Rajendrabhai Chandubhai ... vs Dy. Engineer
2021 Latest Caselaw 7682 Guj

     C/SCA/20674/2018                                 ORDER DATED: 05/07/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO.                  20674 of 2018

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          RAJENDRABHAI CHANDUBHAI GONDALIYA
                        Versus
              DY. ENGINEER & 1 other(s)
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Appearance:
MR PREMAL S RACHH(3297) for the Petitioner(s) No. 1
MS. ASMITA PATEL, ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                            Date : 05/07/2021

                                 ORAL ORDER

1. By way of this petition, the petitioner challenges the order dated 28.02.2018 passed by the Presiding Officer, Labour Court, Bhavnagar, in Reference Case No.02 of 2014, whereby his reference praying reinstatement with full back- wages and continuity of service came to be rejected.

2. According to the petitioner - workman, he was inducted in service with the respondent No.1 in the year 1979 as "Khalasi" in Machundari River at Una till 1984. It is his case that his services were terminated in January 1984 without issuing any notice, notice pay or retrenchment compensation. It is further his case that his

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juniors have been taken back in the service in the year 1995 and at that time also the present workman was not offered service. It is asserted that four employees, who preferred Reference No.188 of 1995, whose reference was allowed and they were ordered to be reinstated in service with continuity of service on lump-sum payment of Rs.10,000/- towards the back-wages and all other benefits. According to him, the order passed by the Labour Court in their favour came to be confirmed upto the Division Bench of this Court. Not only the case of above referred employees was considered by the Labour Court, they were ordered to be reinstated. However, there were other employees, who are according to him similarly situated, were terminated and in their case also, they have been ordered to be reinstated and orders passed by the competent Court have been confirmed upto the Division Bench of this Court.

3. In short his contention is that his termination is in breach of Sections 25(F), 25(G) and 25(H) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act').

4. On service of notice of the reference, the respondent filed its written statement. It is submitted that their services were utilized only in the rainy season for taking measurement of river and at the end of season, their services

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were terminated. Thus, according to the case of the respondent, the appointment was for seasonal work, that too, considering rainy season and, therefore, such appointment was on work cost establishment. Therefore, according to terms of their seasonal appointment, there is no requirement of issuance of any notice. The work on work cost establishment is to be provided as per budgetary provisions.

5. The petitioner - workman was first given appointment on 01.09.1979 to 30.09.1979 for the rainy season. Thereafter, for different period in different year, appointment was given for seasonal work. It is submitted that from 14.01.1984 to 30.04.1985, the petitioner - workman continued to work pursuant to an injunction order passed by the District Court, Junagadh, in Regular Civil Suit No.52 of 1984. In short, it is the case of the respondent that in any of the year, petitioner - workman did not complete 240 days pursuant to his appointment as a seasonal worker.

6. It is further pleaded in the reply that certain employees preferred a Special Civil Application No.1234 of 1987 before this Court which came to be dismissed on 05.05.1992. However, the petitioners therein were permitted to make representation to the State Government.

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Pursuant thereto, the State Government passed an order that the work for which they were engaged, they cannot be reinstated. Some of the employees, who had preferred different proceedings before the different Courts, were reinstated on condition of withdrawing all proceedings preferred by them in different Courts. Pursuant thereto, those employees had withdrawn their cases. However, five different employees preferred references in the Labour Court in the year 1993 to 1995, wherein vide order dated 13.10.2004, the Labour Court directed reinstatement with back-wages, as claimed by the petitioner - workman in his statement of claims. However, the petitioner - workman did not file any reference even at that time and he persuaded the Civil Suit filed by him. Even in the year 2005, as submitted by petitioner - workman, some two of the employees filed reference cases in the Labour Court which were allowed. Still however, the petitioner - workman did not prefer any reference. Not only that, as submitted in the written statement, four of the employees, named at page No.13 of the impugned judgment and award, who had also preferred a Civil Suit before the Labour Court, they also filed their reference in the year 2008 in whose cases the Labour Court allowed their reference and granted reinstatement with 30% back-wages and continuity of service,

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despite that, petitioner did not file any reference for pretty long time. The Regular Civil Suit No.52 of 1984, wherein the petitioner was one of the plaintiff, came to be dismissed in favour of the State Government vide judgment and decree dated 24.08.1995. Since the reference preferred after about 28 years, it is required to be rejected.

7. Considering the evidence adduced, documents produced and proved, the Labour Court came to a conclusion that there is no breach of any of the provisions of 'the Act' as also the reference is filed after an inordinate delay, that too, after about 16 years of the dismissal of even suit preferred by the petitioner along with the other persons.

8. Relying on a decision of the Supreme Court on the issue of limitation as also holding that there is no breach of any of the provisions of 'the Act', the Reference Court came to a conclusion that it was required to be rejected and it was rejected.

9. Mr. Premal Rachh, learned advocate for the petitioner, after referring the copies of different awards passed by the different Labour Courts in respect of employees, who were terminated along with the petitioners, submitted

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that on same set of evidence those references were allowed whereas against the very same respondent the Labour Court has dismissed the reference in the case of the present petitioner. He has further submitted that all those persons whose reference have been allowed by the Court and copies thereof are annexed with this petition, they are similarly situated in each respect, therefore, according to his submission, the present petition is required to be allowed with all consequential benefits. It is further submitted that the judgment and award of those reference cases of a similarly situated employees have been confirmed upto the Division Bench of this Court and therefore, taking note of that fact, the petitioner being similarly situated employee, this petition should be allowed. It is further submitted that all those reference cases were also filed in delay by certain years, despite that, they have been entertained. Therefore, it is urged that this petition be allowed.

