Municipal Board, Bandikui and Others vs Itwari and Others

Veerender Singh Siradhana, J—Aggrieved of the impugned award dated 21st April, 1994, passed by the Labour Court, Jaipur, the petitioners have instituted the present writ proceedings assailing the legality, validity and correctness of the impugned award whereby the Labour Court while answering the reference has made an award in affirmative in favour of the respondent-workman with a direction to the petitioners (for short ''employer''), for reinstatement with continuity of service along with 50% back wages.

Shorn of unnecessary details the skeletal material facts necessary for appreciation of the controversy raised herein while assailing the legality, validity and correctness of the impugned award needs to be first noticed. The respondent-workman was initially appointed on 1st February, 1977, by the employer as ''Safai Karmchari''. The petitioners (employer) in exercise of powers under Section 86 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the ''Act of 1959'', for short), terminated the employment of the respondent-workman vide order dated 27th July, 1984, by one months notice before discharge. An appeal preferred against the order of discharge notice under Section 86 of the Act of 1959, was not entertained for the same was preferred after expiry of 30 days, and the matter was referred to the Director, Local Bodies, Jaipur, for administrative and financial sanction, and was to be placed before the Board after the sanction was accorded. The respondent-workman raised an industrial dispute. The State Government in exercise of its powers under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947, made a reference to the Labour Court, Jaipur on 7th August, 1987. On a consideration of the statement of claim, response to the statement of claim, evidence adduced by the parties, materials available on record and upon hearing to the representatives of the contesting parties, the Labour Court made the impugned award of which the petitioners are aggrieved.

Learned counsel for the petitioners, reiterating the pleaded facts and grounds of the writ application, emphatically argued that the finding arrived at by the Labour Court for having condoned the misconduct by accepting the application for absence from duty with effect from 1st February, 1983 to 30th April, 1983, treating the same to be leave without pay; the action of the petitioners in terminating the employment of the respondent-workman was bad; is a perverse finding. According to the learned counsel, a bare perusal of the Ex. M10, which has been placed on record as Annexure-3, would reveal that the interpolation made by the petitioner in the month in the body of the application and below his signatures, is apparent on the face of record. Thus, the application for grant of leave, which was moved on 1st of June, 1983, could not have been entertained by the petitioners on 1st May, 1983, so as to treat the period of absence of the respondent-workman as leave without pay, as indicated on the application.

It is further submitted that once the respondent-workman resorted to the remedy and procedure under the Act of 1959 and Rules made thereunder; he could not have raised an industrial dispute under the Act of 1947, for the special provisions of the Act of 1959 and Rules made thereunder, would exclude the applicability of the provisions of the Act of 1947.

Per contra, Mr. V.L. Mathur, learned counsel appearing on behalf of the respondent-workman, supporting the impugned award dated 21st April, 1994, and findings arrived at by the Labour Court, submitted that the respondent-workman was a regular employee and his services could not have been terminated in an arbitrary manner much less after having accepted the application for grant of leave dated 1st May, 1983 (Annexure-3). It is further submitted that the respondent-workman, being an illiterate person, only made a correction in the body of the application as well as below his signatures in the month of the date, which was wrongly entered as ''June'' instead of ''May''. According to the learned counsel, the respondent-workman was cross-examined by the representative of the petitioners and in his cross-examination, he has specifically stated that he wrote the application for grant of leave and to condone the absence from duty with effect from 1st February, 1983 to 30th April, 1983. The application was submitted on 1st May, 1983, wherein the petitioner repenting for the act of his proceeding on leave without application to the competent authority and promised not to repeat the act.

Repelling the contentions for not availing of the remedy as provided under the Act of 1959 and Rules made thereunder, the learned counsel submits that the petitioner did not raise any such objection before the Labour Court, as would be evident from the response submitted to the statement of claim. Further, the petitioners, after having submitted to the jurisdiction to the Forum provided under the Act of 1947 and the State Government having made the reference, are estopped to raise such objection.

Referring to the opinion of the Hon''ble Apex Court of the land in the case of Iswarlal Mohanlal Thakkar Vs. Paschim Gujarat Vij Co. Ltd. and Another, (2014) 5 AD 369 : (2014) AIRSCW 3298 : (2014) 142 FLR 236 : (2014) 6 JT 622 : (2014) LabIC 2847 : (2014) 2 LLJ 513 : (2014) 2 LLN 301 : (2014) LLR 687 : (2014) 5 SCALE 285 : (2014) 6 SCC 434 : (2014) 2 SCT 765 , the learned counsel asserted that this Court while exercising the writ jurisdiction while examining the legality and validity of the award made by the Labour Court, is not required to act as an Appellate Court or to re-appreciate the evidence or record the findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of lower court. Reliance has also been placed on the opinion of the Hon''ble Supreme Court in a latest verdict in the case of Umrala Gram Panchayat Vs. The Secretary, Municipal Employees Union and Others(2015) 4 AD 401 : (2015) 145 FLR 688 : (2015) 2 LLJ 403 : (2015) 2 LLN 313 : (2015) LLR 449 : (2015) 4 SCALE 334 : (2015) 4 SCJ 188 , as well as in the case of Municipal Council, Sikar v. Om Singh & Anr. (D.B Civil Special Appeal No. 390/2004) decided on 16th April, 2015, by a Division Bench of this Court.

I have heard the learned counsel for the parties and with their assistant perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

Indisputably, the respondent-workman was served with a notice under Section 86 of the Act of 1956, informing him of discharge/termination of his employment. At this juncture, it will be relevant to consider the text of Section 86 of the Act of 1959, which reads thus:-

"86. Notice to sweepers and scavengers before discharge - (1) In the absence of a written contract to the contrary every sweeper or scavenger employed by the board shall be entitled to one month''s notice before discharge or to one month''s wages in lieu thereof, unless he is discharged for misconduct or, having been engaged for a specific term, is discharged upon the expiry thereof.

