Rajendrasinh Manusinh Vaghela vs Addl. Chief Conservator Of Forest ...
2021 Latest Caselaw 7149 Guj

     C/SCA/7673/2019                         JUDGMENT DATED: 29/06/2021




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 7673 of 2019
                            With
    CIVIL APPLICATION (FIXING DATE OF EARLY HEARING)
                        NO. 1 of 2021
                              In
       R/SPECIAL CIVIL APPLICATION NO. 7673 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

======================================

1     Whether Reporters of Local Papers may be                   YES
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?                     NO

3     Whether their Lordships wish to see the fair                NO
      copy of the judgment ?

4     Whether this case involves a substantial                    NO
      question of law as to the interpretation of the
      Constitution of India or any order made
      thereunder ?

======================================
            RAJENDRASINH MANUSINH VAGHELA
                          Versus
       ADDL. CHIEF CONSERVATOR OF FOREST (PMU)
======================================
Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MS MEGHA CHITALIYA, ASSISTANT GOVERNMENT PLEADER,
NOTICE SERVED(4) for the Respondent(s) No. 1
======================================

CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                        Date : 29/06/2021

                        ORAL JUDGMENT

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1.0 By way of this petition the petitioner - workman has challenged the order passed by the Presiding Officer, Labour Court, Ahmedabad dated 30.04.2018 in Reference (T) Case No.9 of 2015 allowing the Reference partially awarding Rs.50,000/- lumpsum in lieu of reinstatement.

2.0 According to the case of the petitioner - workman he had worked as Rojamdar Driver with the Principal Chief Conservator of Forest on a daily wage of Rs.183/- per day payable at the end of the month. It is asserted that he had completed 240 days in preceding 12 months from the date of his termination. It is further submitted that on 01.09.2012 his service was terminated orally without any notice, notice pay or retrenchment compensation. It is further asserted that even no departmental inquiry is conducted, and therefore, he approached the office of the Assistant Labour Commissioner. It is further asserted that the office of the Principal Chief Conservator of Forest is still working and he has been replaced by some new man whereas he is without any job and he is not getting the same, despite efforts. He had shown his willingness to go for work, which was offered. In short, it is claimed that the action of oral termination from 01.09.2012 is in breach of Sections 25F and 25G as also Section 25H of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). On notice of Reference, respondent filed written reply vide Exh.8. It is asserted in it that he was working as a daily wager for miscellaneous work and he was never on monthly wage. It is further asserted in the reply that the post of Driver is classified as Class III post under the Recruitment Rules of the State Government enacted under Article 309 of the

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Constitution of India. So far as post of Peon is concerned, it is classified as Class IV. It is further asserted in it that the petitioner - workman is not regularly recruited under the Recruitment Rules but he has worked as Rojamdar daily wager, and therefore, he cannot be equated with the regular employees. It is further asserted that he has never been terminated but he himself has abandoned the said work from 01.09.2012 without informing anyone. It is further asserted that while conciliation was going on he was offered to join the work as daily wager as per the prevailing policy of the State through outsourcing but he refused. It is further asserted that no one can afford to sustain without earning, and therefore, it can be safely presumed that he must have been gainfully employed during the said period.

2.1 After leading evidence on both the sides and production and proof of certain documents, the Labour Court heard the learned advocates for the parties and passed the impugned order whereby in lieu of reinstatement lumpsum compensation of Rs.50,000/- has come to be awarded.

3.0 Shri U.T. Mishra, learned advocate for the petitioner, vehemently submitted that when Labour Court held that the petitioner has from 01.06.2010 to August, 2012 completed 284, 302 and 73 days, same has not been controverted by the respondent and on the contrary it establishes that the petitioner - workman has worked as Rojamdar, and therefore, it is concluded by the Labour Court that the respondent - Institution has failed to prove by cogent evidence that they have followed Sections 25F, 25G and 25H of 'the Act' or for abandonment of work by the petitioner any

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procedure or proceedings are initiated, and therefore, it is submitted that once it is not proved through evidence that the provisions of 'the Act' are followed, the action of termination has to be held as illegal and reinstatement should have been ordered.

