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Judgment
Learned advocates for petitioner and respondent were heard on previous occasion as recorded in Order dated 5.7.2017 and separate order which is passed today i.e. 06.09.2017.
In this petition, the petitioner corporation has challenged the award dated 1.7.2007 passed by learned Labour Court at Rajkot in Reference (LCR) No. 546 of 1991 whereby the learned Labour Court partly allowed the said Reference Case No. 546 of 1991 and directed the corporation to reinstate the claimant on his original post with continuity of service but without backwages.
So far as factual background is concerned, it has emerged from material available on record and from the facts recorded in impugned award as well as from rival submissions by learned advocate for the contesting parties that the respondent herein (original claimant) raised industrial dispute with the allegation that the opponent corporation illegally terminated his service. With the said allegations, the claimant demanded that he should be reinstated in service with all backwages.
Appropriate Government referred the dispute for adjudication to learned Labour Court at Rajkot. The learned Labour Court registered the dispute as Reference (LCR) No. 546 of 1991.
In its statement of claim, the claimant alleged that at the time when the corporation terminated his service, he was serving with the corporation as Peoncumchowkidar since 1 year. He claimed that he was engaged on daily wage basis and that without any fault on his part or without following prescribed procedure, the corporation terminated his service on 26.11.1986. The claimant alleged that corporation committed breach of provision under Industrial Disputes Act and also violated principles of natural justice. With such allegation, the claimant contented that he should be reinstated and all benefits for the intervening period should be paid.
The Opponent corporation opposed the claimant. The corporation contended that due to exigency of work, the claimant was engaged for short period on adhoc and daily wage basis and that the total period for which he was engaged on adhoc and daily wage basis was less than 1 year. It was also claimed that since the claimant was engaged on account of exigency and for temporary period on adhoc basis, any procedure for recruitment was not followed. It was also claimed that there was no vacancy on the setup of the corporation. The corporation also opposed the reference on the ground of delay. The corporation claimed that even according to allegation of the claimant, his service came to be terminated in October, 1986 whereas he raised dispute in 1991 and that therefore the claim should not be entertained and there is neither any justification for such demand nor the claim is legally sustainable.
After the contesting parties concluded their pleadings, the learned Labour Court recorded evidence. The learned Labour Court considered the rival submissions and material available on record and reached to the conclusion that the corporation had committed breach of Section 25(G). Having reached such conclusion, learned Labour Court passed impugned award with above mentioned direction.
Mr. Munshaw, learned advocate for the corporation submitted that the learned Labour Court failed to appreciate that the claimant was engaged on adhoc and daily wage basis for short period on account of exigency and that he was not appointed by following prescribed procedure and that he was not appointed on any substantive and sanctioned post and against clear vacancy. Mr. Munshaw, learned advocate also submitted that learned Labour Court failed to appreciate that the claimant was engaged for very short tenure and that he worked with the corporation on adhoc
and daily wage basis for less than 12 months and that therefore there is no substance in the allegation that the corporation breached Section 25(F) or Section 25(G). Mr. Munshaw, learned advocate claimed that since the total tenure of the service of the claimant was less than 12 months, compliance of Section 25(F) or Section 25(G) was not necessary and the claimant''s engagement automatically came to end when the period for which he was engaged expired and that therefore there was no question of payment of compensation or for following procedure under Section 25(G), however, learned Labour Court failed to appreciate the said fact and committed error in holding that corporation committed breach of Section 25(G).
Mr. Munshaw, learned advocate for corporation also submitted that after the adhoc engagement of the claimant automatically came to end, the respondent corporation had undertaken process of recruitment and during that process the claimant
was invited and he had participated in the selection process. Mr. Munshaw, learned advocate further submitted that during the selection process, the petitioner failed inasmuch as about 197 candidates including the claimant had appeared during said selection process and out of the said 197 candidates, 10 candidates were selected for further process. Mr. Munshaw also submitted that out of the said 10 candidates, the candidate at Sr. No.1 in the merit list secured 68 marks whereas the last candidate i.e. the candidate at Sr. No.10 in the list secured 57 marks whereas the claimant secured only 35 marks and accordingly the claimant failed during selection process. Consequently, the claimant was not selected/ appointed. On the strength of the said submission, Mr. Munshaw claimed that the allegation that the corporation committed breach of Section 25(H) is without substance and merits. However, learned Labour Court failed to appreciate even the said aspect and reached to incorrect and erroneous conclusion and that
therefore the award deserves to be set aside.
