State Of Gujarat vs Ashokbhai Kanabhai Parmar
2022 Latest Caselaw 4385 Guj

     C/SCA/2210/2016                                  JUDGMENT DATED: 26/04/2022



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/SPECIAL CIVIL APPLICATION NO.                   2210 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI                          :         Sd/-

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

1     Whether Reporters of Local Papers may be                                NO
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?                                 NO

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

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

=======================================================
                    STATE OF GUJARAT
                         Versus
         ASHOKBHAI KANABHAI PARMAR & 1 other(s)
=======================================================
Appearance:
MR ROHAN SHAH AGP for the Petitioner(s) No. 1
MR MITUL SHELAT for MS DISHA N NANAVATY(2957) for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
=======================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                            Date : 26/04/2022

                                ORAL JUDGMENT

1. This petition is filed under Articles 226 and 227

of the Constitution of India, in which, the

petitioner has challenged the award dated

08.05.2015 passed the Presiding Officer, Labour

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

Court, Godhra in Reference (LCG) No.85/2012, by

which, the Labour Court directed the petitioner

herein to reinstate the respondent - workman

without any backwages.

2. Heard learned Assistant Government Pleader, Mr.

Rohan Shah for the petitioner and learned

advocate, Mr. Mitul Shelat assisted by learned

advocate, Ms.Disha Nanavaty for the respondent

no.1.

3. Learned AGP Mr. Shah submitted that the respondent

- workman was appointed purely on temporary basis

as a driver on 01.04.2002. Thereafter, his

services were terminated on 01.03.2008, therefore,

the respondent raised industrial dispute, which

was referred to Labour Court in the year 2008,

which was registered as Reference (LCG)

No.104/2008 and the Labour Court passed an ex

parte award on 30.04.2011, by which, the present

petitioner was directed to reinstate the

respondent - workman with 50% backwages. It is

submitted that as the said award was ex parte, the

petitioner submitted an application under Rule

26(A) of the Industrial Disputes (Gujarat) Rules

for setting aside the ex parte award and the

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

Labour Court allowed thee said application and

thereby Reference was restored to its original

file. Thereafter before the Labour Court, the

petitioner produced relevant evidence and the

witnesses of the petitioner were examined. The

respondent - workman also produced documentary

evidence and gave deposition and after considering

the oral as well as documentary evidence produced

by the parties, the Labour Court passed impugned

award dated 08.05.2015, whereby the aforesaid

direction has been issued by the Labour Court that

the petitioner shall reinstate the respondent -

workman without any backwages.

4. Learned AGP has assailed the said award by mainly

contending that the petitioner is not an

'Industry' within the meaning of Section 2(j) of

the Industrial Disputes Act, 1947 (hereinafter

referred to as "the ID Act" for short) and the

respondent is not a 'workman' within the meaning

of Section 2(s) of the ID Act and, therefore, the

Labour Court ought to have rejected the Reference

of the respondent.

5. Learned AGP, thereafter, contended that before

terminating the services of the respondent, the

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

petitioner has followed the prescribed procedure

under Sections 25F, 25G and 25H of the ID Act.

Learned AGP submitted that though the respondent -

workman has not completed 240 days in a particular

year, the Labour Court has recorded wrong finding

that the petitioner has violated the provision

contained in Section 25F of the ID Act.

6. At this stage, learned AGP, under the instructions

from the I/c. DILR, Godhra, who is personally

present before this Court, submitted that at

present, another driver is working with the

petitioner and, therefore, there is no vacant

post. Hence, the respondent - workman cannot be

reinstated as per the award passed by the Labour

Court. It is also pointed out that while admitting

the present petition, this Court has granted stay

against the award passed by the Labour Court.

Learned AGP, therefore, urged that the impugned

award be quashed and set aside.

