Heard learned advocate for the parties.
The petitioner, employer and first party in Reference (LCB) No.831/96 (renumbered), Labour Court , Kutch, Bhuj has approached this Court under Article 227 of the Constitution of India, challenging the said award whereunder the Labour Court has granted award of reinstatement with 75% of back wages to the respondent workman on the ground that the termination of the workman effected by the petitioner on 07.04.1995 was illegal and not in consonance with with provision of law and on account of mala fide exercise of power.
The facts in brief leading to filing this petition, as could be culled out from the memo of petition deserve to be set out as under.
The petitioner is a social welfare organization affiliated to the Indian Council of Social Welfare, Gujarat State branch at Ahmedabad and the respondent no.1 - workman was engaged as a Peon vide order dated 27.07.1992. The initial appointment was on temporary basis and for a period from 01.08.1992 to 31.07.1993 on conditions that the appointment is made subject to appropriate sanction from the concerned authority and in the event of sanction, not being accorded for appointment, the petitioner's services would be terminated without issuance of notice or without any further intimation. The petitioner's appointment was sanctioned vide communication dated 21.10.1992 for a period from 01.08.1993 to 31.07.1993. The extension was also granted vide communication dated 26.08.1993 to 31.03.1994. The concerned authority from the center, where the petitioner was discharging his duties as a Peon, addressed a letter dated 27.07.1994 to the competent officer for obtaining further extension in respect of the petitioner for the period from 01.04.1994 to 31.03.1995. The petitioner was awaiting sanction and an incident happened on 06.04.1995 in which an ACB trap was led and two officers working at the branch center were nabbed on the complaint of the present respondent no.1-workman for illegal demand of Rs.400/- which were deducted from the wages of the respondent workman. This trap resulted into criminal case being filed against those two employees and ultimately the said criminal case resulted into acquittal of those employees. The workman felt that his termination, which was terminated from the very next day i.e. on 07.04.1995 was on account of complaint lodged by him, which was resulted into arrest of the said two officers. The services of the workman was terminated on 07.04.1995. The workman raised industrial disputes, which came to be referred to the competent Court and originally it was numbered as Reference (LCR) No.460/95 came to be renumbered as Reference (LCB) No.831/96 on Labour Court coming into existence at Gandhidham. The statement of claim was filed, wherein the requisite averments and demand were raised by the workman and it was contended on behalf of the workman that the proximity of arrest and termination of the workman on the next day would leave no room of doubt that the action was precipitated on account of malice and grudge and for wrecking vengeance against workman for his act of lodging complaint which resulted into arrest of two officers of the center. The employer-petitioner filed written statement, wherein it was contended that the appointment order given to the workman contains specific conditions and the appointment was for the fixed period which came to be extended time and again after and under the sanction issued by the authorities located in Ahmedabad. The workman was continued even after the last sanctioned period was over in anticipation of receiving sanction from the concerned authority. However, the sanction did not come forward and, therefore, the concerned local authorities were left it no choice, but to terminate the services of the petitioner and which is unfortunately wrongly viewed to be an action of retaliation of the workman for his filing complaint. This complaint and termination was for no nexus and, therefore, the same need not be viewed together. The Court may appreciate the fact that the workman's original appointment was conditional and as the sanction had not been coming forward, the workman was required to be terminated. Therefore, there exists no victimization at all and the reference itself is required to be rejected.
The Labour Court after recording evidences and findings thereon came to the conclusion that the termination of the workman was by way of victimization only and, therefore, taking into consideration the testimony of the workman with regard to he is being engaged for three months after his termination granted order of reinstatement with only 25% of back wages.
This award was not complied with and, therefore, workman was constrained to file appropriate application for compliance with the order which prompted the employer to file this petition under Article 227 of the Constitution of India, challenging the award after passage of about 2 years.
This Court (Coram: P.K.Sarkar, J.) vide order 11.08.2000 passed the following order:
Heard the ld. Counsel for the petitioner. Rule and Notice as to interim relief returnable after six weeks. Petitioner to take steps to serve the notice on respondents within seven days. Interim matter will be taken up for hearing on the returnable date.
In the meantime, judgment and award passed by the Labour Court, Bhuj in Ref. (LCB) No.831/96 dt. 31.03.1998, shall remain stayed until further orders.
Whereby the award impugned was stayed. This Court (Coram: Ravi R.Tripathi, J.) on 26.06.2001 passed detailed order, wherein the authorities at Gandhinagar were ordered to be joined and the affidavit-in-reply was also required to be filed, which was filed and taken on record.
Learned advocate for the petitioner invited this Court's attention to the original appointment order issued to the workman concerned and relying upon the conditions therein submitted that the unfortunate incident of trap at the instance of the respondent workman cannot be construed as a prompting factor for bringing about termination of the services of the respondent workman, as otherwise also for want of sanction from the concerned authority for continuing the workman. It would not have been possible for the concerned local authorities to continue the workman as the continuation of the workman was in anticipation of sanction being proposed. It is unfortunate that the sanction did not come and, therefore, the services were required to be terminated. This cannot be, therefore, viewed as an act of victimization, as sought to be made out by the workman and his advocate at the bar.
Learned advocate for the petitioner further submitted that the Labour Court has erred in not appreciating these aspects at all. The Labour Court ought to have appreciated the fact that the order of appointment was unequivocally clear qua the conditions of employing the workman and when those conditions were not fulfilled namely sanction was not coming forward, then the workman could not have been continued. The workman was relieved from his duty on account of want of sanction. The unfortunate incident of trap and arrest of two employees on a day earlier is sought to be projected, as if a factor prompting the management to dispense with the services of such workman is not unfortunate and ought not have been accepted by the Labour Court.