Per contra, Mr. Lakhani, learned advocate submitted that the claimant had worked for 240 days in 12 months, however, the corporation terminated service of the claimant without following prescribed procedure and without payment of retrenchment compensation. He also alleged that the corporation violated principles of natural justice. He submitted that while terminating the service of the claimant, the corporation did not prepare seniority list and did not observe principles of seniority while terminating the service of the claimant. According to the learned advocate for respondent, since the service of the claimant came to be terminated without following prescribed procedure, the termination was illegal and that therefore the learned Labour Court awarded reinstatement and continuity of service. According to the learned advocate for the respondent claimant, there is no error in the
said decision and that therefore the petition should be rejected.
I have considered rival submissions and material available on record.
From the award it has emerged that the learned Labour Court took into account the order of appointment under which the claimant was engaged on adhoc and daily wage basis and on temporary basis on account of exigency of work.
After considering the order of appointment, the learned Labour Court found that the claimant was engaged, for the first time, on adhoc basis vide appointment order dated 9.12.1985 as Peon and was, thereafter, relieved from service on 13.2.1986 i.e. after about 2 months.
The learned Labour Court also found that subsequently the claimant was again engaged in April, 1986 ( on 24.4.1986) in different capacity
i.e. as Chowkidar ( and not as Peon like previous occasion).
As Chowkidar also the claimant was engaged on adhoc and daily wage basis and that the said engagement came to end and the claimant was relieved on 23.5.1986. Thereafter, the claimant was engaged in the Office of Mamlatdar. The learned Labour Court has, after considering the appointment orders, also found that during the last tenure the claimant worked from April, 1986 to November, 1986.
From the said findings of facts recorded by the learned Labour Court, it emerges that the claimant was engaged at different places in different capacity on different post and for different duration. There was no continuity in the appointments and/ or the nature of the work for which he was engaged.
The said findings of fact by learned Labour
Court are not disputed by the claimant.
In this view of the matter, the claimant''s service cannot be considered continuous.
From the said fact, it also emerges that though the claimant worked from 9.12.1985 to November, 1986, he worked intermittently and not continuously or regularly and he did not work on the same post at same place but he worked in different capacity at different places.
Under the circumstances, his service cannot be considered continuous for 12 months.
Even otherwise, the claimant did not complete continuous service of 12 months.
Even if the period from December, 1985 to November, 1986 is considered continuous then also the claimant did not complete service of 12 months.
Besides this, learned Labour Court has, recorded finding of fact that the claimant did not complete service/ attendance of 240 days during the said period.
The said finding of fact is also not disputed by the claimant.
Under the circumstances, the service of the claimant cannot be considered continuous.
Besides this, even intermittently the claimant did not work for 240 days.
The learned Labour Court itself has recorded the conclusion that the claimant did not complete continuous service of 12 months as contemplated under Section 25(B) of the Act.
Under the circumstances, the allegation that the Corporation committed breach of Section 25(F)
should fail.
Even Labour Court also rejected said contention.
However, unfortunately, after having recorded the said findings, the learned Labour Court lost track of the facts inasmuch as even after holding that the claimant''s service cannot be considered continuous under Section 25(B) of the Act, the learned Labour Court proceeded to hold that the termination of service of the claimant would amount to illegal retrenchment.
The said finding in respect of Issue No.4 is contrary to the finding of fact recorded by the learned Labour Court with regard to Issue No.1. The findings and conclusions with regard to Issue Nos.4 and 1 are contrary and they are in conflict inter se.
In view of the fact that the claimant worked
with the respondent from December 1985 to November 1986, the claimant cannot be said to have completed continuous service of 12 months. Further, when the learned Labour Court recorded finding of fact that during the said period the claimant had worked in different capacity viz. Peon or Chowkidar and during part of the said period he worked in another office, establishes that the claimant''s engagement was not in/ with same establishment and/ or it was not continuous.
