Gujarat High Court
Bhavnagar District Panchayat vs Dhanabhai Mohanbhai on 6 August, 2021
Bench: A. P. Thaker
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1631 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 1632 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 1633 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 1634 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 1635 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 1636 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 1637 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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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 ?
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BHAVNAGAR DISTRICT PANCHAYAT
Versus
DHANABHAI MOHANBHAI
================================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR RAJESH P MANKAD(2637) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 06/08/2021
Page 1 of 15
Downloaded on : Sun Jan 16 06:23:38 IST 2022
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
ORAL JUDGMENT
1. All these petitions have been filed by the petitioner-
Bhavnagar District Panchayat under Articles 226 and 227 of
the Constitution of India with a prayer to set aside common
award passed by the Labour Court, Bhavnagar in Reference
(LCB) Nos.99, 101, 114, 115, 116, 117 and 118 of 1992,
whereby the petitioner herein has been directed to reinstate all
the workmen with continuity of service and 10% backwages
with all ancillary benefits. Details of the different Special Civil
Applications preferred against different workmen and
reference numbers in which the award is passed by the Labour
Court, Bhavnagar, are as under:-
1. SCA No.1631/10 Dhanabhai Mohanbhai
Reference (LCB) No.99/1992
2. SCA No.1632/10 Tidiben Naranbhai
Reference LCB) No.101/1992
3. SCA No.1633/10 Jagabhai Dhanjibhai
Reference (LCB) No.114/1992
4. SCA No.1634/10 Liliben Gordhanbhai
Reference (LCB) No.115/1992
5. SCA No.1635/10 Madhuben Lavjibhai
Reference (LCB) No.116/1992
6. SCA No.1636/10 Gavuben Dhanabhai
Reference (LCB) No.117/1992
7. SCA No.1637/10 Vasantben Naranbhai
Reference (LCB) No.118/1992
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
2. Heard Mr.H.S.Munshaw, learned advocate for the
petitioner and Mr.Rajesh Mankad, learned advocate for the
respondents-workmen through video conferencing.
3. The main contention raised by the petitioner is that all
the workmen were daily wagers and they were not appointed
on regular basis and they were appointed without following
due procedure of recruitment and they were appointed purely
on ad-hoc and temporary basis. It is also contended that there
was no permanent sanctioned post and, therefore, the
workmen have no right to continue irrespective of availability
of work and funds. It is also contended that without
considering the written statement of the petitioner herein,
learned Labour Court has granted the prayer of reinstatement
after 17 years, which may result into various administrative
problems as well as financial burden. It is also contended that
the respondents-workmen have never worked for 240 days in
any of the year and, therefore, there was no question of
granting award in their favour. It is contended that there was
no retrenchment within the meaning of Section 2 (oo), (bb) of
the Industrial Disputes Act as the workmen were working for
repair and maintenance work and as soon as the work is over,
they were bound to be discontinued. According to the
petitioner, all these facts have not been considered by the
Labour Court while passing the impugned award.
4. The brief facts of the case are that the workmen have
filed their respective references before the Labour Court on the
ground that they were serving since last three years before
filing of the reference and they were being paid daily wages at
the rate of Rs.20/- and they were not being paid minimum
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
wages and were not granted any benefit as per the
Government Resolution and, therefore, they have requested
the Deputy Executive Engineer, due to that their services came
to be terminated orally on 12.1.1992. It is their case that as
they were not taken in service, they have issued notice on
22.2.1992. Same was not replied by the original respondent-
employer. Therefore, they moved Assistant Labour
Commissioner vide complaint dated 29.2.1992, wherein the
employer was called for, but nobody remained present on his
behalf. It is also the case of the workmen that thereafter, the
Assistant Labour Commissioner has referred the matter to the
Labour Court. It is also the case of the workmen that they have
not been paid any retrenchment allowance or notice pay nor
they were served with any notice prior to termination of their
service. It is also contended that, after termination of their
service, the employer has employed other persons on the
same post and, thus, there is breach of provisions of the
Industrial Disputes Act. On all these grounds, they have prayed
for directing the employer to reinstate them with continuity of
service and full backwages as well as with all ancillary benefits
and cost of the reference.
