SCA/30056/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30056 of 2007 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 ? ===================================================== JUNAGADH AGRICULTURAL UNIVERSITY - Petitioner(s) Versus DHANIBEN KALUBHAI L.R. OF DECEASED KALUBHAI NARANBHAI SANIA - Respondent(s) ===================================================== Appearance : MR DG CHAUHAN for Petitioner(s) : 1, Mr. TR Mishra and Mr. UT Mishra for Respondents. ===================================================== CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD SCA/30056/2007 2/9 JUDGMENT Date : 04/02/2008 ORAL JUDGMENT 1. Heard learned Advocate Mr. DG Chauhan for the petitioner University and Mr. UT Mishra, learned advocate for respondent. 2. Rule. Service of rule is waived by learned advocate Mr. Mishra on behalf of the respondent. In the facts and circumstances of the case, the matter is taken up for final hearing today. 3. Through this petition under Article 227 of the Constitution of India, the petitioner University has challenged the legality, validity and propriety of the Award made by the labour court, Amreli in Reference (LCA) NO. 284 of 1998 dated 4.4.2007 wherein the labour court has partly allowed the reference of the second party workman and directed to pay 40 per cent back wages of the workman from 12.9.1996 till 11.8.2001, the date on which workman expired by considering his service as continuous and also directed petitioner to pay amount of cost of Rs.1500.00. 4. Labour court has set aside the termination order SCA/30056/2007 3/9 JUDGMENT as violative of section 25F of the ID Act,1947. Workman Kalubhai Naranbhai expired on 11.8.2001 during the pendency of reference before the labour court and, thereafter, his heirs and legal representatives were brought on record and son of the deceased workman was examined before the labour court. Ultimately, labour court has considered the matter with sympathetic approach, on humanitarian ground and granted 40 per cent back wages from 12.9.96 to 11.8.01, the date on which the workman expired during the pendency of reference proceedings before the labour court. 5. Learned Advocate Mr. DG Chauhan appearing for the petitioner submitted that the petitioner university is having 100 per cent grant from the State Government and it is an educational institution not covered by the provisions of the ID Act, 1947 and, therefore, labour court ought not to have granted the relief in favour of the respondent. He submits that it ought to have been appreciated by the labour court that the workman had left the job with effect from 12th September, 1996 because he was not having good SCA/30056/2007 4/9 JUDGMENT health and, thereafter, he was not reporting for work. He submits that the workman was working only as a daily wager on Hangami basis and he was not a permanent employee of the petitioner university. He was not appointed through recruitment process by way of selection and the workman had abandoned the job and, therefore, labour court has committed gross error in granting relief in this matter. Except these submissions, no other submission was made by him and no decision was cited by him in support of these submissions before this Court. 6. On the other hand, learned Advocate Mr. UT Mishra appearing for the respondent has submitted that at Dhari, there was no educational activities being carried out by the petitioner institution and daily wagers were appointed by the university only for doing the labour work. He submits that the university is having income from agricultural products and also having earning and, therefore, as per his submission, the university is covered by the definition of industry under section 2(j) of the SCA/30056/2007 5/9 JUDGMENT ID Act, 1947. He also submits that the services of the respondent workman were terminated illegally on 12.9.1996 and immediately thereafter, dispute was raised by the deceased workman and labour court was right in granting relief by holding that the termination of services of the workman is violative of section 25F of the ID Act, 1947. 7. I have considered the submissions made by the learned Advocates for the parties. I have perused the impugned award made by the labour court. According to the evidence on record, respondent was appointed from December, 1985 to September, 1996. Relevant service record, means pay slip, presence card etc. of the deceased workman was available with the petitioner but same were not produced by the petitioner before the labour court, Amreli. No affidavit was filed by the petitioner before the labour court to that effect. Therefore, labour court has relied upon the evidence of the son of the deceased workman and thereafter,c ame to the conclusion that though record was available with the SCA/30056/2007 6/9 JUDGMENT petitioner in respect of the working days of the deceased workman, same was not produced by the petitioner before the labour court and, therefore, drawing adverse inference against the petitioner, labour court has come to the conclusion that the workman has completed continuous service of 240 days within twelve months preceding the date of termination and section 25F of the ID Act, 1947 is violated by the petitioner. Ultimately, labour court granted only 40 per cent back wages for interim period considering the termination order as violative of section 25F of the ID Act, 1947. Before the labour court, gainful employment of the workman was not proved by the petitioner. However, the labour court has also taken into account the factors that the petitioner establishment is unit of the Government having no motive of profit, doing work for public interest etc. while considering the question of back wages of the workman. Thereafter, the labour court has relied upon the oral evidence of the son of the deceased workman and drew adverse inference SCA/30056/2007 7/9 JUDGMENT against the petitioner as no documents were produced by the petitioner for controverting the case of the workman which was supported by the evidence of the son of the workman and thereafter, labour court came to the conclusion that if 40% back wages are granted to the heirs and legal representatives of the deceased workman, then, it would met ends of justice between the parties. 8. Considering the submissions made by both the learned advocates, total intervening period comes to about five years and the workman was daily wager which is an undisputed position. No doubt, the workman was appointed in the year 1978 and worked upto 1996, total period comes to more than fifteen years but the difficulty is that no record was produced by the petitioner before the labour court and no affidavit was made by the petitioner contending that no such record is in its custody. However, according to my opinion, if 40 % back wages granted by the labour court in favour of the heirs and legal representatives of the deceased workman is SCA/30056/2007 8/9 JUDGMENT reduced to 25% and the award is modified to that effect, then, it would met ends of justice between the parties, considering the evidence on record as a whole and the nature of activities being carried out by the petitioner establishment. This Court is exercising the powers only to see that the chapter between the parties come to an end because the workman has already expired during the pendency of proceedings before the labour court and now the matter is between the petitioner and the heirs and legal representatives of the deceased workman. Therefore, award in question is required to be modified to the extent indicated hereinabove. 9. Accordingly, for the reasons recorded hereinabove, award dated 4.4.2007 made by the labour court, Amreli in Reference (LCA) NO. 284 of 1998 dated 4.4.2007 is hereby modified to the effect that for the interim period from 12.9.96 to 11.8.2001, considering the continuous service of workman from the date of joining as per record of the university, the heirs and legal SCA/30056/2007 9/9 JUDGMENT representatives of the deceased workman are entitled for 25% back wages instead of 40% which were granted by the labour court and the award in question stands modified to that extent. Petitioner University is directed to pay 25 per cent back wages for the aforesaid period within two months from the date of receipt of copy of this order. Rule is made absolute in terms indicated hereinabove with no order as to costs. (H.K. Rathod,J.) Vyas