IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 701 of 2003 With SPECIAL CIVIL APPLICATION No. 6673 of 2003 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= BHAVNAGAR MUNICIPAL CORPORATION - Petitioner(s) Versus KANTIBHAI NANUBHAI VAGHELA - Respondent(s) ========================================================= Appearance :
MR HS MUNSHAW for Petitioner(s) : 1, MR KETAN A DAVE for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 08/10/2012
ORAL JUDGMENT
1. Heard the learned advocate for the parties.
2. The Municipal Corporation constituted under the provisions of Bombay Provincial Municipal Corporation Act, has approached this Court, by way of these petitions, filed under Article 226 and 227 of the Constitution of India, challenging the award and order passed by the Presiding Officer, Labour Court, Bhavnagar in Reference (LCB) No.617/1993 dated 07.09.2000 and order dated 09.12.2002 in Recovery Application No.1961 of 2001 respectively.
3. The facts in brief, as could be gathered from the memo of petitions and accompanying documents need to be set out as under.
3.1 The workman and the employer are hereinafter referred to as the 'workman' and 'employer' for the sake of brevity in the entire judgment. The workman has raised the industrial dispute, as his services were terminated on account of retrenchment order, which was passed on 03.02.1993, which, in fact, was a notice for retrenchment and after the passage of 3 months' time, the retrenchment had taken effect. The dispute which was raised by the workman was referred to the competent Court, which was registered as Reference (LCB) No.617 of 1993. The statement of claim and the written statement were filed. The witnesses were examined and ultimately Labour Court came to the conclusion that the order of retrenchment was wholly unjustified on two counts viz. non compliance with mandatory provision of Section 25F of the I.D.Act, as well as failure on the part of the employer in establishing the principle under Section 25G of 'last come first go' was not observed, as no documentary evidence in support thereto were produced despite repeated applications, requests and orders in the Court. The order of reinstatement with full back wages came to be passed on 07.09.2000, which is impugned in the petition being Special Civil Application No.701/2003. As there was no compliance with the said award, the workman was constrained to file recovery application, which came to be resisted by the employer indicating that a writ petition being Special Civil Application No.701/2003 was filed and the same is pending. The labour Court, passed an order on 09.12.2002, directing payment of Rs.1,59,315/ to the workman, which came to be challenged by way of Special Civil Application No.6673 of 2003.
4. Learned Advocate for the petitioner invited this Court's attention to the findings recorded by the Court and submitted that the findings recorded by the Court are contrary to the material on record and therefore, the award is required to be quashed and set aside. The award is otherwise not tenable in the eye of law, as the Court did not advert to the established principle of law while granting relief in a case, where, the retrenchment is questioned on part of the workman, when the workman has put in service only for short period. Learned Advocate for the petitioner in support of his submission, relied upon the decision of the Hon'ble Apex Court in case of Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal and Others, reported in (2010) 6 SCC 773.
5. Learned Advocate for the petitioner invited this Court's attention to the fact that the respondent workman was appointed initially in set up as on 1996 and on account of inadvertence in the year 1997, i.e. the respondent workman came to be appointed. When the said fact was noticed during the extension of service of the workman by the Commissioner, he immediately issued requisite instructions to the concerned, including the Legal Section for taking immediate steps for dispensing with services of the workman, who was in addition and excess to the declared set up. The correspondence exchanged in this behalf, is sought to be relied upon to abdicate that there was complete attempt to comply with mandatory provisions of Section 25F, though, unfortunately, on account of inadvertence the amount which was admissible to the workman as provided under Section 25F was not paid fully and lesser than the actual admissible amount was offered and paid without interest and same should not be viewed as breach of Section 25F, so as to saddle the corporation with all liabilities, back wages and all other consequential benefits which would amount to giving undue benefit to the workman at this stage.
