IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1077 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ GUJARAT ELECTRICITY BOARD Versus JORAVAR KARIM KHOKHAR -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1077 of 2001 MR PG BHAVSAR for Petitioner No. 1 MS RV ACHARYA for Petitioner No. 1 NOTICE SERVED BY DS for Petitioner No. 1 MR JT TRIVEDI for Respondent No. 1 MR BJ TRIVEDI for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 01/04/2002 ORAL JUDGEMENT #. Heard Ms.R.V.Acharya, learned advocate appearing on behalf of the petitioner Board and J.T.Trivedi, learned advocate for respondent workman. #. The petitioner Board has challenged the award passed by the Labour Court, Junagadh in Reference No.1716 / 1990 dated 1st November, 1999, wherein the labour Court has granted reinstatement with continuity of service without backwages of the interim period. #. Learned advocate Ms.R.V.Acharya appearing on behalf of the petitioner Board has submitted that the respondent workman was appointed as Dailywager Helper on 9th November, 1981 and worked upto March, 1982 and completed 170 days and therefore, the workman has not completed 240 days continuous service and hence, the order of termination has been rightly passed by the petitioner Board and compliance of Section 25-F of the I.D.Act is not required. Therefore, the labour court has committed gross error in coming to the conclusion that the respondent workman has completed 240 days continuous service and not complied the provisions of Section 25-F while setting aside the termination order. No other submission has been made by learned advocate Ms.Acharya. #. Learned advocate Mr.J.T.Trivedi appearing on behalf of the respondent workman has submitted that, in fact, from the statement of claim, the respondent workman has made specific averments that he had completed 240 days continuous service during the service tenure from 1981-82 and Section 25-F of the I.D.Act has not been complied with at the time of termination of service of the respondent workman. Learned advocate Mr.J.T.Trivedi for respondent workman has also submitted that the petitioner board has not proved that the respondent workman has not completed 240 days continuous service. It is further submitted that only necessary registers for the year 1981-82 were produced but rest of the muster roll and registers were not produced by the petitioner Board though it was specifically demanded by the respondent workman. Therefore, in absence of the documentary evidence, deposition of the respondent workman has been believed and said evidence remained unchallenged and therefore, the labour court was right in passing such award while granting reinstatement with continuity of service without backwages of the interim period. Therefore, according to learned advocate Mr.Trivedi, the labour court has not committed any error while passing such award. #. I have considered submissions made by learned advocates for the parties. According to the respondent workman, he was appointed on 9th November, 1981 as Daily Rated Helper and his services came to be terminated on 1st February, 1989 but at the time of termination, Section 25-F of the I.D.Act has not been followed by the petitioner Board. Statement of claim to that effect has been filed by the respondent workman vide Exh.3 and reply was submitted by the petitioner Board vide Exh.11. Thereafter, the respondent workman has produced documentary evidence vide Exh.10 and 13 and thereafter, the petitioner Board has produced documents vide Exh.29 which exhibited as Exh.30 to 34, wherein muster roll / register for the period from November, 1981 to March, 1982 was produced before the labour court. Thereafter, the respondent workman was examined vide Exh.12 and on behalf of the petitioner Board, one Shri Manilal Mohanlal Patel was examined vide Exh.24. Thereafter, the respondent workman has submitted the Purshis vide Exh.37 with request to the labour court that if the labour court will pass order of reinstatement with continuity of service, then the workman will not claim amount of backwages. Thereafter, the labour court has heard both the parties and considered the submissions as well as evidence on record. The labour court has come to the conclusion that even Daily Wager is covered within the definition of Section 2[s] of the I.D.Act as workman. The labour court has also considered another aspect whether the respondent workman has completed 240 days continuous service or not. For that, the labour court has relied upon oral evidence of the respondent workman vide Exh.12 and cross examination of the said workman. The labour court has also considered cross examination of the witness of the petitioner Board, wherein he specifically admitted that the petitioner Board is not having presence muster roll after March, 1982 and he is not aware of the same. Even the said witness of the petitioner Board was not aware about the date of termination of the respondent workman. He also admitted before the labour court that seniority list is not prepared by the board and not maintained the record by the petitioner Board. However, he denied that the respondent workman has completed 240 days continuous service. The labour