Dhanera Nagarpalika vs Rasulkhan Ramzankhan Baloch
2021 Latest Caselaw 7495 Guj

     C/SCA/458/2009                              JUDGMENT DATED: 02/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 458 of 2009


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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                          DHANERA NAGARPALIKA
                                 Versus
                      RASULKHAN RAMZANKHAN BALOCH
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Appearance:
MR YM THAKKAR(902) for the Petitioner(s) No. 1
MR BK OZA(516) 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 : 02/07/2021

                            ORAL JUDGMENT

1. By filing this petition, the petitioner-Dhanera Nagarpalika has prayed to quash and set aside impugned award dated 26.8.2008 passed by the Presiding Officer, Labour Court, Palanpur, in Reference (LCP) No.39 of 2001.

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2. As per the facts stated in the petition, the respondent was working as a dally wager as an alternative arrangement for limited period. The respondent stopped coming to the petitioner Dhanera Nagar Palika from 26,02.2000 on his own and thereafter did not approach for more than eight months for any work,

2.1 The respondent thereafter raised dispute and the same was referred to the Industrial Court by the Assistant Labour Commissioner vide order dated 02.07.2001. The Industrial Court therefore registered the same as Reference (LCP) No. 39 of 2001 and issued notice to the petitioner on 06.12.2002.

2.2 The respondent, second party submitted his statement of claim on 07.03.2002 inter alia contending that the respondent, while on duty on 24.02.2000 fell down and sustained injuries on the spinal cord. It was contended that the respondent was admitted in the Civil Hospital, Ahmedabad and was discharged from the Civil Hospital on 29.06.2000. It was further contended that on 01.07-2000 and on 02.07.2000, the respondent approached the petitioner Nagar Palika to resume his duties but he was not allowed to resume the duties. In the aforesaid facts, it was alleged and contended that the services of the respondent was retrenched illegally by an oral order dated 01.07.2000 and petitioner employed another person in place of the respondent. Thus, the petitioner has violated the provisions of section 25(F), (G) and (H) of the Industrial Disputes Act. It was prayed in the said statement of claim that the respondent may be reinstated with full back wages and other ancillary benefits.

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2.3 The petitioner tendered reply and denied all the allegation and averments made in the statement of claim and submitted that the respondent was working as a daily wager as alternative arrangement and abandoned the duties from 24.02.2000. It was also submitted that the State Government has directed all the Nagar Palikas not to employ any person without following selection process under the title of daily rated employee on any post as directed by the Hon'ble Gujarat High Court in various decisions.

2.4 It is also stated that both the parties produced documentary evidence and led oral evidence in support of their case. However, the Ld. Presiding Officer, Labour Court, Palanpur vide award dtd. 26.08.2008 allowed the reference partly by directing the petitioner to reinstate the respondent with continuity of service despite the fact that the respondent himself stopped attending the daily waged service and now the State Government has put ban on employing any person as daily wager upon relying the various decisions of Hon'ble Gujarat High Court and also Apex Court of the country. It is stated that in the above set of facts and circumstances, the petitioner is constrained to file present petition.

3. Heard learned advocate, Ms.Krishna Desai, for Mr.I.M.Thakkar for the petitioner and learned advocate Shri B.K.Oza for the respondent-workman.

4. Learned advocate, Ms.Krishna Desai, for Mr.I.M.Thakkar for the petitioner has vehemently submitted that the respondent herein was a daily wager and since 24.2.2000, he

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did not present himself and stopped coming on duty. She has submitted that the stand taken by the workman is to the effect that whenever he tried to resume his duty, he was orally directed not to come. She has also submitted that the workman has reported for duty on 1.7.2000. While inviting the attention of the Court to the documentary evidence, she has submitted that in view letter dated 7.8.2000, whereby the workman has submitted that he got injury on 28.2.2000 and the doctor has opined for complete bed rest for six months. According to her submission, since he had to remain at home due to such illness from 28.2.2000 for six months, the period would come to an end on 28.8.2000 and, therefore, on 1.7.2000, it was not possible for the workman to report for duty. Therefore, according to her submission, the workman has developed new story. She also submitted that the workman was never retrenched. She has also submitted that the petitioner cannot be termed as an "Industry" and, therefore, the Industrial Disputes Act cannot be applied. She has relied upon the decision of this Court reported in the case of Halvad Nagarpalika and Another v. Jani Dipakbhai Chandravadanbhai and Others reported in 2003 (4) GLR 3229 in support of her submission that appointment of a person on temporary basis on daily wage basis has no right of reinstatement.

5. Per contra, learned advocate Shri B.K.Oza for the workman has vehemently submitted that the workman has received injury during his duty. He has also submitted that the workman was working since almost 9 years and, therefore, his service cannot be treated as temporary one. He has also submitted that without holding any inquiry by oral order the

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workman was retrenched. He has also submitted that the concerned Labour Court considered all these aspects and has ultimately passed the order in favour of the workman, which is in consonance with law laid down by various decisions. He has vehemently supported the decision of the Labour Court passed in aforesaid reference. He has relied upon decision of the Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others reported in (2013) 10 SCC 324. He, therefore, prayed to dismiss present petition.

