1. Heard learned advocates appearing for the parties.
2. The petitioners in both these petitions have challenged the order and award dated 29.01.2005 passed by the Labour Court, Banaskantha in Reference Case No.18/02, whereunder the Court after elaborate discussion partly allowed the reference in favour of the workman and quashed and set aside the order dated 07.07.2001 terminating the services of the workman and directed the employer to reinstate him with continuity of service without back wages as Electric Mazdoor, Class-IV, adhoc. This award dated 29.01.2005 is subject matter of challenge in both these petitions. One petition i.e. S.C.A. No.8182 of 2005 is filed by the employer being aggrieved and dissatisfied with the award in favour of the workman and second petition i.e. S.C.A. No. 14274 of 2005 is filed by the workman, so far as it did not grant the back wages after declaring the termination award illegal.
3. As both these petitions contain challenge to the same award on different grounds. They were heard together and are being disposed of by this common judgment.
4. The facts in brief leading to filing these petitions deserve to be set out as under;
5. The workman was constrained to raise industrial dispute as on 07.07.2001 without following any provision of Industrial Disputes Act, 1947 (hereinafter referred to as 'the I.D. Act, for the sake of brevity) or any other law, straightway order was passed terminating his services. The said dispute was referred to the competent Court, where it was numbered as Reference Case No.18/02, wherein the Court held as stated hereinabove and partly allowed the reference. For the sake of convenience, the workman is referred to as a 'workman' and employer is referred to as an 'employer' hereafter in this judgment.
6. It was the case of the workman that he was working with the employer since 1998 and he was given an appointment order on 30.11.2000, as Electric Mazdoor subject to terms and conditions mentioned thereunder, which included termination, if the services were not required. Thereafter, workman continued till 07.07.2001, when an order was passed terminating his services. The statement of claim was filed to this effect. The written statement was filed controverting the same and taking a stand that prior to the issuance of appointment order i.e. on 30.11.2000, the workman was engaged as part time hand vide order dated 08.06.1998 and thereafter only on 30.11.2000 the workman was given an order, that too a conditional order, whereunder no right accrued to the workman in whatsoever manner. The appointment of the workman vide order dated 30.11.2000 was not in consonance of the provision of law and hence the same was required to be terminated and accordingly it is terminated vide order dated 07.07.2001. Thus, the period of services of the workman did not entitle the workman for claiming much relief and accordingly it was pleaded that the workman's services cannot be said to be the one which would following due procedure as envisaged under the I.D. Act and other law and it was prayed that reference be dismissed.
7. After examining the case and version of both the sides, the Labour Court recorded its finding qua non observation of provision of Section 25(f) of the I.D. Act and, therefore, required that the termination which was brought about on 07.07.2001, was wholly illegal and thus ordered reinstatement. However, while ordering the reinstatement, the Labour Court did not think it fit to grant back wages of any nature. The Labour Court granted continuity of service and also clarified that workman is to be reinstated on his original post i.e. Electric Mazdoor, Class-IV, adhoc. This order of Labour Court dated 29.01.2005 is subject matter of challenge in both these petitions for different reasons, as stated hereinabove by the employer and workman.
8. Learned advocate for the employer contended that the order of reinstatement could not have been granted, as the workman did not establish his case for being reinstated. The workman was not appointed after following due procedure of law and as such the workman could not have been straightway ordered to be reinstated by the Labour Court. The Labour Court not only ordered reinstatement of the workman, but granted continuity of service also. The workman who has not been appointed originally by following due procedure of law or by following the provision of law, cannot claim as a matter of right to be reinstated even in the eventuality when the breach of Section 25(f) of the I.D. Act is established.
9. Learned advocate for the employer in support of this submission relied upon the decisions of the Apex Court in case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board And Another, reported in (2009) 15 Supreme Court Cases 327, and in case of Senior Superintendent Telegraph (Traffic) Vs. Santosh Kumar Seal And Others reported in (2010) 6 Supreme Court Cases 773, and submitted that the order of reinstatement and back wages cannot be said to be an automatic eventuality. Once the Court finds that the termination was illegal on account of non compliance with provision of Section 25(f) of the I.D. Act, the order of reinstatement and back wages has to be followed by due consideration of the factors enumerated in the cases cited hereinabove. In the instant case, the Labour Court's order impugned in these petitions discloses that there was no consideration on the part of the Labour Court while granting reinstatement and continuity of service.
