District Development Officer vs Rameshkumar Jethalal Thakkar

                                                                                    NEUTRAL CITATION




    C/LPA/60/2018                               CAV JUDGMENT DATED: 06/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                 R/LETTERS PATENT APPEAL NO. 60 of 2018
             In R/SPECIAL CIVIL APPLICATION NO. 15702 of 2007

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2     To be referred to the Reporter or not ?                            NO

3     Whether their Lordships wish to see the fair copy                  NO
      of the judgment ?

4     Whether this case involves a substantial question                  NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== DISTRICT DEVELOPMENT OFFICER & 1 other(s) Versus RAMESHKUMAR JETHALAL THAKKAR & 1 other(s) ========================================================== Appearance:

MR HS MUNSHAW(495) for the Appellant(s) No. 1,2 DELETED for the Respondent(s) No. 2 MR PH PATHAK(665) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MRS. JUSTICE MAUNA M. BHATT Date : 6/10/2023 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr. H. S. Munshaw for the appellant District Development Officer, District Panchayat, Mehsana and learned Page 1 of 8 Downloaded on : Fri Oct 06 20:52:58 IST 2023 NEUTRAL CITATION C/LPA/60/2018 CAV JUDGMENT DATED: 06/10/2023 undefined advocate Ms. Reena Kamani for learned advocate Mr. P.H.Pathak for the respondent.

2. The challenge in this Letters Patent Appeal is addressed to judgment and order dated 15.3.2017 of learned single Judge, whereby learned single Judge upturned the judgment and award of the Labour Court. Setting aside the judgment and award of Labour Court, whereby the Reference of the workmen was rejected, it was directed by learned single Judge to reinstate the petitioner with continuity of service with 25% back wages and all consequential benefits.

3. The workmen, 25 in total numbers, by filling three different References sought relief from the Labour Court that they were entitled to be reinstated on the original posts with back wages. Reference (LCK) No. 60 of 2006, Reference (LCK) No. 53 of 2006 to 57 of 2006 and Reference (LCK) No. 62 of 2006 came to be tried and decided by the Labour Court, Kalol, as per judgment and award dated 29.1.2007. The Labour Court held that no case was made out for granting the relief inasmuch as the workmen were found to have been engaged for scarcity relief work. It was held by the Labour Court that since their appointments was for specific work of scarcity, the termination of their services could not be faulted in law.

3.1 In reaching the above conclusion and rejecting the Reference, the Labour Court relied on the documentary evidences as well as the oral evidence of the workman himself.

NEUTRAL CITATION C/LPA/60/2018 CAV JUDGMENT DATED: 06/10/2023 undefined 3.2 While setting aside the judgment and award of Labour Court, learned single Judge proceeded on the footing that the services rendered by the workmen were continuous. It was the conclusion reached by learned single Judge that the workmen were posted as workcharged clerk and that their service books reflected the entries regarding payment of increment to them. It was recorded by learned single Judge that since the workcharged employees, could be converted into temporary employees and who could be made eventually permanent, looking to the case of the workmen involved and the attendant aspect, their termination was not justified. The case of the employer that the workmen were given the scarcity work only, did not find favour with learned single Judge.

3.3 The case of the employer was that the workmen were employed for the scarcity works only during the period from 1985 to 1988 pursuant to the relief works undertaken during the scarcity period by the State.

4. Before appreciating the above aspects, it may be noticed that termination of the service of the workman was in the year 1988. The Reference was filed before the Labour Court in the year 2006. Therefore, there was delay of 18 years on the part of the workman. As against this, it was the stand of the workmen that after the termination of their services they had filed Special Civil Application No. 3467 of 1987. However, finally the High Court did not entertain the petition and the prayers against termination on the ground of availability of alternative remedy. It was thereafter that the jurisdiction of the Labour Court was invoked.

4.1 Adverting to the factual merits, the employment of all the workmen was during the period between 1985 to 1988. Their services came to be Page 3 of 8 Downloaded on : Fri Oct 06 20:52:58 IST 2023 NEUTRAL CITATION C/LPA/60/2018 CAV JUDGMENT DATED: 06/10/2023 undefined terminated in the August, 1988. It was the specific case of the employer that workmen had not rendered 240 days of continuous service during any year and that they were employed for scarcity relief work only.

4.2 The documentary evidences were produced at Exh. 150 list in the proceedings of Reference (LCK) No. 60 of 2006. The first party employer endorsed to the said Exh.150 and expressed no objection to give final Exhibit to the documents produced. The documents were given Exhibit Nos. 178 to 392 accordingly.

4.3 The Labour Court reached a specific finding upon examination of the said documents that it was not possible to conclude that the workmen were given artificial break. The conclusion was reached on such basis that none of the workmen had completed 240 days of service. It also deserves to be mentioned with relevance that the documentary evidence produced in other reference cases were also accepted in view of no objection endorsement by the employer. The Labour Court recorded that in light of the documents on record, the fact was established that the workmen were not the employees employed regularly.

5. The two aspects, firstly that continuous service was not rendered by the workmen and secondly that they were employed for scarcity related work only stood established before the Labour Court. What was inter alia relied on was the evidence of Rameshbhai Jethalal Thakker-the applicant in Reference (LCK) No. 60 of 2016 (Exh.403). It is worthwhile to notice the evidence at Exh.403, which was before the Labour Copurt, more particularly in order to examine the finding recorded by learned single Judge.