3.1 It is further submitted, drawing attention of the Court to the deposition of the petitioner - workman, more particularly paragraph 6 thereof at page 22 where in examination-in-chief on affidavit it is asserted that in place of the petitioner new persons have been recruited, it is submitted that the action of the respondent is in violation of the provisions of 'the Act', and therefore, reinstatement is the normal rule, and therefore, it should have been ordered instead of awarding lumpsum compensation. At page no.21 paragraph 5, as claimed in the examination in chief on affidavit of the petitioner that though he attempted to get work from them, he has not been offered work. It is vehemently asserted by Shri Mishra that once the action of the respondent in terminating the services of the petitioner is found to be in breach of provisions of 'the Act', reinstatement has to follow. It is further vehemently submitted that the Labour Court has not assigned any cogent reasons why reinstatement is not granted and instead lumpsum compensation is awarded. He has further submitted, drawing attention of the Court to page 42, that except quoting the paragraph from Supreme Court decision, no reasons are assigned why instead of reinstatement lumpsum compensation is awarded. It is further submitted that no cogent reasons are assigned to refuse reinstatement, and therefore, the findings recorded by the Labour Court is erroneous and is required to be interfered

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with.

3.2 Shri Mishra, learned advocate for the petitioner relied on the decision of the Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya and Ors reported in (2013) 10 SCC 324, more particularly, paragraph nos.38 and 38.1 to support his submission that in case of wrongful termination of service reinstatement with continuity of service and back wages is the normal rule.

3.3 Shri Mishra, learned advocate for the petitioner has further relied on a decision of the Supreme Court in the case of Jasmer Singh Vs. State of Haryana and Another reported in (2015) 4 SCC 458, more particularly, paragraph nos. 3 and 18 thereof to submit that the workman in that case worked from 01.01.1993 to December, 1993 and completed 240 days of continuous service in one calendar year and termination of that workman on 31.12.1993 was without complying with the mandatory provisions of Sections 25F, 25G and 25H of 'the Act' awarding reinstatement with continuity of service and full back wages to him. The interference by the learned Single Judge of that High Court and the Division Bench setting aside the award of the Labour Court exercising supervisory power under Article 227 of the Constitution of India in setting aside the finding of the fact by the Labour Court was held to be erroneous.

3.4 He has further relied on the decision of the Supreme Court in the case of Devinder Singh Vs. Municipal Council, Sanaur reported in (2011) 6 SCC 584, referring paragraph nos.17, 18, 19 and 20 to submit that if termination

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of service of workman is without complying with the mandatory provisions contained in Section 25F(a) and (b), it should ordinarily result in his reinstatement.

3.5 He has relied on the decision of this Court in the case of Haresh Bijalbhai Sondharva Vs. District Development Officer, Amreli reported in (2015) 1 GLR 615 to submit that when the Labour Court after holding termination to be illegal found that the petitioner was entitled to reinstatement with full back wages, despite that he moulded the relief by awarding lumpsum compensation of Rs.50,000/- in lieu of reinstatement and back wages. The said part of the judgment was challenged before this Court and held that once Labour Court has concluded termination to be illegal, workman has to be reinstated with back wages.

3.6 Relying on the decision of the Division Bench of this Court in the case of Zonal Manager, State Bank of India Vs. Modi Rajeshkumar Shantilal rendered in Letters Patent Appeal No.306 of 2008 referring paragraph nos.2.3, 4 and 8 it is submitted that the argument of the employer that instead of reinstatement in service Labour Court ought to have awarded lumpsum compensation relying on the decision of the Supreme Court, which was not found favour with the Court, it concluded in paragraph 8 that since the workman had worked approximately for six years and cessation of work for which it was not the employee's fault, despite he was a daily wager, held to be in continuous service, and therefore, the argument of lumpsum compensation made by the employer in lieu of reinstatement was not favoured with by the Court, and therefore, it was submitted that instead of awarding lumpsum

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compensation, the petitioner should have been reinstated in service.

3.7 He has further relied on the decision of the Supreme Court in the case of K.S. Ravindran Vs. Branch Manager, New India Assurance Company Limited reported in (2015) 7 SCC 222 and referring to paragraph nos.4, 11 and 15 onwards it is submitted that once the order of termination is found to be illegal, declaration for reinstatement has to follow with consequential benefits.

3.8 In short it is submitted that even the case pleaded by the respondent that the petitioner abandoned the work is also not believable as no notice is issued to that effect to the petitioner for resuming the work, and therefore, in short it is submitted that the order passed by the Labour Court denying reinstatement and instead awarding lumpsum compensation of Rs.50,000/- in lieu of it requires interference.

