Amreli Municipality vs Parmar Jivrajbhai Ramjibhai
2022 Latest Caselaw 2802 Guj

    C/SCA/11332/2008                               CAV JUDGMENT DATED: 11/03/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11332 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

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

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 ?

========================================================== AMRELI MUNICIPALITY Versus PARMAR JIVRAJBHAI RAMJIBHAI ========================================================== Appearance:

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

CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

Date :11/03/2022

CAV JUDGMENT

1. The present Special Civil Application challenges award dated 05.03.2008 passed by Labour Court, Amreli in Reference (LCA) No.22 of 2002 whereby the Labour Court has allowed the reference preferred by the respondent workman and reinstated him in service with 20% back-wages.

C/SCA/11332/2008 CAV JUDGMENT DATED: 11/03/2022

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

2.1 The respondent workman came to be engaged as a daily-wager in the Water Works Department by the petitioner Municipality by appointment letter dated 08.05.1998 and he joined the services from 11.05.1998 at the minimum of the pay-scale. The respondent workman worked as rojamdar clerk in various departments of the Municipality. It is the case of the respondent workman that on 08.01.2001 after serving for 2½ years, he came to be orally terminated by the petitioner Municipality without following any due procedure under the Industrial Disputes Act. Aggrieved, the respondent workman raised an industrial dispute for reinstatement, which was referred for adjudication to Labour Court, Amreli being Reference (LCA) No.22 of 2002. The petitioner Municipality contested the reference and opposed the reliefs claimed by the respondent workman. The evidence came to be led by both the parties. By award dated 05.03.2008, the learned Labour Court was pleased to allow the reference preferred by the respondent workman. Hence, the present Special Civil Application.

3. Learned advocate Mr. Y. V. Shah appearing for the petitioner Municipality has submitted that the respondent workman was appointed by the President of the petitioner Municipality without any sanction of the appointing authority of the General Board and he was not appointed against any sanctioned vacant post on the establishment set up sanctioned by the State Government. He has therefore submitted that since the respondent workman was not appointed by following any due procedure of law, he had no right to be reinstated. He has submitted that the respondent was engaged as a daily-wager and he was working in the Octroi Department which was closed since the State Government had abolished octroi with effect from 01.05.2001 and since the levy of octroi was abolished by the State Government, only permanent

C/SCA/11332/2008 CAV JUDGMENT DATED: 11/03/2022

octroi staff as far as possible could be accommodated by the petitioner Municipality as per the government policy and therefore, the daily-wagers like the respondent workman were terminated since there was excess staff. It was further submitted that the excess staff was required to be terminated since the establishment expenditure of the petitioner Municipality was also excessive at about 70% beyond the permissible limit of 45% of the sanctioned expenditure. Therefore also, the respondent workman could not be continued in service. It was submitted that the respondent workman was engaged on the basis of need of work and therefore, his termination cannot be stretched so as to invoke the provisions of Section 25(F) of the Industrial Disputes Act. It was also submitted that the provisions of Sections 25(F), 25(G) and 25(H) of the Industrial Disputes Act are not applicable in the present case when the respondent workman was not appointed on any sanctioned vacant post by due selection procedure and that his recruitment was made by incompetent authority. It was also submitted that the basic work of the respondent workman was in the implementation of government grant schemes which were not in the nature of regular work and that he was appointed for a fixed period for fixed work. Learned advocate Mr. Vyas for the petitioner Municipality has also relied upon the judgments of this Court in [I] (2003) 2 GHJ (397) [II] AIR 2008 SC 449 and [III] 2004 (2) CLR 511 on the proposition that for Class-IV employee, the recruitment rules is pre-condition and that the provisions of Section 25(F) cannot be invoked in the case of daily-wager employees whose appointments are without following due procedure laid down in the statutory recruitment policy.

