IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 6050 of 2001 With SPECIAL CIVIL APPLICATION No. 6052 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA ========================================================= 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 ?
========================================================= SURENDRANAGAR DISTRICT PANCHAYAT - Petitioner(s) Versus VALIBEN HARIBHAI - Respondent(s) ========================================================= Appearance :
MR HS MUNSHAW for Petitioner(s) : 1, MR KR KOSHTI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 29/03/2012
COMMON ORAL JUDGMENT
1. By way of these petitions, the petitioners have challenged the common judgment and award passed by the Presiding Officer, Labour Court, Surendranagar dated 08.02.2000 in Reference (LCS) Nos.154/1991, 266/1991 and 23/1992. It being a common judgment and award, both these petitions are disposed of by this common judgment.
2. Special Civil Application No.6050/2001 relates to
3. The facts that can be pointed out from the record of the petitions are summarized as under:
3.1 The respondents-workmen claimed that they were working as permanent workmen since 10 years and 8 years respectively with the petitioner and were given work of construction of road. It is the case of the respondents-workmen that the petitioner used to pay minimum wages. It is contended that after having worked for a long period, the respondents-workmen were terminated from the services on 01.07.1988, without any notice or notice pay in lieu of retrenchment, in illegal all manner. It appears that the respondents- workmen addressed a demand notice dated 06.02.1992. However, the same was not replied by the petitioner.
The respondents-workmen raised a dispute before the Assistant Labour Court, Surendranagar on 30.01.1992 and 27.05.1991 respectively. Thereafter, however, the said dispute came to be referred to the Presiding Officer, Labour Court at Surendranagar, which came to be registered as Reference (LCS) No.23/1992 and Reference (LCS) No.154/1991.
4. The learned Presiding Officer of the Labour Court, Surendranagar, after considering the statement of claim filed by the respondents-workmen and after considering the evidence put-forward by the petitioner, by the common judgment and award dated 08.02.2000, was pleased to partly allow the said references directing the petitioner to reinstate the respondents-workmen on the original post with 20% back wages, and was further pleased to impose cost of Rs.250/-.
5. Being aggrieved by the said judgment and award, the petitioner-employer has preferred these petitions under Articles 226 and 227 of the Constitution of India.
6. Heard Mr.Rajesh Chauhan, learned advocate for Mr.H.S. Munshaw, learned advocate for the petitioner in both the petitions and Mr.K.R. Koshti, learned advocate for both the respondents-workmen.
7. Mr.Chauhan, learned advocate, vehemently, submitted that the respondents-workmen were appointed temporarily on ad-hoc basis, as daily wager.
7.1 Mr.Chauhan, learned advocate, further submitted that they were appointed on temporary basis only for the purpose of work of maintenance of the road.
7.2 Mr. Chauhan, learned advocate, further submitted that, in fact, the respondents-workmen were given work as daily wager only when the work is available and he further submitted that the work of maintenance of road depends upon the availability of funds, and therefore, the services of the respondents-workmen as daily wager, were taken by the petitioner only when the work was available.
7.3 Mr. Chauhan, learned advocate further submitted that the learned Labour Court has committed an error apparent on the face of record by dealing with the case of the respondents-workmen in absence of any documentary evidence.
7.4 Mr.Chauhan, learned advocate, further, submitted that, in fact, the learned Labour Court has committed an error by relying upon the oral evidence of the respondents-workmen, though the petitioner had
7.5 Mr.Chauhan, learned advocate, further, submitted that the learned Labour Court has wrongly come to the conclusion that the respondents-workmen have completed 240 days in the preceding year.
7.6 Mr.Chauhan, learned advocate, further, submitted that the learned Labour Court has committed an error apparent on the face of the record and has wrongly come to the conclusion that there is a violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (“the Act” for short).
7.7 Mr.Chauhan, learned advocate, relied upon the contention that the respondents-workmen were given work as daily wager only when the work was available and only when the maintenance of the road was to be undertaken by the petitioner and when the project was over, the services of the respondents-workmen came to be discontinued.
7.8 Mr.Chauhan, learned advocate, further, submitted that the Labour Court has committed an error in directing the petitioner to reinstate the respondents- workmen.
7.9 Mr.Chauhan, learned advocate, further, submitted that in addition to this, the learned Labour Court has also committed an error apparent on the face of record in awarding 20% back wages without considering the fact that the respondents-workmen have filed the present references raising their disputes after a lapse of more than three years. Mr.Chauhan, learned advocate further submitted that the order of grant of 20% back wages by the impugned judgment and award, is erroneous.
7.10 Mr.Chauhan, learned advocate further submitted that the petitions deserve to be allowed and the judgment and award impugned in the petitions deserves to be quashed.
8. Per contra, Mr.K.R. Koshti, learned advocate for the respondent, has supported the impugned judgment and award, impugned in the present petitions.
8.1 Mr.Koshti, learned advocate, submitted that in fact, both the workmen have reached the age of superannuation, and therefore, the question of reinstatement of the respondents-workmen does not arise in both the petitions.