(2) Notwithstanding anything contained in this section or in any other provision of this Act, every sweeper or scavenger who is discharged, dismissed or removed from employment under any provision of this Act may apply for setting aside the order of such discharge, dismissal or removal to such officer as the State Government may from time to time appoint in this behalf.

(3) Should any sweeper or scavenger employed by the board, in the absence of a written contract authorising him to do so and without reasonable cause, resign his employment or absent himself from his duties without giving one month''s notice to the board or neglect or refuse to perform his duties or any of them, he shall be liable on conviction by a Magistrate of the First Class to a fine not exceeding twenty-five rupees or imprisonment of either description which may extend to fifteen days.

(4) The State Government may, by notification in the Official Gazette, direct that, on and from a date to be specified in the notification, the provisions of sub-sections (1) and (3) with respect to sweepers and scavengers shall apply also to any specified class of municipal servants whose functions intimately concerns the public health or safety."

A glance of the text of Section 86, as extracted herein above, would reveal that in the absence of a written contract to the contrary every sweeper or scavenger employed by the Board shall be entitled to one month''s notice before discharge or to one month''s wages in lieu thereof, unless he is discharged for misconduct or, having been engaged for a specified term, is discharged upon the expiry thereof. Sub-section (2) of Section 86 provides for an appeal for setting aside the order of such discharge, dismissal or removal to such officer as the State Government may from time to time appoint in this behalf.

Admittedly, in the instant case at hand, the respondent-workman did avail of the remedy. However, the appeal was not entertained by the Board for the same was preferred after one and half month whereas the limitation provided for such an appeal as per the Rules, is 30 days. Be that as it may, the Board instead of taking any decision on the appeal of the respondent-workman deferred the matter for administrative and financial sanction from the Director, Local Bodies, Jaipur, and the matter was to be placed before the Board after the sanction was accorded.

From the facts, circumstances and materials available on record, it appears that the respondent-workman having received no response to his appeal, raised an industrial dispute which ultimately culminated into the impugned award dated 21st April, 1994.

The fact that the application was submitted on 1st May, 1983, by the respondent-workman, is further corroborated from the notings made on the application by none else, but the Officers/Officials of the petitioners/Department. Moreover, the petitioners cannot take advantage of their own wrong, if any.

The contention raised on behalf of the petitioners while assailing the finding arrived at by the Labour Court for acceptance of the application for absence from duty with effect from 1st February, 1983 to 30th April, 1983, and treating the same as leave without pay, to be a perverse finding; is found to be without any substance on a close scrutiny of the pleadings of the parties and the cross-examination of the respondent-workman wherein he specifically answered, in response to a question, that the application, in fact, was submitted on 1st May, 1983.

The challenge to the award on account of lack of jurisdiction for the respondent-workman gave up the procedure provided under the Act of 1959 and Rules made thereunder though sounded attractive, but from the response submitted to the statement of claim, it is revealed that no such objection was ever raised on behalf of the petitioners before the Labour Court. The petitioners after having submitted to the jurisdiction to the Forum provided under the Act of 1947, now cannot raise such an issue with reference to the matter wherein the proceedings were initiated availing of the remedy under the Act of 1947, by way of an application addressed to the Conciliation Officer in the month of September, 1985. Moreover, no such objection with reference to the jurisdiction was ever raised by the petitioners either before the Conciliation Officer or before the Labour Court. The learned counsel for the petitioners sought time to substantiate the fact of objection so pleaded before the Labour Court, but did not bring on record the reply submitted to the statement of claim whereas the learned counsel for the respondent-workman produced the copy of the reply to the statement of claim for perusal of the Court during the course of arguments from where it is reflected that such an objection regarding jurisdiction was not raised by the petitioners. This factual aspect could not be disputed by the learned counsel for the petitioners.

In the case of Iswarlal Mohanlal Thakkar (supra), the Hon''ble Apex Court of the land in no uncertain terms held that the High Court can interfere with the award passed by the Labour Court only when a serious error of law or the findings recorded suffer from error apparent on record.

Having considered the facts, circumstances, and materials available on record, this Court is satisfied that the Labour Court in the instant case at hand has exercised its original jurisdiction satisfactorily and properly appreciated the pleadings of both the parties while analyzing the evidence brought on record.

The fact that the respondent-workman was appointed in a regular pay scale and was a substantive employee of the petitioners, is not disputed.

For the reasons and discussions herein above, the writ petition is devoid of any substance, and lacks in merit. The impugned award dated 21st April, 1994, suffers with no illegality or error so as to call for any interference in exercise of writ jurisdiction.

In the result, the writ application fails and is hereby dismissed.

However, taking note of the fact that the termination of the respondent-workman was effected by notice on 23rd July, 1983, and he has been allowed wages last drawn under Section 17-B of the Act of 1947 and an amount of Rs. 64,944/- (Sixty Four Thousand Nine Hundred Forty Four) has been paid to him in the month of April, 2015, on that count. The amount paid shall not be recovered.

Learned counsel for the respondent-workman gave up the claim for back wages.

Accordingly, the impugned award dated 21st April, 1983, passed by the Labour Court, Jaipur, is modified to the extent that the respondent-workman will not be entitled to any back wages.

The petitioners are directed to reinstate the respondent-workman forthwith with all consequential benefits, which will be available to him notionally. The compliance be ensured within a period of two months from the date of receipt of a certified copy of this order.

No costs.