10. Learned advocate for the employer vehemently urged that granting of back wages or part thereof has also to be treated as an independent exercise to be undertaken by the Court and, therefore, before granting the same the Labour Court was required to undertake an exercise of examining the factors. In support of this submission, learned advocate for the employer relied upon the decision in case of Ram Ashrey Singh and Another Vs. Ram Bux Singh and Others reported in 2003-II- LLJ page-176 and in case of General Manager, Haryana Roadways Vs. Rudhan Singh reported in 2005 (5) SCC 591. Relying upon these two judgments, it was urged on behalf of employer that the factors relevant for granting back wages have conspicuously been absent, so far as the case of the workman is concerned and hence, the Court ought not to have been granted even continuity of service and this Court may not grant any back wages to the workman by reversing that part of the order under which the back wages have been denied to the workman.
11. Learned advocate for the employer, therefore, urged that the order of reinstatement be quashed and set aside and in case, if the Court is not inclined to interfere with the same at least Court may not grant any wages in the petition preferred by the workman challenging non granting of back wages.
12. Learned advocate for the respondent workman contended that the decision of the Apex Court in case of Devinder Singh Vs. Municipal Council, Sanaur, reported in (2011) 6 SCC 584 , this Court while exercising power under Article 226 or even under Article 227 of the Constitution of India need not disturb the findings and the direction, as otherwise it would result into depriving the workman of his legitimate right to receive the benefits flowing from the litigation. The submission was canvassed that this being a judgment which is elaborately covering the aspects of the jurisdiction of the Court while examining the challenge, the earlier judgments cited in support of the Labour Court's direction qua reinstatement or for granting full back wages would be of no much avail to the workman.
13. Learned advocate for the workman contended that the findings recorded by the Labour Court qua violation of Section 25(f) of the I.D. Act, is not assailable in any manner. There is nothing on the record to indicate contrary. The Labour Court has accepted the say of the workman that workman was in employment since 1998 till the order of termination was passed on 07.07.2001, in absence of any material or evidence to indicate that there was non compliance of 240 days as required, the employer could not establish these facts and, therefore, the Labour Court has rightly observed that there was breach of Section 25(f) of the I.D. Act and, therefore, the order was passed quashing and setting aside the termination order and ordering the reinstatement of the workman. Therefore, so far as the reinstatement direction is concerned, the award may not be disturbed, as the same is based upon the findings qua lack of observance on the part of the employer. The order of the reinstatement could be supported on account of the ratio laid down by the Apex Court in case of Devinder Singh Vs. Municipal Council, Sanaur (supra).
14. Learned advocate for the workman thereafter contended that the order of reinstatement and continuity of service need not be disturbed, but the Labour Court, unfortunately did not grant any back wages whatsoever without recording any cogent reason for denying the same.
15. Learned advocate for the workman invited this Court's attention to the Labour Court's award wherein it is recorded that the workman in his testimony deposed that he was unemployed despite his attempt to get employment in the interregnum. This testimony of the workman has not been controverted at all by anyone and as the testimony has remained as a piece of evidence, the same could not have been ignored by the Labour Court and to that extent non granting of back wages would vitiate that portion of the award and, therefore, this Court may modify the award and grant back wages to the workman, as there is no other evidence to show contrary to what workman pleaded before the Court for back wages.
16. The decision cited at the bar in respect of non granting of back wages would be of no avail to the employer, as in the instant case the employer did not even attempt to demolish the piece of evidence led by the workman qua his entitlement of back wages, as he was forced to remain without employment on account of illegal order on the part of the employer.
17. Learned advocate for the workman relied upon the decision of this Court in case of Union of India Vs. Hasmukhbhai P. Raijada, reported in 2004 (2) G.L.H.
