1. The petitioner has challenged the legality and validity of the Award passed by the Presiding Officer, Labour Court, Bhavnagar in Reference (LCB) No. 459 of 1990 dated 7.2.2002 whereby the learned Presiding Officer of the Labour Court, Bhavnagar was pleased to partly allow the Reference filed by the respondent workman directing the petitioner Corporation to reinstate the workman on his original post with continuity of service as well as 65% of the back wages.
2. The facts which can be culled out from the record of the petition are as under :
3. The respondent workman was working as Conductor in Transport Department of petitioner No.1 – Corporation on daily wages of Rs.24.70 since 30.10.1987. It is the case of the respondent workman that on 31.3.1989 without giving any notice, by an oral order the respondent workman came to be terminated. Being aggrieved by such action of the petitioner Corporation, the respondent workman raised dispute before the competent authority i.e. Assistant Labour Commissioner, Bhavnagar and as the conciliation failed, the dispute came to be referred to the Presiding Officer, Labour Court, Bhavnagar and the said dispute came to be registered as Reference (LCB) No. 459 of 1990.
4. The petitioner corporation as well as the respondent workman adduced the oral as well as documentary evidence and after considering the evidence so adduced, the Presiding Officer of the Labour Court, Bhavnagar, was pleased to allow the Reference partly as indicated hereinabove. Being aggrieved by the said judgment and award, the petitioner Corporation and the Traffic Superintendent of the petitioner Corporation have preferred this petition under Articles 226 and 227 of the Constitution of India.
5. This Court (Coram : N.G.Nandi, J.[as he then was]) by order dated 29.11.2002 admitted the matter and granted interim relief staying the implementation, execution and operation of the judgment and award subject to compliance with the provisions of Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for the sake of brevity). It may be noted that there is no dispute as regards compliance of Section 17B of the Act pending hearing of this petition.
6. Heard Mr. H.S.Munshaw, learned Advocate for the petitioners and Mr. P.H. Pathak, learned Advocate for the Respondent –workman.
7. It is the case of the petitioner that the petitioner Corporation was running Transport Service for the purpose of providing transport facilities to the citizens of Bhavnagar. However, Mr. Munshaw pointed out that the transport service is discontinued. Mr. Munshaw further submitted that when the transport service was being run by petitioner - Corporation, the respondent workman came to be employed as Conductor on daily wages. Mr. Munshaw further submitted that the Labour Court has not properly appreciated the evidence on record and even though the respondent workman has only worked for 58 days in the last preceding year i.e. in 1987-88, the Labour Court has committed an error in passing the order of reinstatement. Mr. Munshaw further submitted that the respondent workman has not been able to prove that he has worked as Conductor on daily wages for sufficient number of days so as to attract the provisions of Section 25F of the Act. However, even though there is no cogent evidence on record that the respondent workman has worked for more than 240 days in the last preceding year, the Labour Court has passed the order of reinstatement. Mr. Munshaw also submitted that the Labour Court has committed an error in not considering the fact that transport bus service is no more in operation and has been handed over to a private organization run by Ex.serviceman Association and as there is no work available, it is not possible to reinstate the respondent workman in service. Mr. Munshaw submitted that the Labour Court has erred in holding that the respondent workman should be continued in service in some other departments of the petitioner Corporation. Mr. Munshaw also submitted that the Labour Court has committed an error on the face of the record in coming to the conclusion that the petitioner Corporation has violated the provisions of Sections 25G & 25H of the Act as no other person has been recruited after the service of the respondent workman came to be discontinued. Mr. Munshaw further submitted that by list at Exh. 37 the petitioner Corporation has clearly established the fact that the respondent workman has hardly worked for 58 days and such a cogent evidence has been misread by the Labour Court and thus the Labour Court has committed an error on the face of the record. Mr. Munshaw further submitted that the Labour Court has also not considered the fact that the respondent workman raised dispute after a period of three years. Mr. Munshaw also submitted that the Labour Court has without assigning any reason whatsoever has awarded 65% back wages even though there is no evidence adduced by the respondent workman that he is not gainfully employed elsewhere. Mr. Munshaw therefore submitted that the petition deserves to be allowed and the impugned judgment and award deserves to be quashed and set aside. Mr. Munshaw further submitted that in similarly situated case, in the case of Bhavnagar Municipal Corporation V/s. Anirudsinh Ramsinh Jadeja in Special Civil Application No. 9369 of 1998 this Court (Coram : D.C.Srivastav, J [as he judgment and award passed by the Labour Court. Mr. Munshaw further submitted that the said judgment of this Court in the case of Bhavnagar Municipal Corporatlion (supra) has been confirmed by the Division Bench of this Court by order dated 29.10.2002 passed in Letters Patent Appeal No. 1397 of 1999. Mr. Munshaw candidly submitted that even if this Court comes to the conclusion that the impugned judgment and award deserves to be confirmed either in toto or partly, considering the fact that the respondent workman has worked only for 58 days and further considering the fact that the alleged date of termination is 21.3.1989 as long period of more than 20 years has gone instead of reinstatement and back wages this Court may grant lump-sum compensation in lieu of service. Mr. Munshaw therefore submitted that the petition deserves to be allowed and the impugned judgment and award deserves to be quashed and set aside.
