Jayaben Rameshbhai Sagathiya vs The Presiding Officer, Labour ...
2022 Latest Caselaw 7204 Guj

     C/SCA/857/2019                            ORDER DATED: 22/08/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 857 of 2019

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                   JAYABEN RAMESHBHAI SAGATHIYA
                               Versus
                THE PRESIDING OFFICER, LABOUR COURT
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Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
MR .B A PATEL(5281) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
MR KV GADHIA(319) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                  Date : 22/08/2022
                   ORAL ORDER

1. By way of this petition, under Articles 226 and 227 of

the Constitution of India, the petitioner-workman has

challenged the award dated 01/10/2018 passed by the

Presiding Officer, Labour Court Rajkot in Reference

(LCR) No.71 of 2015.

2. By the aforesaid award, the Labour Court has awarded

compensation of Rs.40,000/-, 25,000/- or 15,000/-

respectively in the respective cases as the case may

be. The petitioner-workman has challenged the said

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award.

3. The facts in brief would indicate that it was the case of

the workman that she was working as a Safai Kamdar

with the Respondents from 9.1.2011 to 31.3.2015 and

her services were put to an end in violation of the

provisions of Section 25F of the Industrial Disputes Act,

1947. The case of the workman further was that since

no seniority list was maintained and that the work was

still continuing and there were sweepers still engaged

there was violation of the provisions of Sections 25G

and 25H of the Industrial Disputes Act, 1947. The

Labour Court on perusal of the evidence on record

came to the conclusion that the work was carried out

for a period of two years and therefore awarded

compensation rather than reinstatement.

4. Mr. B. A. Patel learned Advocate for the petitioner would

submit that the award is bad in law. He would submit

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that the Labour Court ought to have awarded

reinstatement rather than compensation once having

found that the termination was in violation of the

provisions of Section 25F of the Industrial Disputes Act,

1947.

4.1. Mr. Patel would submit that the observation

of the Labour Court that the workman was an

employee of the Sakhi Mandal and not the Gram

Panchayat was erroneous.

4.2. Mr. Patel would further submit that the

appointment was made by the Gram Panchayat and it

was also a matter of record that the services were

maintained by the Panchayat and the salary was

credited by the Panchayat and after the merger of the

Panchayat with the Corporation the salary was being

paid by Rajkot Urban Development Authority (for short

`RUDA') and therefore in any case the petitioner cannot

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be said to be an employee of the Sakhi Mandal.

4.3. The Labour Court having held that there was

violation of Section 25F ought to have awarded

reinstatement with back-wages.

5. Mr. H.S. Munshaw learned advocate for RUDA -

respondent No.2 would support the award of the

Labour Court.

5.1. Mr. Munshaw would also rely upon the

Affidavit-In-Reply filed to submit that the State of

Gujarat introduced a welfare scheme known as "Nirmal

Gujarat" and the objects of the scheme were to provide

better sanitation facilities to the residents of the urban

areas. The Gujarat Municipal Finance Board passed an

order dated 31.3.2011 providing for a smooth

administration of the scheme and with a view to

provide for better disposal of waste a meeting of the

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Village Sarpanches was held of the Gram Panchayats

located within the territorial limits of the RUDA on

5.7.2012. One Sakhi Mandal was to be engaged for 300

houses for implementation of the Scheme.

5.2. Mr. Munshaw would further submit that the

Rajkot Municipal Corporation addressed a letter dated

18.7.2012 to the Sarpanch of number of Gram

Panchayats including Kothariya Gram Panchayat to

make necessary arrangements for implementation of

the Program. RUDA was to deposit a remuneration of

Rs.2,900/- in the list of "Sakhis".

5.3. On 3.1.2015 the State issued a Notification

and the Village of Kothariya was brought under the

territorial limits of the Rajkot Municipal Corporation.