4.1 The respondent i.e. the employer has filed written
statement in each of the reference and the main contention of
the employer is that the workmen were employed for repair
work and as soon as the work is over, their services
automatically came to an end. The other contention raised is
regarding the fact that the workmen have never worked for
240 days in a calendar year and they were daily wagers and
they have no right whatsoever. It is also contended that there
was no retrenchment and, therefore, the workmen were not
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
entitled to get notice pay or notice or retrenchment allowance.
It is also contended that it is not an "industry" within the
meaning of the Industrial Disputes Act. It is also contended
that employer is ready to employ the workmen, as and when
the work is available. It is prayed to dismiss the reference.
4.2 On the basis of the oral evidence and the documentary
evidence, the Labour Court has granted prayer of
reinstatement with continuity of service and 10% backwages
with ancillary benefits.
5. Mr.Munshaw, learned advocate for the petitioner has
vehemently submitted the same facts, which are narrated in
the memo of petition and has submitted that the workmen
were daily wagers, appointed on ad-hoc and temporary basis
and their services were dependent upon the availability of
work. He has further submitted that there is no sanctioned
post on which the workmen were working. He has also
contended that the amount was being paid as and when the
grant is received from the Government. According to him, the
Labour Court has committed serious error of facts and law in
granting prayer in favour of the workmen without taking into
consideration the contentions of the petitioner, which were
raised in the written statement. He has also contended that
the petitioner has already placed on record the statement of
working days of the workmen, which suggests that none of the
respondents-workmen has worked for 240 days in a calendar
year. According to him, it was for the workmen to prove that
he or she has worked for 240 days in a calendar year. He has
submitted that, in this regard, no documentary evidence has
been produced by the workmen and, therefore, the workmen
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
are not entitled to get relief of reinstatement. He has further
submitted that the workman has not mentioned name of other
persons, who have been retained or employed by the
petitioner after automatic termination of services of the
workmen herein. He has further submitted that there is no
evidence on record to suggest that there was breach of
Sections 25-F, 25-G and 25-H of the Industrial Disputes Act. He
has also submitted that the Labour Court has not assigned any
specific findings that there is breach of the aforesaid
provisions. He has submitted that no record whatsoever has
been produced by the workmen in the matter and, therefore,
the Labour Court ought to have rejected the reference in
question.
5.1 He has further submitted that the Labour Court has not
believed the stand of the petitioner herein without any basis.
According to him, almost 30 years have passed and the
workmen have worked for a very short period as they were
daily wagers from 1991 and due to passage of time,
reinstatement with continuity of service and granting of 10%
backwages may not be confirmed. He has submitted that
taking into consideration all these facts, this Court may set
aside the impugned award. He has relied upon a decision in
the case of Bhavnagar Municipal Corporation v. Anil
Budhabhai Vegad in Special Civil Application No.13056 of
2009 dated 16.9.2019, especially paragraph 4, which reads as
under:-
"4. Against the documentary evidence, the counter by
the workman was only an oral statement with the
assertion that he had continuously worked for 10 years
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
and more than 240 days in the last preceding 12
calendar month before his alleged termination. It is not
understood as to how the oral statement of the workman
could have out-weighed the documentary evidence
which was even not controverted by the workman. This
approach of the Labour Court shows a complete lack of
understanding of the rules of evidence."
