Gujarat High Court Case Information System Print SCA/5620/2011 6/ 6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5620 of 2011 [ENTITY] - Petitioner(s) Versus [ENTITY] - Respondent(s) Appearance : MR [ENTITY] for Petitioner(s) : 1, None for Respondent(s) : 1, CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 04/05/2011 ORAL ORDER
Heard learned Advocate Mr. [ENTITY] for petitioner [ENTITY] through its Executive Engineer, Irrigation Division, Bhuj.
Petitioner panchayat has challenged award passed by labour court, Bhuj in [CASE NUMBER] dated 31.8.2010. Name of respondent workman is [ENTITY] who has been given benefit of reinstatement in service with continuity of service without back wages of interim period.
Learned Advocate Mr. [ENTITY] for petitioner panchayat has raised contention before this Court that respondent workman has not completed continuous service of 240 days and according to page 7/8, working days of workman has been placed on record in present petition and according to that working days, in none of year, workman has completed 240 days continuous service, therefore, labour court has committed gross error in granting relief in favour of respondent workman. He submitted that dispute has been raised after period of five years and he worked for merely meager days and not remained in service for entire year. No new daily wagers have been recruited by petitioner after 1998 and at the time of termination of service of respondent workman, no junior had remained continue, therefore, [SECTION], [SECTION] and [SECTION] of [ACT] are not violated by petitioner and now, no work is available with petitioner. No daily wager is working with petitioner and considering total period of 14 years, at the most, court can grant reasonable amount of compensation. In short, his submission is that no work is available with petitioner and, therefore, it is very difficult for petitioner panchayat to reinstate respondent workman in service as per directions issued by labour court. Along with petition, at page 7 and 8, working days of workman are placed on record with effect from 29th September, 1994 to December, 2001. Annexure-B page 9 is Statement of Claim filed by respondent workman before labour court. Annexure B page 16 is written statement filed by petitioner panchayat before Labour Court. Annexure C page 21 Exh. 21 is copy of affidavit of evidence filed by witness for petitioner, [ENTITY], Deputy Executive Engineer along with cross examination. Thereafter, xerox copy of award is produced on record page 25 annexure E along with certified copy of award.
Industrial dispute whether respondent workman should be reinstated in service or not was referred to for adjudication by Assistant Labour Commissioner, Gandhidham vide his order dated 6.8.2003 to labour court. Before labour court, statement of claim was filed by respondent workman vide Exh. 5. According to respondent workman, he was appointed on 5.10.1992 as Chokidar in monthly salary of Rs.2400.00. Lastly, he was working at Shirai Dam Village Beraja of Mundra Taluka as Chokidar. His service was terminated by petitioner on 30.12.2002 without there being any fault and without initiating legal procedure. It was alleged by him that he has worked for more than 240 days in each year. Inspite of that, at the time of terminating his service, petitioner has not given any notice or notice pay and retrenchment compensation to him and has committed breach of provisions of [ACT] and while continuing workmen junior to respondent workman in service, service of respondent workman has been terminated and such workmen are continuing in service even at present. At the time of terminating service of respondent workman, no seniority list was shown or published. Inspite of various representations made for reinstating respondent workman in service, respondent workman has not been reinstated. According to workman, as he made prayers for giving him seniority and for making him permanent and increasing salary, therefore, his service was terminated by petitioner on 30.10.2002 and, therefore, it was prayed for reinstating him on original post with continuity of service with back wages of interim period.
Before labour Court, petitioner has filed written statement at Exh.13 denying averments made by workman in his statement of claim and it has been stated that respondent workman was not performing duties on permanent post but he was being engaged on Hangami basis as per requirement of work, therefore, it is not a case of retrenchment. Workman has not rendered continuous service. It is not correct that service of workman has been terminated illegally. Before terminating service of workman, question of giving notice is not arising because after transfer of workman, workman has not reported at place of transfer and as workman was engaged on Hangami basis, question of preparing or publishing seniority list does not arises. Applicant has not worked for 240 days in any year, therefore, not entitled to become permanent and, therefore, prayer was made to dismiss reference with costs.
