Gujarat High Court
Deputy Forest Conservator vs Sukhabhai Vajubhai Bhaliya on 16 April, 2025
NEUTRAL CITATION
C/SCA/866/2024 JUDGMENT DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 866 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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DEPUTY FOREST CONSERVATOR & ANR.
Versus
SUKHABHAI VAJUBHAI BHALIYA & ANR.
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Appearance:
MR YUVRAJ BRAHMBHATT, ASST.GOVERNMENT PLEADER for the
Petitioner(s) No. 1,2
MR KRUNAL D PANDYA(3283) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 16/04/2025
ORAL JUDGMENT
1 This petition is filed under Articles 226 and 227 of the Constitution of India, challenging the judgment and award dated 10.07.2023 passed by the learned labour Court, Junagadh in Reference (T) No.23 of 2022, whereby the Reference filed by the respondent- workman came to be partly allowed and order of termination dated 01.11.2020 is held illegal. The petitioner was directed to reinstate the respondent- workman with continuity of service, without back wages.
2 It is the case of the present petitioner that, the Reference came to be filed by the respondent before the learned labour Court alleging that the respondent Page 1 of 9 Uploaded by M.M.MIRZA(HC01407) on Thu May 01 2025 Downloaded on : Sat May 03 07:51:21 IST 2025 NEUTRAL CITATION C/SCA/866/2024 JUDGMENT DATED: 16/04/2025 undefined had been working as a daily wager from 01.01.2010 to 30.09.2017. On 01.11.2020 the service of the respondent was disengaged and at that point of time he was getting monthly wages of Rs .6,985/-. It is alleged in the statement of claim that the work was perennial of nature and after his termination, the other junior workmen were engaged for the same work. It is alleged that without following the procedure prescribed under the I.D.Act, the termination was done therefore, relief of reinstatement along with all consequential benefits was prayed for. It is submitted in the written statement that the respondent had worked only as a seasonal employee and on completion of the season his work automatically termination. It is submitted that the petitioner has completed four years as a daily wager services and completed 240 days and thereafter his services tried to convert in the piece rate upto 01.10.17 Working statement from 2010 to 2020 the same is the part of the affidavit in reply filed by the respondent below Exhibit 9/1 is as follow:
Year Days Worked (Daily Rated) 1-1-2010 to 31-12-2010 128 1-1-2011 to 31-12-2011 195 1-1-2012 to 31-12-2012 126 1-1-2013 to 31-12-2013 260 1-1-2014 to 31-12-2014 130 1-1-2015 to 31-12-2015 310 1-1-2016 to 31-12-2016 284 1-1-2017 to 31-12-2017 156 (From 01-10-2017, made to work at piece rate ) 1.1.2018 to 31-12-2018 Piece Rate 1-1-2019 to 31-12-2019 Piece Rate 1-1-2020 to 31-03-2020 Piece Rate Page 2 of 9 Uploaded by M.M.MIRZA(HC01407) on Thu May 01 2025 Downloaded on : Sat May 03 07:51:21 IST 2025 NEUTRAL CITATION C/SCA/866/2024 JUDGMENT DATED: 16/04/2025 undefined 2.1 Since, during the period of 2010 to 2020, the respondent was engaged through outsourcing
agency, it is submitted by the petitioner that there was no any employer-employee relation between the present petitioner and the respondent. Therefore, the Reference was requested to be dismissed.
2.2 The learned Reference Court, after considering the evidence placed on record more particularly, the muster rolls, calculation of arrears, copy of the order directing the respondent to resume the duty and the report regarding resumption of the duty, the learned Reference Court has allowed the Reference in favour of the respondent, which is subject matter of challenge before this Court.
3 Heard the learned AGP Mr.Yuvraj Brahmbhatt for the State and learned advocate Mr. K.D Pandya for the respondent workman.
4 Learned AGP Mr. Brahmbhatt submits that the respondent was engaged only for a particular season, and upon completion of the said season, his services were discontinued. Learned AGP Mr.Brahmbhatt submits that as the respondent's entry into the petitioner's department was a backdoor therefore, he cannot claim reinstatement as a matter of right. Learned AGP Mr. Brahmbhatt submits that, at the time of disengagement, the respondent was serving on Page 3 of 9 Uploaded by M.M.MIRZA(HC01407) on Thu May 01 2025 Downloaded on : Sat May 03 07:51:21 IST 2025 NEUTRAL CITATION C/SCA/866/2024 JUDGMENT DATED: 16/04/2025 undefined piece rate through an outsourcing agency, and therefore, no award could have been passed against the present petitioner.
4.1 Learned AGP Mr.Brahmbhatt submits that even the respondent fails to establish the continuous service which is the prime requirement under section 25B of the I.D.Act while holding retrenchment illegal. Learned AGP Mr.Brahmbhatt submits that without any cogent reasons the impugned order passed therefore, the same is required to be interfered with and the petition is required to be allowed.
5 As against the same, learned advocate Mr.K.D.Pandya appearing for the respondent has submitted by filing affidavit in reply, that the respondent was initially engaged on daily rated basis, subsequently on piece rate wages, and thereafter, the work was carried out through an outsourcing agency. Learned advocate Mr.K.D.Pandya submits, in order to demonstrate that respondent had worked from 2010 to 2020, the Bank Statement of the respondent's account was produced below mark 13/4. Learned advocate Mr.K.D.Pandya submits that the respondent's engagement was transferred to the outsourcing\ piece rate agency without his consent, and in support of this, communications addressed by the piece rate/outsourcing agency were produced before the Page 4 of 9 Uploaded by M.M.MIRZA(HC01407) on Thu May 01 2025 Downloaded on : Sat May 03 07:51:21 IST 2025 NEUTRAL CITATION C/SCA/866/2024 JUDGMENT DATED: 16/04/2025 undefined learned labour Court at Exhibits 9\3 and 13\5.