Learned advocate for the petitioner further submitted that assuming for the sake of argument that there was no such incident of trap, then also the workman did not have any right to continue in the employment, as the condition of his employment was not fulfilled. As the sanction has been coming forward from the concerned authority, therefore, on this ground also occurrence of laying of trap and arrest of two officers cannot be projected so as to persuade the Court to hold that the termination was brought about on account of any mala fide on the part of the concerned authority.
Learned advocate for the respondent workman contended that the workman is in fact victimized on account of his lodging complaint against two officers who were in fact required to be arrested and prosecuted as a result of successful trap. The trap was led on 06.04.1995 and on the very next dated i.e. on 07.04.1995, the termination was brought about, itself unequivocally indicate that there was absolutely no reason for effecting termination right on the next date when the authority themselves had continued the petitioner in anticipation of sanction being requested from the concerned authority. It is not the case of the authorities that they received any intimation in any manner that sanction was not coming forward. Had there been any indication of this nature, then it would have been possible to argue that it was on account of such intimation the termination was effected. There was absolutely no intimation from any quarter to the authorities that was not coming forward and authorities had continued the workman in anticipation. The sanction being received, therefore, the proximity of incident of trap and the termination leaves no room of doubt that there exists mala fide and it is an act of victimization.
Learned advocate for the respondent workman invited this Court's attention to the testimony of the workman and his cross examination and submitted that the findings recorded by the Labour Court need not be interfered in any manner, as they are absolutely in consonance with law and when the Court is examining this petition under Article 227 of the Constitution of India, the declared principle of examining the award under Article 227 may persuade this Court in not interfering with the award, as otherwise also the award cannot be said to have been resulted into miscarriage of justice in any manner.
Learned advocate for the respondent workman invited this Court's attention to the order passed by this Court on 26.06.2001, wherein even this Court also prima facie observed that there could be a reason for inviting the respondent authorities to explain the conduct. All these factors may be appreciated and order may not be interfered with.
This Court has also heard learned advocate for the parties and perused the award and annexures. The following indisputable aspects emerging there from deserve to be set out as under;
(i) The workman was in fact engaged as a Peon vide order dated 27.07.1992 and the workman's initial appointment order is placed on record. The said order was heavily relied upon by the petitioner for indicating that the appointment was conditional and the condition remained unfulfilled and, therefore, the termination which is brought about on 07.04.1995 was justified.
(ii) The facts remain to be noted that the initial appointment of the workman was sanctioned for the period from 01.08.1992 to 31.07.1993 and subsequent extension was also accorded whereunder the respondent workman was to continue till 31.03.1995. The last sanction was on 31.03.1994 thereafter admittedly there was no sanction and yet in anticipation of this sanction, the respondent workman was continued.
(iii) Thus, from the fact it could be said that the respondent workman was continued in anticipation of sanction, though there existed no sanction after 21.03.1994 till the date of termination dated 07.04.1995. The communication dated 27.07.1994 seeking sanction for continuing the workman for the further period of 01.04.1994 to 31.03.1995 was also produced on record to indicate that the workman was continued in of sanction being proposed. Therefore, it would clearly indicate that despite non availability of sanction and anticipation of sanction being proposed and processed the workman was continued till his termination, which was effected on 07.04.1995 i.e. the day after the incident had occurred, as the trap was successfully led on 06.04.1995.
(iv) It is no where brought on record in any manner by the petitioner that whether he received any intimation and/or information that the sanction is not coming forward or any reason for effecting the termination right on the next date of the trap, wherein two officers were arrested.
(v) The lack of any cogent reason for promptly invoking the ground of non availability of sanction on 07.04.1995, though the fact remains that past sanction was always coming forward. There exists strong nexus between the two incidents and which cannot be overlooked by any Court of law or any reasonable person which leads to one and the only conclusion which Labour Court has arrived at.
Against the backdrop of the factual aspect it can be seen that the irregularities were noticed by the agency which was granting to the unit at Kutch, Bhuj and on account of serious irregularities, the grant was stopped or suspended in the year 1997. The litigation in form of Civil Application No.392 of 1997 filed by one of the two officers who was acquitted, also indicate that there existed serious irregularities in conducting affairs at the center at Bhuj. Be that as it may, this Court may not interfere itself on this aspect any longer.
The petitioner employer has sought to rely upon the appointment order and conditions mentioned thereunder to justify its action of termination, but as it is stated hereinabove the proximity of two incidents and the factum of workman being continued after the sanction period was over and his abrupt services, termination of service on the very next day leaves no room for any other conclusion, but the only one that the termination was brought about on account of the workman filing complaint, which resulted into arrest of two officers of the center. The reasoning adopted by the Labour Court being just and proper. This Court would not interfere there with while examining the matter under Article 227 of the Constitution of India.
The order impugned has granted 75% of back wages and learned advocate for the petitioner employer submitted that the Labour Court has accepted that workman was in fact engaged for some time after his termination and was earning and, therefore, this Court may appropriately modify the amount of back wages. This Court is unable to accept this submission, as there is already deduction made by the Labour Court up to 25% of the back wages and as the workman himself has stated that workman was engaged only for three months and in the cross examination also, the employer could not lead any evidence to show contrary to what workman stated in his proposition and, therefore, Labour Court has not rightly accepted the submission for larger cut in the quantum of back wages. This Court is also, therefore, of the view that no further deduction is required to be made in the quantum of back wages.
In view of the aforesaid discussion, the petition being bereft of merit deserve rejection and is accordingly rejected. Rule is discharged. However, there shall be no order as to costs.
(S.R.BRAHMBHATT, J.) Pankaj Top