7. On the other hand, learned advocate, Mr. Shelat

appearing for the respondent - workman has opposed

this petition and referred to the reasoning

recorded by the Labour Court while passing

impugned order. It is submitted that the

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

respondent - workman has completed 240 days in a

particular year. It is further submitted that the

finding is also recorded by the Labour Court that

the present petitioner has violated mandatory

provision contained in Section 25F of the ID Act

and now it is not in dispute that in place of the

respondent - workman, another driver is employed

and he is working at present. It is submitted that

thus the Labour Court has also recorded finding

that the petitioner has violated the provision

contained in Section 25H of the ID Act. It is,

therefore, submitted from the aforesaid finding

that it is clear that the work is available with

the petitioner, inspite of that, the service of

the respondent - workman was terminated though he

has worked for more than 240 days.

8. Learned advocate has placed reliance upon the

order dated 07.10.2021 passed by the Division

Bench of this Court in Letters Patent Appeal

No.367/2021 and submitted that in similar type of

facts, the concerned Peon working with Deputy

Director of Lands Records was terminated and,

hence, the said person raised industrial dispute,

which was allowed by the concerned Labour Court by

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

passing award and in Paragraph No.3, the Division

Bench of this Court has observed as under,

"3. In the original Special Civil Application, the prayer was to grant benefits based on the Resolution dated 17.10.1988. The case of the petitioner was that he came to be appointed as peon under the respondent No.2 Deputy Director of Lands Records on 11.11.1992 and that he rendered continuous service thereafter. The factum of continuous service of the respondent workman could be gathered from the earlier events and the orders passed by the labour court and this court."

9. It is also contended that the present petitioner

can be termed as 'industry' and the present

respondent - workman can be said to be 'workman'

within the meaning of Section 2(s) of the ID Act.

10. At this stage, learned advocate has also referred

to the impugned award and contended that relying

upon the decision of the Hon'ble Supreme Court in

case of Bangalore Water Supply, the Labour Court

has specifically given finding that the present

petitioner is an industry.

11. Learned advocate has, thereafter, contended that

when there is violation of provision contained in

Section 25H of the ID Act, the Labour Court has

rightly granted reinstatement to the present

respondent - workman. Learned advocate, at this

stage, has placed reliance upon the order dated

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

20.04.2022 passed in Special Civil Application

No.105/2018, more particularly, Paragraph Nos.9 to

12 and 14, which read as under,

"9. Further, in the case of Harjinder Singh (supra), the Hon'ble Supreme Court has held in paragraphs 16 to 21 as under:

"16. It is true that in the writ petition filed by it, the corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the corporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for construction work on 5.3.1986 and he worked in that capacity and also as Work Munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months' specified in order dated 5.2.1987, the appellant continued to work till 5.7.1988 when first notice of retrenchment was issued by the Managing Director of the corporation.

Therefore, it was not open for the corporation to contend that the appellant had not completed 240 days service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

violated the rule of `last come first go' without any tangible reason.

17. In Central Bank of India v. S. Satyam (1996) 5 SCC 419, this Court considered an analogous issue in the context of Section 25-H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis. It was argued on behalf of the bank that an offer of re-employment envisaged in Section 25-H should be confined only to that category of retrenched workmen who are covered by Section 25-F and a restricted meaning should be given to the term `retrenchment' as defined in Section 2(oo).

18. While rejecting the argument, this Court analysed Section 25-F, 25- H, Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957, referred to Section 25-G and held:

"7. Section 25-H then provides for re- employment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re- employment, and such retrenched workmen who offer themselves for re- employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re-

employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

prescribes the mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention.

8. Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not present any difficulty. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 25-F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re-employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

list is not available. Application of Section 25-H to the other retrenched workmen not covered by Section 25- F does not, in any manner, prejudice those covered by Section 25-F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25-F is available for re- employment. There is, thus, no reason to curtail the ordinary meaning of "retrenched workmen" in Section 25-H because of Rules 77 and 78, even assuming the rules framed under the Act could have that effect.