8. Per contra Mr. Pathak has supported the impugned judgment and award. Mr. Pathak relying upon the findings of the Labour Court has submitted that even though the contention was raised before the Labour Court and even though same contention is also taken before this Court, to the effect that the respondent workman has worked only for 58 days, the same is without any basis. Mr. Pathak submitted that the petitioner Corporation has not been able to prove on this fact and as noted by the Labour Court the list at Exh. 37 has not been proved by the petitioner Corporation. Mr. Pathak further relying upon certificate issued by the officer of the Municipal Corporation at Exh.17, submitted that the petitioner officer itself has stated that the respondent workman has worked from 3.10.1987 to 31.3.1989. Mr. Pathak further relying upon at Exh.11 submitted that as many as 160 employees including badli drivers working in Traffic Department have been accommodated by the petitioner Corporation in other departments, however, the respondent workman has been discriminated. Mr.
Pathak further submitted that in fact the juniors to the petitioners who were Conductors in traffic department of the Corporation have been continued in service and now they have been regularised. Mr. Pathak further submitted that the Labour Court has rightly appreciated the evidence adduced before it and has been pleased to partly allow the Reference. As far as award of 65% backwages is concerned Mr. Pathak has submitted that except the reasoning given by the Labour Court no further evidence is available. Mr. Pathak therefore submitted that the petition is devoid of any merit and hence deserves to be dismissed.
9. Before reverting the submissions made by both the Counsels it would be appropriate to discuss the evidence which was adduced by the parties before the Labour Court which is placed on record of this petition. Exhibit 11 is document dated 22.7.1996 issued by the Commissioner of petitioner Corporation. The subject of the said document reads as under : “Regarding placing the employees of bus traffic department of the corporation in other departments”(translated from Gujarati in origin). On perusing the said document it transpires that the employees of the Bus Traffic Department who were working on the post such as Instructors, Junior Instructors, Checkers, Senior Clerks, Junior Clerks, Peons, Chowkidars, Safaikamdars, Drivers, Conductors, Badli Drivers, about 160 persons have been accommodated by the petitioner in other departments of the petitioner Corporation. On further perusal of the document at Exh.11 it transpires that even the petitioner Corporation has considered the case of employees of the Bus Traffic Department who were either suspended or were already working in other departments even on work charge and badli drivers. Similarly on perusal of the certificate at Exhibit 17 it transpires that it is signed by the officer of the petitioner Corporation on 19.7.1990. Vide said certificate the opinion is expressed by the officer of the Corporation that the respondent workman was working as daily wager conductor in the Bus Traffic Department of the petitioner Corporation from 3.10.1987 to 31.3.1989. Similarly Exhibit 16 is the office order dated 7.1.1992 which recites that four persons who were working as conductors in the Bus Traffic Department of the petitioner Corporation who were originally appointed by resolution no. 62 of Selection Committee dated 22.1.1989 were appointed on probation of one year. The said office order dated 7.1.1992 indicates that all those four persons who were working as conductors on probation have been made permanent as conductors with effect from 1.1.1992 in the pay-scale of Rs.1150-25-1525 and the said office order is signed and passed by Commissioner of petitioner–Corporation.
10. It is also pertinent to note at this stage that the petitioner Corporation had submitted five documents by list at Exhibit 37 which are as follows :
(i) Permission to appoint badli conductors dated 19.10.1987;
(ii) Office order of February,1988 dated 28.6.1988;
(iii) Office order of April 1988 dated 20.7.1988;
(iv) Office order dated June 1988 dated 19.10.1988;
(v) Office order dated May 1988 dated 20.7.1988.
The Corporation has also examined his officer one Mr. Sulparsing Gohil at Exh.36 and the respondent workman has been examined at Exh. 18.