4.0 Ms. Megha Chitaliya, learned Assistant Government Pleader, submitted that though the action of the respondent, in terminating the service of the petitioner - workman, is found to be illegal, normally reinstatement can be ordered but it is not as an invariable rule reinstatement has to be ordered.

4.1 Here in the present case though he worked for a short span of two years he might have completed 240 days in a calendar year but reinstatement or even back wages would not be automatic. She has further submitted that as such the petitioner stopped coming to the work, perhaps he might have obtained better job with better remuneration. As soon as

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Resolution dated 15.09.2014 giving certain benefits to certain employees working as daily wager is passed on the terms and conditions mentioned therein following Resolution dated 17.10.1988 of the Road and Building Department, the petitioner approached the office of the Assistant Labour Commissioner on 12.11.2014 to get the said benefits but as such he had abandoned the service and did not report to duty even as daily wager and he had never attempted to inquire about the availability of work. She has further submitted that even as per the said Resolution, daily wager who as on 29.10.2010 or thereafter completed 5 years of continuous service they have been conferred benefits as granted under the Resolution dated 17.10.1988 of the Road and Building Department, and therefore, she has submitted that since according to the case of the petitioner himself he had worked from 01.06.2010 till 30.08.2012, neither he has completed five years as on 29.10.2010 or thereafter, and therefore, he was not entitled to have the benefit of the said Resolution. Thus, it is submitted that even if he has completed 240 days in a particular year or two when Labour Court granted lumpsum compensation by assigning cogent reasons in lieu of reinstatement, it requires no interference. It is further submitted that the post of Driver or even Peon is a post in the State to be filled in as per the Recruitment Rules, and therefore, any appointment de hors the Recruitment Rules cannot be envisaged, and therefore, instead of reinstatement when lumpsum compensation, which is much more than the total salary even at the rate of daily wage of Rs.183/- for a year, even that discretion awarding Rs.50,000/- at lumpsum compensation requires no interference, and therefore, she has submitted that the petition be rejected.

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4.2 She has relied on a decision in the case of State of Uttarakhand and Another Vs. Raj Kumar reported in (2019) 14 SCC 353 to submit that even illegal termination of daily wager for procedural defect, reinstatement with back wages is not automatic and instead grant of monetary compensation would meet the ends of justice. She has relied on paragraph 11 thereof and submitted that when he has rendered two years service if at all it is considered continuous as daily wager he is having no right to claim regularization even based on Resolution dated 15.09.2014 and is having no right to continue as daily wager awarding lumpsum compensation in lieu of reinstatement, and therefore, the same is just and proper and requires no interference.

4.3 She has further relied on the decision in the case of Bharat Sanchar Nigam Limited Vs Bhurumal reported in (2014) 7 SCC 177 to submit that where services of daily wager is terminated illegally for procedural defect, he should be granted monetary compensation and not reinstatement with back wages since it is always open to the Management to terminate services paying him retrenchment compensation because he has no right to seek regularization.

5.0 Considering the depositions of the witnesses as also the documents produced and proved, the Labour Court reached to a conclusion that there is incongruity in the claim made by the petitioner - workman in his statement of claim as also oral evidence on oath, more particularly, examination in chief when he claims that he was working in the Institute as Rojamdar - Driver, however in his cross examination he has

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admitted that he was working as Rojamdar - Peon. However, fact remains that he had worked as daily wager on Class III post and/or Class IV post, which must be filled in as per the Rules framed under Article 309 of the Constitution of India by public advertisement giving an opportunity to all the eligible candidates and he cannot seek either regularization or reinstatement on that post when he has not undergone such procedure under the Rules. Further more, as discussed in paragraph 14 of the impugned judgment and award, he was not even working as daily wager to be paid on monthly wage basis. The copies of the cash book and muster roll shows that he has worked for particular days only and not continuously throughout the year.

