1. Heard learned advocate Ms.S.K.Mandavia for petitioner Board.
2. In present petition, petitioner has challenged award passed by Labour Court, Rajkot in Reference No.480 of 1995, Exh.61, dated 24.11.2009. The Labour Court, Rajkot has set aside termination order dated 22.5.1992 and granted reinstatement with continuity of service without back wages and consequential benefits.
3. Learned advocate Ms.S.K.Mandavia for petitioner Board submitted that respondent was appointed as Khalasi cum Attendant with the officer of the petitioner Board on 3.8.1991 and his service was terminated on 22.5.1992. She submitted that petitioner has filed reply before Labour Court that respondent was appointed on fixed term basis and he was work charged employee, has not completed 240 days' continuous service in a preceding 12 months from date of termination. She also submitted that finding given by Labour Court that Section 25F of the I.D.Act,1947 is not violated because workman has not completed 240 days' continuous service but, Labour Court has come to conclusion that Section 25G of the I.D.Act,1947 has been violated by petitioner. Therefore, reinstatement order has been passed by Labour Court on the ground that at the time when service was terminated by petitioner, workmen junior to him were continued in service. She further submitted that as per scheme of regularization of daily wager, the daily wagers should be made permanent after completion of 10 years' service. These benefits were given as per Government Resolution dated 17.10.1988. The names of the workman which are mentioned in the award, are juniors to respondent, who were given right of permanency as per said resolution. It means both were working since 10 years and they are not juniors to respondent. She relied upon decision of Apex Court in case of Reserve Bank of India v. Gopinath Sharma reported in (2006) 6 SCC 221. Relying upon aforesaid decision, she submitted that Apex Court has held that Section 25G of the I.D.Act,1947 is not applicable to concerned workman, who has not completed continuous service of 240 days. She submitted that Apex Court has in terms decided the question that if Section 25F is not violated by petitioner, then question of violating Section 25G does not arise. She relied upon observations made by Apex Court that, the High Court completely erred in relying on Section 25G of the I.D.Act,1947 while not holding that the workman has been retrenched within the meaning of Section 25F and thus, mis-directed itself about the applicability of the provisions of Section 25G of the I.D.Act,1947 even if it does not involve retrenchment.
3.1 She also relied upon another decision of Apex Court in case of Bhogpur Cooperative Sugar Mills Ltd. v. Harmesh Kumar reported in (2006) 13 SCC 28. She relied upon Head Note 'D' of the aforesaid decision on the ground that Section 10 terms of reference question of compliance with Section 25G when reference was only as to whether termination of service was justified, then it is impermissible to consider question of non-compliance of Section 25G. Relevant observations are in Para.7 and 8 are quoted as under :
7. The Labour Court derived its jurisdiction from the terms in reference. It ought to have exercised its jurisdiction within the four corners thereof.
8. The principal question which was referred by the State Government has as to whether the termination of services of the respondent was justified. The Labour Court was, therefore, not required to go into the question as to whether the appellant was bound to take the services of the respondent in all subsequent seasons or not.
4.2 She also relied upon decision of Division Bench of this Court in case of State of Gujarat v. Ramesh Mopabhai Rathod reported in 2003 (3) GLR 2590. Relevant observations of aforesaid decision are quoted as under :
Since there is no retrenchment, there would not arise any question of violation of the statutory provisions of Section 25-F and for that purpose, the provisions of Section 25G as well as 25-H. The retrenchment is circumscribed, subject to the statutory rigors inhibited in the provisions of Section 25-G as well as 25-H. Section 25-G provides statutory procedure for retrenchment, which is based on the celebrated doctrine of service jurisprudence last come, first go at the time of retrenchment. When retrenchment is not established, the question of applicability of the provisions of Section 25-G obviously would not come into play.
5. I have considered submissions made by Ms.Mandavia and also perused award passed by Labour Court, Rajkot and also considered decisions cited at bar by learned advocate Ms.Mandavia. The industrial dispute referred for adjudication on 30.10.1995. The workman has filed statement of claim at Exh.5 and according to his case, he was appointed on 3.8.1991 and his service was terminated on 22.5.1992. It is necessary to note that his termination was not because of misconduct or based on disciplinary action. Therefore, it amounts to a simple termination covered by definition of 'retrenchment' under Section 2(oo) of the I.D.Act,1947. Therefore, termination of workman is covered by retrenchment and in such circumstances, for retrenchment of any workman, statutory provisions must have to be complied with petitioner which includes Section 25F, G and H of the I.D.Act,1947. That Section 25G and H both are independent Sections. Even in case of workman not completed 240 days' continuous service and his service has been terminated while keeping juniors in service, then it amounts to breach of Section 25G of the I.D.Act,1947.
6. Before Labour Court, workman was examined vide Exh.16 and certain documents have been produced by workman. On behalf of petitioner, one Hajabhai Dhulabhai Katara was examined vide Exh.32 and certain documents were produced by petitioner before Labour Court. The Labour Court in terms come to conclusion that workman is not able to prove 240 days' continuous service before Labour Court. Therefore, Section 25F of the I.D.Act,1947 has not been violated by petitioner. But considering the documents produced by workman which documents have been supplied by petitioner in response to demand made by workman under Right to Information Act. These documents at Exh.58/2 have been exhibited because no objection has been raised by advocate of petitioner. Therefore, considering seniority list which was produced by workman which was admitted by advocate of petitioner and considering the name of Shri Vikram Natubha Khalasi at Sr.No.38 and Shri Ghela Vasram Khalasi at Sr. No.39 both are appointed on 11.12.1991 whereas workman was appointed on 3.8.1991, then naturally these two persons were remained in service though both are juniors to workman. Therefore, Labour Court has come to conclusion that at the time of termination of workman, two juniors were remained continued. Therefore, principle of 'last come first go' has not been followed by petitioner and therefore, it amounts to breach of Section 25G of the I.D.Act,1947.
