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2007 Supreme(Guj) 454
2007 (3) GCD 2120 (Guj)
Hon’ble Mr. Justice H.K. Rathod
District Deve. Officer & Anr.
Versus
Rajendrasinh Jasvantsinh Chudasama
Special Civil Application No. 25923 of 2006
Decided on 27/07/2007
Point in Issue :
Whether periodical appointments without any justification denies the petitioner legal protection against termination?
Headnote:Head Note :
Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Sections 2(oo), 2(oo) (bb) and 25(F) — Termination — Periodical appointment every month — Non- compliance with mandatory requirements — Validity — Finding as to — The respondent was being appointed as driver while issuing 29 days appointment orders every time continuously on daily wages — It was not contractual appointment for specific work for specific purpose and for specific duration — There was no need to issue such orders — The respondent had given one application for job but thereafter on each month without any application fresh orders of his appointments were issued — The periodical orders issued after period was started means that service of respondent remained continued but on record and paper show artificial break — The Labour Court held and rightly so it was unfair labour practice and it is covered under definition of retrenchment under the Act — Therefore, not to follow the mandatory requirements before retrenchment of petitioner, renders order void ab initio — That aspect is properly considered by the Labour Court and no error is committed by it — The finding of Labour Court is not perverse and on his contrary based on proper appreciation of oral and documentary evidence — Which requires no interference by the Court.
Held :
The respondent was appointed as driver while issuing 29 days appointment order on daily wage basis. It was not contractual appointment for specific work for specific purpose, and for specific duration. The object of 2(oo) (bb) is not satisfied in such type of periodical appointment order. The petitioner has to justify before the Labour Court that test laid down in 2(oo)(bb) is satisfied. But same is not proved by petitioner before the Labour Court. There is no need to issue such kind of order when there is no requirement. Actually respondent was appointed on daily wages basis. The next month to each month, the work is available even though why such type of periodical order issued by petitioner, not explained by petitioner. But Labour Court has rightly come to conclusion that it amounts to unfair labour practice adopted by petitioner. The respondent had given one application for job, but thereafter on each month no separate application for job given by respondent. The periodical order issued after period was started means that service of respondent remained continued, but on record and paper must shown artificial break. So, legitimate right of respondent can be denied, protection of 25(F) can be denied. The respondent had actually worked 347 days continuous service within twelve months period preceding date of termination. The respondent satisfied 25 B(2) and (1) also where continuous service defined. The Section 25(F) not followed. Then termination amounts Retrenchment within the meaning of 2(oo) with result termination ab initio void. [Para 12]
Periodical appointments where given to present respondent as Driver without any justification which adopting unfair labour practice, not covered by exception 2(oo)(bb) and it covered by 2(oo) retrenchment. Therefore, not to follow 25(F) at the time of terminating service order of termination renders ab initio void. That aspect Labour Court has properly considered. For that no errors committed by Labour Court. [Para 14]
Law Laid Down :
Periodical appointments without any justification amounts to unfair labour practice.
Case Law Analysis :
Mohan Lal vs. The Management of Ms. Bharat Electronics, Ltd., AIR 1981 SC 1253 [Para 12];; M/s. Hindustan Tin Works Pvt. Ltd. vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd & Ors., AIR 1979 SC 75 [Para 12];; Executive Engineer District Panchayat vs. Shankarbhai Jivabhai Patel, 2006 LabIC 2180 [Para 12].—Relied on
Appearance :
Ms. R.V. Acharya, for the Petitioners.
Mr. D.G. Shukla, for the Respondent.
Conclusion :
In view of facts petitioner’s termination is covered by definition of retrenchment and therefore he is entitled to legal protection provided under the Act.
Cases Referred :
Kishore Chandra Samal vs. The Divisional Manager, Orissa State Cashew Development Corporation Ltd., Dhenkanal, 2005 (9) Scale 379;; Punjab State Electricity Board vs. Darbara Singh, 2005 (9) Scale 385;; General Manager, Haryana Roadways vs. Rudhan Singh, 2005 (5) SCC 591;; Navodaya Vidyalaya Samiti vs. T.C.S. Naidu, 2001 (9) SCC 403;; Balubhai G. Makwana vs. State of Gujarat & Ors., 2002 (4) GLR 2940;; The Manager (P & A), Oil and Natural Gas Corporation Ltd., Chennai vs. G. Radhakrishnan, 2005 LabIC 2570(1);; S.M. Nilajkar vs. Telecom District Manager, Karnataka, 2003 LabIC 2273 = AIR 2003 SC 3553 = AIR 2003 SCW 2196 = AIR 2003 Kant HCR 1193;; Deputy Director of Health Services, Nashik vs. Latabai Rajdhar Paturkar, 1996 LabIC 428 = 1996 (3) LabLN 675 (Bom);; Madhya Pradesh Bank Karmachari Sangh (MP) vs. Syndicate Bank, 1996 LabIC 1161 (MP);; Alexander Yesudas Maikel vs. Perfect Oil Seals & IRP, 1995 (1) LabLN 1165 = 1995 Lab LR 777 (Bom);; M. Venugopal vs. LIC of India, AP, AIR 1994 SC 1343 = 1994 AIR SCW 778 = 1994 (1) LabLJ 