5.1 Further more, the petitioner - workman claims that without any rhyme or reason his services have been terminated by oral order dated 01.09.2012. Except oral evidence, no further material is produced or proved by the petitioner to show that he was terminated by oral order and despite he had gone to do the work he was not allowed to work. He has further deposed in the cross examination that he has not been given any benefit of Government Resolution dated 15.09.2014 and he has not been made permanent according to the said Resolution. It has been concluded by the Labour Court that though he was terminated orally, according to his own version on 01.09.2012, he has for the first time complained about the same to the office of the Assistant Labour Commissioner on 12.11.2014, that too, after Government Resolution dated 15.09.2014 to have benefit thereof, and therefore, the defence raised by the respondent that he abandoned the work on 01.09.2012 of his own volition

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appears to be more probable and acceptable. Further more, as concluded in paragraph no.16 of the impugned judgment and award, the witness on behalf of the employer deposed before the Court and produced certain documents and based thereon, it is concluded that the daily wager who have on 29.10.2010 and thereafter completed five years, they have been given benefit as per Resolution dated 17.10.1988. The seniority list is also produced by the witness on behalf of the employer. The Court concluded that even as per the case of the petitioner he entered the service, though as daily wager in the year 2010 and worked up to 01.09.2012, he has not completed five years to have the benefit of the said Resolution, and therefore, not conferring the benefit of that Resolution is found to be proper. However, as concluded in paragraph no.17 of the impugned judgment and award, from the evidence it can be concluded that the petitioner - workman has worked as Rojamdar. It is held that neither the employer is able to show that it has followed Sections 25F, 25G and 25H of 'the Act' or no procedure prescribed under 'the Act' is followed when the petitioner - workman voluntarily abandoned the work as Rojamdar but when the petitioner - workman has given incongruous evidence in his deposition as also in the cross examination and both the posts either as Peon or as Driver requires recruitment through the established Rules framed under Article 309 of the Constitution of India, he could not have been, after following the said Rules, appointed to that post. Though it is concluded that he has worked for a short tenure and since he has not even fulfilled the terms of the Government Resolution dated 15.09.2014 it appears that instead of ordering reinstatement the Labour Court has awarded lumpsum compensation of Rs.75,000/- in lieu thereof

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relying on the decision of the Supreme Court in the case of Assistant Engineer, Rajasthan Development Corporation and Another Vs. Gitam Singh reported in (2013) 5 SCC 136.

5.2 Considering the aforesaid it can never be said that the Labour Court has not assigned any reasons why reinstatement is not granted and instead awarded lumpsum compensation in lieu thereof. As such, the post, even as daily wager he was working, either is to be considered to be a post of Driver or post of Peon, and therefore, it is required to be filled in through public advertisement giving opportunity to one and all as provided under the Constitution of India, and therefore, he could not have been ordered to be reinstated. As such, even if his services are required to be regularized on that post unless he fulfills the terms and conditions of Government Resolution dated 15.09.2014 in line of Resolution dated 17.10.1988, it could not have been done. It is very categorically concluded that he does not fulfill any of the conditions for the purpose of regularization as per Resolution dated 15.09.2014, and therefore, no fault can be found with the conclusion recorded by the learned Judge for not awarding reinstatement. As such, it is not the argument of the learned advocate for the petitioner that he fulfills the criteria as mentioned in Resolution dated 15.09.2014 to seek even regularization. The argument that if the termination is found to be illegal in breach of any of the provisions of 'the Act', as a matter of course, reinstatement is to be ordered, is not in consonance with even the precedence on which the petitioner relies. As such, it is stated to be a normal rule when there is a long drawn work performed over the said post like regular

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employee in such cases, at the discretion of the Court, it could have been ordered whereas in the present case out of two years service rendered in one or two calendar year he completed 240 days, and therefore, it is not that he has rendered continuous service in every year even as provided under 'the Act', and therefore, for procedural lapse if the action of the respondent is held to be illegal, ordering reinstatement is not automatic and when valid and cogent reasons are assigned by the Labour Court, the said finding requires no interference.

5.3 The submission of the learned advocate for the petitioner that he has been replaced by new persons is a very casual approach of the petitioner in deposing so while tendering examination in chief on oath. A bald assertion that he has been replaced by new incumbent without naming anyone cannot be presumed to be a gospel truth even in absence of mere denial. The petitioner is supposed to name any one person if he has replaced him.

5.4 The bald assertion without anything more would be of no avail. He is well aware of his rights under the Right to Information Act and if he could also procure copy of cash book under Right to Information Act as claimed by him in his examination in chief, he could have even sought for such information replacing him as Driver under the Right to Information Act. The assertion on oath that no notice is given to him if he had abandoned the work or stopped coming to work is also not of any help to him as he has also not produced any documentary evidence to show that after his termination he has ever gone in search of work.

