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2007 (3) GCD 2165 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Dhrangadhra Municipality
Versus
Ganpatbhai Jethabhai Makwana
Special Civil Application No. 19596 of 2007
Decided on 07/08/2007
Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Section 25-F, G, and H — Termination — Mandatory requirements — Non-compliance — Order of reinstatement without back wages — Sustainability — Finding as to — The Labour Court has rightly concluded that the workman had completed 240 days of continuous service within 12 months preceding the date of termination as per record of petitioner — The Labour Court has rightly drawn adverse inference against petitioner because documents in possession of petitioner as admitted by witnesses for petitioner were not produced by petitioner before Labour Court though specific application was made by respondent workman before Labour Court — The Labour Court was also right in rejecting the submission on behalf of petitioner that respondent was not appointed by following the due process of recruitment rules therefore he was not entitled for reinstatement because the matter before the Labour Court was not relating to regularisation of respondent workman service but it was as to whether the respondent should be reinstated in service on his original post or not and whether back wages for interim period should be granted to him or not — That apart no such submission has been made by the petitioner before the Labour Court that the respondent was appointed de hors the rules and therefore not entitled for protection under mandatory requirement provided in the Act — Application of Sections 25-G and 25-H is not relevant in the facts of the case because of clear finding of Labour Court about violating of mandatory requirement by petitioner when respondent has completed 240 days of continuous service — In view of the said finding Labour Court was perfectly justified in passing the impugned award — It calls for no interference by the Court.
Held :
First thing is that mere raising of contention in written statement that the respondent is not appointed according to service rules by the petitioner and, therefore, not entitled for benefit of Section 25-F of the Industrial Disputes Act, 1947 and reiteration of such contention in affidavit is not enough. For that, petitioner is required to satisfy as to how and why workman is not entitled for benefit of Section 25-F of the Industrial Disputes Act, 1947. From the entire record, no such submission has been made by the petitioner before the Labour Court that the respondent was appointed de-hors the rules and, therefore, not entitled to protection of Section 25-F and also not entitled for the relief of reinstatement. Mere raising of contention in written statement and reiteration thereof in oral evidence and/or written submission is not enough. Pleadings are not evidence and number of contentions are available to the parties but the Court is not duty bound to consider each and every contention raised in pleadings or oral evidence. [Para 7]
Petitioner was contending before the Labour Court that the respondent has no right of regularization as if the Labour Court was adjudicating dispute relating to regularization of the workman. In entire written submissions made by the petitioner before the Labour Court, the petitioner has not raised any specific submission that the employee who has been appointed de hors the rules is not entitled for protection of Section 25-F of the Industrial Disputes Act, 1947. Therefore, Labour Court was right in not examining other issues which are not of much relevance because Industrial Disputes Act, 1947 was applicable to petitioner and that aspect was not disputed by the petitioner either before the Labour Court or even before this Court. Further, if the petitioner was contending that as the respondent is not recruited in accordance with the recruitment rules, therefore, not entitled for reinstatement, then, order of reference itself should have been challenged by the petitioner on that ground but that has not been done by the petitioner. No application was tendered by the petitioner before the Labour Court for deciding that issue as a preliminary issue. Therefore, Industrial Disputes Act, 1947 was applicable to the petitioner, workman was completing more than 240 days continuous service from November, 1997 to November, 1998 and at the time of terminating services of workman, admittedly Section 25-F was not followed by the petitioner and, therefore, Labour Court was right in granting reinstatement to the respondent workman. [Para 8]
Law Laid Down :
Compliance with mandatory requirement provided in the Act are applicable to terminate even a daily rated workman who has continuously served for requisite statutory period.
Case Law Analysis :
R.M. Yellati vs. Assistant Executive Engineer, 2005 (9) Scale 139 = 2006 (1) SCC 106 [Para 5];; M/s. Sriram Industrial Enterprises Ltd. vs. Mahak Singh & Ors., 2007 (3) Supreme Today Page 553 [Para 14];; Rattan Singh vs. Union of India & Anr., 1997 (11) SCC 396 [Para 18];; State of Punjab vs. Anil Kumar, 2007 (7) JT 559 (SC) [Para 19].—Relied on
Jaipur Development Authority vs. Ramsahai & Anr., 2006 (11) SCC 684 [Para 9];; State of M.P. & Ors. vs. Lalit Kumar Mishra, 2007 (1) SCC 575 [Para 9];; U.P. State Road Transport Corporation vs. Man Singh, 2006 (7) SCC 752 [Para 9].—Distinguished
Appearance :
Mr. B.D. Karia, for the Petitioner(s) : 1,
None, for Respondent(s) : 1.