6. In rejoinder, learned advocate for the petitioner has submitted that the decision cited by learned advocate for the workman is not applicable to the facts of the case, as there were different facts in the said decision. She has also submitted that being a daily wager, the workman is not entitled to get any protection of any of the provisions of the I.D.Act. She has also submitted that there is no breach of any of the provisions contained in Sections 25-F, 25-G and 25-H of the ID Act.

7. In the case of Halvad Nagarpalika (supra), wherein the case had come up before the Division Bench upon a direction being issued by learned Single Judge of this Court for reinstatement of a daily wager and permanency was granted to him. In that case, the Division Bench of this Court has observed as observed as under:-

"18. ....................... We are also of the view that the Labour Court is not justified in allowing the Reference and directing that the concerned worker should be made permanent with effect from January 1, 2002 and they

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should be given all the benefits as permanent employees.

The Labour Court has exceeded its jurisdiction while giving directions with regard to the persons for whom there was no Reference to the effect that they should also be given benefits of permanent employees as per seniority as and when there would be vacancies and they should also be given all the benefits. It is an admitted position that all these persons were appointed or engaged as daily-wagers without following any legal procedure. It is also an admitted position that their names had not been received from any Employment Exchange or they were not appointed after inviting applications in pursuance of public advertisement. They were appointed only because of the administrative exigencies at the relevant time. When their appointments were made without following due procedure of statutory rules or the recruitment policy, it is immaterial as to whether they have completed the service of 240 days in a year or not. As observed earlier, the Hon'ble Supreme Court has held that the provisions of Section 25F cannot be invoked in the case of daily-waged employees whose appointments are without following the due procedure laid down in statutory rules or recruitment policies. When there is no permanent sanctioned posts, no direction can be given to the authorities to absorb the daily-waged employees by creating new posts. It is the common phenomenon in the case of the Nagarpalika or Municipalities or Government Corporations where such appointments are made on the basis of political considerations, the parties may be changed from time to time and the party in power recruits their own persons initially as daily-waged employees and thereafter by seeking an order of the Court they want to absorb such employees on the permanent establishment. Time and again, such practice is deprecated by the Courts and the Hon'ble Supreme Court has discouraged this practice in so many words in the abovereferred Judgment. The Panchayats, Nagarpalikas, Municipalities and/or Government Corporations as well as Government establishments are facing severe financial crisis only because of overhead which may be required for the time being but to make them permanent would definitely affect adversely the financial substratum of the respective organisation. We are of the view that the Court should not be a party to such illegal or irregular appointments by allowing the persons so appointed at

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the cost of the public exchequer. This Court is mindful of the fact that by not approving or confirming the appointments of such daily-wagers, it would be very difficult for them to survive and the question of their livelihood would definitely arise and in appropriate cases their interests are required to be protected. ...................."

8. In the case of Deepali Gundu Surwase (Supra), the Apex Court has observed as under:-

"33. In Novartis India Limited v. State of West Bengal (supra), the services of the workman were terminated on the charge of not joining the place of transfer. The Labour Court quashed the termination of services on the ground of violation of the rules of natural justice and passed an award of reinstatement of the workman with back wages. The learned Single Judge of the High Court dismissed the writ petition filed by the appellant but the letters patent appeal was allowed by the Division Bench on the ground that the State of West Bengal was not the appropriate Government for making the reference. The special leave petition filed by the workman was allowed by this Court and the Division Bench of the High Court was asked to decide the letters patent appeal on merits. In the second round, the Division Bench dismissed the appeal. This Court referred to shift in the approach regarding payment of back wages and observed:

"There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premise that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several

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factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment, etc. It is also trite that for the purpose of grant of back wages, conduct of the workman concerned also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right."

...............

"36. We may now deal with the judgment in J.K. Synthetics Ltd. v. K.P. Agrawal and another (supra) in detail. The facts of that case were that the respondent was dismissed from service on the basis of inquiry conducted by the competent authority. The Labour Court held that the inquiry was not fair and proper and permitted the parties to adduce evidence on the charges levelled against the respondent. After considering the evidence, the Labour Court gave benefit of doubt to the respondent and substituted the punishment of dismissal from service with that of stoppage of increments for two years. On an application filed by the respondent, the Labour Court held that the respondent was entitled to reinstatement with full back wages for the period of unemployment. The learned Single Judge dismissed the writ petition and the Division Bench declined to interfere by observing that the employer had willfully violated the order of the Labour Court. On an application made by the respondent under Section 6(6) of the U.P. Industrial Disputes Act, 1947, the Labour Court amended the award. This Court upheld the power of the Labour Court to amend the award but did not approve the award of full back wages."

.................

"38. The propositions which can be culled out from the aforementioned judgments are:

38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

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38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or

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workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also

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against the very concept of reinstatement of an employee/workman.