437 with special emphasis or observation made in paragraph no.8 in the judgment. Learned advocate for the workman relied upon another judgment in support of plea for back wages in case of Mahendrakumar Veerabhai Makwana Vs. State of Gujarat, reported in 1991-GLR-1-179, which would indicate that spacious plea of 'no work, no pay', for workman on forced unemployment pursuant to illegal order. The reliance is placed upon the decision of this Court in support of his submission in case of Galpha Laboratories Ltd. Vs. Ramanbhai Patel, reported in 2012 (1) GCD 384, that once the workman assert on oath that he was not gainfully employed in any business the burden will shift to the employer. In the instant case, the assertion is available on record and the same has not been controverted in any manner. Similarly for the same reason the reliance is placed on the following authorities;
(i) in case of Baroda Electric Meters Ltd. Vs. Makanbhai Kanjibhai Makwana reported in 2011 (3) LLJ 82.
(ii) in case of H.H. Acharya Shri Devendraprasadji Kelavani and Anr. Vs. Prof. H.C. Dave and Ors., reported in 2008 (1) G.L.H. 65.
18. Learned advocate for the workman contended that the order of reinstatement need not be disturbed and the reliance is placed in respect of submission qua the reinstatement in case of Ashwin N.Acharya Vs. Okha Port, reported in 1993 (2) G.L.H. 293 and head note in case of State of Gujarat Vs. Ramabhai Lalabhai, reported in 2011-LLJ-1-637.
19. This Court has heard learned advocate for the parties and perused the impugned award. Before adverting to the rival submissions of learned advocates for the parties, it is absolutely essential to set out indisputable aspects emerging there from namely;
(i) The workman was engaged as part time hand vide order dated 08.06.1998. This aspect appears to be a finding by the Court which no one has controverted and it has attained finality so far as the order of the Labour Court is concerned.
(ii) The workman was given an appointment order on 01.12.2000 as Electric Mazdoor, Class-IV, adhoc, which is also not controverted in any manner by anyone. Though fact remains that in this order a condition is appended that his services will be terminated without any notice and which is sought to be highlighted or emphasized by the employer.
(iii) The workman after being appointed vide order dated 01.12.2000 continued to work till 07.07.2001 that is the date on which order was passed terminating his services.
(iv) The workman's services were terminated on 07.07.2001, admittedly without following any procedure of law, much less, provision of Section 25(f) of the I.D. Act.
(v) The workman immediately raised industrial dispute, in other words no time gap which might weigh against the workman is noticed from the termination till the matter was referred for adjudication.
(vi) The workman gave testimony that his services were wrongfully terminated without following due procedure of law and that he remained unemployed despite his attempt to gain employment.
(vii) The workman's statement with regard to he is not being employed, despite his attempt during the interregnum period, has not been controverted by leading any other evidence, though there is suggestion to the workman that he was employed in the interregnum period. But apart there from, there exists no other evidence which could be said to be evidence laid by employer to controvert this evidence given by the workman.
(viii) The Labour Court has recorded its finding qua non compliance with the mandatory provision of Section 25(f) of I.D. Act and quashed and set aside the order dated 07.07.2001.
(ix) The Labour Court has ordered reinstatement with continuity of service, but not granted any back wages to the workman.
(x) The order in its operative part thus contain direction qua reinstatement without back wages, but with continuity of service and preceding portion thereunder does not indicate any discretion with regard to the Labour Court's denying or justifying for the back wages. In other words, so far as denial of back wages is concerned, the Labour Court award is silent.
(xi) The employer as well as employee both have challenged this award for the different reasons as stated in their respective petition and the Court has heard the matter and these matters have decided by this common judgment.