9. The plain language of Section 25- H speaks only of re-employment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate to the wide meaning of `retrenchment' given in Section 2(oo). Section 25-F also uses the word `retrenchment' but qualifies it by use of the further words "workman ... who has been in continuous service for not less than one year". Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words "workman ... who has been in continuous service for not less than one year". It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchments while Section 25-F

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F." (emphasis supplied)

19. The ratio of the above noted judgment was reiterated in Samishta Dube v. City Board Etawah (1999) 3 SCC

14. In that case, the Court interpreted Section 6-P of the U.P. Industrial Disputes Act, 1947, which is pari materia to Section 25-G of the Act, and held:

7. ...Now this provision is not controlled by conditions as to length of service contained in Section 6-N (which corresponds to Section 25-F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by Section 6-N. In Kamlesh Singh v. Presiding Officer in a matter which arose under this very Section 6-P of the U.P. Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. See also in this connection Central Bank of India v. S. Satyam.

8. Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers. There is no such restriction in Section 6-P of the U.P. Act read with Section 2(z) of the U.P. Act which defines "workman".

9. It is true that the rule of "first come, last go" in Section 6-P

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

could be deviated from by an employer because the section uses the word "ordinarily". It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of confidence, etc., as held in Swadesamitran Ltd. v. Workmen. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act.

20. The distinction between Sections 25-F and 25-G of the Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar (2006) 13 SCC 28, in the following words:

"9. We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Sections 25- G and 25-H thereof he may not have to establish the said fact. See: Central Bank of India v. S. Satyam, Samishta Dube v. City Board, Etawah, SBI v.

Rakesh Kumar Tewari and Jaipur Development Authority v. Ram Sahai."

In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582/- by entertaining a wholly unfounded

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the regulations.

21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that

"10.....the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC

923."

10. From the aforesaid observation made by the Hon'ble Supreme Court, it is clear that for attracting the applicability of Section 25(G) of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calender months preceding the termination of his service and it is sufficient for him to plead and prove that while affecting

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

retrenchment, the employer violated the rule of `last come first go' without any tangible reason. It is also observed that Section 25(H) of the Act casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis.

11. It is further observed that Section 25(G) prescribed the principle for retrenchment and applies ordinarily the principle of `last come first go' which is not confined only to workmen who have been in continuous service for not less than one year, convered by Section 25(F). In the aforesaid case decided by the Hon'ble Supreme Court, the concerned workman was appointed in the year 1986 and thereafter he was retrenched in the year 1992. The said workman raised the industrial dispute which was referred to the concerned Labour Court. Ultimately, the Labour Court passed the award in the year 1999 and directed the concerned employer to reinstate the workman with 50% back wages and the said award was challenged by the employer by filing petition before the concerned High Court and the High Court modified the award passed by the Labour Court and thereby awarded Rs.87,582/- by way of compensation to the concerned workman. Ultimately, in the SLP filed by the workman, the Hon'ble Supreme Court has quashed and set aside the said order passed by the High Court and the award passed by the Labour Court was restored.

12. In the order dated 30.4.2021 passed in Special Civil Application No.7870 of 2012, the coordiante Bench of this Court has considered the various decisions rendered by the Hon'ble Supreme Court and thereafter observed in paragraph 10 as under:

"10. It also appears from the impugned award that there was inspection carried out in presence of the workman in the office of the petitioner from

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

where it was found that during the period from 1.7.1988 to 31.8.1989, the workman has worked for 298 days. This fact cannot be denied by the petitioner as it has came out from the official record. Thus, the very version of the petitioner that the workman has not worked for 240 days in any calendar year is contrary to its own record. Now, admittedly in the present case, no notice pay or retrenchment compensation has been given to the workman. Therefore, in absence of any such procedure being followed, there is clear breach of Section 25-F of the Industrial Disputes Act. Now, so far as decision relied upon by learned AGP in the case of Bharat Sanchar Nigam Limited (supra) is concerned, there was only breach of Section 25-F of the Act, whereas in the present case, there is breach of Section 25-G also. As reflected from various particulars in the form of list, which was prepared during inspection of office of the petitioner in presence of the workman, it reveals that such list consists of 205 workmen, who have joined duty in the year 1980 and out of them various workmen are continued after termination of service of the present respondent. The present respondent has been retrenched on 1.9.1989, whereas from the list which has been referred by the Labour Court in paragraph 12, it is crystal clear that many workmen have been retained even in 2005, 2007 and those persons have joined the duty later in point of time as compared to present respondent. Thus, there is breach of Section 25-G of the Industrial Disputes Act. Further, it is not the case of the petitioner herein that after termination of service of the workman, he was called to join the duty, however, it appears from record that his juniors were

