STATE OF GUJARAT & 1 vs LOKENDRASINH PRATAPSINH CHAUHAN & ANR

Both these Appeals are ADMITTED. Shri Dipak R Dave, learned advocate appearing on behalf of the respondent in each of the Letters Patent Appeals waives service of notice of admission. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, both these Appeals are taken up for final hearing today.

As common question of law and facts arise in both these Letters Patent Appeals, both these Appeals are heard, decided and disposed of together by this common judgment and order.

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 18th April 2016 passed by the learned Single Judge in Special Civil Application No. 19106 of 2015 by which the learned Single Judge has dismissed the said writ petition preferred by the appellant herein-State of Gujarat and another, and has confirmed the judgment and award passed by the Labour Court, Dahod in Reference [LCD] 970 of 2008 by which the learned Labour Court has held action of the appellant authorities of terminating the service of the respondent illegal and consequently, ordered reinstatement with continuity of service, however, without backwages, the original petitioners have preferred the present Letters Patent Appeal No. 1420 of 2016. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 18th April 2016 passed by the learned Single Judge in Special Civil Application No. 19084 of 2015 by which the learned Single Judge has dismissed the said writ petition preferred by the appellant herein-State of Gujarat and another, and has confirmed the judgment and award passed by the Labour Court, Dahod in Reference [LCD] 964 of 2008 by which the learned Labour Court has held action of the appellant authorities of terminating the service of the respondent illegal and consequently, ordered reinstatement with continuity of service, however, without backwages, the original petitioners have preferred present Letters Patent Appeal No. 1425 of 2016.

Facts leading to the present Letters Patent Appeals in nutshell are as under :- 4.1 That, both the concerned workmen were appointed as Driver on fixed salary for a contractual period of eleven months and on ad hoc basis. That, both of them were initially appointed as Driver on fixed salary of Rs. 2,500/= per month for a period of eleven months vide Order dated 5th July 2004. On completion of initial eleven months'' period, their contractual period was extended for a further period of eleven months ie., upto 31st May 2006. That, on completion of the contractual period, both of them came to be relieved. Both the concerned workmen raised industrial dispute which were referred to the concerned Labour Court. That thereafter, the concerned References were transferred to the Labour Court, Dahod which were numbered as Reference [LCD] Nos. 970 of 2008 and 964 of 2008 respectively.

4.2 Before the Labour Court, it was the case on behalf of the original workmen that as in the last preceding year, they worked for not less than 240 days and therefore, without payment of any retrenchment compensation, as per Section 25F of the Industrial Disputes Act, 1947 ["the Act" for short] their termination was in breach of provisions of the ID Act. It was also the case on behalf of the workmen that their initial appointment was after following the due procedure and on the sanctioned posts inasmuch as their names were called for from the Employment Exchange. Therefore, it was the case on behalf of the concerned workmen that as their termination was in breach of Section 25F of the ID Act, the same be quashed and set-aside and they be directed to be reinstated in service with continuity of service and full backwages.

On the other hand, it was the case on behalf of the Department that as the concerned workmen were appointed on fixed salary and on contract basis and as their appointment was contractual and on completion of the contract period, they were relied, the same cannot be said to be "retrenchment" and therefore, Section 25F of the ID Act shall not be applicable. That, the learned Labour Court, however, held that as the termination was in breach of Section 25F of the ID Act, as before terminating their services neither any notice and/or notice pay/retrenchment compensation was paid, and therefore, their termination is illegal and consequently, the Labour Court directed their reinstatement with continuity of service, however, the Labour Court denied backwages for the interregnum period.

Feeling aggrieved and dissatisfied with the respective judgment and awards passed by the Labour Court, Dahod in Reference [LCD] No. 970 of 2008 as well as Reference [LCD] No. 964 of 2008, the appellants herein preferred the aforesaid Special Civil Applications No. 19106 of 2015 and 19084 of 2015. By the impugned judgment and orders ? both dated 18th April 2016, the learned Single Judge has dismissed the said writ petitions and thereby confirmed the respective judgment and awards passed by the Labour Court, Dahod.

Feeling aggrieved and dissatisfied with the respective judgment and orders passed by the learned Single Judge in Special Civil Applications No. 19106 of 2015 and 19084 of 2015 by which the learned Single Judge has dismissed the said Special Civil Applications preferred by the appellants and had confirmed the respective judgment and awards passed by the Labour Court, Dahod of reinstatement with continuity of service, the original petitioners-State of Gujarat and another have preferred the present Appeals under Clause 15 of the Letters Patent.