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5.5 Reliance placed in the case of Deepali Gundu Surwase (Supra) is of no help to the petitioner. After surveying several decisions of Supreme Court in case of wrongful termination of service, reinstatement with continuity of service is said to be a normal rule but not invariable rule.

In that case since the workman teacher was found to be victimized and her suspension order was not approved by the competent authority despite that letter of suspension was not revoked she approached the High Court where it has been declared that the workman - teacher will be deemed to have rejoined her duties from a particular date and is entitled to consequential benefits in terms of the rules. The management initiated departmental inquiry and thereafter against the workman - teacher and by conducting ex parte proceedings the management terminated the workman teachers service, which was challenged by way of Appeal, which was allowed and termination of teacher was quashed and directed payment of full back wages, however management challenged the same before the High Court and the High Court confirmed the order passed by the Tribunal. However so far as direction for payment of back wages is concerned, High Court relying on Supreme Court decisions set aside that direction for payment of back wages and in those facts and circumstances the propositions as propounded at paragraph nos.38 and 38.1 as claimed by the learned advocate for the petitioner is stated, and therefore, the decision relied on is of no help to the petitioner.

5.6 The decision in the case of Jasmer Singh (Supra) relied on by the learned advocate for the petitioner is also of

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no help to the petitioner. Supreme Court on facts in that case relied on the order of the learned Single Judge as also of the Division Bench. However, it is determined on the basis of its own facts and not on any principle of law so far as factual aspects is concerned.

5.7 The decision in the case of Devinder Singh (Supra) is also not helpful to the petitioner as once the termination is found to in breach of provision contained under Section 25F, it should ordinarily result in reinstatement but a word ordinarily result in reinstatement does not mean that in any circumstances it should result in reinstatement.

5.8 The decision in the case of Haresh Bijalbhai Sondharva (Supra) is also not of any assistance to the petitioner. In that case though the issue was framed whether the workman was entitled to reinstatement with back wages or not, despite answering in affirmative the Court awarded lumpsum compensation in lieu thereof, and therefore, the High Court interfered with it. No such issue was ever framed or answered in the affirmative in present case, and therefore, the case determined, which is on its own facts, cannot be relied on as a precedent in this case to submit that reinstatement has to be ordered.

5.9           The    decision   rendered        in   the    case        of    Modi
Rajeshkumar Shantilal           (Supra) is also of no help to the

petitioner as reliance, on the Supreme Court decision to suggest compensation instead of reinstatement, by the learned advocate for the appellant therein since the workman was a daily wager was not found favour with the Court for the

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reason that the Single Judge held that the workman was in continuous service for about six years though branded as daily wager and there was nothing brought on record to suggest that there was cessation of work, which was not the employee's fault. Since litigious employer has gone back and forth from this Court before the Single Judge to the Division Bench and then Supreme Court and back on two occasions rendering the workman without the fruits of litigation for more than 11 years in peculiar facts thereof Court did not accept even the suggestion to award lumpsum compensation in lieu of reinstatement therefore the said decision is also of no any help to the petitioner.

5.10 The last judgment relied on by the petitioner in the case of K.S. Ravindran (Supra), more particularly, paragraph nos.4, 11 and 15 it is again determined on its own facts as the Division Bench of that High Court in that case modified the order of punishment imposed and set aside the direction of Single Judge directing to pay 25% back wages was found to be against the decision of the Supreme Court, and therefore, on the facts obtained there in, the said decision is rendered. In short, it can never be considered as invariable rule that in each case of termination being rendered illegal, as an invariable rule reinstatement has to be ordered with or without back wages.

6.0 As such, the workman who has worked as a daily wager on a post, which is meant to be filled under the recruitment Rules, for a short period as also under the scheme formulated by the State Government for the purpose of regularization also he is not entitled. In such cases even if termination is found to be illegal awarding lumpsum

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compensation in lieu of reinstatement would be just and proper, and therefore, while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, I see no reason to interfere with the decision rendered by the Labour Court, and therefore, this petition is rejected. Notice is discharged.

Civil Application No.1 of 2021

In view of disposal of the main petition, no order in the Civil Application.

(UMESH A. TRIVEDI, J.)

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