The High Court quashed the Labour Court award confirming reinstatement with continuity for a daily wager who failed to prove 240 days of service annually. The Court awarded an ex-gratia sum of Rs. 1,00,000 instead.
Impugned order quashed; Respondent directed to pay lump sum of Rs. 1,00,000.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 896 of 2011
In
R/SPECIAL CIVIL APPLICATION NO. 5620 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI and
HONOURABLE MR. JUSTICE B.N. KARIA
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KUTCHH DISTRICT PANCHAYAT
Versus
JEETUBHA KHANSANGJI JADEJA
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MR PRABHAKAR UPADYAY(1060) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and HONOURABLE MR. JUSTICE B.N. KARIA
Date : 05/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE B.N. KARIA)
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
Appellant prayed to quash and set aside the order dated 4th May, 2011 passed by the learned Single Judge rejecting the Special Civil Application No. 5620 of 2011 preferred by the Appellant wherein, order dated 31st August, 2010 passed by the Labour Court at Bhuj in Reference (LCB) No. 78 of 2003 was confirmed by directing to reinstate the respondent in service with continuity but without back wages.
2.1 The Respondent herein was provided work purely on temporary, adhoc and daily wages basis depending upon the administrative requirement during the monsoon season between 29th September, 1994 to January, 1998 without following due procedure of recruitment due to administrative exigencies. The Respondent had never worked continuously for 240 days in any of the year from 1994 to 1998 . However, the Respondent approached the Labour Court at Bhuj, Kutchh by way of filing Reference (LCB) No. 78 of 2003 , after more than five years praying for reinstatement in service with continuity and full back wages on the ground that he was illegally and unjustly discontinued with effect from 30th October, 2002 after his rendering service of approximately 10 years. The Appellant-Petitioner filed the detailed
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
Written Statement before the Court below and denied the facts. Not only that even a statement showing number of working days was placed on record by the Appellant. Before the Labour Court, an employee of Kutchh District Panchayat was examined and was cross-examined. However, the Respondent herein failed to substantiate his case for reinstatement with full back wages and continuity by way of producing any documentary evidence, the Labour Court passed an Award dated 31st August, 2010 directing to reinstate the Respondent in service with continuity but without back wages.
2.2 The present Appellant, being dissatisfied and aggrieved by the said Award preferred Special Civil Application No. 5620 of 2011 before this Court which was also came to be dismissed by the learned Single Judge vide order dated 4th May, 2011 . Hence, the Present Letters Patent Appeal.
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
learned Single Judge confirming the Award dated 31st August, 2010 passed by the Labour Court at Bhuj in Reference (LCB) No. 78 of 2003 is erroneous and contrary to the facts as well as material place on record and also against the provisions of Industrial Disputes Act, 1947 . It is further submitted that Respondent herein was provided work purely on temporary, adhoc and daily wage basis to attend the work at different Dams and he had worked from 29th September, 1994 to January 1998 depending upon the availability of the work and funds during the months of Monsoon. It is further submitted that learned Single Judge failed to appreciate the same fact. The Respondent had never worked for 240 days in any of the calendar year and had worked only 57 days in the year 1996, 18 days in the year 1997 and 11 days in the month of January, 1998 . In view of this, the provisions of Section 25(f) of the Industrial Disputes Act 1947 were not at all attracted and he was not entitled to claim for any relief. However, learned Single Judge has committed an error in not appreciating the said aspect. It is further submitted by learned Advocate for the Appellant that Respondent had filed Reference (LCB) No. 78 of 2003 before the Labour Court for reinstatement in service with continuity and full back wages after more than Five years and there was no justification for the said delay. That, the Respondent had never worked for a period of 10 years as claimed between 1992 to 2002 . That, he had
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
worked purely on temporary, adhoc and daily wage basis depending upon the availability of work and funds and full details about working days were placed on record. However, learned Single Judge failed to consider the submission of the Appellant properly. It is further submitted that there was no question of violation of the provision of Section 25(f) (g) and (h) of the Industrial Disputes Act, 1947 as no Daily Wager was appointed after January, 1998 and no junior Daily Wager was continued after 1998 . That, the Respondent was provided work without following due procedure of recruitment as Labourer and he was not a qualified skilled labourer. That, the name of the respondent was in the list of Daily Wagers of the Sub Division and was offered work as per the administrative exigencies. That, even otherwise, Daily Wager has no right to work irrespective of availability of work and administrative exigencies. However, learned Single Judge committed an error for not considering the said facts That, the Respondent was not working on any permanent and sanctioned post. Learned Advocate appearing for the Appellant has requested to quash and set aside the order dated 4th May, 2011 passed by the learned Single Judge rejecting the Special Civil Application No. 5620 of 2011 preferred by the Appellant and confirming the award passed by the Labour Court at Bhuj in Reference (LCB) No. 78 of 2003 dated 31st August, 2010 and requested to allow this Appeal.