4. Per contra, learned advocate Mr. P. H. Pathak for the respondent workman has submitted that the respondent workman was appointed by due appointment letter and was also granted the minimum of the pay-scale. The said workman was initially posted in

C/SCA/11332/2008 CAV JUDGMENT DATED: 11/03/2022

the Water Works Department of the petitioner Municipality and thereafter, was posted in various departments. It was submitted that the respondent has worked continuously from the date of appointment till his oral termination on 08.01.2001 and thus, worked for more than 240 days and therefore, he was entitled for protection under the Industrial Disputes Act. It was also submitted that the provisions of Section 25(F) ought to have been followed by the petitioner Municipality before retrenching the respondent workman and the same has not been done in the present case and therefore, the respondent has rightly been reinstated with 20% back-wages. Learned advocate Mr. Pathak has also submitted that the respondent workman produced cogent evidence on record to show that his work was not for any fixed period or fixed work and that there was nothing on record to show that he was appointed against any government grant work by the petitioner Municipality. He has submitted that after his termination, the respondent workman was doing odd jobs to earn livelihood and he has also deposed that he was earning Rs.400-500 per month after his retrenchment so as to provide livelihood for his family. Finally, learned advocate Mr. Pathak has argued that the award passed by the Labour Court is just and proper and needs no interference. He has submitted that the respondent workman has accepted the said award and has not challenged the grant of only 20% back-wages and hence, the award should not be interfered with and should be upheld in the interest of the workman.

5. Heard learned advocates for the parties at length and perused the documents and evidence on record.

6. In the present case, it can be seen that the respondent workman has been issued the letter of appointment dated 08.05.1998 appointing him as rojamdar clerk vide Exh.30 on record. It is also not disputed that the respondent workman has been orally terminated on 08.01.2001 without following any due

C/SCA/11332/2008 CAV JUDGMENT DATED: 11/03/2022

procedure of law despite the appointment letter appointing him as rojamdar clerk at the minimum of the pay-scale. A perusal of the said appointment letter would show that there is nothing to depict that he was appointed for a fixed period and for a fixed work for executing the government grant work. The said appointment letter falsifies the stand of the petitioner Municipality that the respondent workman was appointed for a fixed period and for a fixed work. The said appointment letter also states that he has been appointed till further orders and not against any particular govt. grant project. Vide Exh.28, the workman has given his oral deposition and Vide Exh. 32, the witness for the petitioner Municipality has given his oral deposition. A perusal of the oral deposition of the witness for the petitioner Municipality would show several contradictions which did not prove the case of the petitioner Municipality. In his oral deposition, the witness for the petitioner Municipality has not specifically denied the fact that the petitioner was appointed as a daily-wager clerk till further orders. The said witness has deposed that the respondent workman had worked under him and the contents of the appointment letter at Exh.30 issued to him are true and correct. He has further deposed that he was not aware whether the respondent workman was terminated orally or by a written order. He has admitted that there is nothing on record to show that the respondent workman was terminated since the fixed period and fixed work for which the respondent was alleged to have been appointed was completed and over. It was also deposed that the respondent workman was neither served any notice nor given any retrenchment compensation at the time of his termination. The said witness has further deposed that the respondent workman had continuously worked from the date of his joining on 11.05.1998 till 08.01.2001 and his attendance and the payments made to him is available with the petitioner Municipality. However, when the said witness was asked to produce the relevant record with respect to the attendance and payment of wages, the same has not been

C/SCA/11332/2008 CAV JUDGMENT DATED: 11/03/2022

produced before the learned Labour Court.

7. Thus, it can be seen that the respondent workman has continuously worked with the petitioner Municipality from 11.05.1998 till 08.01.2001 i. e. the date of his termination. In view of admission by the witness for the petitioner Municipality in his deposition, it is seen that the petitioner Municipality has violated the provisions of Sections 25(F) and 25(G) of the Industrial Disputes Act.

8. This Court is of the opinion that in view of above admissions of the witness for the petitioner Municipality, the learned Labour Court has rightly appreciated the evidence and given proper reasonings for allowing the reference of the respondent workman. This Court is also of the opinion that in the present case, there is a clear violation of Sections 25(F) and 25(G) of the Industrial Disputes Act. In view of the same, the respondent workman is entitled for reinstatement.

9. Since the respondent workman has not challenged the award with respect to grant of 20% back-wages in the facts of the present case, the same has become final and needs no interference.

10. The judgments relied upon by learned advocate Mr. Vyas in support of his case are not applicable in the facts and circumstances of the present case as it is an admitted position that the respondent workman was duly appointed by issuing an appointment letter by the petitioner Municipality at the minimum of the pay-scale and was continuously working for a period of more than 2½ years. Moreover, the petitioner Municipality has itself pleaded in the petition that many such similarly situated workmen have been reinstated due to court orders.

C/SCA/11332/2008 CAV JUDGMENT DATED: 11/03/2022

11. In the premises and for the aforementioned reasons, the present Special Civil Application is dismissed. Rule is discharged. No order as to costs.

(ANIRUDDHA P. MAYEE, J.)

cmk