SCA/4416/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4416 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== STATE OF GUJARAT - Petitioner(s) Versus POLABHAI ANANDBHAI - Respondent(s) ============================================================== Appearance : Ms. Archana Raval, AGP for petitioner. None for Respondent(s) : 1, ================================================================== CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 10/03/2006 ORAL JUDGMENT Heard learned AGP Ms. Raval for petitioner. Through this petition under Article 227 of the Constitution of India, petitioner has challenged award made by labour SCA/4416/2006 2/8 JUDGMENT court, Rajkot in Reference No. 1605 of 1989 dated 4th August, 2005. Labour Court has set aside the termination order and has granted reinstatement with continuity of service without back wages for interim period. 2. Learned AGP Ms. Raval contended that before labour court, specific contention was raised by petitioner that the petitioner is not an industry within the meaning of section 2(j) of the ID Act, 1947. It was also her contention that the workman was engaged in two spell, one was daily wager and the another in the category of watchman. She also submitted that the workman has not completed 240 days continuous service within the meaning of section 25B of the ID Act, 1947. She also submitted that the work has been completed and workman has stopped to come for duty, therefore, compliance of section 25F is not necessary. 3. I have considered the submissions made by the learned AGP Ms. Raval on behalf of petitioner. I have also perused impugned award made by labour court.Before the labour court, workman has filed his statement of claim wherein he has, inter alia, contended that he was engaged from January, 1988 to 13.8.1988 as daily wager and with effect from September, 1988 to 30th June, 1989 as a watchman. He was earning daily wage of Rs.22.90 ps. He SCA/4416/2006 3/8 JUDGMENT was working under the Divisional Deputy Executive Engineer, R. & B. Department and his services were orally terminated on 1st July, 1989. Junior to workman were retained and subsequent to termination, fresh daily wagers were also engaged by petitioner. 4. Reply was filed by petitioner before the labour court raising contention that the petitioner is not an industry within the meaning of section 2(j) of the ID Act, 1947. Averments made in the statement of claim by the workman were denied and positive facts were narrated by petitioner in para 3 of the written statement that workman was appointed or engaged from January 1988 to 13.8.1988 but he had not remained in service continuously and his service was terminated as the work was not available, therefore, there is no need to comply with the provisions of section 25F of the ID Act, 1947. 5. Before labour court, documentary evidence was produced by respective parties. Workman was examined vide Exh. 21 and petitioner has produced muster roll vide Exh. 9 to Exh. 18 and one witness on behalf of the petitioner was examined at Exh. 37. Thereafter, labour court has considered documentary and oral evidence led before it. Issues were framed by labour court in para 6 and thereafter, labour court examined merits of the SCA/4416/2006 4/8 JUDGMENT matter and ultimately, labour court, relying upon the evidence of workman at Exh. 21, wherein, according to workman, he was engaged from December, 1987 and remained in service upto 31st August, 1988 and thereafter, he was again engaged on 1st September, 1988 to 30th June,1989 on daily wage of Rs.22.90 ps., his service was terminated w.e.f. 1st July, 1989; he was remaining in continuous service during this period. He also deposed before the labour court that no notice or notice pay in lieu thereof was given to him nor he was given retrenchment compensation at the time of termination of his service. Thereafter, labour court examined evidence of witness of petitioner at Exh. 37 wherein said witness admitted before the labour court that vide Exh. 9 to 18, muster rolls were produced and accordingly, work was taken from the workman. Labour court further considered oral evidence of said witness that no seniority list is maintained by the department and after termination of the present workman, new daily wagers were appointed. Then, labour court considered that according to the documents produced by the petitioner namely muster rolls Exh. 9 to 18 from December, 1987 to January, 1989, workman has completed more than 240 days continuous service. It is observed by labour court that in the year 1988, for the SCA/4416/2006 5/8 JUDGMENT month of May, July, September and November, no muster roll was produced by the petitioner and, therefore, labour court presumed that though the documentary evidence was in custody of petitioner, total record was intentionally not produced by petitioner. Therefore, considering this aspect and having adverse inference against petitioner, labour court come to the conclusion that according to muster roll Exh. 9 to Exh. 18, 240 days continuous service is completed within the meaning of section 25 F of the ID Act, 1947. Workman was covered by the definition of section 2(s) of the ID Act, 1947. Then the labour court examined the question whether petitioner is industry or not in issue no.3. While examining this issue, labour court observed that though contention was raised by petitioner in its written statement that the petitioner is not an industry, no documentary evidence was produced as well as in oral evidence, three is no whisper was made by petitioner that the petitioner is not an industry. Decision of Full Bench of this Court as well as the decision of apex court in case of Bangalore Water Supply reported in 1978-2-SCC 213 was considered by the labour court. As regards this contention that petitioner is not an industry, averments made in written statement alone and no evidence to that effect is SCA/4416/2006 6/8 JUDGMENT produced at the time of recording of evidence and no submission on that aspect was made at the time of argument as to what sovereign functions are being performed by petitioner as an authority of the State, Therefore, labour court has not accepted contention raised by petitioner and considered decision of Full Bench of this Court reported in 2004 II GLH 302 and Bangalore Water Supply reported in 1978 – 2 SCC 213 and ultimately after appreciating arguments and evidence on record, labour court come to the conclusion that the petitioner is covered by the definition of 'industry' under section 2(j) of the ID Act, 1947. Thereafter, labour court considered oral evidence of petitioner and respondent and ultimately, come to the conclusion that at the time of terminating services of respondent workman, provisions of section 25F of the ID Act, 1947 were not complied with by petitioner. Witness for petitioner has not deposed before the labour court that notice or notice pay and retrenchment compensation were paid by petitioner to respondent at the time of termination of his service. No such evidence was given by the witness for petitioner in his oral evidence before labour court, therefore, termination of service of respondent workman is held to be illegal. Thereafter, labour court examined SCA/4416/2006 7/8 JUDGMENT the question of back wages. As regards back wages, it was deposed by the workman that he is earning Rs.100.00 to Rs.125.00 p.m. And looking to the age of respondent workman, labour court presumed that the respondent workman must have earned gainfully during the intervening period. Labour court also considered that the petitioner being a public body, there should not be unnecessary financial burden on the public body and considering these aspects, labour court has not granted any amount of back wages for intervening period while granting reinstatement with continuity of service. 6. I have considered the observations made by labour court. According to my opinion, labour court has applied mind and given cogent reasons in support of its conclusion. After proper examination of aspects of matter, labour court has given finding of fact and has come to the conclusion that the respondent is entitled for reinstatement without back wages for interim period. According to my opinion, labour court has properly appreciated oral and documentary evidence produced before it by the respective parties. Findings of labour court are based on proper appreciation of evidence before it and are not perverse. This Court cannot act as an SCA/4416/2006 8/8 JUDGMENT appellate court and cannot reappreciate evidence which was appreciated by the labour court. Learned AGP Ms. Raval is not able to point out any infirmity and/or irregularity in the award in question. Therefore, according to my opinion, contentions raised by Ms. Raval, learned AGP on behalf of petitioner cannot be accepted. Same are, therefore, rejected. Therefore, this petition is required to be dismissed. 7. In result, this petition is dismissed. (H.K. Rathod,J.) Vyas