5.1 Reliance was placed by the learned advocate Mr K.D.Pandya on the judgment of Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, reported in AIR (1986) SC 458 and submitted that the learned Reference Court has rightly awarded the Reference by considering the service of the present respondent as a continuous service considering the Sundays and holidays for the purpose of calculation of 240 days under section 25B of the I.D.Act.
5.2 Learned advocate Mr.K.D.Pandya submits that though the respondent had rendered service for a period of more than 10 years, his services were disengaged without following procedure prescribed under the I.D.Act. and same is supported by the affidavit in reply filed by the respondent. Therefore, learned advocate Mr.Pandya has prayed to dismiss the petition by confirming the impugned order passed by the learned labour Court.
6 Having considered the arguments made by the learned advocates for the respective parties and on perusing the award passed by the learned labour Court, it emerges that, as per the affidavit filed in the form of chief examination below Exhibit 14, it is Page 5 of 9 Uploaded by M.M.MIRZA(HC01407) on Thu May 01 2025 Downloaded on : Sat May 03 07:51:21 IST 2025 NEUTRAL CITATION C/SCA/866/2024 JUDGMENT DATED: 16/04/2025 undefined claimed that the respondent had been working worked since 01.01.2010 in the petitioner department for the protection of the wild animal. In addition to that, he was also engaged in plantation work in the forest, which work is perennial in nature. To establish his claim, the respondent has produced Tarij Patrak below marks 9/1, and the statement regarding the payment of the arrears. The petitioner had paid the arrears on a piece rate for the period of October 2020. It is an undisputed fact that the respondent was initially engaged on a daily wage basis, and subsequently he was treated as a piece rate employee, then as a contractual employee, and finally as an outsourced employee. Though it is claimed by the petitioner that the respondent was lastly serving through an outsourcing agency, no such order or documentary evidence was placed on record before the learned labour Court.
6.1 Pertains to the payment of arrears for unpaid days. The main contention raised by the petitioner is that the respondent had not completed 240 days of service in preceding years, and therefore, is not entitled for relief of reinstatement. In this regard, the reference of the judgment rendered by the Apex Court in the case of Workmen of American Express International Banking Corporation (supra) which was made by the learned Reference Court is required to be referred, relevant Page 6 of 9 Uploaded by M.M.MIRZA(HC01407) on Thu May 01 2025 Downloaded on : Sat May 03 07:51:21 IST 2025 NEUTRAL CITATION C/SCA/866/2024 JUDGMENT DATED: 16/04/2025 undefined paragraphs are reproduced herebelow:
"5.Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief under S. 25-F is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in S. 25-B of the Industrial Disputes Act. In the present case, the provision which is of relevance is S. 25-B(2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman. during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is 'actually worked under the employer. This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders, etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to S. 25-B(2) should be taken into account for the purpose of calculating the number of days on which the workman had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression 'actually worked under the employer'. The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression 'actually worked under the employer' is capable of comprehending the days during which the workman was in employment and was paid wages - and we see no impediment to so construe the expression - there is Page 7 of 9 Uploaded by M.M.MIRZA(HC01407) on Thu May 01 2025 Downloaded on : Sat May 03 07:51:21 IST 2025 NEUTRAL CITATION C/SCA/866/2024 JUDGMENT DATED: 16/04/2025 undefined no reason why the expression should be limited by the explanation. To give it any other meaning then what we have done would bring the object of S. 25-F very close to frustration. It is not necessary to give examples of how S. 25-F may be frustrated as they are too obvious to be stated."
6.2 And moreover, the reply filed by the respondent herein relied upon the judgment dated 22.01.2020 rendered in SCA No.3966 of 2016 wherein the piece rated days are required to be considered as daily rated days and the same is confirmed by the Division Bench in LPA No.83 of 2021 and the same is up held by the Apex Court in SLP No.12097 of 2021 vide order dated 04.02.2022 whereby the remuneration/wages paid as a piece rated worker is covered under the definition of wages as define under section 2(rr) of the I.D.Act.
7 So far as the contention with regard to engagement through the outsourcing agency which is raised by the petitioner is concerned, the witness of the petitioner had admitted in the cross examination that respondent was never informed for the engagement through the outsourcing agency. It is admitted that no consent was given by the respondent with regard to the engagement through outsourcing agency and it is also admitted that the work which was carried out by the respondent was still in existence.
8 Considering the above evidence, learned Reference Page 8 of 9 Uploaded by M.M.MIRZA(HC01407) on Thu May 01 2025 Downloaded on : Sat May 03 07:51:21 IST 2025 NEUTRAL CITATION C/SCA/866/2024 JUDGMENT DATED: 16/04/2025 undefined Court has awarded the relief of reinstatement with continuity of service, however, no back wages have been granted.
9 This Court did not find any infirmity in the impugned judgment passed by the learned Reference Court, and therefore, in the opinion of this Court the petition deserves to be dismissed.
10 Resultantly, this petition is dismissed. It is clarified that the petitioner shall implement the order passed by the learned labour Court within a period of four months from the date of receipt of a copy of this order.
(M. K. THAKKER,J) M.M.MIRZA Page 9 of 9 Uploaded by M.M.MIRZA(HC01407) on Thu May 01 2025 Downloaded on : Sat May 03 07:51:21 IST 2025