IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10750 of 2002 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 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 ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= GUJARAT WATER RESOURCES DEVELOPMENT CORPORATION LTD. -
Petitioner(s) Versus DASHRATHBHAI KHODIDAS PATEL - Respondent(s) ========================================================= Appearance :
MR MEHUL H RATHOD for Petitioner(s) : 1, MR PH PATHAK for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/08/2012 CAV JUDGMENT
1. By way of this petition under Article-227 of the Constitution of India, the petitioner seeks to challenge the Award dated 9th August, 2001 passed by the Labour Court, Kalol in Reference (LCK) No.275/1994 whereby the Labour Court partly allowed the Reference of the Respondent workman by directing the petitioner to reinstate the respondent in service with 50% back-wages.
2. The case made-out by the petitioner in his petition may be summarized as under :
2.1) The petitioner-a Corporation is engaged in activities of supply, regulation and development of water resources. The respondent was engaged as Casual Labourer and was assigned the work of Watchman-cum-Peon by the petitioner on daily wage basis by way of Stop-gap Arrangement in 1985 considering the requirement of additional manpower and the quantum of work.
2.2) The respondent-workman filed a complaint before the Assistant Labour Commissioner that he has been wrongly terminated from service, who in turn, vide order dated 29/10/1994 referred the same to the Labour Court, Kalol for adjudication. The respondent workman filed statement of claim at Exh.4 before the Labour Court inter alia submitting that he was appointed in 1985 and was continuously working as Peon-cum-Chokidar between 6 p.m. to 10 a.m. and his service was terminated in violation of Sec.25-N, 25-F and 25-G of the Industrial Disputes Act. The petitioner filed written statement at Exh.7 denying the contents of the statement of claim and called upon the respondent to prove his case. It was the case of the petitioner before the Labour Court that the respondent was not engaged as per procedure and rules, but was called for doing work as Stop-gap Arrangement at different Tube-well as per requirement and availability of manpower as and when the regularly appointed operator or peon-chokidar would go on leave. It was also the case of the petitioner before the Labour Court that the respondent-workman had not completed 240 days of continuous work in a preceding year and the workman was not re-engaged as there was no work available. According the petitioner, the respondent workman failed to produce any documentary evidence in support of his claim that he had completed 240 days of continuous work in a year and that his services were terminated in violation of Sec.25- F of the Act. According to the petitioner the Labour Court, without considering the material on record and contrary to the settled law on the subject passed an order directing to reinstate the respondent-workman with continuity of service and 50% backwages. The Deputy Labour Commissioner, Ahmedabad published the said Award on 19/3/2000 which was received by the petitioner on 10/6/2002. According to the petitioner, the respondent workman also preferred Recovery Application no.169/2002 before the Labour Court, Kalol on 26/8/2002 for Recovery of Rs.52,664/-. The petition was admitted on 27/12/2002 and the implementation, operation and execution of the impugned award was ordered to be stayed subject to compliance with the provisions of Sec. 17-B of the Industrial Disputes Act pending final disposal of the petition. Respondent has appeared pursuant to the Notice of Rule issued and has opposed this petition by filing affidavit-in-reply.
3. Stand of Respondent-workman :
According to the respondent, he was not engaged on Stopgap Arrangement or on Daily Wage basis. The submission of the petitioner that respondent was not engaged as per the procedure and rules is also misconceived and untenable in law. It is also not correct to say that there is no industrial dispute involved in the present case. No jurisdictional error can be said to have been committed by the Labour Court. The Labour Court on appreciation of evidence on record, has come to the conclusion that the respondent had completed 319 days of service.
4. Contentions on behalf of the petitioner:
Mr. Mehul Rathod, learned counsel appearing for the petitioner-corporation, submitted that the impugned Award passed by the Labour Court is contrary to the evidence on record and also quite contrary to the well settled principles of law. The Labour Court ought to have appreciated an important question that the petitioner Corporation is not an Industry as defined under the Act and, therefore, the Award is untenable in the eyes of law. The Labour Court ought to have appreciated that there is no retrenchment of the respondent as the non- engagement of the respondent is covered under the provisions of Sub-Clause (OO) (BB) of Sec.2 of the Industrial Disputes Act. As the non-engagement of the respondent for work is on account of expiry of fixed period of stopgap arrangement upon the availability of regular employees and, therefore, non-engagement of respondent is specifically excluded from the definition of retrenchment by provision of Sec.2(OO)(BB). The Labour Court seriously erred in coming to the conclusion that the respondent had completed 240 days of continuous work in a year without there being any evidence on record, oral or documentary. Labour Court committed serious error in not appreciating important question of law, that once non-engagement of the workman is excluded from the definition of retrenchment then under such circumstances respondent is not entitled to any benefit accruing U/s.25-F of the Act.
5. Contentions on behalf of respondent :
Mr. P.H. Pathak learned counsel appearing for the respondent-workman vehemently submitted that no error of law, much less an error of law can be said to have been committed by the Labour Court warranting any interference in this petition under Article-227 of the Constitution. Mr.Pathak further submitted that the petitioner has failed to produce any contract between petitioner and the respondent before the Labour Court. According to Mr.Pathak the case of the petitioner is squarely covered by the decision of the Apex Court in the case of Executive Engineer, CPWD Vs. Madhukar P.,2002 SCC L&S-1087. Mr.Pathak submitted that there being no merit in this petition the same deserves to be rejected.
6. Having heard learned counsel for the respective parties and having gone through the materials on record, the only question which falls for my consideration in this petition is as to whether the Labour Court committed any error in passing the impugned Award directing the petitioner to reinstate the respondent in service with continuity in service and 50% back-wages.
7. In the impugned award, the Labour Court has recorded a finding in para-5, to the effect that the workman has admitted in his oral evidence that as and when the regular employee used to go on a leave at that point of time, the Corporation used to avail the services of the workman as a temporary workman. The respondent- workman knew very well that keeping in view the exigency of the situation, he was being appointed on temporary basis. The respondent-workman very well understood that his appointment would be for a short term. He furthermore understood that his services could be terminated at any point of time as it was on a contract basis. The question as to whether Chapter 5(A) of the Act will apply or not, would be dependent on the issue as to whether the order of retrenchment, if any, comes within the purview of Section 2(OO)(bb) of the Act or not, if the termination of service in view of the exception contained in clause (bb) of Section 2(OO)of the Act, is not retrenchment :
The question of applicability of Chapter 5(A) of the Act, thereof would not arise. I am of the view that the Labour Court lost sight of this fact and proceeded only on the footing that the workman had worked for 319 days. On this short point alone, the award of the Labour Court could not be sustainable, more particularly, when there is a clear and unequivocal admission on the part of the workman that he used to be called for work as and when the regular employee used to go on leave.
8. Under the circumstances, this petition is allowed. The award and order dated 9.8.2001 passed by Labour Court, Kalol in Reference (LCK) No. 275/1994 is hereby set aside. However, in the facts and circumstances of the case, there shall be no order as to costs.
(J.B.PARDIWALA, J.) Ashish N.