7. It is necessary to note that seniority list supplied by petitioner to workman which has been exhibited, as no objection raised by petitioner. Now, before this Court learned advocate Ms.Mandavia submitted that these workmen were made permanent as per Government Resolution dated 17.10.1988 but, no facts or relevant documents are produced on record by petitioner against seniority list which has been relied by Labour Court. The petitioner was having opportunity to produce the rebuttal evidence when workman has produced seniority list which was supplied by petitioner vide Exh.58/2. But no rebuttal evidence was produced by petitioner. Therefore, contentions raised by Ms.Mandavia cannot be accepted.
8. In respect to contention that question of breach of Section-25G of the I.D.Act,1947 is not referred by appropriate Government to Labour Court. However, this contention was not raised by petitioner's advocate before Labour Court that Labour Court has no jurisdiction to decide dispute has not been referred for adjudication. Apart from that, when termination itself has been challenged by raising industrial dispute by the workman which amounts to retrenchment, then while examining the legality and validity of the order of termination it amounts to retrenchment, question of examining whether such termination is violated Section 25G of the I.D.Act,1947 or not, being an incidental matter, can be examined by Labour Court along with deciding main industrial dispute under Section 10(4) of the I.D.Act,1947. Therefore, such contention raised by Ms.Mandavia cannot be accepted.
9. Recently, the Apex Court has considered the scope of Section 25F, G and H of the I.D.Act,1947 in case of Harjinder Singh v. Punjab State Warehousing Corporation reported in 2010 (1) Scale 613. Relevant observations of aforesaid decision are in Para.13, 14 and 15, which is quoted as under :
13. It is true that in the writ petition filed by it, the corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the corporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for construction work on 5.3.1986 and he worked in that capacity and also as Work Munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months' specified in order dated 5.2.1987, the appellant continued to work till 5.7.1988 when first notice of retrenchment was issued by the Managing Director of the corporation. Therefore, it was not open for the corporation to contend that the appellant had not completed 240 days service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of `last come first go' without any tangible reason. In Central Bank of India v. S. Satyam (1996) 5 SCC 419, this Court considered an analogous issue in the context of Section 25-H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis. It was argued on behalf of the bank that an offer of re-employment envisaged in Section 25-H should be confined only to that category of retrenched workmen who are covered by Section 25-F and a restricted meaning should be given to the term `retrenchment' as defined in Section 2(oo). While rejecting the argument, this Court analysed Section 25-F, 25-H, Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957, referred to Section 25-G and held:
"Section 25-H then provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re-employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention.
Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not present any difficulty. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 25-F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re-employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available. Application of Section 25-H to the other retrenched workmen not covered by Section 25- F does not, in any manner, prejudice those covered by Section 25-F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25-F is available for re-employment. There is, thus, no reason to curtail the ordinary meaning of "retrenched workmen" in Section 25-H because of Rules 77 and 78, even assuming the rules framed under the Act could have that effect.
The plain language of Section 25-H speaks only of re-employment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate to the wide meaning of `retrenchment' given in Section 2(oo). Section 25-F also uses the word `retrenchment' but qualifies it by use of the further words "workman ... who has been in continuous service for not less than one year". Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words "workman ... who has been in continuous service for not less than one year". It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F."
(emphasis supplied)
14. The ratio of the above noted judgment was reiterated in Samishta Dube v. City Board Etawah (1999) 3 SCC 14. In that case, the Court interpreted Section 6-P of the U.P. Industrial Disputes Act, 1947, which is pari materia to Section 25-G of the Act, and held:
Now this provision is not controlled by conditions as to length of service contained in Section 6-N (which corresponds to Section 25-F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by Section 6-N. In Kamlesh Singh v. Presiding Officer in a matter which arose under this very Section 6-P of the U.P. Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. See also in this connection Central Bank of India v. S. Satyam.
Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers. There is no such restriction in Section 6-P of the U.P. Act read with Section 2(z) of the U.P. Act which defines "workman".
It is true that the rule of "first come, last go" in Section 6-P could be deviated from by an employer because the section uses the word "ordinarily". It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of confidence, etc., as held in Swadesamitran Ltd. v. Workmen. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act.
15. The distinction between Sections 25-F and 25-G of the Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar (2006) 13 SCC 28, in the following words:
"We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Sections 25-G and 25-H thereof he may not have to establish the said fact. See: Central Bank of India v. S. Satyam, Samishta Dube v. City Board, Etawah, SBI v. Rakesh Kumar Tewari and Jaipur Development Authority v. Ram Sahai."
10. In view of aforesaid observations made by Apex Court where it is held that it is a settled law for attracting the applicability of Section 25G of the I.D.Act,1947, the workman is not required to prove that he had worked for a period of 240 days during 12 calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the Rule of 'last come first go' without any tangible reason.
11. In view of aforesaid observations made by Apex Court, as referred above, the contentions raised by Ms.Mandavia cannot be accepted and decision relied by her are not applicable to the facts of present case.
12. It is also necessary to note that before Labour Court, the advocate of the petitioner has not raised such contention that unless and until Section 25F of the I.D.Act,1947 is violated, question of Section 25G of the I.D.Act,1947 not to be examined by Labour Court. But even though same has been raised before this Court for the first time. This Court has examined it in light of recent decision of Apex Court in case the Harjinder Singh (supra).
13. Therefore, according to my opinion, Labour Court has rightly examined the matter and for that, Labour Court has not committed any error which requires interference by this Court while exercising the powers under Article 227 of the Constitution of India. Hence, there is no substance in present petition. Accordingly, present petition is dismissed.
(H.K.RATHOD,J.) (vipul) Top