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

continued in service. Thus, considering the factual aspect of the case, it clearly transpires that there is breach of provisions of Sections 25-F, 25-G and 25-H of the Industrial Dispute Act. Since there is breach of Section 25-G and 25-H, there is no question of granting lumpsum compensation to the workman."

From the aforesaid order passed by the coordinate Bench of this Court, it is clear that when there is a breach of Section 25(G) and 25(H) of the I.D.Act, there is no question of granting lumpsum compensation to the workman.

13. xxx xxx xxx.

14. Keeping in view the aforesaid decision rendered by the Hon'ble Supreme Court and this Court, if the facts of the present case as discussed hereinabove are carefully examined, this Court is of the view that when the specific finding is recorded by the Labour Court, relying upon the documentary as well as oral evidence produced before it that the petitioner company has violated the provisions contained in Section 25(G) and 25(H) of the I.D.Act, and on the basis of the said findings, when the order of reinstatement is passed, no interference is required to be made in the impugned award. The submissions canvassed by learned advocate for the petitioner that in the alternative ,the petitioner is ready and willing to give lumpsum compensation of Rs.3,50,000/- cannot be accepted as in the present case, there is no violation of provision contained in Section 25(F) of the I.D.Act and there is violation of provisions contained in Section 25(G) and 25(H) of the I.D.Act and therefore the said submission canvassed by learned advocate for the petitioner is not accepted."

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

12. I have considered the submissions canvassed by

learned advocates appearing for the parties. I

have also perused the material placed on record.

From the material placed on record, it is revealed

that the Labour Court has passed the impugned

award, by which, the direction is issued to the

petitioner to reinstate the respondent - workman

without any backwages. The Labour Court has

specifically recorded the finding looking to the

activity carried out by the petitioner that the

petitioner is an 'industry' within the meaning of

Section 2(j) of the ID Act and the respondent is a

workman within the meaning of Section 2(s) of the

ID Act. Further as observed hereinabove, the

Division Bench has recorded the said fact in

Paragraph No.3 of the order dated 07.10.2021. In

the said case also, the concerned Peon was

appointed in the office of Deputy Director of

Lands Records and the Labour Court passed an award

in his favour and thereby granted reinstatement

with back wages. In the said case, the learned

Single Judge directed the Deputy Director of Lands

Records to grant benefit of Government Resolution

dated 17.10.1988. Against the said order, the

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

State Government preferred Letters Patent Appeal

before the Division Bench and the Division Bench

dismissed the said Appeal and thereby confirmed

the order passed by the learned Single Judge.

13. The Labour Court has also considered documentary

as well as oral evidence produced before it and,

thereafter, specifically recorded finding that the

petitioner has violated the provision contained in

Sections 25F and 25H of the ID Act. It is not in

dispute that at present, another driver is working

with the petitioner in place of the respondent -

workman. Thus, though the work was available at

the relevant time, the service of the respondent -

workman was terminated without following mandatory

provision of the ID Act and, therefore, the Labour

Court has rightly passed the impugned award

directing the petitioner to reinstate the

respondent - workman.

14. This Court has gone through the reasoning recorded

by the Labour Court and this Court is of the view

that no error is committed by the Labour Court

while passing impugned award and, therefore, no

interference is required while exercising powers

under Article 227 of the Constitution of India.

C/SCA/2210/2016 JUDGMENT DATED: 26/04/2022

15. The present petition is accordingly dismissed.

Rule is discharge. Interim relief stands vacated.

Sd/-

(VIPUL M. PANCHOLI, J.)

Gautam