section 17-B of the Act is concerned, there is no dispute.
7. Mr.Joshi, learned counsel appearing for the petitioner has taken this Court through the factual matrix of the matter as well as the impugned award and the order. Mr.Joshi, learned counsel firstly pointed out that, in fact, the respondent was appointed only for the limited purpose during the season of recovery of taxes purely on temporary basis and on the daily wages and, therefore, the termination of the respondent cannot be termed as retrenchment in the eye of law. Mr.Joshi, learned counsel, therefore, submitted that the provisions of Section 25-F of the Act are not at all attracted. Mr.Joshi, learned counsel also pointed out that even in the cross-examination, the respondent-workman has categorically admitted the fact that he was appointed during the recovery season for recovery of taxes. Mr.Joshi, learned counsel further pointed out that even in the written statement at Exh.21, it is categorically contended by the petitioner-Municipality that the respondent- workman was appointed on temporary basis in the special circumstances during recovery season to execute the recoveries. Mr.Joshi, learned counsel pointed out that the respondent-workman is not entitled to protection of Section 25-F of the Act. Mr.Joshi, learned counsel, therefore, submitted that the learned Labour Court has committed error apparent on the face of the record by passing the award of reinstatement with consequential benefits along with the back wages.
8. Alternatively, Mr.Joshi, learned counsel also pointed out that, in fact, by pursis, the learned advocate appearing for the petitioner- Municipality indicated and informed the learned Labour Court and withdrew his appearance and factually the same is an ex-parte award and, therefore, the learned Labour Court ought to have exercised its jurisdiction and remanded the matter, as prayed for, in the restoration application. Mr.Joshi, learned counsel further submitted that ultimately, the termination is of 27.05.1987 and, therefore, if the award is to be implemented, it would be the burden on the public exchequer as the petitioner is a local authority. Mr.Joshi, learned counsel, therefore, submitted that the petition deserves to be accepted and the impugned judgment and award deserves to be quashed and set aside and the petitioner be given an opportunity to place its case before the learned Labour Court by remanding the matter back for rehearing before the learned Labour Court.
9. Per contra, Mr.K.R. Koshti, learned counsel appearing for the respondent-workman has relied upon the judgment and award passed by the learned Presiding Officer, Labour Court, Ahmedabad and supported the same. Mr.Koshti, learned counsel pointed out that, in fact, it is not an ex-parte award. Mr.Koshti, learned counsel submitted that after the statement of claim was filed, the petitioner-Municipality appeared before the learned Labour Court and also filed written statement at Exh.21. Mr.Koshti, learned counsel pointed out that even as per the case of the petitioner before this Court, the respondent- workman was examined at Exh.23 and the petitioner-Municipality also cross-examined the respondent-workman. Mr.Koshti, learned counsel further pointed out that it is true that the learned advocate appearing for the petitioner- Municipality retired. However, Mr.Koshti, learned counsel relying upon the intimation at Exh.31, pointed out that the Labour Court has given ample opportunity as rightly averred in the order passed in the restoration application. Mr.Koshti, learned counsel submitted that even after the receipt of the intimation at Exh.31, the Labour Court waited for a considerable long time and after almost more than one year, passed the impugned award. Mr.Koshti, learned counsel, therefore, submitted that the learned Labour Court has committed no error in passing the impugned award dated 22.12.1995. Mr.Koshti, learned counsel also submitted that similarly, there is no error apparent on the face of the record either in the award or in the order of rejection passed in restoration application filed by the petitioner. Mr.Koshti, learned counsel pointed out that even from the record, it can easily be culled out that the respondent has worked for more than 240 days and the contention raised by the petitioner-Municipality that he was appointed for a specific purpose of contract for a specific period is far from truth and the petitioner has not produced any appointment order either before the learned Labour Court or even before this Court. Mr.Koshti, learned counsel, therefore, submitted that the impugned judgment and award deserves to be confirmed and the petition deserves to be dismissed.
