Yunus Husanbhai Jethwa vs General Manager, Junagadh Mother ...
2021 Latest Caselaw 361 Guj

         C/SCA/492/2021                                   ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 492 of 2021
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                  YUNUS HUSANBHAI JETHWA
                           Versus
          GENERAL MANAGER, JUNAGADH MOTHER DAIRY
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Appearance:
MR CHINTAN S POPAT(5004) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 12/01/2021

                            ORAL ORDER

1. By way of this petition under Articles 226 and 227 of the

Constitution of India, the petitioner challenges the impugned

award dated 16.01.2020 passed by the learned Presiding Officer,

Labour Court No.2, Junagadh in Reference (T) No.2 of 2015

whereby the learned Presiding Officer, Labour Court No.2,

Junagadh has rejected the Reference (T) No.2 of 2015.

2. The facts of the case are that the petitioner was appointed on

the post of Junior Executive Officer on a monthly fixed salary of

Rs.12,000/­. The appointment was contractual in nature and

initially petitioner's appointment was for a period of one year from

01.07.2008. From time to time, the contract was renewed on the

same terms and conditions and lastly the petitioner's appointment

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was renewed vide letter dated 11.06.2014 and the contract was

renewed for a period from 01.07.2014 to 30.09.2014.

2.1 It is the case of the petitioner that on 30.09.2014, on expiry

of term of contract, the petitioner was relieved from service by the

respondent and being aggrieved by the aforesaid action, the

petitioner challenged the action of respondent by preferring

Reference (T) No.02 of 2015. The learned Presiding Officer, Labour

Court No.2, Junagadh, after considering the material on record and

after appreciating the evidence, vide award dated 16.01.2020

rejected the Reference preferred by the petitioner.

2.2 Being aggrieved and dissatisfied with the aforesaid award,

the petitioner has challenged the said award by way of preferring

the present petition before this Court.

3. Heard learned advocate Mr.Jeet Rajyaguru for learned

advocate Mr.Chintan Popat for the petitioner through video

conference.

3.1 Mr.Rajyaguru submitted that the impugned award is passed

without appreciating the evidences which were on record. He

submits that learned Presiding Officer has committed an error by

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holding that the petitioner cannot be said to be a 'workman' as

defined in Section 2(S) of the Industrial Disputes Act, 1947 ['the

I.D.Act, 1947', for short]. He further submitted that the learned

Presiding Officer has committed an error by holding that the

petitioner's termination from services cannot be said to be

retrenchment. He has further submitted that the learned Presiding

Officer has committed an error by not appreciating the fact that the

person who was junior to the petitioner has been retained in

service and, therefore, the impugned award is bad in law and the

same deserves to be quashed and set aside. Except these

submissions, no other submissions were made by learned advocate

Mr.Rajyaguru for the petitioner.

4. On perusal of the material on record of this petition as well as

on going through the award, it transpires that the petitioner was

initially appointed as Junior Executive (Officer) for a monthly fixed

salary of Rs.12,000/­, as stated in the statement of claim annexed

with the petition. As can be seen from the award, the appointment

of the petitioner was of contractual in nature and apart from other

conditions, as mentioned in the contract, condition nos.15 and 17

of the contract need to to be reproduced, as under:

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"15. This being a purely contractual assignment you will not have any lien or right on any permanent post in the SKDP, now or at a later date.

16. ...XXX

17. Notwithstanding any of the clause of this contractual appointment letter the management reserves the right in its sole discretion of terminating this appointment at any time, without giving any reasons thereof and by giving one months notice or pay in lieu thereof. Similarly if you desire to leave the services of the Junagadh Dairy during your period of contract, you shall have to give month's notice in writing or to make payment of amount to your one months contractual consideration in lieu thereof."

4.1 The petitioner's contract was renewed from time to time after

his initial appointment on 01.07.2008 and thereafter it was lastly

renewed till 30.09.2014. Meaning thereby the contract between the

petitioner and respondent was to come to an end on 30.09.2014.

On 30.09.2014, the petitioner was relieved from service and his

contract was not extended. The petitioner was also offered the

cheque of an amount of Rs.44,566/­ towards full and final payment

which the petitioner refused to accept. Instead of accepting the

cheque, the petitioner preferred Reference No.(T) 02 of 2015

before the Labour Court at Junagadh challenging the termination

on the ground that his termination amounts to retrenchment and,

therefore, he should be reinstated with continuity of service and all

consequential benefits on his original post.

