Executive Engineer vs Jagdish Gamit

Aniruddha P. Mayee, J

The present Special Civil Application challenges award dated 27.12.2005 in Reference(LCS) No.776 of 1999, whereby Labour Court-III, Surat

partly allowed the reference, awarding reinstatement to the respondent workman with continuity in service but without any back-wages.

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 engaged as work charge road clerk with the petitioner herein on 26.05.1980 in the monthly

pay-scale of 260-6-308EB-3-326-8-350EB-8-390-10-400. It is further his case that he was being continued in service with the technical breaks of one

day, two days, three days etc. till he was orally terminated on 03.08.1985 after a period of five years. It is further the case of the respondent that

against his termination, he had preferred Special Civil Application No.5102 of 1985 which came to be disposed of in the year 1997 relegating him to

raise an industrial dispute before the Labour Court. Accordingly, the respondent raised an industrial dispute which came to be referred by Additional

Labour Commissioner and Reference (LCS) No.776 of 1999 came to be registered. Both the parties led their evidence before the Labour Court. By

award dated 27.12.2005, the Labour Court partially allowed the reference. Aggrieved, the petitioner herein has filed the present Special Civil

Application.

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

Learned advocate Ms. Sejal K. Mandavia for the petitioner submitted that after the present Special Civil Application came to be filed, by order

dated 14.07.2006, this Court granted interim stay against continuity of service on a condition that the petitioner shall have to reinstate the respondent

workman and accordingly, the respondent was reinstated and he has also retired in the year 2013. She submitted that in view of this position, the only

challenge remains is with respect to the continuity in service as awarded by the Labour Court. Learned advocate Ms. Mandavia submitted that the

respondent was appointed in the year 1980 on fixed term basis and the orders were also issued as per the requirement, availability of work and

availability of grant. That, all the orders were either for fixed term of 29 days or three months. That since the grant was stopped by the Government,

the work was also stopped and therefore, the respondent was relieved from his duty. She further submitted that it is not the respondent

workman’s case that despite work being continued, he was terminated. She submitted that now, the road construction work is being done by

publishing tender and awarding the work to the private contractors. She further submitted that it was the duty of the respondent to mark presence of

the labourers at the site. As per the change in the policy of the Government, the said work is now being done by the contractor and the grants were

stopped and therefore, the respondent workman could not be continued further. It was also submitted that all the appointment orders issued to the

respondent were fresh orders for each particular duration and hence, it was in the nature of fixed term appointment. That there is no continuous work

order from 1980 to 1985 and it was always work based appointment. She argued that when there was a fixed term appointment, the provisions of

Section 25F are not required to be followed. She further submitted that in the preceding year, the respondent workman had completed only 174 days

and not 240 days and even though, he may have worked for more than 240 days in the other preceding years, the provisions of Section 25F are not

applicable and the termination is legal. It was submitted that after 20 years, the learned Labour Court ought not have granted the reinstatement with

continuity in service, but if at all, the learned Labour Court was convinced that the termination was not legal, the lump-sum compensation should have

been granted in lieu of reinstatement and continuity in service and in fact, the continuity in service has been stayed by this Court while admitting the

present petition and therefore, today, if it is held that the respondent workman is entitled for continuity in service, it would be after 36 years from the

date of his termination and therefore, the said relief should not be granted. Learned advocate Ms. Mandavia has relied upon following judgments :-

(I) In respect of proposition that Section 25F is not attracted in a fixed term appointment :-

(1) State of Rajasthan and ors. vs. Rameshwar Lal Gahlot [(1996) 1 SCC 595]

(2) Purshottambhai R. Kachhadia vs. State of Gujarat & Ors. [2000 (2) GLR 1793]

(II) In respect of granting continuity in service :-

(1) Deputy Executive Engineer, Kadi Taluka Panchayat and anr. vs. Quareshi Ahmedbhai Piyabhai [2010 (2) GLR 1292]

(2) Order dated 23.06.2016 passed in Special Civil Application No.2116 of 2009 in case of Port Officer vs. Raghubhai Govindbhai

(3) Executive Engineer (Mechanical) vs. Shri Chetan P. Oza [ 2005 2 GLH 742]

(III) In respect of non-completion of 240 days in the previous calendar year which does not entitle the benefit of continuous service. Mohd. Ali vs.