6. Learned Advocate for the petitioner thereafter contended that the decision of the Apex Court in case of Santosh Kumar Seal (supra) would govern the facts of the present case in as much as the workman did not even complete 2 years service and looking to the ratio of the Apex Court, the workman at the best, could have been said to be entitled to mandatory compensation in lieu of reinstatement and therefore the reinstatement ought not to have been ordered and instead of that, a lumpsum compensation for breach of Section 25F would have been sufficient to meet with the end of justice.
7. Learned Advocate for the petitioner, thereafter contended that the impugned award is required to be interfered on the ground of complete non application of mind on the part of the Court. He alternatively submitted that if this Court is not satisfied that the award is required to be interfered with on the ground urged, then at least the matter be remanded back to the labour Court, so that appropriate material be brought to the notice of the Court as the documentary evidences which were placed on record being Exh.31 to Exh.38, as mentioned in the award, was unfortunately not adverted to by the labour Court and wrongfully drew adverse inference, which would not be available in any manner for sustaining the award and hence, the appropriate order be passed.
8. Learned Advocate for the petitioner, so far as the petition being Special Civil Application No.6673 of 2003 is concerned, submitted that though the said petition was pending before this Court, the Labour Court ordered recovery. He submitted that the award, which is made basis for order in recovery, is under examination and if the Court is of the opinion in the existing matter, then the second petition is also required to be allowed on the principles, which would govern the subsequent proceedings arising from the order, which is sought to be quashed and set aside in the main matter.
9. Learned Advocate Shri Munshaw also contended that the Labour Court has no justification in granting 100% back wages in light of the decision of the Hon'ble Supreme Court, in the case of Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal and Others (supra). He further submitted that it was the duty cast upon the Court to advert to the facts of the case and reinstatement with back wages is not automatic, even if, termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appreciated.
10. Learned Advocate for the workman contended that the Court has, in fact, observed at many places that the employer did not pay any heed to repeated requests, prayers, applications and orders for producing the record including seniority list, which would help the employer in justifying its stand qua compliance with Section 25F and 25G of the I.D.Act. The fact remains that the Labour Court was constrained to observe that the list which was produced indicated the present workman's position at Serial No.97, and if it was found to be typographical error and in that view of the matter, the entire record in this behalf should have been produced. The action of non production of record has rightly been viewed to be a factor capable of being not in favour of the employer and hence, the award may not be interfered in any manner.
11. Learned Advocate for the respondent workman has placed on record certified copy of the record obtained from the Court and pointed out therefrom that the requisite pleadings and proofs were available. So far as the case of the workman is concerned, the workman did say in his testimony that he was not given work, despite attempts made by him. He has further submitted that the workman has remained unemployed and in his crossexamination, cursory question was put to him that he has eking out his living by doing some labour work. This, in itself, cannot be said to be a ground to deny back wages to workman.
12. Learned Advocate for the respondent workman invited this Court's attention to the reasoning adopted by the Court and the anguish of the Court, which made the Court to observe that there appears to be no record on the part of the employer to the rule of law and attempt is made to justify the action relying upon the letters of the Commissioner, but the documentary evidence in form of seniority list is not produced, as could be seen from the observations of the Court at running page 25 of the compilation of the petition.
13. Learned Advocate for the respondent workman further submitted that the retrenchment, which was brought about illegality, has rightly been quashed and set aside and the question of back wages in such a situation would not be governed by the principle of 'no work no pay' as no work situation was forced upon the workman, which have be justified any submission on the part of the petitioner to deny back wages or challenging the granting of back wages, otherwise which would amount to premium to error employees of conduct of illegality.