Shri Hardik Vora, learned AGP appears for the appellants-original petitioners and Shri Dipak R Dave, learned advocate appearing for the respective original respondents ie., the concerned workmen.

Shri Hardik Vora, learned AGP has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in dismissing the petitions and confirming the respective judgment and awards passed by the Labour Court, Dahod of reinstatement with continuity of service. 9.1 It is further submitted by Shri Vora, learned AGP appearing on behalf of the appellants that in the facts and circumstances of the case, the learned Single Judge has materially erred in not properly appreciating the fact that as the concerned workmen were appointed on contractual basis, on fixed salary and on completion of their contract period they were relieved and therefore, there was no question of any retrenchment, as per Section 25F of the ID Act.

9.2 It is further submitted by learned AGP that the learned Single Judge has materially erred in not properly appreciating the fact that as the concerned workmen were relieved after their contractual period was over, and therefore, the same cannot be said to be "retrenchment" within the meaning of Section 25F of the ID Act. It is further submitted by Shri Hardik Vora, learned AGP that the learned Single Judge has materially erred in observing that as the initial appointment of the concerned workmen was after due process of selection, their names were called for from the Employment Exchange and the selection was made by the Head Office ie., the Commissioner of Health, Gujarat State for recruitment on the post of Driver and both of them were subsequently allocated to different Districts and Talukas, Section 25F of the ID Act shall be applicable. It is submitted that by holding so, the learned Single Judge has not properly appreciated and considered the fact that as such the initial appointment of the concerned workmen cannot be said to be after following the due procedure of selection ie., after inviting their applications by giving a public notice; after holding interviews, etc. It is submitted that names of the original petitioners were called for from the Employment Exchange only and that too for their employment on fixed salary and for appointment on contractual basis. It is submitted that therefore, calling the names from Employment Exchange and thereafter making appointment on contractual basis cannot be said to be appointment after following due procedure of selection. It is submitted that even the learned Single Judge has materially erred in not properly appreciating the fact that even thereafter, their appointments were still on contractual basis for a fixed term of eleven months on a fixed salary of Rs. 2,500/= per month [at the relevant time] and after expiry of the contractual period, they were relieved from service. It is submitted that therefore in such a situation, relieving the concerned workmen after their contractual period was over as such cannot be said to be "retrenchment" as per Section 25F of the I.D Act, and therefore, Section 25F of the ID Act shall not be applicable. In support of his above submissions, Shri Hardik Vora, learned AGP has heavily relied upon a decision of Hon''ble Supreme Court in the case of Bhavnagar Municipal Corporation vs. Salimbhai Umarbhai Mansuri, reported in 2013 [14] SCC 456.

9.3 Making the above submissions and relying upon the above decision, it was requested to allow the present Appeals.

Both these Appeals are vehemently opposed by Shri Dipak Dave, learned advocate appearing on behalf of the respondents herein-original workmen. It is vehemently submitted by Shri Dave, learned advocate appearing on behalf of the respective respondentworkmen that in the facts and circumstances of the case and considering the fact that the Labour Court found termination/ retrenchment in breach of Section 25F of the ID Act, and thereafter having noted that at the time when the concerned workmen were terminated, still the work was available and after having held that the termination was in breach of Section 25F of the ID Act and thereafter, when the Labour Court held termination illegal and ordered their reinstatement with continuity of service, the learned Single Judge has rightly dismissed the petitions and thereby confirmed the judgment and order passed by the Labour Court. 10.1 It is vehemently submitted by learned advocate Shri Dipak Dave appearing on behalf of the originalworkmen that before terminating their services, neither any notice and/or notice pay and/or retrenchment compensation was paid and as the concerned workmen did work for 240 days in the last preceding year, the Labour Court has rightly held their termination in breach of Section 25F of the ID Act and rightly ordered reinstatement with continuity of service, and therefore, the learned Single Judge has rightly dismissed the petitions.

10.2 It is further submitted by Shri Dave, learned advocate appearing on behalf of the original workmen that as such the appellants never pleaded Section 2 [oo] (bb) of the I.D Act either before the Labour Court or before the learned Single Judge.