8.2 Mr.Koshti, learned advocate, further submitted that, in fact, the very said common judgment and award impugned in these petitions was subject matter of challenge by the petitioner by way of filing a writ petition being Special Civil Application No.6053/2001 and this Hon'ble Court (Coram: Hon'ble Mr. Justice M.S. Shah as his Lordship then was) by the judgment and order dated 06.12.2001 was pleased to dismiss the said petition and confirmed the impugned judgment and award.
8.3 Mr.Koshti, learned advocate, relied upon the said judgment and further pointed out that in the aforesaid case, being Special Civil Application No.6053/2001, the respondent-workman had expired during the pendency of the reference proceedings, whereas in the instant case by now, both the respondents-workmen have reached the age of superannuation, and therefore, submitted that as per the judgment and order dated 06.12.2001 passed in Special Civil Application No.6053/2001, the judgment and award passed by the Presiding Officer, Labour Court, Surendranagar deserves to be confirmed.
8.4 Mr.Koshti, learned advocate, further submitted that both the petitions deserve to be dismissed.
8.5 Considering the rival submissions made by the respective learned counsel and perusing the record of these petitions and perusing the order passed by this Court (Coram: Hon'ble Mr. Justice M.S. Shah as his Lordship then was) in Special Civil Application No.6053/2001, it transpires that the subject matter of challenge in the said writ petition was the very impugned order in both the petitions. It is an admitted position that the judgment and order dated 06.12.2001 has become final, as the petitioner has not challenged the said judgment and order confirming the impugned judgment and award qua the respondent-workman before the Higher Forum. It is also worthwhile to note that the respondents-workmen have also not challenged the judgment and award, whereby only 20% back wages has been awarded. Mr.Koshti, learned advocate appearing for the respondents-workmen, has submitted that the respondents-workmen do not want to expand the prayer made in the petitions and/or the relief granted by the Labour Court, which is impugned in both these petitions.
9. It appears from the judgment and order dated 06.12.2001 passed in Special Civil Application No.6053/2001, that the very said common judgment and award was challenged in the said petitions by the petitioner herein. It appears that identical contentions were raised and the same have been negatived. The contention regarding reinstatement raised by Mr.Koshti, learned advocate appearing for the respondents-workmen, is worth considering. However, the same is not dealt with on merits, as the respondent-workman in the earlier writ petition being Special Civil Application No.6053/2001 had expired pending the reference. However, in this case, by efflux of time, both the respondents-workmen have reached the age of superannuation in June-2008 and therefore, at this stage, the question of reinstatement is out of question, as of now. However, when this petition was filed, this Court (Coram: Hon'ble Mr. Justice R.R. Tripathi) vide order dated 30.07.2001, was pleased to pass the following order:
“Rule returnable on 18.9.2001. Notice as to interim relief returnable on the same date. Ad interim relief in terms of Para-8(c) till then.”
10. The record further indicates that by an order dated 19.09.2001 passed by this Court (Coram: Hon'ble Mr. Justice K.M. Mehta as his Lordship then was), the ad-interim relief granted, while admitting the matter was subject to fulfillment of the provisions of Section 17-B of the Act. It further appears that the petitioner preferred not to reinstate the respondents- workmen during the pendency of this petition.
11. This Hon'ble Court (Coram: Hon'ble Mr. Justice M.S. Shah as his Lordship then was) in the writ petition being Special Civil Application No.6053/2001, has observed thus:
“4. Various contentions are urged by the learned counsel for the petitioner. The first contention is that the respondent had never worked for 240 days in any of the year and therefore there was no question of violation of section 25F of the Industrial Disputes Act. Hence the award is required to be set aside. Secondly, it is contended that the case in hand is covered by the provisions of section 2(oo)(bb) of the Act as the respondent was working on daily wage basis on a project. As and when the project is over, such daily rated employees services are discontinued. It is also contended that there was delay of 3 to 4 years in moving the machinery under the Industrial Disputes Act and therefore also the reference ought to have been rejected. It is further contended that no work is available now with the Panchayat. Hence the respondent cannot be reinstated in service. It is also contended that the Labour Court erred in awarding 20% of the backwages with effect from the alleged date of termination though reference was filed after more than 3 to 4 years.
5. Since most of the aforesaid contentions except the last one regarding backwages, have relevance mainly qua the direction for reinstatement of the workman, it is not necessary to examine the same as the workman has already expired. In fact the workman had expired before the Labour Court pronounced the award. Hence now there cannot be any question of reinstatement. The learned counsel for the Panchayat however submits that the question of backwages still survives as the heirs are claiming the backwages awarded as per the award of the Labour Court.