39. Reverting to the case in hand, we find that the management's decision to terminate the appellant's service was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15.6.2007. The Tribunal found that action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.

40. The learned Single Judge agreed with the Tribunal that the action taken by the management to terminate the appellant's service was per se illegal but set aside the award of back wages by making a cryptic observation that she had not proved the factum of non- employment during the intervening period. While doing so, the learned Single Judge not only overlooked the order passed by the Division Bench in Writ Petition No.8404/2006, but also Rule 33 which prohibits an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the appellant had left the Headquarter without prior approval of the Chief Executive Officer and thereby disentitling her from getting subsistence allowance or that during the intervening period she was gainfully employed elsewhere."

9. Having considered the submissions advanced on behalf of both sides, and the decisions, as referred to herein above, and the record of the Labour Court, it appears that the

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petitioner herein has not controverted the facts narrated by the workman in his deposition before the concerned Labour Court. It also appears from Record and Proceedings of Reference (LCP) No.39 of 2001, which was called for by this Court, that the workman has produced certain documents, which have not been exhibited by the Labour Court but such documents can be taken into consideration for deciding the lis between the parties. On perusal of the impugned award, it transpires that those documents, though not exhibited have been considered by the Labour Court for passing the impugned order of reinstatement of the workman. As such, to appreciate the contents of those documents, Record and Proceedings were called for. On perusal of Record and Proceedings, it appears that the Labour Court has committed serious error of facts and law in appreciating those documents. It appears from the documentary evidence produced at Exh.15, wherein the workman has produced almost 25 documents, which includes the order passed by Nagar Palika, Dhanera, dated 20.4.1993, name of the workman is shown and the duty hours are from 5.00 to 7.00 a.m. in the morning and 5.00 to 6.30 p.m. in the evening. It also reflects from Mark 15/2 that it is a list prepared by the employment officer at Palanpur, wherein the particulars of appointment of persons in Dhanera Nagar Palika have been shown for the period from 27.4.1988 till 31.12.1994. It appears from it that the name of the respondent herein is shown as a daily wager in Water Works Department and his duty and appointment is shown from 15.11.1991. There are other documents wherein the respondent has made complaint to the authority that there are some unscrupulous persons making hindrance in his service. It is also seen from the documentary evidence that the respondent has got some injury for which he

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was admitted in the hospital for the period from 29.2.2000 till 23.6.2000. From Mark 15/8, which is a medical certificate issued by Civil Hospital, Ahmedabad, it appears that he was advised to take rest for two months from 24.6.2000. These facts clearly suggest that he could not have reported on duty on 1.7.2000.

10. It is also found from record that there is no evidence on record as to completion of 240 days in every preceding year. The respondent has not taken any care to apply for production of documentary evidence. Be that as it may, the fact remains that the respondent was a daily wager. There is also no evidence on record to suggest that after termination of service of the respondent, some other person has been recruited by the respondent as a daily wager in his place. In view of that fact, observation of the Labour Court regarding breach of Section 25-G and 25-H of the ID Act is not correct.

11. It appears that since no notice pay has been paid to the workman, who was serving since 1991 as a daily wager, there is a clear breach of Section 25-F of the ID Act.

12. It appears that the workman might be at the fag end of his career and reached the age of superannuation. Now, admittedly the Labour Court has granted reinstatement on the ground that there is breach of provisions of Section 25-F of the Industrial Disputes Act. Now it is well settled by catena of decisions by the Supreme Court that in case of daily wager, if there is a technical breach of Section 25-F of the Industrial Disputes Act, then reinstatement is not automatic. It is also settled principle that in case of daily wager, if he is reinstated,

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the employer has every right to follow the procedure of Section 25-F of the Industrial Disputes Act and retrench the workman from service. The Apex Court has also observed in catena of decisions that, in such a situation, the workman may be awarded monetary lumpsum amount instead of reinstatement. Therefore, in this case also, considering the life span and the long period of proceedings from the stage of filing of the reference till today, no purpose would be served by reinstating the workman. However, as there is technical breach of Section 25-F of the Industrial Disputes Act, monetary compensation in lieu of reinstatement can be granted to meet the ends of justice. In view of the facts and circumstances of the present case and considering long passage of almost 30 years, in the opinion of this Court, if Rs.1,50,000/- is awarded as lumpsum compensation instead of reinstatement it will meet 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 case of this case granting of relief of reinstatement after such a long gap will not serve any purpose and, therefore, this Court deems it fit to order grant of compensation of Rs.1,50,000/- in lieu of reinstatement. Such amount be paid to the 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 workman shall be entitled to get interest at the rate of 6% from the date of filing of the petition till the date of actual realization. It is observed that the aforesaid amount is in addition to whatsoever amount paid to him till today.

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14. With the aforesaid direction, this petition is allowed. Accordingly, the impugned award is modified to the aforesaid extent. Rule is made absolute accordingly.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK