Executive Engineer vs Jaysukhbhai Dhirubhai Kakadiya
2022 Latest Caselaw 4911 Guj

    C/SCA/9821/2008                                          CAV JUDGMENT DATED: 06/06/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 9821 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

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

2      To be referred to the Reporter or not ?                                      No

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

4      Whether this case involves a substantial question                            No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== EXECUTIVE ENGINEER & 1 other(s) Versus JAYSUKHBHAI DHIRUBHAI KAKADIYA ========================================================== Appearance:

MR BHARAT T RAO(697) for the Petitioner(s) No. 1,2

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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

Date :06/06/2022

CAV JUDGMENT

1. The present Special Civil Application impugns judgment and award dated 03.10.2007 passed by learned Labour Court, Amreli in Reference (LCA) No.34 of 2003 whereby the learned Labour Court has directed the reinstatement of the respondent workman with continuity in service and awarded 25% backwages and perks of Rs.1500/-.

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2. The brief facts leading to filing of the present Special Civil Application are as follows:-

2.1 It is the case of the respondent workman that he was appointed as watchman - cum - valveman - cum- lineman from 01.03.1997 on daily wages of Rs.45.30ps and that he was appointed against vacant permanent post. That on 31.07.2001, he was illegally orally terminated by the petitioners. Thereafter, he raised a dispute before the Assistant Labour Commissioner who, by order dated 17.03.2003, made Reference (LCA) No.34 of 2003 to the learned Labour Court.

2.2 Both the parties appeared before the learned Labour Court and submitted their documentary as well as oral evidence in support of their case. The learned Labour Court was pleased to frame the issues and thereafter, adjudicated the reference. By award dated 03.10.2007, learned Labour Court, Amreli was pleased to partly allow the reference reinstating the respondent workman with continuity in service and awarding 25% backwages.

2.3 Aggrieved by the said award, the petitioners have preferred the present Special Civil Application.

3. Learned advocate Mr. B. T. Rao appearing for the petitioners has submitted that the learned Labour Court has committed an error apparent on the face of the record. He has submitted that the learned Labour Court has failed to appreciate the fact that the respondent workman was not appointed on a permanent, clear vacant and sanctioned post and the petitioner Board follows the recruitment rules for appointment of Class-IV employees also. It is further submitted that the appointment of the respondent workman was purely temporary and ad-hoc on project basis and therefore, there was no question of continuing the respondent permanently once the said project is over. It is also

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submitted that the documentary evidence produced by the petitioners was not considered by the learned Labour Court, which clearly shows that the respondent workman had not completed 240 days in a calendar year and that he was engaged to work as and when the need arose. It is submitted that the learned Labour Court has also not taken into consideration the vouchers produced by the petitioners with respect to the payment that had been made to the workman. The statement for the period from 01.11.2000 to 31.07.2001 had been produced before the learned Labour Court which has not been properly considered while adjudicating the matter. It is further submitted that there is no permanent work with the petitioners now as the work of maintaining the pipeline had been given on contract basis by the petitioners. If the petitioners employ any particular person, then he cannot be said to be the employee of the petitioners. Further, merely because the respondent workman has completed 240 days, he does not get vested right to get appointment with the petitioner Board. It is further submitted that there is no question of violation of Section 25(F) of the Industrial Disputes Act as alleged since the respondent workman has admitted that he was not in service of the Board since 31.07.2001. It is further submitted that the respondent workman had approached the learned Assistant Labour Commissioner in the year 2003 i. e. after two years. It is submitted that the learned Labour Curt has also failed to appreciate the fact that the project work is now complete and division and sub-division have been closed down and therefore, there is no question of reinstatement. It is submitted that there is no permanent establishment with the petitioners which is a statutory Board and is wholly owned by the Government of Gujarat and undertakes the projects of public utility. As and when the work is completed, the project is entrusted to the local authority for the purpose of running and maintaining the same and temporary establishment is discontinued. Thus, the workmen like the present respondent who are engaged on project

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to project basis, are discontinued after the project work is over and they cannot claim any continuity in service. It is further submitted that the workman has not been employed after following the recruitment rules framed by the petitioners and therefore, he cannot claim as a matter of right his reinstatement on the basis that he has completed 240 days. In support of his case, learned advocate Mr. Rao has relied upon the following judgments :-

(I) Mahendra L. Jain vs. Indore Development Authority [2005 (1) SCC 639] wherein it has been held that regularization cannot be claimed as a matter of right and illegal appointment cannot be regularized while taking recourse to regularization and a daily wager in absence of a statutory provision would not be entitled to regularization. A daily wager does not hold the post and he does not have any vested right to continue after the project is over.