State of Himachal Pradesh and ors. [2018 (15) SCC 641]

(IV) In respect of proposition that the workman who has worked for a short period of 240 days only, the compensation by way of monetary relief

should be awarded instead of reinstatement/ back-wages/arrears.

Assistant Engineer, Rajasthan Development Corporation vs. Gitam Singh [(2013) 5 SCC 136]

Per contra, learned advocate Mr. C. B. Dastoor appearing for the respondent workman submitted that it has been held in catena of decisions

passed by the Hon’ble Supreme Court as well as this Court that once the reinstatement is granted, then the continuity in service is to follow as it is

not a case of re-appointment. It was submitted that since the respondent had worked for a long time, there was no question of following the provisions

of Section 25F and even the provisions of Section 2(OO) (bb) are not attracted in the facts of the present case. He submitted that the delay in

approaching the Labour Court by way of reference was properly explained and that it was due to the workman approaching the wrong forum i. e.

filing the proceedings before this Hon’ble Court. He also argued that the principle of estoppel & waiver will apply to the petitioner as now, the

petitioner has accepted the order of the Labour Court with respect to the reinstatement in service and the respondent workman was reinstated and

has also retired in the year 2013. He vehemently submitted that the petitioner has not produced any record or muster-roll to dispute the contention of

the workman that he has not worked for more than 240 days and the said factum has also been recorded in the award by the learned Labour Court. It

was submitted that the application of the provisions of Section 25F by the petitioner in the oral arguments has no basis in the form of pleadings in the

Special Civil Application as well as in the written statement filed before the Labour Court and hence, it cannot be raised for the first time during final

hearing of the Special Civil Application. He submitted that the respondent workman has not challenged the denial of back-wages by the Labour Court

before this Court by filing any Special Civil Application. He submitted that once the workman has submitted on oath before the Labour Court that he

had worked for more than 240 days, then the burden shifts on the petitioner to dispute the same by producing the muster-roll/record to that effect.

However, in the present case, the petitioner’s representative in his deposition before the Labour Court clearly admitted that the written statement

has been filed without considering all the muster-rolls and that some of the muster-rolls are not found in the respect of the respondent. With respect to

applicability of the provisions of Section 2(OO)(bb), it was submitted that the said provisions came into force by way of amendment in the year 1984

and it is not applicable retrospectively and therefore, Section 25F is applicable since the workman was appointed in the year 1980. The contention that

the workmen were appointed for the purpose of particular project and on completion of the same, they were terminated, is also not proved by the

witness of the petitioner in the evidence before the learned Labour Court. No evidence has been brought on record that the project was completed

and no further grant was received in respect of the same. It was finally submitted that the reinstatement is not a fresh appointment and continuity is

implicit in the order of reinstatement and the same can only be refused on the ground of some penal action pending against the workman. Further, if

the continuity is to be denied, then the same would amount to penalizing the workman for no fault even though the order of termination is found to be

illegal and there is no misconduct committed by the workman for such denial. He submitted that instead of paying wages under Section 17B, the

petitioner had chosen to reinstate the respondent workman in the year 2007 and after six years, he has retired in the year 2013 which also shows that

the work was available.

5.1 In respect of his contentions, learned advocate Mr. Dastoor has relied upon the following authorities.

(I) In respect of continuity in service :-

(1) Gurpreet Singh vs. State of Punjab [2002 (9) SCC 492]

(2) Sanatkumar Dwivedi vs. Dharjhila Sahkari Bhoomi Vikas Bank [2001 AIR SCW 2430]

(3) General Manager Haryana Roadways vs. Rudhan Singh [2005 Lawsuit (SC) 944]

(4) Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidhyala [2013 (10) SCC 324]

(5) Director General, ICMR vs. D. K. Jain [2007 Law suit (SC) 282]

(6) Ashwinbhai Maganbhai Bhalodiya vs. State of Gujarat [Special Civil Application No. 15294 of 2017]

(7) Vasantika R Dalia vs. Baroda Municipal Corporation [1997 law suit (Guj) 207]

(8) Brijesh Kantilal Somaiya vs. Chief officer LPA No. 735 of 2017

(LPA NO.735, 736, 738 to 747 of 2017 are dismissed and LPA No.132 to 134 of 2017, 345, 346/2017, 2184 and 2186/2017 allowed).