C/SCA/492/2021 ORDER

4.2 Both the sides had produced documentary as well as oral

evidence before the Labour Court, Junagadh and the learned

Presiding Officer, Labour Court, Junagadh framed the issues and

came to the conclusion that the petitioner cannot be said to be a

'workman' as defined under Section 2(S) of 'the I.D.Act, 1947'. The

learned Presiding Officer, Labour Court, Junagadh also came to the

conclusion that petitioner's termination would not amount to

'retrenchment' as defined under Section 2(OO) of 'the I.D.Act, 1947'

and since the petitioner's termination cannot be said to be

'retrenchment' coupled with the fact that though cheque of

Rs.44,566/­ was offered to the petitioner, which the petitioner was

not ready and willing to accept, all procedural formalities like one

month's advance notice and notice payee etc. have been fulfilled by

the respondent and, therefore, the Reference was rejected.

4.3 Learned Presiding Officer, Labour Court No.2, Junagadh has

categorically observed, on the basis of cross­examination of the

petitioner, which is produced at page:77 to 79 of the petition,

wherein the petitioner himself has, in his cross­examination,

admitted the fact that his nature of work was of managerial or of

supervisor nature. Around four to five persons were working under

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the petitioner and his duty was to manage the work of those

persons working under him. In his cross­examination, the petitioner

has also admitted the fact that a cheque, as referred to

hereinabove, was offered to him and at that point of time he did

not accept the cheque. In his cross­examination, the petitioner has

also said that even on the date on which the cross­examination

took place, he was not ready and willing to accept the cheque

offered to him.

4.4 Considering the aforesaid aspects, the learned Presiding

Officer has rightly come to the conclusion that petitioner cannot be

said to be a 'workman' within the definition of 'workman' as defined

under Section 2(S) of the Act, 1947 and it is the petitioner who

refused to accept the cheque towards full and final settlement and,

therefore, it cannot be said that the petitioner's termination was

contrary to the provisions of law or that no procedure was followed

at the time of termination of the petitioner.

4.5 Learned Presiding Officer, Labour Court No.2, Junagadh has

also observed in its award that the petitioner's appointment was of

contractual in nature and that the contract of the petitioner was

live till 30.09.2014. It is not the case of the petitioner that services

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were terminated even when the contract was alive. On expiry of the

term of contract, the petitioner's contract was not renewed and he

was offered a cheque of Rs.44,566/­ which he refused to accept.

Since for the entire contract period the petitioner worked and he

was paid salary also and at the end of term of contract the

petitioner was offered cheque of an amount of Rs.44,566/­ but he

refused to accept, the petitioner's termination cannot be said to be

illegal.

4.6 Learned advocate Mr.Rajyaguru also raised the contention

that the person junior to the petitioner has been retained in service

and thereby also the petitioner's termination is illegal. In respect of

this particular contention, it is specifically observed in the award, at

internal page:33 of the award [running page:51 of the petition]

that as per the cross­examination of one witness for the respondent

Mr.Nitin Ramanlal Desai, Mr.Balvantbhai Dodia was appointed

after the petitioner's contract came to an end, however said

Mr.Dodia was employed on some other post and not on the post of

petitioner and, therefore also the contention of Mr.Rajyaguru that

the petitioner's service was put an end by the respondent by

retaining or appointing the junior to the petitioner in the service

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afterwards does not have any basis. Mr.Rajyaguru thereafter relied

upon the judgment delivered by Hon'ble the Supreme Court of

India in the case of S.M.Nilajkar and others vs. Telecome District

Manager, Karnataka reported in (2003) 4 SCC 27 and more

particularly relied upon para:13 of the said judgment. According to

this Court, the judgment relied upon by learned advocate

Mr.Rajyaguru for the petitioner is on different set of facts and does

not help the petitioner.

5. In view of above, this Court is of the opinion that the award

passed by the learned Presiding Officer, Labour Court No.2,

Junagadh does not warrant any interference by this Court under

Articles 226 and 227 of the Constitution of India as this Court is in

complete agreement with the reasons assigned by the learned

Presiding Officer, Labour Court No.2, Junagadh. Accordingly, the

present petition needs to be dismissed.

6. For the reasons stated above, this petition is dismissed. No

order as to costs.

(NIRZAR S. DESAI,J) MISHRA AMIT V.