11. On perusal of the impugned award as well as evidence as above, it transpires that the respondent workman was working as Badli Conductor on daily wages from 30.10.1987. Reliance is placed on documents produced by the petitioner at Exhibit 37 without any legal basis inasmuch as that the petitioner Corporation has not proved those documents. Hence, no reliance can be placed by this Court also. It therefore transpires that the petitioner Corporation has not been able to prove the contention raised before the Court to the effect that the respondent workman has hardly worked for 58 days that too in break. Even if certificate at Exhibit 17 is considered and read as opinion expressed by the officer of the petitioner Corporation, as rightly considered by the Labour Court, the petitioner Corporation has not been able to prove the fact that the respondent workman has worked for 58 days only. Even on perusing the oral deposition of the witness of the Corporation (Exhibit 36). Mr. Sulparsing Dansing Gohil, in examination in chief he has stated that he was working as Junior Clerk in the petitioner Corporation and had duty of marking presence, making pay bill in the bus department. He has stated further in his examination in chief that as the bus department was closed the badli workers have not been continued. He has also stated that daily wagers do not get work continuously for the whole year. However, he has also stated that three persons were taken in place of the respondent workmen. He has also stated that as the bus division was closed, the permanent employees have been accommodated in other departments. However, the badli workers have not been accommodated in any other department. In his further examination in chief it is found that he has just narrated documents produced by list at Exhibit 37. In cross-examination the witness of the petitioner Corporation has stated that it is true that bus department is not closed from 22.7.1996, however the contract is given. He has also stated that by document dated 22.7.1996 the employees of the Bus Traffic Department have been accommodated in different departments being Exhibit 12. He has also admitted the fact that the employees at Sr. Nos. 152 to 160 are badli workers. Though he has denied that employees other than permanent employees have been accommodated in other departments he has admitted the fact that daily wagers drivers are working in the insurance department of the petitioner corporation. He has also admitted the fact that octroi department and the bus department are still in existence and even though the employees of the bus department worked in other departments their salary bill is prepared in City Bus Department.
12. Similarly the respondent workman has also been examined at Exhibit 18. However, in the cross- examination of the said respondent workman the petitioner has not been able to dislodge anything i.e. stated in the examination in chief by the respondent workman.
13. In view of the above set of evidence and more particularly considering the fact that X'erox copies which were produced by list at Exhibit 37 have not been proved and considering the fact that the witness of the petitioner Corporation himself has stated that even badli drivers have been accommodated in other departments and even the seniority list of the daily wagers has not been prepared till 31.3.1989 or fifteen days thereafter it cannot be said that the Labour Court has committed an error in coming to the conclusion that the petitioner Corporation has violated the provisions of Sections 25F & 25H. This Court in its jurisdiction under Articles 226 and 227 of the Constitution of India cannot re-appreciate the evidence led before the Labour Court and can add anything to the same. The witness of the petitioner Corporation has also stated on oath that in fact, even though the transport services have been discontinued salary of the persons working in the bus department is still being made in the bus department indicates that finding arrived at by the Labour Court cannot be termed as perverse or illegal.
In the case of Bhavnagar Corporation (supra) relied upon by Mr. Munshaw, learned Counsel for the petitioner this Court had come to the conclusion that the provisions of Section 25F are not attracted and it was not a case of retrenchment or dismissal in the factual background of the said matter wherein the petitioner Corporation had proved that the respondent workmen were daily wagers who completed only 29 days in three months. On appreciating the evidence on record adduced by the petitioner before the Labour Court, the petition was allowed. Similar view is expressed by the Division Bench in the case of Anirudsinh Ramsinh Jadeja Vs. Bhavnagar Municipal Corporation in Letters Patent Appeal No. 1397 of 1999. Whereas as discussed hereinabove, in the instant case, the petitioner Corporation has not been able to establish that the respondent workman has worked only for 58 days. X'erox copies which were produced at Exhibit 37 have not been proved by the petitioner Corporation and therefore no reliance can be placed upon such X'erox copies. The other contentions raised by Mr. Munshaw that the award is of 2002 and the termination is from 1989, therefore, instead of reinstatement this Court may modify the judgment and award by awarding lump-sum compensation in lieu of reinstatement. Firstly such a contention has not been raised by the petitioner either before the Labour Court or even before this Court and therefore the same cannot be considered now at the stage of final hearing of this petition.
14. Considering the above, the petitioner Corporation has failed to prove that the respondent workman has worked only for 58 days. Finding arrived at by the Labour Court to that effect cannot be termed as error much less the error on the face of the record. The Labour Court after considering the document at Exhibit 11 and considering the evidence of the petitioner itself has rightly come to the conclusion that there is breach of Sections 25F & 25H of the I.D. Act. Resultantly therefore the Labour Court is right in coming to the conclusion that the termination is bad and illegal.
15. However, as far as the award of back wages to the tune of 65% is concerned, the Labour Court has not granted any cogent reason and has in fact not examined the fact that whether the respondent workman was gainfully employed or not and therefore the award of back wages to the tune of 65% is perverse.
16. In view of the above, the impugned judgment and award deserves to be modified. The judgment and order of reinstatement is confirmed and award for 65% back wages is quashed and set aside. The judgment and award passed by the Presiding Officer, Labour Court, Bhavnagar in Reference (LCB) No. 459 of 1990 stands modified accordingly. The petition is partly allowed. Rule made absolute to the aforesaid extent only with no order as to costs.
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(R.M. Chhaya, J.) M.M.BHATT