NEUTRAL CITATION C/LPA/60/2018 CAV JUDGMENT DATED: 06/10/2023 undefined 5.1 The workman deposed (Exh.403) that for appointment of workcharged clerk, the first party employer used to call for the names from the employment exchange. It was stated that he had nothing to show that he was appointed as workcharged clerk on the vacant post. It was submitted that the first party employer had not given any appointment letter and that his services used to be terminated at regular interval. The workman in his evidence admitted that it was true that his appointment was until the continuation of scarcity related work. He admitted that his name was not called for through employment exchange while assigning him work. It was also admitted that in the year 1985, when he was given work again, it was not pursuant to any advertisement. It was stated that earlier also he was engaged without issuance of any advertisement.

5.1.1 The workman in his evidence further stated that had been working under the construction branch for scarcity related work and was employed in Taluka Sami. He admitted that any order appointing him as permanent employee was not issued and that his services came to be terminated with effect form 12.8.1988. He admitted that he was not able to show any any evidence that he had worked continuously for 240 days. He was shown appointment order (Exh. 392). On the basis of the contents of the said order, it was admitted by the workman that it was an order giving him the work relating to the scarcity relief work. In the original order of employing him dated 23.12.1985, his name figured at Sr. No.10. It was accepted that his appointment was accordingly made for the scarcity relief work.

NEUTRAL CITATION C/LPA/60/2018 CAV JUDGMENT DATED: 06/10/2023 undefined 5.2 The Labour Court also discussed the evidence of the witness of the first party employer, Anilbhai Keshavebhai Patel (Exh. 415 to 431). Neither the chief examination nor cross examination revealed anything in faovur of the employer. On the contrary, this witness had no personal information about the subject matter and the appointment of the workman. Evidence of Rameshbhai Bhalabhai Patel, who was on behalf of the first party employer, could only support the case of the workman when he stated in his cross examination (Exh. 432-448) that the order (Exh.38) was issued appointing the workman, assigning the work of scarcity relief only. Merely because the payment of wages to the workman was drawn from the workcharged contingency or any other department, it would not to alter the status of workman and nature of duties assigned to them which was for scarcity related work, as established on evidence.

5.3 In light of the above evidence on record before the Labour Court, and duly considered to reach to the conclusion that the employment of the workman was for scarcity related work, the termination of services by the employer did not breach any of the provisions of the law. It was accordingly that the reference was rejected in view of the evidence. It could be said that the conclusion was rightly reached that the workmen were employed for scarcity relief work only.

5.4 The above finding recorded on the basis of the evidence reasonably reached and properly appreciated by the Labour Court. Learned single Judge had no occasion to reverse such finding which was essentially finding of fact based on appreciation of evidence. The evidence before Page 6 of 8 Downloaded on : Fri Oct 06 20:52:58 IST 2023 NEUTRAL CITATION C/LPA/60/2018 CAV JUDGMENT DATED: 06/10/2023 undefined the Labour Court clearly suggested that the workmen were employed for scarcity related work. Therefore, treating the workman to be permanent and giving declaration that they were entitled to be reinstated with back wages with 20%, was an error of law committed. It was a material irregularity committed by learned single Judge. Learned single Judge was indeed not justified in setting aside judgment and award of Labour Court.

5.5 Also deserves to be noticed at this stage is the decision of the Full Bench of this Court in H.K.Makwana vs. State of Gujarat [1994 (2) GLR 1002], which could be successfully relied on by learned advocate for the appellant. In H. K. Makwana (supra), by adopting the view in J.J.Shrimali vs. District Development Oficer [1989 (2) GLH 12], it was held that the employment offered to the persons on scarcity relief works as undertaken by the State, cannot be said to be employment in 'industry' as defined by section 2(j) of the Industrial Disputes Act. The court held that relief works undertaken by the State during the drought, famine etc.. for providing employment to the needy is not 'industry', but it the performance of duty in exercise of sovereign function of the State.

5.6 At the end of elaborate discussion, the court held in para 12 thus, "(a) It is the primary and inalienable function of the State to provide livelihood to the persons who are affected by the natural calamities such as famine, earthquake, epidemic, flood, scarcity etc..

(b) Admittedly, the relief work is not a 'business' or 'trade' and with regard to the 'undertaking', the activity is not analogous to trade or business or that it is not a systematic activity but is carried out casually at different places depending on the calamities in a particular area."

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6. Upon careful consideration of the judgment and award of the Labour Court, this court finds itself in agreement with the conclusion recorded by the Labour Court that the employment of the workmen was only for the scarcity related works. Resultantly, their termination did not offend any provision of law. The principles laid down in H.K.Makwana (supra) would become applicable to the facts of the present case. Reversal of judgment and order of the Labour Court by learned single Judge was fraught with manifest misreading of the evidence on record and amounted to material irregularity and illegality in the order rendering it liable to be interfered with.

7. As a result of the above discussion, judgment and order of learned single Judge dated 15.3.2017 deserves to be interfered with as not sustainable. The same is hereby set aside. Letters Patent Appeal stands allowed.

(N.V.ANJARIA, J) (MAUNA M. BHATT,J) C.M. JOSHI Page 8 of 8 Downloaded on : Fri Oct 06 20:52:58 IST 2023