20. Against the aforesaid backdrop, this Court is of the considered view that both the petitions are required to be dismissed for the following reasons namely;
(i) The factum of non compliance with Section 25(f) of the I.D. Act, cannot be countenanced by anyone, much less, Court of law and, therefore, the order of reinstatement cannot be said to be illegal in any manner. The specious plea with regard to non compliance with the provision, service rule and/or so called illegality in engaging the workman and issuing order to him, cannot be considered as impediment, much less, illegal impediment in the way of the Court issuing direction of reinstatement. The award of reinstatement on the basis that there was absolutely no compliance with provision of Section 25(f) cannot be said to be an award resulting into any miscarriage of justice and/or injustice to the employer. On the contrary, in case, if the order of reinstatement was not granted, then it would have been amounted to give premium to the employer for flouting the mandatory provision of Section 25(f) with impunity. This being the position of law. This Court under Article 226, much less, under Article 227 of the Constitution of India would not interfere with the award of reinstatement especially in view of the observation made by the Apex Court in case of Devinder Singh Vs. Municipal Council, Sanaur (supra).
(ii) The Court is otherwise also not inclined to interfere with the award of reinstatement, as the arguments and submissions qua initial illegality or non compliance with the statutory provision of offering employment and engaging employee, would not be recognized validly in defending breach of Section 25(f), as by now it is established beyond doubt that an employer, governmental agency and instrumental agency of the State, if engages workman dehors the service rules and terminating the services, cannot be permitted to justify the termination on account of such plea contrary to provision of Section 25(f). What all other accepted by the agency to comply with the mandatory provision, which gives some solace and respite to the workman and helps him in tying over the situation, which might be brought about on account of termination. This benevolent provision cannot be overlooked by any agency, much less by State agency and attempt to justify the same on account of so called illegal employment at the initial stage, cannot be accepted by any Court of law. Therefore, in my view, the order of reinstatement on account of denying of non compliance with Section 25(f) of the I.D. Act, cannot be interfered by this Court, especially when even the Labour Court has been cautious and careful in casting its final direction wherein it is mentioned that the workman be reinstated on his original post i.e. Electric Mazdoor, Class-IV, adhoc. When such care is shown by the Labour Court, the order and direction of reinstatement, in my view, cannot be said to be unjust or illegal so as to call for any interference under Article 226 or even under Article 227 of the Constitution of India and, therefore, the Court is of the view that the petition of the employer challenging the order of reinstatement deserve to be dismissed.
(iii) This brings the Court to consider whether there is any justification on the part of the workman to claim back wages or part thereof in light of the submissions made at the bar relying upon the decision, the Court is of the considered view that the factors which should be relevant for considering the granting of wages have not been whittled down in any manner by any Court of law and those observations would dissuade this Court from interfering with the award of non granting of back wages in view of the fact that workman's initial appointment was as a temporary hand and thereafter, when his appointment order came to be made, was also not have longer period than 7 to 8 months. When such is a case on facts, in my view, the Labour Court was justified in not granting any wages. The decision cited at the bar, in my view would not be applicable to the facts and circumstances of the present case, as in the instant case those factors have been enumerated by the Court so far as granting of wages are concerned, are conspicuously lacking. Though, the facts remain that the workman did plead evidence orally that he has not been employed despite his attempt to gain employment, but that in itself was not so sufficient evidence as to grant him full back wages especially when the tenure of appointment, being the employment order, is only 7 months and prior thereto his employment was that of temporary part time hand. In view of this, the Court is of the considered view that the authority cited in respect of full back wages will have no applicability in the facts and circumstances of the present case, as they are on different facts. Therefore, the petition of the workman is also required to be dismissed.
21. At this stage, the Court is constrained to observe that dismissal of both the petitions will not come in the way of the parties to establish their rights independent of the observations mentioned hereinabove for any other relief, which is available or any other provision which is sought to be resorted by either party. The observations made hereinabove are purely for considering the matters, as they are appeared before this Court. Rule is discharged.
No costs. Interim relief granted earlier in matters stands vacated.
22. At this stage Shri Gandhi, learned counsel for the workman submitted that let there be some direction qua workman's being paid the dues which is admissible to him, as now the Court has vacated the stay. It goes without saying that applicable dues under law shall be paid and this direction would not come in any manner in the way of employer's rights, if any, or the workman's rights, if any, without much delay.
(S.R.BRAHMBHATT, J.) Pankaj