Before labour court, on behalf of respondent, certain documents are produced at mark 9/1, 9/2, 9/3. Vide Exh. 10/1, respondent has produced documentary evidence of serving statement of claim to petitioner by Regd. AD. Vide Exh. 22, copy of application made by workman before petitioner under [ACT] has been produced. Exh. 23 to 26 are replies given by petitioner dated 1.1.08, 5.1.08, 21.1.08 and 31.3.08 respectively. Exh.27 is statement of details of total 63 rojamdar labourers working with petitioner, which has been supplied by petitioner to workman. Exh. 28 is showing presence of workman given by petitioner. Seniority list of daily wager is also produced at Exh. 30. Exh. 29 is reply given by petitioner to co-employee dated 13.5.1997. Mark 17/10 is xerox copy of award dated 14.12.2004 in [CASE NUMBER]. On behalf of petitioner, copy of daily presence of workman from 1994 to 1998 has been produced. During pendency of reference, application was given by workman vide Exh. 8 before labour court with a prayer to direct petitioner to produce all relevant records of service of respondent workman, muster roll, pay register, bonus register etc. Considering this prayer made by workman, directions were issued by labour court to petitioner to produce it or file reply. Vide Exh. 15, affidavit of examination in chief has been filed by workman who has been cross examined by advocate for petitioner. Vide Exh. 18, workman has closed his evidence. Vide Exh. 21, witness for petitioner namely [ENTITY] has filed affidavit of his examination in chief who has been examined by advocate for petitioner. Thereafter, vide Exh.31, evidence of petitioner has been closed. Thereafter, labour court considered oral submissions made by advocate for petitioner and written submissions made by advocate for petitioner at Exh.32. Labour Court has also considered decisions of Hon'ble Supreme Court and High Courts as referred to in paragraph 5 of award. Thereafter, issues have been framed in paragraph 6 and reply is given in paragraph 7. Labour Court has considered evidence which are on record and also appreciated oral evidence produced by both parties. According to evidence of witness for petitioner, workman was transferred by petitioner as per Exh. 21 where evidence of witness for petitioner was recorded and as per his evidence, respondent workman has not reported at place of transfer and, therefore, he abandoned job. According to workman, his service was terminated on 30.10.2002 and he was not transferred to any other place because there was no written order of transfer given to respondent workman by petitioner and no such transfer order was produced on record by petitioner. Workman was cross examined by advocate for petitioner before labour court. On that basis, labour court has appreciated fact that evidence of workman remained unchallenged and in respect to transfer, no question was asked by advocate for petitioner in cross examination of workman and, therefore, considering such evidence on record, labour court has come to conclusion that respondent was not transferred by petitioner as alleged by witness for petitioner in his evidence Exh.21 because petitioner has not produced any order of transfer of respondent workman before labour court. As regards application which was made by workman on 28th December, 2007 under provisions of [ACT] to receive copy of muster, presence register and pay register, that has not been supplied by petitioner to workman by giving reply dated 21st January, 2008. Petitioner panchayat has produced only presence details of workman for period 1994 to 1998 and therefore, in such circumstances, labour court has drawn adverse inference against petitioner. According to evidence of workman Exh. 15, he was appointed on 5.10.1992 and his service was terminated by petitioner on 30.10.2002 and meanwhile he had remained continue in service, in-between, his service was not terminated by petitioner panchayat. In his cross examination, no question was asked by petitioner's advocate that workman had not remained in continuous service, therefore, statement made by workman that he remained continue in service from 1992 to 2002 and worked as daily wager for 10 years, that has been accepted by labour court while appreciating evidence of workman. In respect to demand made by workman by separate application to produce entire record before labour court vide Exh. 8, no record has been produced by petitioner panchayat inspite of fact that record was available with petitioner panchayat. It is not case of petitioner before labour court that record was not available. Considering oral evidence of workman that he remained in continuous service and completed 240 days continuous service each year, labour court has observed that he has established/satisfied requirement of [SECTION] of [ACT]. Once provisions of [SECTION] of [ACT] have been satisfied by workman, then, [SECTION] of [ACT] is made applicable and undisputedly [SECTION] has not been complied with by petitioner at the time of terminating his service as per evidence of witness for petitioner at Exh. 21. Labour Court has also considered cross examination of witness for petitioner at Exh. 21 wherein it was stated that workman was rojamdar chokidar. In set up, there is post of chokidar. Labour Court has also considered that witness has denied in his cross examination that workman was working from 1992 but in that connection, petitioner has not produced any documentary evidence such as muster roll, presence statement, salary statement for proving this fact and also admitted that the evidence about presence of workman are in Head Office of establishment and not produced by him, labour court has observed that though evidence is available, petitioner has not made any clarification or given explanation for non production of same. Therefore, labour court has held that workman has worked for more than 240 days and has rendered continuous service in establishment of petitioner as per [SECTION] of [ACT] after considering decision of apex court 2004 SCC L&D page 1062, 2005 LLR page 737 wherein it has been held by apex court that if employer has produced original muster, then, it is burden upon workman to prove completion of 240 days continuous service and in this matter, employer has not produced any documentary evidence. Labour Court has also considered decision of this Court reported in 2006 GLR page 695 wherein it has been held by this Court that when it has been established by workman by oral evidence that he has completed 240 days' continuous