court has also considered one more aspect that during proceeding before the labour court, the respondent workman has submitted application to the labour court with prayer to direct the petitioner Board to produce muster roll, pay register and Vouchers for the period from 1981 to 1989 but the petitioner board has not produced any muster roll, pay register or voucher for the period from April, 1982 to 1989 but only produced muster register for the period from November, 1981 to March, 1982. Specific admission was made by the witness of the petitioner Board that the petitioner Board has muster roll, pay register from April, 1982 to the subsequent period. Therefore, the labour court has considered decision of the Bombay High Court reported in 1987 [54] FLR pg.428, wherein the Bombay High Court has observed that if the employer failed to produce necessary documents rebutting the evidence of the workman, then the labour court should have considered the evidence of the workman. Similar, decision is also reported in 1993 Lab.I.C. pg.913. Thereafter, the labour court has considered the definition of Section 2[oo] of the I.D.Act, 1947 and considering the oral evidence of the respondent workman, come to the conclusion that the respondent workman has completed 240 days continuous service as other side is not able to rebut the entire evidence of the respondent wrokman while producing necessary documents demanded by the respondent workman for the period from 1981-89. It was undisputed before the labour court between the parties that at the time of termination, Section 25-F of the Act has not been followed by the petitioner Board. The labour court has denied the backwages on the basis of the Purshis submitted by the respondent workman. In light of above factual aspects, view taken by the Apex Court in case of M/S TANERY & FOOTWEAR CORPORATION OF INDIA V. RAJ KUMAR reported decision 2002 AIR SCW 44 is relevant and therefore, important observations made in para-3 of the judgment is reproduced as under :- "3. Learned counsel for the appellant submitted that the burden of proof lay upon the respondent to establish that he was in the employment of the appellant and had worked for a period of 240 days in a year before termination of his services and no such material was made available. It is clear that neither the respondent produced any material in support of his case, nor to rebut the claim made by him any material was produced by the appellant. It is in these circumstances that the labour court came to the conclusion that on appreciation of the material on record such as Exhibit E-1 [Appointment letter ] and Exhibit E-4 [the order of termination that the services of the respondent are not required from 20-7-1976] that the respondent had worked with the appellant for 240 days in a year. If that was the material on which the labour court placed reliance as no other material was place by the appellant in rebuttal of the same, we think that the view taken by the labour court is in order. Therefore, the High Court was justified in not interfering with the award made by the labour court." #. The Apex Court has held that if the employer is failed to produce necessary documents rebutting the evidence of the workman, then the labour court shall have to consider the evidence of the workman. Similarly, in this case the labour court has considered the evidence of the respondent workman as necessary documents were not produced by the petitioner Board. It is also pertinent to note that the petitioner Board is having muster roll for the period from 1981 - 82 but for subsequent period, specific admission was made on behalf of the petitioner Board that they do not have documents. The stand taken by the petitioner before the labour court is very surprising inasmuch, if the petitioner board had documents of the period for 1981-82 but for subsequent period, the documents are not available with the petitioner. Therefore, the labour court has rightly drawn adverse inference against the petitioner Board, which according to my opinion, the labour court has not committed any error while passing such award. There is no jurisdictional error committed by the labour court nor any procedural irregularity committed by the labour court and therefore, no interference of this Court under Article 226 and 227 is called for. #. Therefore, there is no substance in this petition and the same is rejected accordingly. #. Learned advocate Mr.J.T.Trivedi for respondent workman submits that in pursuance of the order passed by this Court on 29th January, 2002, recently the respondent workman has been reinstated in service but the respondent workman has not been paid the full wages from the date of award. This submission is not controverted by learned advocate Ms.Acharya for other side. Therefore, it is directed to the petitioner Board to pay full wages to the respondent workman with effect from 1st November, 1999 till the date of actual reinstatement within period of two months from the date of receiving the copy of this order. Rule is discharged accordingly. Ad-interim relief, if any, stands vacated. No order as to costs. Direct Service to respondent is permitted. Date : 1-4-2002 [H.K.Rathod, J.] #kailash#