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2022 Supreme(Online)(Guj) 12774
HIGH COURT OF GUJARAT
A.Y. KOGJE, J
JAMNAGAR MUNICIPAL CORPORATION – Appellant
Versus
AVDESH KISHORBHAI SOLANKI – Respondent
SPECIAL CIVIL APPLICATION NO. 10126 of 2018 | SPECIAL CIVIL APPLICATION NO. 10127 of 2018 | SPECIAL CIVIL APPLICATION NO. 10128 of 2018 | SPECIAL CIVIL APPLICATION NO. 10129 of 2018 | SPECIAL CIVIL APPLICATION NO. 10130 of 2018
For the Appellants/Petitioners: MR HS MUNSHAW
For the Respondents: MR YOGEN N PANDYA
Unfair labor practices occur when employers create artificial breaks in workforce engagement to circumvent legal protections for workers following the Industrial Disputes Act.
Headnote:(A) Article 227 of the Constitution of India - Quashing and setting aside of award - Labour Court directed reinstatement with continuity of service and back wages of 20% - Issues of temporary engagement vs. continuous service examined; employer's reliance on contract of appointment rejected as an attempt to circumvent statutory provisions. (Paras 3, 4, 5, 12)
(B) Industrial Disputes Act, 1947 - Section 2(oo)(bb) - Definition and thresholds of unfair labor practices discussed; courts deprecate artificial breaks in service to avoid legal protections for workers. (Paras 10.1, 11.1, 11.6)
Facts of the case:
The petitioner-Corporation challenged a Labor Court's award reinstating the respondent-workman. The workman claimed continuous employment for six years despite the employer suggesting temporary contracts due to technological shifts.
Findings of Court:
Evidence supported the respondent's continuous service and the Labor Court's order to reinstate was justified.
Issues: Whether the workman’s engagement was continuous or temporary and the applicability of statutory protections.
Ratio Decidendi: The court found that the employer's actions did not adhere to the requirements of the Industrial Disputes Act as the service was effectively continuous despite attempts to claim otherwise.
Result: Petitions dismissed.
| Table of Content |
|---|
| 1. reinstatement awarded by labour court for continuous service. (Para 3 , 4) |
| 2. employer's argument seen as an artificial reasoning for ending service. (Para 5) |
| 3. evidence required to support claims of continuous employment. (Para 8 , 9 , 11) |
JUDGEMENT
1. RULE. Learned Advocate Mr.Yogen Pandya waives service of Rule on behalf of the respondents.
2. These petitions are arising out of the same facts and are raising identical issues and hence, at the request of learned Advocates for the parties, both these petitions are taken up for joint hearing and final disposal. The facts are taken from Special Civil Application No.10126 of 2018.
3. This petition under Article 227 of the Constitution of India is filed for quashing and setting aside award dated 02.01.2018 passed by the Labour Court, Jamnagar in Reference (LCJ) No.62 of 2016. By the aforesaid impugned award, the Labour Court directed reinstatement to the original post with continuity in service and back wages to the extent of 20%.
4. The main contention of learned Advocate for the petitioner-Corporation is that the original engagement of the respondent-workman was for a temporary period, on ad hoc basis and on contract basis. He drew attention of this Court to Exh.18, which is order of appointment on contract basis of the respondent- workman. He also drew attention of this Court to the contents of the document to submit that for a particular purpose of maintaining of street light in the city of Jamnagar, appointment is made on ad hoc basis. It is submitted that thereafter, entire process of street light was changed with development in technology and LED technology was adopted by the Corporation, as a result of which the petitioner-Corporation had to float tender for this special job of work and work order came to be issued in the year 2015 for the purpose of installing of LED lights. In view thereof, now the work of installation, maintenance and operation of street lights being outsourced under the work order by tender process, the requirement of the workman for that purpose was no more necessary. Hence, decision was taken to lastly enter into the contract with the respondent-workman for a period between 06.12.2015 to 31.05.2016, which the respondent-workman voluntarily and readily entered into and therefore, as per the condition of such contract, when the lapse of period after 31.05.2016, the relation between the petitioner and the workman came to an end.
4.1 Learned Advocate for the petitioner-Corporation vehemently submitted that the Labour Court has erroneously relied upon resolution No.1010 of Standing Committee of Jamnagar Municipal Corporation to arrive at a conclusion that the respondent is also to be appointed as daily rated employee of the Corporation and in fact, on account of new system of installation of LED lights on contract basis for operation and maintenance, resolution No.1010 was never put into application insofar as the respondents are concerned. It is submitted that even as per the statement of claim itself, the respondents have claimed that resolution No.1010 has not been implemented.
4.2 Learned Advocate for the petitioner-Corporation submitted that in view of the fact that the respondents had entered into the contract with the Corporation, their case would be covered under Section 2 (oo)(bb) and therefore, Section 2 5(F) will not be attracted. In absence of attraction of Section 2 5(F), there cannot be an order of reinstatement.
5. As against this, learned Advocate for the respondents submitted that the Labour Court has taken into consideration cogent evidence placed on record in support of the respondents- workmen indicating that since 2010, the respondents have been continuously working as linemen for the purpose of street light in Jamnagar city and till 2016, the respondents have rendered services as such and therefore, hav