6. Per contra, learned advocate, Mr.Mankad for the
respondents-workmen has submitted that the most of the
workmen are now retired on superannuation. He has submitted
that service of the workmen were terminated with effect from
12.1.1992. According to him, at the time of termination of their
services, they were working for last three years and they were
orally terminated. He has submitted that the workmen have
filed an application for production of documents but the
documents were not produced by the other side and,
therefore, adverse inference is to be drawn against the
petitioner. He has submitted that the Labour Court has
considered these aspects and has already drawn adverse
inference against the petitioner. He has submitted that the
Labour Court has passed an order directing the petitioner
herein to produce the documents but it did not produce the
same. According to him, the findings of fact arrived at by the
learned Labour Court is based on oral and documentary
evidence produced in the matter and there is no error in
passing the impugned award. According to him, as this Court is
exercising supervisory jurisdiction, the finding of fact by the
learned Labour Court may not be disturbed. He has submitted
that there is clear breach of Sections 25-F, 25-G and 25-H of
the Industrial Disputes Act and, therefore, the order of the
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
Labour Court is sustainable in the eyes of law. He has
submitted that, in view of these, present petitions deserve to
be dismissed and the order of the Labour Court may be
confirmed.
6.1 In the alternative, he has submitted that since the
workmen have retired, lumpsum compensation may be
granted to them. He has relied upon following decisions:-
(i) R.M.Yelluti v. Assistant Executive Engineer,
reported in (2006) 1 SCC 106.
(ii) Ramjibhai Virjibhai Chanpa v. Paschim Gujarat Vij
Company Limited reported in 2016 (1) LLJ 115.
(iii) Rajula Nagarpalika through Chief Officer v.
Kamleshbhai Bhikhubhai Mehta reported in 2015 (2)
CLR 392
(iv) Bharuch Municipality through Chief Officer v.
Hitesh Vinodchandra Kayasth reported in 2011 (0)
GLHEL-HC 226196
(v) Jasmer Singh v. State of Haryana and Another
reported in (2015) 4 SCC 458
(vi) Totaram v. Bellis India (Private) Limited reported in
(2016) 6 SCC 406 : AIR 2016 SC 2208
(vii) Ashok Kumar Sharma v. Oberoi Flight Services
reported in (2010) 1 SCC 142.
(viii) Faridan v. State of Uttar Pradesh reported in (2010)
1 SCC 497.
7. In rejoinder, Mr.Munshaw has submitted that the
department could not produce the documents as such
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
documents got destroyed in flood and this fact may be
considered for non-production of the documents. He has
submitted that though this fact was stated before the Labour
Court, the Labour Court has erroneously drawn adverse
inference. He has submitted that considering the short span of
service of the workmen and since 30 years have already
passed, appropriate order may be passed setting aside the
impugned award.
8. In the case of R.M.Yelluti v. Assistant Executive
Engineer, reported in (2006) 1 SCC 106, the Apex Court in
paragraphs 12 and 14 held as under:-
"12. Analyzing the above decisions of this court, it is clear
that the provisions of the Evidence Act in terms do not apply
to the proceedings under section 10 of the Industrial Disputes
Act. However, applying general principles and on reading the
aforestated judgments, we find that this court has repeatedly
taken the view that the burden of proof is on the claimant to
show that he had worked for 240 days in a given year. This
burden is discharged only upon the workman stepping in the
witness box. This burden is discharged upon the workman
adducing cogent evidence, both oral and documentary. In
cases of termination of services of daily waged earner, there
will be no letter of appointment or termination. There will also
be no receipt or proof of payment. Thus in most cases, the
workman (claimant) can only call upon the employer to
produce before the court the nominal muster roll for the given
period, the letter of appointment or termination, if any, the
wage register, the attendance register etc. Drawing of
adverse inference ultimately would depend thereafter on
facts of each case. The above decisions however make it clear
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
that mere affidavits or self-serving statements made by the
claimant/workman will not suffice in the matter of discharge
of the burden placed by law on the workman to prove that he
had worked for 240 days in a given year. The above
judgments further lay down that mere non-production of
muster rolls per se without any plea of suppression by the
claimant workman will not be the ground for the tribunal to
draw an adverse inference against the management. Lastly,
the above judgments lay down the basic principle, namely,
that the High Court under Article 226 of the Constitution will
not interfere with the concurrent findings of fact recorded by
the labour court unless they are perverse. This exercise will
depend upon facts of each case."