(II) Hindustan Aeronautics Limited vs. Dan Bahadur Singh and ors. [2007(6) SCC 207] wherein in paragraphs 18 and 19, it has been held that only because a person has worked for more than 240 days, he does not derive any vested right to be regularized in service. It is well settled that there is no vested right in any daily wager to seek regularization and it can only be done in accordance with the rules and not de-hors the rules.

(III) Assistant Engineer, Rajasthan Development Corporation and anr. vs. Gitam Singh [(2013) 5 SCC 136] wherein it has been held that "Before exercising its judicial discretion under Section 11-A of the ID Act, the Labour Court has to keep in view

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all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief. In case of wrongful termination of a daily wager, who had worked for a short period, the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice.

4. Per contra, learned advocate Mr. P. H. Pathak appearing for the respondent workman has submitted that the learned Labour Court has correctly come to the conclusion that the relevant documents were not produced in case of the respondent workman. Though the same were specifically called for, still the petitioners did not produce those documents and therefore, the adverse inference was correctly drawn by the learned Labour Court. Further, he has submitted that even while working on the project, no seniority-list was prepared by the petitioners with respect to the labourers employed by them. He has submitted that the respondent workman has worked for 251 days which is clear from the record and it is not denied by the petitioners. Even in the cross-examination of the respondent workman, they could not elicit any contradiction with respect to his evidence. He has submitted that the award passed by the learned Labour Court was just and proper in the facts and circumstances of the case and that the respondent workman was entitled to reinstatement with 25% backwages. He has submitted that the award passed by the learned Labour Court be upheld and that there is no error apparent on the face of the record.

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5. Heard learned advocates for the respective parties and perused the documents on record.

6. It is seen from the record that the respondent workman in his claim petition as well as in his oral evidence has claimed that he had been working with the petitioners herein from 01.03.1997 till 31.07.2001, whereas the petitioners claim that he has worked with them from 01.11.2000 till 31.07.2001 as per the documents produced by the petitioners before the learned Labour Court. The present workman has faced the cross-examination from the learned advocate for the petitioners herein, however they have not been able to elicit any contradictory oral evidence. Further, an application under Section 13 was moved by the workman seeking attendance registers to be produced for the period from 01.03.1997 to 31.07.2001 by the petitioners along with vouchers signed by the workman. An appropriate order was also passed under the said application. However, the petitioners did not produce the said record either in support of their case or in contradiction of the claim made by the respondent workman. Therefore, the learned Labour Court has drawn the adverse inference holding that neither in the cross-examination nor on the basis of the documents produced by the petitioners herein, it can be said that the respondent has only worked for one year with the petitioners as contended by them and has held that the respondent workman had worked from 01.03.1997 to 31.07.2001. Further, on the basis of the record, it has been concluded that the respondent workman has worked for 251 days in a year with the petitioners and therefore, he is entitled to protection under Section 25(F) of the Industrial Disputes Act since no due produce was followed while orally terminating him.

7. That the petitioners herein have also filed an additional affidavit dated 08.04.2009 before this Court. A perusal of the same

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shows that it is admitted that the respondent workman was appointed on daily-wages and there was no muster-roll maintained by the petitioners and that the respondent workman was paid the salary on hand receipt. It is also stated in the said affidavit that the respondent workman was working on different site projects from 01.11.2000 to 28.02.2001. However, again, there is no specific denial with respect to the claim of the respondent workman that he was engaged from 01.03.1997 till 31.07.2001 and that he was made to sign the attendance register and was also made to sign the payment receipts of the wages given to him.

8. In view of aforesaid, it cannot be said that the learned Labour Court has wrongly drawn the adverse inference to hold that the respondent workman has worked with the petitioners on various projects and also completed 251 days to be entitled to protection under the Industrial Disputes Act. However, it is seen that the respondent was a daily-wager who was not appointed by following any recruitment process and/or in accordance with the statutory rules framed by the petitioners. Therefore, it is well settled now that in all cases of wrongful termination, reinstatement must follow is not a proper relief. The Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been effected and the delay, if any, in raising the industrial dispute before grant of any relief in an industrial dispute. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief. In case of wrongful termination of a daily wager who had worked for a short period and in the present case, the workman who has worked on various projects, the award of reinstatement cannot be said to be a proper relief and rather award of compensation in such cases would be in consonance with the demand of justice.