10.3 It is submitted that therefore, the appellants herein may not be permitted to now invoke Section 2 [oo] (bb) of the I.D Act. It is further submitted by learned advocate Shri Dave that relying upon decision of the Hon''ble Supreme Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation, reported in [2010] 3 SCC 192 that if the view taken by the Labour Court, confirmed by the High Court is plausible, in that case, the appellate Court may not interfere with the same. It is further submitted by Shri Dipak Dave, learned advocate appearing on behalf of the concerned workmen that even otherwise, appointment of the original workmen on a fixed term/contractual basis was nothing but an unfair labour practice which has been deprecated by this Court time and again.

10.4 In support of his above submissions, he has heavily relief upon decision of the Hon''ble Supreme Court in the case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Limited, [2014] 11 SC 85 as well as decision of Division Bench of this Court in the case of Surat Mahila Nagrik Sahakari Bank Limited v. Mamtaben Mahendrabhai Joshi, reported in 2001 [2] GLH 447. He has also relied upon a decision of Hon''ble Supreme Court in the case of S.M Nilajkar v. Telecom District Manager, Karnataka, reported in 2003 [4] SCC 27.

10.5 Shri Dipak Dave, learned advocate appearing for the original workmen has therefore submitted that as the initial appointment of the concerned workmen as a Driver were after following the due process of selection; as required and after calling for their names from the Employment Exchange and their selection was made by the Head Office and thereafter they were allocated to the concerned Primary Health Centers where they served as Drivers and at the time when their services were terminated still the work was available, it was requested to dismiss the present Appeals.

Heard learned advocates appearing on behalf of the respective parties at length. 11.1 At the outset, it is required to be noted and it is not in dispute that as such, the concerned workmen were appointed as Drivers on the fixed salary/wages of Rs. 2,500/= per month [at the relevant time] and on contractual period of eleven months. That, after the initial period got expired, again their contractual term was extended by further eleven months and on completion of/ expiry of their contractual period, they came to be relieved from 31st May 2006. The Labour Court as well as learned Single Judge have held their termination illegal and in breach of Section 25F of the ID Act by observing that as the concerned workmen have worked for not less than 240 days'' in last preceding year and before terminating their service neither any notice nor retrenchment compensation was paid, and therefore, the same can be said to be "retrenchment" and therefore, the same is held to be in breach of Section 25F of the ID Act. Therefore, a short question which is posed for consideration before this Court is whether a workman who was appointed on ad hoc basis on a contractual terms and on fixed salary/wages when relieved on expiry/ completion of contractual period, the same can be said to be "retrenchment" and whether the same can be said to be in breach of Section 25F of the ID Act or not ?

11.2 As such, the aforesaid issue is no more res integra, in view of direct decision of the Hon''ble Supreme Court in the case of Bhavnagar Municipal Corporation vs. Salimbhai Umarbhai Mansuri, reported in 2013 [14] SCC 456, wherein, it is held that Section 25H of ID Act shall be applicable only where the workman establishes that he was retrenched. In the aforesaid decision, it is further observed that the termination of service after expiry of contract does not amount to "retrenchment".

Now so far as reliance placed upon decision of Hon''ble Supreme Court in the case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Limited reported in [2014] 11 SC 85 is concerned, on considering the said decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. It was specifically found that the concerned workman was working continuously close to 6 years; except for artificial breaks imposed upon him with an oblique motive so as to retain him as a temporary worker and deprive him statutory right of permanent worker status. The same are not the facts in the present case. There is no finding in the present case either by the Labour Court or by the learned Single Judge that any artificial breaks were imposed upon the workmen with an oblique motive. Under the circumstances, the aforesaid decision shall not be applicable to the facts and circumstances of the case on hand.

Now so far as submission on behalf of the concerned workmen that as neither before the Labour Court nor before the learned Single Judge, specific plea of Section 2 [oo](bb) was taken by the Department, and therefore, the Appellants may not be permitted to take a plea of Section 2 [oo](bb) of the Act is concerned, it is required to be noted that from the very beginning, it was the specific case on behalf of the Department that as the appointment of the concerned workmen was for a fixed tenure and that on completion of their fixed term, they were relieved and therefore, the same cannot be said to be "retrenchment". 13.1 Now, so far as submission on behalf of the concerned workmen that as their initial appointments were after following due procedure of selection and as their names were called for from the Employment Exchange and they were allocated by the Head office to work at different Primary Health Centers, and therefore, this Court may not interfere with the impugned orders is concerned, it is required to be noted that as such mere calling names from the Employment Exchange as such cannot be said to be following the due procedure of selection/recruitment. Nothing is on the record that any public advertisement was given inviting applications from the eligible candidates and therefore, after competing with the other eligible candidates, the concerned workmen were appointed as Daily wagers.