597;; Chairman-cum-Managing Director, Orissa Road Transport Co. Ltd. vs. Ramesh Chandra Gouda, 1994 Lab IC (NOC) 387 = 1994 (2) LabLJ 1127 (Orissa);; Chakradhar Tripathy vs. State of Orissa, 1992 LabIC 1813 (Orissa);; Shankariah vs. K.S.R.T.C., 1986 (I) LLJ 195 (196) (Kant.);; S. Gobindaraju vs. K.S.R.T.C., 1986 (II) LLJ 351 (SC);; Shailendra Nath Shukla vs. Vice Chancellor, Allahabad University, 1987 LabIC 1607 (All) (DB);; Jaybharat Printers & Publishers Pvt. Ltd. vs. Labour Court Kozhikode, 1994 (II) LLJ 373 (Ker.);; Bhikku Ram vs. Presiding Officer Industrial Tribunal-cum-Labour Court, Rohtak, 1995 LabIC 2448 (2458-60) (Punj. & Har.) (DB);; Nathu Ram Saini vs. Hindustan Copper Ltd., 1995 (I) LLJ 421 (424) (Raj.);; Ramkishan vs. Samrat Ashok Technical Instiatute, Vidisha, 1995 (I) LLJ 944 (999) (M.P.);; Vadodara Municipal Corporation vs. Gajendra R. Dhumal, 1996 (I) LLJ 206 (208-9) (Guj.);; Dilip Hanumantrao Shirke vs. Zilla Parishad, Yavatmal 1990 LabIC 100 (103) (Bom.);; Balbir Singh vs. Kurukshetra Central Co-op. Bank Ltd., 1990 LLJ 443 (445) (Punj. & Har.);; State Bank of India vs. N. Sundaramoney, 1976 (I) LLJ 478 (SC), S.S. Sambre vs. Chief Reg. Manager Central Bank of India, Nagpur & Anr., 1992 (I) LLJ 684 Bom;; K. Rajendran vs. Dir. (Per.) Project & Equipment Corporation of India Ltd. New Delhi & Anr. 1992 (I) CLR 462;; Haryana State Electronics Development Corporation Ltd. vs. Mamni, 2006 AIR SCW 2979.
Decided in Favour of :
Respondent
Petition Dismissed
H.K. Rathod, J.—Heard learned Advocate Ms. R.V. Acharya on behalf of the petitioner, learned Advocate Mr. D.G. Shukla appearing for the respondent.
2. In the present petition, petitioner has challenged the award passed by Labour Court, Bhavnagar in Reference No. 429/1994 dated 27/02/2006. The Labour Court has allowed the reference, set aside the termination order and granted the reinstatement with continuity of service with full back wages of interim period.
3. Learned Advocate Ms. Acharya submitted that periodical appointment in the post of Driver was given to the respondent and each month there was a break in service and separate order of appointment is to be considered afresh appointment on each month. It is not covered by definition of Retrenchment under Section 2(oo) of I.D. Act 1947 and because of such kind of appointment covered by the definition of Section 2(oo)(bb) of I.D. Act, 1947.
4. She submitted that the respondent was attached with the Chairman of the Education Committee Car and a moment the Committee is dissolved, the requirement of Driver is not necessary. Therefore, the period of appointment is come to end by efluxation of time. Therefore, now there is no need to have service of Driver because Education Committee is dissolved. She submitted that Labour Court has wrongly granted full back wages of interim period.
5. Learned Advocate Mr. D.G. Shukla appearing for the respondent submitted that Labour Court has rightly appreciated the oral and documentary evidence and come to the conclusion that it amounts to retrenchment and Section 25(F) is not followed by the petitioner. Therefore, reinstatement is rightly granted by the Labour Court that in appointment order the break was given, but in fact respondent was remained continue in service and also worked on breaks days. Even on break period, it was established by the respondent while producing the log book of the Ambassador Car before the Labour Court that on break period respondent had worked with the petitioner.
6. Learned Advocate Mr. Shukla submitted that respondent was appointed on regular scale from 01/09/1989 to 31/03/1993. Therefore, there was no break between the period. Therefore, the Labour Court has rightly granted the benefit, for which respondent was entitled as gainful employment is not proved by the petitioner before the Labour Court and respondent was remained without employment being not in gainful employment.
7. Learned Advocate Mr. Shukla submitted that respondent had given oral evidence before the Labour Court, where he remained unemployed and not gainfully employed, which is specifically proved. Thereafter, the burden is sifted upon the petitioner to disprove the aforesaid evidence, but no oral or documentary evidence produced by petitioner before the Labour Court. Therefore, he submitted that Labour Court has rightly appreciated the facts and no error is committed by the Labour Court, which require any interference by this Court.
8. I have considered the submissions made by both the learned Advocates, certain facts are not disputed between the parties. The respondent was appointed by periodically order w.e.f. 01/09/1989 to 31/03/1993. The appointment order issued on regular scale vide Exhibits 16 to 46 produced by the petitioner before the Labour Court. The period of break, during which, respondent was remained in service, that fact was proved by producing log book of the concerned Car before the Labour Court. The Labour Court has also appreciated the evidence vide Exhibits 48 and 49, where log book was appreciated that though order of appointment was issued periodically, but the nature of work is to be performed by the respondent permanently. Even though, the periodically order have been issued without any justification and for to deny legal protection to the respondent.
9. Therefore, the Labour Court has come to the conclusion that such kind of practice adopted by the employer, who is state authority issued periodically order knowing fully
