2011 Supreme(Guj) 129

2011 (2) GCD 900 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Sabarkantha District Panchayat Through Deputy Executive & Anr.
Versus
Somaji Kankaji Damor
Special Civil Application No. 2765 of 20111—Decided on 07/03/2011

Point in Issue :
Whether in the facts of the case one entitled to reinstatement with continuity of service.

Headnote:Head Note :

       Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Section 25-F — Violation — Reinstatement with continuity of service — Sustainability — Finding of — Petitioner contention that none of the respondent had completed continuous service for 240 days in preceding twelve months from date of termination, therefore, relief of reinstatement can not be granted has no force and can not be accepted — On record it is clear that workmen were appointed with effect from 01.07.1979/01.07.1981 and their services were terminated on 30.11.1999 — It is not the case of petitioner that in between the services of workmen were terminated — This proves the continuous service of workmen for more than 240 days — It is also not in dispute that during the course of employment pay slip identity card and master card were not supplied to workmen and petition did not produce then either in Labour Court inspite of direction — In the circumstances Labour Court has rightly drawn adverse inference against the petitioner and held that workmen service for 240 days continuous in the last twelve years is proved — Petitioner was, therefore, entitled to protection under Section 25-F of the Act — The other contention of petitioner that in such cases instead of granting reinstatement of service some reasonable amount of compensation can be awarded can not be accepted — In number of decisions Apex Court has held that in such matters High Courts are duty bound to keep in mind the Act and similar legislative instruments which are social welfare legislatures and should not commit serious jurisdictional error and unjustifiably interfere with award of reinstatement passed by Labour Court — Court also referred to the delay in deciding the reference and that even if reference is decided belatedly after number of years because of such delay relief of reinstatement can not be denied to a workman — Considering entire matter as a whole Court held that Labour Court has rightly examined the matter based on record and finding given by Labour Court can not be considered to be baseless and perverse.

       Held :

       Considering award passed by Labour Court in both cases, documents were demanded by workmen before Labour Court from employer and on such application of workmen in these petitions, order was passed by Labour Court and no satisfactory explanation has been given by petitioner and during course of employment, it is not in dispute that pay slip, identity card and muster card were not supplied to workmen and, therefore, workmen may not be having any documentary evidence to prove completion of 240 days continuous service and therefore, oral evidence of workman was recorded before Labour Court which was cross examined by advocate for petitioner district panchayt. It is not a case of petitioner district panchayat before Labour Court that right from date of joining 1979/1981 till date of termination 30th November, 1999, in-between, services of workmen were terminated by district panchayat, therefore, it is proving continuous service of both workmen during aforesaid period that meanwhile they completed 240 days continuous service which fact has been established on the basis of evidence of workman that at the time when order of termination was passed by employer, workman in both cases were remained in continuous service of petitioner and completed 240 days continuous service within twelve months preceding date of termination. [Para 9]

       Contentions raised by Learned Advocate Mr. Munshaw on behalf of petitioner District Panchayat cannot be accepted because facts which are found from record are otherwise and there is no explanation given to this Court by Learned Advocate Mr. Munshaw for petitioner that in response to demand made by workmen before Labour Court, why relevant and necessary documents were not produced by petitioner before Labour Court though same were in custody of petitioner as admitted by witness for petitioner in his cross examination. Therefore, according to my opinion, Labour Court has rightly drawn adverse inference against petitioner that if petitioner would make available such documents as demanded by workmen, then, same would go against petitioner and that is why petitioner is not producing such documents before Labour Court. [Para 13]

       As regards contention raised by Learned Advocate Mr. HS Munshaw on behalf of petitioner panchayat relying upon decision of Apex Court as referred to above, that in such cases involving violation of Section 25F of ID Act, instead of granting reinstatement of service, some reasonable amount of compensation can be awarded by Labour Court in lieu of reinstatement and back wages for interim period, this aspect has been considered by Hon’ble Apex Court in case of Harjinder Singh vs. Punjab State Warehousing Corporation reported in 2010(1) Scale page 613 and relevant discussion has been made by Hon’ble Apex Court in an identical situation that when termination order is found to be illegal and violative of Section 25F, G and H of ID Act, 1947, then, relief of reinstatement must have to be granted and in lieu thereof, no compensation can be awarded. [Para 14]

       Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. [Para 14(17)]

       This Court has used different expressions for describing the consequence of terminating a workman’s service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been termed as ab initio void,sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, Court has no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month’s notice or pay in lieu thereof and compensation in terms of Section 25-F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated. [Para 17(18)]

       Considering entire matter as a whole, Labour Court has rightly examined matter based on record and finding given by Labour Court cannot be considered to be baseless and perverse. On the contrary, Labour Court has taken sufficient care while not granting any amount of back wages for entire interim period and merely granted reinstatement with continuity of service in favour of workman in both cases. It is not necessary that in each and every case of delay in deciding reference, relief of reinstatement cannot be granted. When order of termination is found to be violative of Section 25F of ID Act, 1947, then, such termination is void ab initio and then natural consequence is that the workman in such case is entitled for relief of reinstatement and in such case, no compensation can mitigate hardships and miseries suffered by such a workman during the period of his unemployment who was out of job since more than ten to fifteen years and therefor merely delay in deciding reference that itself would not disentitle workman from being reinstated on his original post and in such case, reinstatement cannot be denied [Para 31]

       Law Laid Down :

       More delay in deciding reference that itself would not disentitle workman from being reinstated on his original post and in such case reinstatement can not be denied.