14. The Court has perused the record and documents of the petition as well as the annexures of the petition. The petition being Special Civil Application No.701 of 2003, though is styled to have been filed under Article 226 of the Constitution of India, but the petitioner has not indicated as to how and in what manner, the said Article could be invoked. The cause title itself indicates that the petition is preferred under Article 226 as well as Article 227 and the prayer also contained reference to writ of certiorari, or any other appropriate writ, but, in my view, mere reference to the writ of certiorari and of Article 226 in the cause title itself, would not be sufficient to justify the filing of the petition under Article 226 without there being any requisite averments and pleadings for bringing the petition within the purview of Article 226 of the Constitution of India. The petitioner has made no pleadings to indicate as to how and in what manner the petition could have been maintained under Article 226 of the Constitution of India. The Labour Court's jurisdiction is nowhere challenged. Nowhere the action of the Labour Court has been assailed which was patently not permitted under law or the order was perverse in any manner. The writ of certiorari and/or an order in nature thereof is required to be passed upon the appropriate pleadings and proof of the rights. In the instant case, it is a pure and simple question of examining a competent Labour Court's award passed within its competence to give some relief to workman, whose dispute was referred to by competent authority after due procedure of law and therefore, despite the petition containing prayer of writ of certiorari and styling the same as a petition under Article 226, this Court is of the considered view that the petition cannot be said to be maintainable under Article 226 of the Constitution of India. This petition is required to be treated as the one filed under Article 227 of the Constitution of India and accordingly, it is required to be examined under that angle only.
15. Bearing the inherent limitations of examining the reliefs awarded in exercise of jurisdiction of Article 227 of the Constitution of India, the Court is of the considered view that both these petitions viz. Special Civil Application No.701 of 2003 and Special Civil Application No.6673 of 2003 are required to be dismissed as the orders impugned, cannot be said to be in any manner, perverse or resulted into illegality so as to call for interference for the following reasons namely:
I. The Labour Court's findings, qua the non observance of principle of 'last come first go', is a finding of fact, which cannot be interfered with by this Court. The attempt to assail that finding by broad reference to documents under Exh.31 to Exh.38 without in fact adjudging as to how they would justify the challenge to this finding should be of no avail to the petitioner.
II. The Court while recording its finding qua non compliance to Section 25 of the Industrial Disputes Act, has clearly recorded that there was deficit in offering retrenchment compensation and notice pay. Ld. Counsel for the petitioner had to admit that this finding cannot be assailed in any manner, but an attempt was made to pursue this Court to see that even if the finding is correct, then it becomes a technical finding or a technical lapse so as to entitle the workman at the best for retrenchment compensation or some compensation in lieu of reinstatement. The Court was not inclined to accept this submission, as it is the observation of the Court that there was consistent disregard to the various requests made by the Court for production of documents on record which is required to be taken into consideration.
III. The Labour Court has in its award, clearly recorded that despite there was a specific application, which was granted by the Court for production of document viz. the attendance register and wage register, nothing was produced. The applicant had applied on 21.03.2000, 28.03.2000, 17.05.2000 and 29.05.2000 for inspection, but it was without any avail. The Labour Court has relied upon the Hon'ble Supreme Court's decision in respect of the jurisdiction of drawing adverse inference in this situation has held that this was a case in which the adverse inference was required to be drawn against the employer.
IV. The Court at running page No.25, as submitted by the learned advocate, has observed that no documentary evidence, in respect of strength of the said available workmen was produced. The document indicating that the workman was junior amongst the list which is produced. In fact, the workman, in his statement of claim, submitted that he was given no documentary evidence in form of letter of appointment, I Card or wage slip etc. In such a case, an application for production of document was made and it is pursued repeatedly and when there was no compliance, the adverse inference was rightly drawn by the Court, which cannot be said to be in any manner illegal or untenable in the eye of law.
V. This brings the Court to consider the case in Special Civil Application No.6673/2003. In this matter also, the fact remains to be noted that the observations of the Court while passing the order impugned, go to show that the petition, though was preferred for the reasons best known to the employer was not modified. As the main matter, which has been dealt alongwith this matter, is registered in the year 2003 and the order impugned in this petition is dated 09.12.2002. Suffice it to say that, lack of urgency on the part of the employer cannot be permitted to act as an impediment in the way of the workman, so as to leave him high and dry without getting any benefits of litigation. Suffice it to say that the order impugned does not call for any interference and therefore, challenge to the impugned is required to be rejected.
16. In the result, both these petitions are rejected with no order as to costs. Rule is discharged.
Interim relief granted earlier shall stand vacated.
Ankit* [S.R.BRAHMBHATT, J.]