(II) In respect of pleadings not taken before Labour Court for non-completion of 240 days :-

(1) Dhangadhra Municipality vs. Ganpatbhai Jethabhai Makwna [2007 (3) GLH 197]

(2) Gujarat State Fertilizer & Chemicals Ltd. vs. B. K. Bhatt [2012 (4) LLJ 262]

(III) In respect of proposition that amendment 2(OO) (bb) came in the year 1984 without retrospective effect Deputy Executive Engineer vs. Raj

Amarsinh Fulsinh [2008 (1) GLH 220]

(IV) In respect of artificial break of 29 days appointment orders amounts to unfair labour practice Deputy Executive Engineer Buildings & Ports vs. J

R Vasiani [LPA 850 of 2001]

(V) In respect of Limitation Act not applicable to Industrial Disputes Act and Reference cannot be dismissed however Court can mould relief refusing

back-wages. Ajaib Singh vs. the Sirhind Cooperative Marketing cum Processing Service society limited. [AIR 1999 SC 1351]

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

It is not disputed that the workman was appointed on 26.05.1980 in a monthly pay-scale and was orally terminated on 03.08.1985 after a period of

more than five years. The respondent workman stated on oath that he had completed 240 days in all preceding years. The same has been disputed by

the petitioner herein stating that the work was project based and was on fixed term basis since he was engaged as and when the work was available.

A perusal of the evidence as recorded by the learned Labour Court in the award shows that the witness for the petitioner herein admitted that the

appointments to such workmen were granted with a break of one-two days. He also deposed that he is not aware as to how many days, the

respondent workman has worked and he will have to confirm the same only after seeing the actual record. He also stated that he did not check the

attendance record of the workman from his date of appointment till his date of termination and further admitted that the written statement/reply filed in

the Reference has not been filed after seeing the complete record and the reply was prepared on the basis of available muster-rolls only and those

muster-rolls which were not available, were not checked while filing the reply. The said witness further admitted that he is not aware as to how many

such workmen like the respondent were still working with the department. But, at the same time, there are many such workmen who were still

working in the same capacity as the respondent workman. In his deposition, he further could not substantiate or clarify whether the projects have been

closed down due to paucity of funds/grants. In short, the whole deposition of the witness for the petitioner has not fully supported the case of the

petitioner herein since he did not have the complete record and that the same was not produced before the Labour Court. The witness has finally

deposed and admitted that the respondent workman had not worked for 143 days during the period of 1980-1985 because of artificial breaks which is

true and admitted that except 143 days of artificial breaks, the workman has worked for rest of the days. In light of the clear and unambiguous

statement made by the witness of the petitioner, the learned Labour Court concluded that while terminating the services of the respondent workman,

the provisions of Section 25F were not followed and therefore, the oral termination of the workman was illegal. Considering the delay in making the

reference due to the pendency of the proceedings before this Court, the learned Labour Court denied the back-wages to the respondent and

accordingly, by award dated 27.12.2005, Reference (LCS) No. 776 of 1999 came to be partly allowed.

Learned advocate Ms. Sejal Mandavia for the petitioner could not dispute the findings recorded by the learned Labour Court in respect of the

admissions in the deposition of their witness. Once, it is proved by evidence that the respondent workman was given the artificial breaks during his

service and he was orally terminated before completion of his last appointment, the provisions of Section 25F have been violated. The respondent

workman cannot be denied the reinstatement. In the present case, when the violation of provisions of Section 25F has been proved, the continuity in

service has to be granted since the termination was not due to any fault of the workman. In the present case, the respondent workman has been

denied the back-wages since a considerable period of time had passed while pursuing the legal remedy before this Court. However, since the same

has not been challenged by the respondent workman by way of filing Special Civil Application, the denial of back-wages has become final. The

authorities relied upon by learned advocate for the petitioner will not come to the aid of the oral submissions in view of the admissions in the deposition

of its witness.

In the premises and for the aforesaid reasons, the award passed by the learned Labour Court is upheld. The respondent workman after being

reinstated has since retired in the year 2013. It is submitted that in view of stay order passed in the present proceedings with respect to the continuity

in service, his retiral dues have not been calculated and paid yet. The petitioner herein is therefore directed to calculate the retiral dues of the

respondent and make the necessary payment within a period of eight weeks from the date of receipt of this order.

In view of above, the present Special Civil Application is dismissed. No order as to costs.