"14. Before concluding, we would like to make an
observation with regard to cases concerning
retrenchment/termination of services of daily waged earners,
particularly those who are appointed to work in Government
departments. Daily waged earners are not regular employees.
They are not given letters of appointments. They are not
given letters of termination. They are not given any written
document which they could produce as proof of receipt of
wages. Their muster rolls are maintained in loose sheets.
Even in cases, where registers are maintained by the
Government departments, the officers/clerks making entries
do not put their signatures. Even where signatures of clerks
appear, the entries are not countersigned or certified by the
appointing authorities. In such cases, we are of the view that
the State Governments should take steps to maintain proper
records of the services rendered by the daily wagers; that
these records should be signed by the competent designated
officers and that at the time of termination, the concerned
designated officers should give certificates of the number of
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
days which the labourer/daily wager has worked. This system
will obviate litigations and pecuniary liability for the
Government."
8.1 In the case of Ramjibhai Virjibhai Chanpa v. Paschim
Gujarat Vij Company Limited reported in 2016 (1) LLJ
115, it is held as under:-
"5.00. In view of the above and for the reasons stated above,
present petition succeeds. The impugned judgement and
award passed by the Labour Court, Junagadh in Reference
(LCJ) No.25 of 1998 dated 3/2/2004 is hereby modified to the
extent awarding 75% back wages (instead of 25% back
wages) from the date of termination till the date of
reinstatement, calculating the same on the basis of increase
and/or revision of pay of the workman and other
consequential benefits and the same be paid to the petitioner
workman with interest at the rate of 7.5% per annum at the
earliest. Rule is made absolute accordingly. In the facts and
circumstances of the case, there shall be no order as to
costs."
8.2 In the case of Rajula Nagarpalika through Chief
Officer v. Kamleshbhai Bhikhubhai Mehta reported in
2015 (2) CLR 392, considering the fact that the workman was
around the age of 45 years and he had still 15 years to serve,
the submission made on behalf of Rajula Nagarpalika for
passing an order of some amount of compensation came to be
rejected by the Division Bench of this Court.
8.3 In the case of Bharuch Municipality through Chief
Officer v. Hitesh Vinodchandra Kayasth reported in 2011
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
(0) GLHEL-HC 226196, wherein considering the facts of the
case, Division Bench has upheld the observation of the Labour
Court that juniors to the respondent were retained by the
municipality and, therefore, there was breach of Sections 25-F,
25-G and 25-H of the Industrial Disputes Act.
8.4 In the case of Jasmer Singh v. State of Haryana and
Another reported in (2015) 4 SCC 458, wherein it was
proved that the workman has worked for more than 240 days
immediately preceding the date of his termination and, on that
basis, the Labour Court has held that there was breach of
Sections 25-F of the Industrial Disputes Act and directed
reinstatement with full backwages as the order of termination
was held to be void ab-initio.
8.5 The other decisions relied upon by the respondents are
on the same line.
8.6 So far as grant of lumpsum compensation is concerned,
learned advocate for the respondent, Mr.Mankad, has relied
upon the decision in the case of Totaram v. Bellis India
(Private) Limited reported in (2016) 6 SCC 406 : AIR 2016
SC 2208, wherein considering the fact that the workman has
worked for 14 years, Rs.2.5 Lacs were awarded as
compensation towards full and final settlement.
8.7 In the case of Ashok Kumar Sharma v. Oberoi Flight
Services reported in (2010) 1 SCC 142, compensation of
Rs.60,000/- was granted as full and final settlement by the
High Court, which came to be enhanced to Rs.2 Lacs by the
Apex Court.
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
8.8 In the case of Faridan v. State of Uttar Pradesh
reported in (2010) 1 SCC 497, compensation in lieu of
reinstatement was enhanced to Rs.2 Lacs from Rs.50,000/- as
awarded by the High Court.