10. Ms. Asmita Patel, learned Asst.

Government Pleader for respondent No.1, submitted that for the alleged action of illegal termination in January 1984, the present reference has come to be filed in the year 2014 and therefore, it being hopelessly time barred and it has been rightly rejected by the Reference

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Court even on the ground of limitation. It is further submitted that the reference cases, on which reliance is placed, they were the employees who had not come after this much delay in the year 1993 to 1995, 2003 as also 2008, wherein the Reference Court had passed an orders, considering the evidence led before it and, therefore, those reference cases cannot be relied on to allow the present reference. It is further submitted that the judgments of the Supreme Court, which have been relied on by the Reference Court for rejecting the reference on the ground of limitation, also were not available when earlier reference determined and, therefore, no parity, as sought for, can be granted to allow the reference of the present petitioner. Therefore, she has submitted that the petition be rejected.

11. So far as argument in respect of finding recorded by the Labour Court in earlier reference cases submitted to be considered for the determination of the present reference is concerned, unless and until evidence led before that Court is brought on record while determining the present reference, in accordance with law, any of the finding even if recorded in respect of employees working with the present respondent, cannot be taken into consideration for determining the present reference. The Labour Court, at para - 9.2 running page - 17 of the

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petition, has categorically recorded that the appointment of the present petitioner is on an establishment of work cost and his services would be terminated even without notice. The Court has taken a cognizance of the fact that it was on fixed period and fixed for a season too. Therefore, the Labour Court has concluded that the case of the petitioner falls within the exception of Section 2(oo)(bb) of 'the Act' and, therefore, it cannot be termed as retrenchment.

12. Considering the depositions of the petitioner, it is recorded by the Labour Court, at para - 9.4.1, that neither in the statement of claims nor in the examination-in-chief on oath, the petitioner deposed that he has worked continuously, while he was in service, for 240 days in a year nor it is asserted that before 12 months of his termination, he completed 240 days with the respondent. Not only that admission by the petitioner in his cross-examination recorded by the Labour Court to the effect that he has never completed 240 days service in any of the year. After considering the different orders appointing him for seasonal work, the Labour Court came to a conclusion that he has not completed 240 days in any year and, therefore, it is recorded that since the petitioner is not in continuous service under Section 25(B) of 'the Act', the respondent authority is not supposed to

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follow the provisions of Section 25(F) of 'the Act'. As such, when the action of the respondent is covered under Section 2(oo)(bb) of 'the Act' and it has been held to be not a retrenchment, at all, there is no question of breach of provisions of Section 25(F) of the Act.

13. Since the action of the respondent is not termed to be a retrenchment, at all, there is no question of following Section 25(G) of 'the Act' and, therefore, the Labour Court has held that there is no breach of Section 25(G) of 'the Act' also. The reliance placed on a decision, as referred to in para-9.5.2 of the impugned judgment and award, appears to be rightly held to be not helpful to the petitioner. Not only that, over and above the aforesaid finding of facts based on evidence led before the Court, the Labour Court has rejected the reference even on the ground of limitation because petitioner has challenged his termination dated 13.01.1984 in the year 2014 nearly about 30 years before the reference Court. The reliance placed on the reference allowed by the Labour Court in respect of all other employees similarly situated, as claimed, is out of context because they had already invoked their right to seek reference at the earliest opportunity. Majority of the employees filed their references in the year 1993 to 1995. If similarly situated employees could

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file references at that time, petitioner can be said to be an indolent of his own right and, therefore, he cannot seek any parity on that ground. Not only that, even some of the employees, who have preferred their references in the year 2008, who were co-plaintiffs in a suit filed by the petitioner along with him, he could have filed even reference at that time along with them. Over and above that after dismissal of the suit in the year 1995, the petitioner remained

years.

14. Though law of limitation is not applicable to the reference but for exercise of jurisdiction under 'the Act', workman has to file the reference within reasonable time with plausible explanation thereof for the delay caused in preferring the reference. Here in the present case even that is also missing as petitioner has failed to explain the delay either in the statement of claims or even in the examination-in-chief on oath.

15. Considering the decision rendered by the Supreme Court in the case of Raghubir Singh V/S General Manager, Haryana Roadways, Hissar, reported in 2014 (3) CurLR 522 as also the another decision of the Supreme Court in the case of Prabhakar V/s Joint Director, Sericulture

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Department and Another reported in(2015) 15 SCC 1, it is clear that the reference made after pretty long time can also be rejected on the ground of delay in absence of any plausible explanation. Thus, apart from the other finding recorded by the Labour Court in respect of breach of individual Section, as narrated in the impugned judgment and award, the present reference is also required to be rejected on the ground of delay and that is rightly done by the Reference Court and, therefore, I see no reason to interfere, in the well reasoned judgment and award, while exercising the jurisdiction under Articles 226 and 227 of the Constitution of India. Hence, this petition is rejected.

(UMESH A. TRIVEDI, J)

Lalji Desai