6. It is true that for challenging the said direction, the petitioner - Panchayat has to challenge the finding of the Labour Court that the termination of the workman's services was illegal. For this purpose, the learned counsel for the Panchayat has submitted that the workman had not put in 240 days service in any of the years. On this question, apart from the pleadings wherein the workman had stated that the workman was employed by the Panchayat for 10 years prior to the termination of her services on 1-7- 1988, the Panchayat had denied the workman's case that workman's services were illegally terminated and contended that the workman had left service and had not completed 240 days service. The workman, therefore, filed an application before the Labour Court vide Ex.8 for calling upon the Panchayat to produce the muster roll and wage register. The xerox copies produced by the Panchayat with the list Ex.9 however were not proved in evidence and therefore they were not exhibited. Hence the Labour Court had to proceed on the footing that the employer had not produced any record. The witness examined on behalf of the employer also did not throw any light on the question of number of days for which the respondent - workman was employed.”
12. As aforesaid, the hearing of all the references were consolidated before the Labour Court and the set of evidence was produced. It was observed by this Court in Paragraph-6 that the petitioner-Panchayat has not been able to prove that the respondents-workmen had not put in 240 days service in any of the years. As observed by this Court in the said judgment, even the witnesses examined on behalf of the employer also, do not throw any in light on the numbers of days for which the respondents-workmen were employed.
13. At this stage, it would be relevant to refer to the judgment of the Apex Court in the case of Devinder Singh Vs. Municipal Council, Sanaur reported in 2011 (6) SCC 584. The Hon'ble Apex Court while considering the identical factual scenario and the contention that the alleged termination does not amount to retrenchment as the respondents-workmen were employed for a specific period for specific work, has held in Paragraph Nos.9, 10, 11, 12, 13, 14, 15, 19 and 29 as under:
“9. We have considered the respective submissions and carefully perused the record. Sections 2(oo), 2(s) and 25F of the Act which have bearing on the decision of this appeal read as under:
"2. (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill- health;
(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."
10. The definition of the term "retrenchment" is quite comprehensive. It covers every type of termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman, retirement on reaching the age of superannuation, termination of service as a result of non-renewal of the contract of employment or of such contract being terminated under a stipulation contained therein or termination of the service of a workman on the ground of continued ill health also do not fall within the ambit of retrenchment.
11. In State Bank of India v. N. Sundara Money (1976) 1 SCC 822, a three Judge Bench of this Court analysed Section 2(oo) and held:
"......Termination ... for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employee's service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. Maybe, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25-F and Section 2(oo). Without speculating on possibilities, we may agree that "retrenchment" is no longer terra incognita but area covered by an expansive definition. It means "to end, conclude, cease". "
The ratio of the aforementioned judgement was approved by the Constitution Bench in Punjab Land Development And Reclaimation Corporation Ltd., Chandigarh v. Presiding Officer Labour Court, Chandigarh (1990) 3 SCC 682.
12. Section 2(s) contains an exhaustive definition of the term `workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term `workman'.
13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
14. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of `workman'.
15. In Birdhichand Sharma v. First Civil Judge,Nagpur 1961 (3) SCR 161 this Court considered the question whether bidi rollers were workmen within the meaning of the term used in the Factories Act, 1948. The factual matrix of the case reveals that the workers who used to roll the bidis had to work at the factory and were not at liberty to work at their houses. Their attendance was noted in the factory and they had to work within the factory, though there was freedom of doing work for particular hours. They could be removed from service on the ground of absence for eight days. The wages were paid on piece-rate basis. After considering these facts, the Court held that the bidi rollers were workmen. The Court observed that when the operation was of a simple nature and did not require supervision, the control could be exercised at the end of the day by the method of rejecting bidis which did not meet the required standard and such supervision was sufficient to establish the employer employee relationship.
19 In Anoop Sharma v. Executive Engineer, Public Health Division, Haryana (supra), the Court considered the effect of violation of Section 25F, referred to various precedents on the subject and held the termination of service of a workman without complying with the mandatory provisions contained in Section 25- F (a) and (b) should ordinarily result in his reinstatement.
29. The plea of the respondent that the action taken by it is covered by Section 2(oo)(bb) was clearly misconceived and was rightly not entertained by the Labour Court because no material was produced by the respondent to show that the engagement of the appellant was discontinued by relying upon the terms and conditions of the employment.”
14. This Court has observed in the above referred judgment that no evidence was brought by the petitioner-Panchayat to prove that the respondents- workmen had not put in service in any of the years. The findings arrived at by the learned Labour Court are correct. There is no error much less any error apparent on the face of record, which warrants interference of this Court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Taking into consideration the ratio laid down by the Hon'ble Apex Court in the case of Devinder Singh (supra) in absence of any material brought on record by the petitioner to show that services of the respondents-workmen came to an end as per the terms and conditions of the employment and hence it cannot believed that the termination of respondents-workmen would be covered under Section 2(oo)(bb) of the Act.
15. As the petitioners have attained the age of superannuation, the respondents-workmen would be entitled to the benefits, as if they are reinstated, but only till the date of their reaching the age of superannuation.
16. Resultantly, both the petitions are dismissed.
The judgment and award passed by the Presiding Officer, Labour Court, Surendranagar in Reference (LCB) is hereby confirmed. Rule is discharged. Interim relief, if any, granted earlier, stands vacated. No costs.
(R.M. Chhaya, J.)
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