10. Considering the rival submissions made by both the learned counsel, the picture which emerges as per the record, is that the respondent-workman was appointed from 13.05.1986. It bornes out from the record and even from the written statement at Exh.21 that the petitioner- Municipality has not disputed the fact that the respondent-workman has worked from 13.05.1986 to 27.05.1987. It is not the case of the petitioner that any notice was given or that the provisions of Section 25-F of the Act have been adhered to or complied with by the petitioner. Except the bare averment that the respondent-workman was appointed during the recovery season, there is no evidence on record to show that the provisions of Section 2(oo)(bb) of the Act would be applicable in the instant case. It appears from the impugned award that on the basis of the evidence on record, both the oral and documentary evidence, after having intimated by communication at Exh.31, the petitioner-Municipality has not cared to appear before the learned Labour Court. As can be culled out from the order passed in Restoration Application No.45 of 1996, the hearing was kept on 27.08.1990. However, no one appeared before the learned Labour Court. As no one appeared on the date of hearing, which was fixed on 27.08.1990, an intimation was sent to the petitioner-Municipality to remain present on 24.08.1995. It is recorded in the said order dated 20.08.1996 passed in restoration application that the said intimation was served upon the petitioner. Still however, no one appeared and thereafter, the impugned award came to be passed on 22.12.1995 i.e. after almost about four months. The contention raised by Mr.Koshti, learned counsel, also appears to be correct on the basis of the record of the case, strictly speaking that the impugned award cannot be termed as ex-parte award. As on receipt of the notice after the statement came to be filed by the respondent-workman, the petitioner appeared through the learned advocate and also filed a written statement at Exh.21. Thereafter, the petitioner has also cross-examined the respondent-workman at Exh.23 on 22.07.1992 whereas, the impugned award is passed in the year 1995 and, therefore, even the reasons which have been stated in the restoration application, are hardly believable.
11. It further requires to be noted that the Restoration Application No.45 of 1996 came to be rejected vide order dated 20.08.1996 whereas, the present petition is presented, as per the record, on 02.03.1998 i.e. after almost 22 months. Thus, as far as the prayer made by the petitioner to exercise the powers under Rule 26-A of the Act is concerned and the prayer, as prayed for, in the present petition that the order impugned be quashed and set aside and the matter may be remanded back, even on facts, are meritless and, therefore, such prayers do not warrant any consideration. The contention that the impugned award is ex-parte does not find favour in the facts and circumstances of the present case.
12. As observed above, the conduct of the petitioner, as such, is that even after the restoration application was rejected, it has preferred this petition after lapse of about 18 months.
13. As far as the award is concerned, as stated by the petitioner itself in the written statement, the respondent-workman has worked from 13.05.1986 to 27.05.1987. It bornes out from the record that the learned Labour Court has, on appreciation of such evidence on record, rightly come to the conclusion that the petitioner has committed breach of provisions of Section 25-F of the Act. It is an admitted position that no notice is given by the petitioner to the respondent and, therefore, the finding arrived at by the learned Labour Court cannot be termed as error, much less an error of law, apparent on the face of the record which warrants interference of this Court.
14. On examining the another contention raised by the petitioner that the provisions of Section 2(oo)(bb) of the Act would apply as the respondent-workman was appointed for a special purpose during recovery season, also deserves to be negatived firstly on the ground that the petitioner has not been able to bring on record anything to show that the appointment of the respondent, as tried to be canvassed, shall attract any of the exceptions to the general provisions of retrenchment. Mr.Koshti, learned counsel appearing for the respondent-workman has rightly relied upon the judgment of the Hon'ble Apex Court in the case of Devinder Singh V/s. Municipal Council, Sanaur reported in (2011)6 SCC 584 wherein, the Hon'ble Apex Court has observed thus:-
"9. We have considered the respective submissions and carefully perused the record. Sections 2(oo), 2(s) and 25-F of the Act which have a bearing on the decision of this appeal read as under:
2. Definitions * (oo) 'retrenchment' means the termination by the employer 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) voluntary retirement of the workman;
or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (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 of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill health;
(s) 'workman' means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person
(i) Who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
25-F. Conditions precedent to retrenchment of workmen. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.”
10. The definition of the term “retrenchment” is quite comprehensive. It covers every type of termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman, retirement on reaching the age of superannuation, termination of service as a result of non-renewal of the contract of employment or of such contract being terminated under a stipulation contained therein or termination of the service of a workman on the ground of continued ill health also do not fall within the ambit of retrenchment.”
15. The petitioner has not brought on record any material to establish that the conditions of Section 2(oo)(bb) of the Act exist in the instant case.
16. Considering the factual background, it appears that the learned Labour Court has not committed any error, much less an error of law, apparent on the face of the record which would warrant interference of this Court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
17. Resultantly, the petition fails and is hereby dismissed. Rule is discharged. No order as to costs.
(R.M.CHHAYA, J.) Hitesh