Jaydev Ambalal Barot vs The Divisional Manager
2021 Latest Caselaw 4029 Guj

         C/SCA/7185/2019                                     ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 7185 of 2019

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                            JAYDEV AMBALAL BAROT
                                     Versus
                           THE DIVISIONAL MANAGER
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Appearance:
MR R G DWIVEDI(6601) for the Petitioner(s) No. 1
MS POOJA H HOTCHANDANI(7765) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE

                               Date : 10/03/2021

                                ORAL ORDER

1. In this petition under Articles 226 and 227 of the Constitution of India, following substantive prayers are made:-

"10(B) The Hon'ble Court may be pleased to allow the present petition by issuing a writ of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned orders dated 02/01/2019 passed vide Exh.26."

2. The facts giving rise to the present petition are not many and move in a narrow compass. The petitioner was working as bus body cleaner with the respondent Corporation since 3.6.2011. He was paid for cleaning buses at the rate of Rs.12/- per bus. The services of the petitioner were abruptly discontinued from 31.7.2015. The petitioner, therefore, raised an industrial dispute which was registered as Reference (LCN) Case No.15 of 2016 in the Labour Court, Nadiad. The reference came to be rejected by order dated 2.1.2019 on the ground that the petitioner failed to establish employee-employer relationship as contemplated under section

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2(s) of the Industrial Disputes Act ("ID Act" for short). The petitioner being aggrieved by the rejection of reference has preferred the present petition.

3. I have heard Mr. R.G. Dwivedi, learned advocate for the petitioner and Mr. H.S. Munshaw, learned advocate for the respondent.

4. Mr. Dwivedi vehemently submits that the respondent which is the State within the meaning of Article 12 of the Constitution of India has indulged into unfair labour practice by discontinuing the services of the petitioner and hiring other workman in his place. In support of his contention, the learned advocate has relied upon the decision of the Supreme Court in the case of Maharashtra State Road Transport Corporation and another v. Casteribe Rajya Parivahan Karmachari Sanghtana reported in (2009) 8 SCC 556 (paragraphs 34 to 36). It is his submission that the services rendered by the petitioner squarely comes within the sweep of section 2(s) of the ID Act which defines "workman". He further submits that the wages which was paid to the petitioner for cleaning the buses is also covered within the definition of "wages" as contained in section 2(rr) of the ID Act. He, therefore, submits that the present petition deserves consideration.

5. Mr. H.S. Munshaw, learned advocate for the respondent has supported the impugned order.

6. I have given my thoughtful consideration to the submissions canvassed at the bar and have also perused the impugned order of the Labour court.

7. The moot question which is involved in this petition is, whether there was employee-employer relationship between the petitioner and the

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respondent as contained in section 2(s) of the ID Act and whether the remuneration paid to him would fall under section 2(rr) of the Act.

8. Section 2(s) of the ID Act, reads as under:-

(s) " workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--

(i) who is subject to the Air Force Act, 1950 (45 of 1950 ), or the Army Act, 1950 (46 of 1950 ), or the Navy Act, 1957 (62 of 1957 ); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

9. Section 2(rr) of the ID Act, reads as under:-

(rr) " wages" means all remuneration capable of being expressed

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in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes--

(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;

(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food- grains or other articles;

(iii) any travelling concession;

(iv) any commission payable on the promotion of sales or business or both;] but does not include--

(a) any bonus;

(b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;

(c) any gratuity payable on the termination of his service;]

10. The applicability of sections 2(s) and 2(rr) of the ID Act needs to be considered in the backdrop of the following undisputed facts.

11. The petitioner was engaged by the respondent for cleaning bodies of the buses at the rate of Rs.12 per bus. It emerges from the evidence of the petitioner himself that his working hours were not fixed. It also emerges from his evidence that the registration number of the buses which the petitioner would wash in a day were noted and his signature was taken on the bill. The petitioner has also admitted in his evidence that the respondent used to credit the amount in his account as per the bill. He

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has also admitted that his presence was not recorded. The Labour Court has recorded a clear finding that the working hours of the petitioner were not fixed and it was not compulsory for him to come for work everyday.

12. The Labour Court after threadbare examination of the evidence adduced before it has recorded a clear finding that the relationship between the petitioner and the respondent did not come within the scope of section 2(s) of the ID Act.

13. The Supreme Court in the case of Maharashtra State Road Transport Corporation and another v. Casteribe Rajya Parivahan Karmachari Sanghtana (supra) in paragraphs 34 to 36 has observed as under:-

"34. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn. [(1990) 2 SCC 396] arising out of industrial adjudication has been considered in Umadevi [(2006) 4 SCC 1] and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi [(2006) 4 SCC 1] leaves no manner of doubt that what this Court was concerned in Umadevi was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed.

35. Umadevi [(2006) 4 SCC 1] is an authoritative pronouncement for the proposition that Supreme Court (Article

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32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme.

36. Umadevi [(2006) 4 SCC 1] does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists. Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established."

14. In my considered opinion, the aforesaid judgment of the Supreme Court is not applicable to the facts of the case on hand. It clearly emerges that in the case before the Supreme Court the employees were required to work everyday at least eight hours at the depot concerned of the Corporation, whereas in the present case, as admitted by the petitioner himself, his working hours were not fixed and the petitioner was not working under anyone's supervision. Therefore, it cannot be said that the respondent has resorted to unfair labour practice.

15. The Labour Court has recorded sound reasons on the basis of evidence adduced before it to come to the conclusion that there was no employee-employer relationship as contemplated under section 2(s) of the ID Act between the petitioner and the respondent.

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16. The reasons recorded by the Labour Court by no yardstick can be dubbed as perverse or erroneous warranting interference under Article 226 of the Constitution of India. I am, therefore, of the view that there is no merit in the petition and the same deserves to be dismissed and, accordingly, it is dismissed. Notice is discharged.

(A.G.URAIZEE, J) Z.G. SHAIKH