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9. The Hon'ble Supreme Court in number of decisions has held that in all cases of illegal termination of service, reinstatement in service may not be the norm and reasonable compensation in lieu of reinstatement may be granted by the Court depending upon the facts and circumstances of each case. It has been now clearly recognized that the reinstatement is not an automatic consequence of wrongful termination specially when the workman has not rendered any services during the pendency of the litigation. In view of this recent jurisprudence which has evolved as per the various judgments of the Hon'ble Supreme Court in respect of the compensation in lieu of reinstatement in the cases of illegal termination of the services, this Court is of the opinion that the ends of justice would be served if the award of reinstatement with 25% backwages is modified with monetary compensation in the present case.

10. In Allahabad Bank and ors. v. Krishan Pal Singh [SLP(C) No. 19648 of 2019 decided on 20th September 2021], the Hon'ble Supreme Court has held as under:-

"8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent - workman had attained age of superannuation. Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination/ dismissal is found to be not in accordance with procedure prescribed under law.

Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991, and in the meantime, respondent had attained age of superannuation, we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. We

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accordingly direct payment of lump sum compensation of Rs.15 lakhs to the respondent, within a period of eight weeks from today. Failing to pay the same within the aforesaid period, the respondent is entitled for interest @ 6% per annum, till payment."

11. Even in Ranbir Singh v. Executive Eng. P. W. D. [Civil Appeal No. 4483/2010, decided on September 2, 2021], the Hon'ble Supreme Court has held as under:-

"6. ....In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy.

7. In such circumstance, noticing that, though the appellant was reinstated after the award of the Labour Court in 2006, the appellant has not been working since 2009 following the impugned order, and also taking note of the fact that the appellant was, in all likelihood, employed otherwise, also the interest of justice would be best subserved with modifying the impugned order and directing that in place of Rs. 25000/- (Rupees Twenty Five Thousand), as lumpsum compensation, appellant be paid Rs.3.25 lakhs (Rupees Three Lakhs and Twenty Five Thousand), as compensation, taking into consideration also the fact that the appellant had already been paid Rs. 25000/- (Rupees Twenty Five Thousand) as compensation."

12. In K. V. Anil Mithra and anr. vs. Sree Sankaracharya University of Sanskrit and anr. [2021 SCC Online SC 982], the Hon'ble Supreme Court has held as under :-

"31. The consistent view of this Court is that such non-observance has been termed to be void ab initio bad and consequence in the ordinary course has to follow by reinstatement with consequential benefits but it is not held to be automatic and what alternative relief the workman is entitled for on account of non- observance of mandatory requirement of Section 25Fof the Act 1947 is open to be considered by the Tribunal/Courts in the facts and circumstances of each case.

32. What appropriate relief the workman may be entitled for regarding non-compliance of Section

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25Fof the Act 1947 has been considered by this Court in Bharat Sanchar Nigam Limited Vs. Bhurumal. The relevant paras are as under:-

33. 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 not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, 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 a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that 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.

34. The 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 regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1]. Thus when he cannot claim regularisation 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 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.

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35. 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 that 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 were regularised under some policy but the workman concerned 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.

33. It has been further followed in District Development Officer and Another Vs. Satish Kantilal Amralia [(2018) 12 SCC 298]."

13. In the present case, the respondent was a daily wager and was orally terminated on 31.07.2001. Therefore, the respondent is not in service of the petitioners since last 21 years. Moreover, he has not filed any affidavit in terms of Section 17(B) that he is not employed during the pendency of the Special Civil Application. In the aforesaid circumstances, the present Special Civil Application is partly allowed. The order of reinstatement of the respondent workman in service with 25% back-wages is hereby modified and the petitioners herein are directed to pay a lump-sum compensation of Rs.2.50Lacs to the respondent workman within a period of eight weeks from the date of receipt of a copy of this order, failing which, the said amount shall carry interest @ 6% per annum. The aforesaid compensation awarded to the respondent workman shall be towards full and final settlement of all the claims of the respondent workman against the petitioners.

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14. For the aforesaid reasons, the Special Civil Application stands partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(ANIRUDDHA P. MAYEE, J.)

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