9. Having considered the submissions made by the learned
counsel for both the sides coupled with aforesaid decisions
relied upon by the parties and on perusal of the impugned
award, it is crystal clear that there is no dispute that the
workmen were working with the petitioner from 1991 and their
services came to be terminated orally with effect from
12.1.1992. It also appears from record that the workmen have
sought for various documents from the petitioner herein and
learned Labour Court has passed an order to that effect,
however, the documents were not produced before the Labour
Court. Of course, stand of the petitioner herein is that due to
flood the records got destroyed and, therefore, the same could
not be produced before the Labour Court. Be that as it may, it
is a fact that necessary documents have not been produced.
10. It also appears from the impugned award that the Labour
Court has minutely considered the oral and documentary
evidence on record. It also appears that as per the defence of
the petitioner herein, the workmen were employed for a
particular work and as soon as the work is over, their services
came to an end. During the course of deposition of the
petitioner's witness, it came on record that after termination
services of the workmen, the work was still going on and other
persons were working. It is also an admitted fact that there
was no prior notice issued to the workman nor any payment of
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
retrenchment allowance was made by the employer to the
workmen. The finding of fact by the Labour Court that there
was breach of Section 25-F of the Act for non-payment of
notice pay is based on oral and documentary evidence on
record. Since this court is exercising revisional jurisdiction, this
Court has limited scope to interfere with the finding of fact
recorded by learned Labour Court.
11. Regarding the defence raised to the effect that the
petitioner is not an "industry", it is pertinent to note that the
activities carried out for which the workmen were employed is
nothing but the activity due to which there is employer-
employee relation between the parties. Further, in view of
various decisions of the Apex Court, the petitioner herein falls
under the definition of "industry" as provided in the Industrial
Disputes Act.
12. Now, in this case, as submitted by learned advocate for
the workmen that almost all workmen have retired and almost
30 years have passed, there is no question of now reinstating
all the workmen. It also appears from record that in all these
petitions, by virtue of order dated 6.4.2010, the petitioner
herein has complied with the provisions of Section 17-B of the
Industrial Disputes Act. Considering the factual aspects of the
present case, since there was a short tenure of service of the
workmen instead of granting continuity of service and
backwages, it will be appropriate to award compensation as
full and final settlement in favour of the workmen. Now,
considering the peculiar facts of this case and the fact that
there was short span of service of the respondents, this Court
is of the considered opinion, if Rs.50,000/- is awarded as
C/SCA/1631/2010 JUDGMENT DATED: 06/08/2021
compensation as full and final settlement, it will serve the ends
of justice.
13. Considering the judgment of the Apex Court in the case
of Tapash Paul Vs. BSNL and another reported in 2016 (1)
Scale 92 and BSNL Vs. Bhurumal reported in 2014 (7) SCC
177, this Court is of the view that in the present cases
granting of relief of reinstatement after such a long gap will
not serve any purpose and, therefore, this Court is of the view
that if the order to grant compensation of Rs.50,000/- to each
respondent-workman in lieu of reinstatement is passed, it will
meet the ends of justice.
14. In view of above, all these petitions are partly allowed
and the impugned common award dated 16.10.2009 passed by
the Labour Court, Bhavnagar in Reference (LCB) Nos.99, 101,
114, 115, 116, 117 and 118 of 1992 is modified to the
aforesaid extent that the petitioner herein shall pay
Rs.50,000/- as full and final compensation to each of the
workman. Such amount be paid to each workman by the
petitioner, after proper verification of the identity by an
account payee cheque/ pay order within a period of three
months from the date of receipt of this order, failing which the
concerned workman shall be entitled to get interest at the rate
of 6% from the date of this order till the date of actual
realization. It is observed that the aforesaid amount is in
addition to whatsoever amount paid to him/her till today. Rule
is made absolute accordingly with no order as to costs.
Registry is directed to maintain a copy of this order in all
connected matters.
Sd/-
(DR. A. P. THAKER, J)
R.S. MALEK