service, then, burden of proof is shifting on employer to prove otherwise by producing evidence to that effect but in this matter, petitioner has not produced any original presence statements or salary statements for controverting this fact. Labour Court has considered cross examination of witness for petitioner at Exh. 21 wherein witness has admitted that while terminating service of respondent workman, respondent workman was not given any notice or notice pay or retrenchment compensation and thus, petitioner has committed breach of mandatory provisions of [SECTION] of [ACT]. Labour Court has considered list of total 63 rojamdar labours supplied to workman which is produced by workman at Exh. 27 in this matter and Exh. 28 wherein presence of workman has been shown from September, 1994. Thereafter, labour court has considered that workman has stated in his statement of claim and deposition Exh. 15 on oath that petitioner has continued workmen junior to him in service. Labour court has also considered that in this regard, witness for petitioner has admitted in his deposition on oath at Exh. 32 workmen at Sr. NO. 35, 38, 39 to 54 as per details of daily wagers given in Exh.27 are junior to present respondent workman and workmen at Sr.No. 61,62 and 63 were also working with present respondent himself. Thereafter, labour court has considered that respondent workman joined service in September, 1994 and workman [ENTITY] at Sr. NO. 17 in list Exh. 27 joined on 18.12.1994, workman at Sr.NO. 19 Jivraj Punja joined on 14.12.1994, workman at Sr. No. 21 Vishram Nagda joined on 15.11.1994, workman at Sr. No.23 Mohangar Shambhugar joined on 15.11.1994, workman at Sr. No.25 Jadeja Bhupendrasinh Bahadursinh joined on 19.11.1994, workman at Sr. NO. 35 Laxman Baldev joined on 4.10.94, workman at Sr. No. 38 Mansang Ramji joined on 1.10.1994 and workmen at Sr. NO. 39 to 54 joined in October, 1994, November, 1994 and December, 1994 and wormkan at Sr. No. 61 [ENTITY] joined on 1.12.94, workman at Sr. NO. 62 [ENTITY] joined on 14.5.95 and workman at Sr. NO. 63 [ENTITY] joined on 16.12.94 and considering joining date of all these workman, all of them are junior to present respondent workman and joined subsequently after respondent workman and, therefore, petitioner has also committed breach of [SECTION]G of [ACT]. Seniority list has not been produced and published by petitioner panchayat. That fact has been admitted by witness for petitioner at Exh. 21, therefore, [SECTION] of [ACT] has been violated by petitioner. Thereafter, labour court has considered certain decisions which has been relied by both parties before labour court and ultimately, labour court has come to conclusion while appreciating evidence no record that continuous service has been established by workman as defined under [SECTION] of [ACT] and service of respondent workman was terminated by petitioner panchayt without following [SECTION] of [ACT] which renders termination order void ab initio as per decision of apex court in case of [PRECEDENT] and workmen junior to respondent workman were continued in service while terminating service of respondent workman. Thereafter, labour court has considered question of back wages and considering age of workman 36 years in 2001, labour court has come to conclusion that workman may not have remained idle, therefore, gainful employment has been presumed against workman by labour court though it has not been proved by petitioner before labour court and therefore, not granted any back wages of interim period and granted only reinstatement in favour of workman with continuity of service. Therefore, considering reasoning given by labour court in light of oral and documentary evidence on record, according to my opinion, contentions raised by learned advocate Mr. [ENTITY] on behalf of petitioner cannot be accepted because contentions raised by learned advocate Mr. [ENTITY] are contrary to record before labour court. Same are, therefore, rejected.
It is necessary to note that before labour court, no evidence was led by petitioner to show that now no work is available with petitioner and, therefore, it is not possible to reinstate workman and 63 employees are working and remained continue in service subsequent to termination of service of respondent workman and therefore, contention raised by learned advocate Mr. [ENTITY] cannot be accepted that work is not available and, therefore, respondent cannot be reinstated. Contention about delay in raising of an industrial dispute raised by learned advocate Mr. [ENTITY] on behalf of petitioner is also contrary to record because service of workman was terminated on 30.10.2002 and immediately dispute has been raised which was referred to labour court for adjudication on 6th August, 2003 and thus industrial dispute was raised immediately and therefore, contention raised by learned advocate Mr. [ENTITY] about delay is also rejected. Before labour court, demand was made by workman vide application Exh. 8 for production of necessary documents by petitioner and after order was passed on said application, no documentary evidence was produced by petitioner before labour court and, therefore, in view of that, adverse inference has been rightly drawn by labour court against petitioner and has rightly relied upon oral evidence of workman at Exh. 15. Therefore, considering decision of apex court in case of [PRECEDENT].
Executive Engineer reported in 2006 SCC (L&S) 1;
[PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and recent decision of apex court in case of [PRECEDENT], according to my opinion, findings recorded by labour court are based on facts before labour court and same cannot be considered to be perverse or contrary to record before labour court, therefore, this court cannot disturb such finding of fact while exercising jurisdiction under [SECTION] of [ACT]. This Court is having very limited jurisdiction and cannot act as an appellate court. That aspect has been recently considered by apex court in case of [PRECEDENT] (see para 10 and 11 being relevant). Therefore, according to my opinion, labour court has rightly examined matter and has rightly adjudicated dispute which was referred to it and for that, no error has been committed by labour court which would require interference of this court in exercise of power under [SECTION] of [ACT] and, therefore, there is no substance in this petition and same is therefore required to be dismissed summarily.
For reasons recorded above, this petition is summarily dismissed.
(H.K. Rathod,J.) [ENTITY]