5.4. Mr. Munshaw would therefore submit that in

light of this factual background it was clear that the

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petitioner was not an employee of RUDA but part of the

Scheme of the Government being implemented by the

Kothariya Gram Panchayat which was brought within

the limits of the Rajkot Municipal Corporation. There

was no employer-employee relationship between the

petitioner and RUDA.

6. Mr. Gadhia, learned counsel appearing for the Rajkot

Municipal Corporation would support the award passed

by the Labour Court. He would submit that based on

assessment of evidence it was found that the Kothariya

Gram Panchayat had merged into the territorial limits

of the Corporation but RUDA was the authority under

which the Panchayat fell and the amounts of the salary

were deposited by RUDA and therefore the Labour

Court was right in directing RUDA to pay compensation

and the petitioner was rightly held to be not entitled to

reinstatement with back-wages. In support of his

submissions, he has relied on the decision of the Apex

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Court in the case of B.S.N.L versus Bhurumal

reported in AIR 2014 SC 1188.

7. Having considered the submissions made by the

learned advocates for the respective parties the

following points need to be appreciated:

1) The Gujarat Municipal Finance Board

passed a communication dated 31.03.2011.

Reading of the communication would indicate that

the State had introduced the concept of Nirmal

Gujarat for a clean urban area.

2) For disposal of solid waste, grants were

issued to various urban areas to purchase basic

implements etc and enforcement of the scheme,

Rajkot too received a grant.

3) Accordingly, RUDA called a meeting of

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the Gram Panchayats on 05.07.2012 for

implementation of the scheme.

4) A fixed amount for engaging a Part Time

"Sakhi" for collecting waste was to be deposited

by RUDA in the account of the Gram Panchayat by

RUDA which in turn would be paid to the "Sakhi"

as the petitioner was so called.

8. In light of these facts, if the reasonings based on

evidence of the Labour Court is examined, it comes on

record that the Labour Court therefore rightly held that

it was RUDA who could be held to have engaged the

petitioner.

9. On the aspect of violation of the provisions of Section

25F of the Industrial Disputes Act, 1947 the Labour

Court, in my opinion, rightly held that the Gram

Panchayat had come within the territorial limits of the

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Corporation. That the workman had worked for a period

of two years or less as the case may be based on the

attendance registers that were produced on record.

10. On assessment of evidence the Labour Court held that

there was no evidence produced by the workman to

suggest violation of the provisions of Sections 25G and

25H of the Act except a statement made in the

Statement of Claim.

11. Considering the nature of engagement of the petitioner

and the length of such engagement the Labour Court

relying on a decision of the Hon'ble Supreme Court in

the case of B.S.N.L. v. Bhurumal reported in AIR

2014 SC 1188 held that the petitioner was entitled to

compensation. It would be worthwhile to reproduce the

relevant paragraphs of the decision in the case of

Bhurumal (Supra) shown by Mr.Gadhia.

"17. The next question is as to whether he did this work as a contract employee or was

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employed by the appellant directly. Once, we come to the conclusion that the respondent had been doing the work of the appellant, it was for the appellant to prove as to who was the contractor to whom the work was awarded and that contractor had recruited the respondent. No such evidence is produced by the appellant. Moreover, the appellant has itself accepted the fact that the work of a lineman was not given on contract basis. We, thus, find that there is no perversity in the finding of the CGIT, as upheld by the High Court, that the respondent had worked with the appellant on daily wage basis. It would also be pertinent to mention that the respondent produced documents proving that he met with an accident on 17.11.2001 while repairing the fault of telephone No.65033. For repairing the said telephone it had to climb a pole where electricity wires with 11000 electric volts was hanging as this telephone was installed in a factory. Due to this reason he got the electric shock. He was admitted in the hospital by JTO Dilbagh Singh, posted at SDO group Saidpur and another officer of the appellant viz. Naresh Malik got him admitted in Randhir Nursing Home at Kharkhoda on 17.11.2001. When he was shifted to Dr. Sethi Hospital, Mr. Jatinder Kumar SDO Group Sonepat visited there. He was referred to Medical Hospital, Rohtak on 19.11.2001. More pertinently he was shown as a Government employee and all these record to this effect in the form of Ex. C-5 to C-8 has also been produced. All this evidence shows that when the respondent suffered the electric shock, officers of the appellant came to the spot of occurrence and ensured his medical treatment. This would not have happened if the respondent was not in the employment of the appellant.