13.2 Now so far as decision in the case of S.M Nilajkar v. Telecom District Manager, Karnataka [Supra] is concerned, on considering the same, we are of the opinion that the same shall not be applicable to the facts of the case on hand. In the case before the Hon''ble Supreme Court, the concerned workman was not appointed for a contractual period. Before the Apex Court, it was the case on behalf of the Department that as he was working as a Daily wager and while he was engaged in a Scheme/Project which was to last for a particular length of time, Section 2 [oo](bb) shall be applicable, and therefore, their termination cannot be said to be "retrenchment". On facts, the Hon''ble Supreme Court observed that the engagement of a workman as a daily wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto the occurrence of some event, and therefore, the workman ought to know that his employment was short lived. And therefore, the Hon''ble Supreme Court did not accept the case of the Department.

13.3 In the present case, in the appointment order itself, the concerned workmen were put to notice and duly informed that their appointment was for a fixed period of eleven months, which was again extended upto 31st May 2006. On completion of the contractual period, the concerned workmen came to be relieved from service from 31st May 2006 itself. Under the circumstances, the aforesaid decision shall not be applicable to the facts of the case on hand.

Now so far as reliance placed upon decision of Division Bench of this Court in the case of Surat Mahila Nagrik Sahakari Bank Limited v. Mamtaben Mahendrabhai Joshi [Supra] is concerned, even the said decision shall not be applicable to the facts of the case on hand. While observing that in a case of fixed term appointment, in view of Section 2 [oo](bb) of the ID Act, the provisions of Section 25F may have not application, and therefore, the Court has also to see if there is victimization and breaks are given only to deprive an employee of the benefits under the ID Act, provisions of Section 25F have to be looked into. As observed hereinabove, no such finding is given by the learned Labour Court and/or by the learned Single Judge. Even in the case before the Division Bench, it was found that the concerned employee was given temporary employment from time to time for a longer period. Under the circumstances, the aforesaid decision shall not be applicable to the facts of the case on hand.

Now so far as reliance placed upon decision of the Hon''ble Supreme Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation [Supra] relied upon by the learned advocate appearing on behalf of the respective workmen in support of his submissions that when a specific plea of Section 2 [oo] (bb) was not taken before the Labour Court the same is not required to be considered by this Court is concerned, at the outset, it is required to be noted that as such, it was the specific case on behalf of the management/Department before the Labour Court that as the concerned workmen were appointed on a fixed term and on fixed salary, and therefore, Section 25F shall not be applicable and that on completion of the tenure/contract period, he was relieved from service which cannot be said to be retrenchment. Under the circumstances, it cannot be said that the aforesaid plea is taken for the first time before this Court. Under the circumstances, on facts, the aforesaid decision shall not be applicable to the facts of the case on hand.

In view of the above and considering the decision of the Hon''ble Supreme Court in the case of Bhavnagar Municipal Corporation v. Salimbhai Umarbhai Mansuri [Supra] and applying the law laid down by the Hon''ble Supreme Court in the said decision to the facts of the case on hand and more particularly considering the fact that the appointment of the concerned workmen were fixed term employment upto 31st May 2006 and they worked only from 5th July 2004 to 31st May 2006 and on completion/expiry of their fixed term/tenure, they were relieved from service ie., from 31st May 2006, in the facts and circumstances of the case, the learned Single Judge has materially erred in dismissing the petitions, confirming respective judgment and awards passed by the Labour Court, Dahod with continuity of service. In the facts and circumstances of the case, when termination cannot be said to be "retrenchment" and therefore, Section 25F shall not be applicable; more particularly in view of Section 2 [oo](bb) of the ID Act. Under the circumstances, the impugned judgment and order passed by the learned Single Judge as well as respective Awards passed by the Labour Court, Dahod deserves to be quashed and set-aside.

In view of the above and for the reasons aforestated, both these Letters Patent Appeals succeed. Impugned judgment and orders dated 18th April 2016 passed by the learned Single Judge in Special Civil Application No. 19106 of 2015 as well as 19084 of 2015 as well as respective Judgment and Awards passed by the Labour Court, Dahod, impugned in the main petitions, are hereby quashed and set-aside. Both these Appeals are allowed accordingly. In view of the above order, respective Civil Applications stand disposed of.