The learned Labour Court has also found that he claimant had, during the said period, worked only for 208 days.
Therefore, the final conclusions by the learned Labour Court with reference to Issue No.4 cannot be sustained.
It is pertinent that the learned Labour Court has also recorded in the impugned award that breach of section 25F is not established. The
learned Labour Court itself has recorded that the allegation about breach of section 25F cannot be sustained.
In view of the fact that the petitioner was called for selection process, however, he could not be appointed, since he failed during selection, the allegation about breach of section 25H cannot be sustained.
However, the learned Labour Court seems to have proceeded in the matter on the premise that the respondent had not prepared seniority list and therefore, there was breach of Rule 81.
The findings recorded by the learned Labour Court viz. (i) the claimant had not worked continuously and his service with the respondent does not fulfill the requirement under section 25B and cannot be considered continuous service for the said purpose; and (b) the termination of the service of the claimant does not attract section 25F and breach of section 25F is not
established, brings out that the learned Labour Court committed error in holding that the termination of the claimant''s service was in breach of Rule 81.
However, the learned Labour Court failed to appreciate that the claimant neither claimed nor proved that there was any other Peon or Watchman in the establishment/ office where he was engaged on ad hoc and daily wage basis or for temporary duration. The claimant neither claimed nor established that except him, the respondent engaged any other persons either in category of ad hoc employee / daily wager in category of Peon or Watchman.
In that view of the matter, question of preparing seniority list or following seniority did not arise.
Even if it is assumed that Rule 81 would be applicable and that the principle of seniority was allegedly not followed then also the direction to reinstate the claimant, that too with continuity of service, is wholly unjustified in light of the facts of the case.
The learned Labour Court could not have and ought not to have overlooked and ignored the fact that total tenure of the claimant''s service with the respondent was of only about 11 months and that he was engaged without following prescribed procedure and that he worked with the respondent for short duration of 11 months on ad hoc and daily wage basis and that he was not engaged after following prescribed procedure.
Besides above mentioned factual aspect which the learned Labour Court failed to take into account another vital factual aspect which the learned Labour Court ignored, is that even according to his own allegation, the claimant''s service was terminated in November 1986, whereas he raised industrial dispute in 199091, i.e. after about 4 1/2 years - 5 years.
When the above mentioned aspects are taken into consideration, it emerges that the direction to reinstate the claimant that too with continuity of service is wholly unjustified.
On this count, it is pertinent that the dispute which came to be raised belatedly and as an afterthought in 1991 came to be decided in 2007. Consequently, the claimant would get benefit of continuity of service of almost 16 years without working during the said period and upon having rendered service for only 11 months and that too after raising dispute belatedly and as an afterthought (after 4 1/2 years - 5 years).
The learned Labour Court itself has denied backwages to the claimant, therefore, there is no need to deliberate on the said issue.
Another aspect which has emerged from the record, is that according to the claim of the petitioner, his service was terminated in 1986. By now almost 31 years have rolled by.
In that view of the mater, the direction to reinstate the claimant cannot be sustained.
In light of above mentioned reasons and in light of the foregoing discussion, it has emerged that the learned Labour Court has committed material and apparent errors in directing the corporation to reinstate the claimant with continuity of service. The said directions cannot be sustained. Consequently, the award cannot be sustained.
Even if it is assumed that the learned Labour Court is justified in holding that the corporation committed breach of Rule 81, then the claimant can be considered, at the most, eligible for some compensation which can be determined having regard to the fact the claimant worked only for 11 months and raised dispute after almost 5 years.
The final direction and award are found to be unsustainable however in light of the observations by the learned Labour Court with regard to Rule 81, the Court is of the view that if the claimant is awarded lump sum compensation in sum of Rs.10,000/, then equity would be balanced in present case.
Consequently, following order is passed: (a) The impugned award is set aside.
(b) The petition is accepted.
(c) However, for the reasons mentioned above, the corporation is directed to pay Rs.10,000/as lump sum compensation to the claimant.
With the aforesaid directions and observations, the petition is allowed and Rule is made absolute to the aforesaid extent.