Conclusion :
Labour Court is perfectly justified in passing the award in question which calls for no interference by Court.
Cases Referred :
Range Forest Officer vs. S.T. Hadimani, 2002 (3) SCC 25;; Surendranagar District Panchayat vs. Dahyabhai Amarsinh, 2005 (8) SCC 750;; State of Gujarat vs. Ramesh Mopabhai Rathod, 2003 (3) GLR 2590;; Government of A.P. vs. B. Satyanarayana Rao, 2000 (4) SCC 262;; Bharat Industries vs. Khemiben Valjibhai & Ors., 1995 (1) GLH (UJ) 6.
Decided in Favour of :
Respondent
Petition Dismissed
H.K. Rathod, J.—Heard learned Advocate Mr. B.D. Karia for the petitioner.
2. Through this petition under Article 227 of the Constitution of India, the petitioner Dhrangadhra Municipality has challenged the award of the Labour Court, Surendranagar dated 26.02.2007 in Reference No. 81 of 2000 wherein the Labour Court has granted reinstatement to the respondent workman without back wages for intervening period.
3. During the course of arguments, learned Advocate Mr. B.D. Karia for the petitioner has submitted that the Labour Court has committed gross error in not considering the contention raised by the petitioner that the respondent was appointed by back door entry in the service; not completed 240 days continuous service in a year and the respondent was appointed on ad hoc basis and, therefore, Labour Court ought not to have granted relief of reinstatement to such a workman.
4. I have considered the submissions made by the learned Advocate Mr. Karia on behalf of the petitioner. I have also perused the award made by the Labour Court. The respondent workman had joined the duties on the post of Mechanic in the Mechanical Branch of the establishment of the petitioner in the year 1997-98 in the duties of a permanent nature and performed duties for a period of more than one year. In the year 1998, petitioner Nagarpalika had posted the respondent on the vacant post of Compost Ground Watchman where the workman had performed duties for a period upto 2000 January and in this manner, though the respondent had performed total duty of a period of more than three years, yet, upon constitution of the new board in the petitioner Nagarpalika, new rulers terminated the services of the respondent without there being any reason and also giving any notice or notice pay in lieu thereof and though the case of the respondent workman was pending for adjudication before the Tribunal, without obtaining prior permission of the Tribunal, terminated the services of the respondent rendering him unemployed in breach of Sections 25-F and 33(2)(b) of the Industrial Disputes Act and, therefore, workman was praying before the Labour Court to grant him reinstatement in service with full back wages for interim period with continuity of service. Respondent was appointed in March, 1997 and remained in continuous service upto November, 1998 and during that period, he completed about 453 days service as per the record of the petitioner.
5. Before the Labour Court, respondent workman had given application Exhibit 12 praying for production of the documents mentioned therein from the custody of the petitioner namely muster rolls from 1996 to January, 2000; Salary Statement and seniority list of the workmen and details of the workmen working on the establishment of the petitioner with their date of joining on which Labour Court passed order to reply or comply by making production. Two documents were produced by the respondent before the Labour Court. One is the certificate of passing Motor Mechanic Examination and the second is the Certificate of Examination. Vide Exhibit 16, affidavit was filed by the workman and specific averment was made in the affidavit in Para 4 that the petitioner has not given muster card, pay slip, identity card to the respondent and his presence was marked in the muster roll and after signing muster roll, payment was being made to the respondent. Workman was cross examined by the petitioner. Petitioner has produced documentary evidence vide Exhibit 19. Result of election of the Nagarpalika for the year 1994, applications made by the respondents and working days of the respondent from 1997 to 2000 and budget for the year 2000 and 2005 have been produced by the petitioner. Chief Officer of the petitioner Nagarpalika Shri Yogesh H. Shah was examined as a witness for the petitioner at Exhibit 22 wherein he admitted that the respondent is qualified for the post of Motor Mechanic and lastly he was working as a watchman in the establishment of the pe
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