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
continuously and his service was never terminated between this period. That, he had worked for more than 10 years . That, before the Labour Court also, vide Application at Exh. 8, Respondent had requested to produce the entire record of the service before the Labour Court but however, no record was produced by the Appellant in spite of the fact that the record was available with the Appellant. That, considering the oral evidence of the respondent regarding the fact that he remained in continuous service and completed 240 days continuous service in each year, the Labour Court has rightly observed that he has established/ satisfied requirement of Section 25(B) of the Industrial Disputes Act, 1947. Once provisions of Section 25(B) of the Industrial Disputes Act , 1947 have been satisfied by the workman, then Section 25(F) of the Industrial Disputes Act, 1947 is made applicable. That, service of the Respondent -Workman was terminated on 30th October, 2002 Immediately the dispute was raised by him which was referred to the Labour Court for adjudication on 6th August, 2003 and therefore, the contention raised by the Appellant about the delay was rightly rejected by the Labour Court. That, no documentary evidence was produced by the Appellant before the Labour Court, however, separate application was submitted demanding the service documents of the Respondent. Therefore, in view of that adverse inference was rightly drawn against the
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
Appellant and relied upon the oral evidence of the respondent at exh.15. That, findings of the Labour Court as well as learned Single Judge cannot be disturbed by this Court accepting the prayer made by the Appellant. Hence, it was requested by learned Advocate for the Respondent to dismiss the present Appeal.
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
2002 . There was no question of violation of provision of Section 25(f) of the Industrial Disputes Act, 1947. Whereas the Respondent was not offered work, he approached the Labour Court in the year 2003 i.e. after delay of 5 years without any sufficient explanation. There was nothing on record from the Respondent before the Labour Court that his service was terminated by the Appellant on 30th October, 2002 and only record was available with the Labour Court of statement of working days of the Respondent which shows that after January, 1998 , no work was taken from the Respondent by the Appellant side. Termination order dated 30th October, 2002 was also not placed on record by the Respondent. As respondent was employed without following due procedure of recruitment and was working as Labourer as and when repairs and maintenance work of Dam and Canals were undertaken. As the Respondent was in the list of daily wagers of the Sub Division and even otherwise a daily wager has no right to work irrespective of availability of work and administrative exigencies. The Respondent was not working on
any permanent and sanctioned post. He was provided service by considering the administrative exigencies and therefore, order of reinstatement with continuity would be bad in law and contrary to the interest of administration. Considering the submissions made by learned Advocates for the respective parties as well as record of the Court,
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
admittedly, the Respondent was not recruited by following the procedure and was working as a Labourer as and when repairs and maintenance work of Dam and Canals were undertaken, as per administrative exigencies of the Appellant. It appears that from 1994 to January, 1998 he was working as Daily Wager , but he had never worked after that period. He had never worked for more than 240 days in each year continuously. Therefore, he was not entitled to claim for continuous service or salary as claimed before the Labour Court. He was not terminated in fact by the Appellant on 30th October, 2002 as submitted but service was not required as per administrative exigencies. No record was placed by the Appellant on record about of his service rendered by the Respondent. In fact, the statement of working days produced by the Appellant from 1994 to January, 1998 shows that he had never worked for 240 days in the preceding each year as well as prior thereto. There is no question of violation of provision of Section 25(f) and (h) of the Industrial Disputes Act, when the respondent was not offered work as Daily Wager. Therefore, we are of the opinion that award passed by the Labour Court at Bhuj, Kutchh in Reference (LCB) No. 78 of 2003 dated 31st August, 2010 as well as judgement and order passed by learned Single Judge dated 4th May, 2011 in Special Civil Application No. 5620 of 2011 with due respect deserve to be quashed and set aside.
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C/LPA/896/2011 JUDGMENT DATED: 05/07/2021
KUTCHH DISTRICT PANCHAYAT Versus JEETUBHA KHANSANGJI JADEJA
Accordingly, the impugned judgement and order dated 4.5.2011 passed by learned Single Judge in Special Civil Application No. 5620 of 2011 is hereby quashed and set aside. However, considering the service rendered by the Respondent with the Department of the Appellant from 1994 to January 1998 , we deem it fit to direct the Appellant to pay lump sum amount of Rs. 1,00,000/- (Rupees One Lac only) to the Respondent within a period of Two (2) months from the date of passing of the order. The present Letters Patent Appeal is hereby allowed with the aforesaid direction.
(DR. VINEET KOTHARI,J)
(B.N. KARIA, J)
BEENA SHAH
Page 11 of 11
3 issues framed by the court
Whether the appellant is entitled to quash the Labour Court award confirming reinstatement and continuity of service.
Whether Section 25(f) of the Industrial Disputes Act is attracted when a daily wager employed without recruitment procedures works less than 240 days in a year.
Whether the respondent is entitled to ex-gratia payment for service rendered prior to discontinuation due to administrative exigencies.
2 provisions across 1 enactments
Kutchh District Panchayat
Jeetubha Khansangji Jadeja
DR. VINEET KOTHARI
B.N. KARIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