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18. There may be some dispute as to whether respondent in fact worked for 15 years. The appellant may be correct that observations of the learned Single Judge in this behalf, namely, it was an undisputed fact that, are incorrect. However, nothing turns on this as the outcome is not dependent on this aspect. Fact remains that the respondent had produced some other documents show that he had been working for quite some time. He had categorically asserted that he worked from July 1987. The case of the appellant before the CGIT was not that the appellant did not work for 15 years but worked for lesser period. On the contrary, the stand of the appellant was that of complete denial, namely that respondent never worked with the appellant at all. Once, that stand is proved to be false, there is no reason to interfere with the findings of the CGIT. In any case, the award is passed on the basis that the respondent had worked for 240 days in preceding 12 months period prior to his termination and therefore it is a clear case of violation of Section 25-F of the Industrial Disputes Act. The termination is, thus, rightly held to be illegal. We do not find any perversity in this outcome.

19. The only question that survives for consideration is as to whether the relief of reinstatement with full back wages was rightly granted by the CGIT.

20. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In the case of BSNL vs. Man Singh [1], this Court has held that when the

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termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In the case of Incharge Officer & Anr. vs. Shankar Shetty [2], it was held that those cases where the workman had worked on daily wage basis, and worked merely for a period of 240 days or 2- 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement. In this judgment of Shankar Shetty (supra), this trend was reiterated by referring to various judgments, as is clear from the following discussion.

"Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25- F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question. In Jagbir Singh v. Haryana State Agriculture Mktg..Board[3], delivering the judgment of this Court, one of us (R.M.Lodha,J.) noticed some of the recent decisions of this Court, namely, U.P.State Brassware Corpn. Ltd. V. Uday Narain Pandey[4], Uttaranchal Forest Development Corpn. V. M.C. Joshi[5], State of M.P. v. Lalit Kumar Verma[6], M.P.Admn v.Tribhuban[7], Sita Ram v.Moti Lal Nehru Farmers Training Institute[8], Jaipur Development Authority v.

Ramsahai[9], GDA v. Ashok Kumar[10] and Mahboob Deepak v.Nagar Panchyat, Gajraula[11] and stated as follows: (Jagbir Singh case, SCC pp.330 & 335 paras 7 &

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14) "It is true that the earlier view of this Court articulated in many decision reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee." Jagbir Singh has been applied very recently in Telegraph Deptt. V. Santosh Kumar Seal[12], wherein this Court stated: (SCC p.777, para 11) "In view of the aforesaid legal position and the fact that the workmen

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were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would sub-serve the ends of justice."

21. In the case of Telecom District Manager v. Keshab Deb [13] the Court emphasized that automatic direction for reinstatement of the workman with full back wages is not contemplated. He was at best entitled to one months' pay in lieu of one month's notice and wages of 15 days of each completed year of service as envisaged under Section 25-F of the Industrial Disputes Act. He could not have been directed to be regularized in service or granted /given a temporary status. Such a scheme has been held to be unconstitutional by this Court in A.Umarani v. Registrar, Coop.Societies [14] and Secy.,State of Karnataka v. Umadevi [15].

22. It was further submitted by the learned counsel for the appellant that likewise, even when reinstatement was ordered, it does not automatically follow full back wages should be directed to be paid to the workman. He drew our attention of this Court in the case of Coal India Ltd. Vs. Ananta Saha [16] and Metropolitan Transport Corporation v. V.Venkatesan [17].

23. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is

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not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.

24. Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive

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monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.

25. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."

12. Accordingly, no fault can be found with the award of

the Labour Court and the petition is accordingly

dismissed.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA