SCA/11890/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11890 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= CHIMANBHAI NANJIBHAI VALAND - Petitioner(s) Versus LINKAN PHARMACEUTICALS & 1 - Respondent(s) ========================================================= Appearance : MR P C CHAUDHARI for Petitioner(s) : 1, MR HRIDAY BUCH for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 11/12/2008 ORAL JUDGMENT The petitioner-workman has assailed the award and order passed by the Labour Court, Ahmedabad on 11/01/2008 in Reference (LCA) No.1526 of 2003 rejecting the same. SCA/11890/2008 2/8 JUDGMENT 2. It is the case of petitioner-workman that he was working in respondent No.1 and thereafter he was transferred to the respondent No.2 – employer and on 26/11/2002 his services came to be unceremoniously terminated without following due procedure under Section 25 (F) of the Industrial Disputes Act and hence termination was per se, illegal and bad and therefore he was entitled for reinstatement with all the consequential benefits. The Industrial Disputes which was raised, was thus referred to the competent Labour Court. The Reference being (LCA) No.1526 of 2003 was decided against the workman for the reasons stated therein as per the order and award dated 11/01/2008 which is impugned in this petition. 3. Shri P.C.Chaudhary, learned Advocate appearing for the petitioner-workman contended that the Labour Court has not passed award in accordance with the documents and evidence adduced on the record and has thus committed serious error apparent on the fact of it requiring quashment of the same. The workman though had worked continuously has been treated to have not worked continuously for the period of 240 days in the preceding year and therefore on that basis the Court has wrongly come to the conclusion that the workman has failed in proving the breach of Section 25 (F) of the I.D. Act. Shri Chaudhary, has further contended that in-fact the burden of proving breach of Section 25 (F) of the ID Act had never been cast upon the workman, as the serving of workman for all these years continuously SCA/11890/2008 3/8 JUDGMENT had never been disputed. As there is no question of breach of Section 25 (F) of the ID Act, it can be said that the workman was not required to lead any other evidence to prove the breach of Section 25 (F) of the ID Act. Alternatively, he has submitted that the documentary evidences produced on record would go to show that the workman has in-fact completed 240 days or more than 240 days may be not in the exactly preceding year but prior thereto. He has relied upon the decision in case of U.P.Drugs & Pharmaceuticals Co. Ltd. Vs. Ramanuj Yadav & Ors., reported in 2004 SCC (L & S) 46 and submitted that the concept of continuous service of 240 days in preceding year is envisaged in Section 25 (F) need to be construed in its appropriate perspective and it is not mandatory that worker if had not worked for 240 days continuously in preceding year then Section 25 (F) of I.D. Act cannot be invoked in awarding the benefits for breach of Section 25 (F), as Section 25 (F) does not say that there has to be continuous service as defined under Section 25 (F) of the ID Act in the preceding year itself. The section pressed into service in the Apex Court's decision is in parimateria with Section 25 (F) of the Industrial Disputes Act and therefore the reasoning adopted by the Apex court would squarely cover the facts of this case. He has further relied upon the decision in case of Sjairaj N. Shetty Vs. Union of India reported in 2005 III CLR 106 and submitted that the Bombay High Court following the decision of Seth Jeejeebhoy (Supra) held that continuous service in preceding SCA/11890/2008 4/8 JUDGMENT year is not a sine-qua-non for claiming about breach of Section 25 (F) of the ID Act. Shri Chaudhary, has further relied upon the bank statement produced at page No.138 of this compilation, but fairly admitted that the said document is not forming part of the Labour Court's record, however it is produced only with a view to show that the workman had served continuously. 4. Shri Buch, learned Advocate appearing for respondent No.1 has contended that the award and order impugned cannot be said to have been illegal on any count so as to call for any interference under Article 227 of the Constitution of India. The workman has in the first instance not clearly raised his claim with regard to his employer. The workman has joined two independent agencies showing to be his employer for different period of time. Merely terming them to be sister concern in itself would not render the workman entitle to claim continuity of service and other benefits flowing from ID Act. In-fact, looking to the nature of evidence and the pleadings, the award and order passed by the Labour Court cannot be said to be in any way erroneous so as to call for any interference under Article 227 of the Constitution of India. The Labour Court has rightly recorded that workman has measurably failed in establishing his say about breach of Section 25 (F) of the ID Act against the given employer. The workman has in-fact produced documents which go contrary to his own version and even assuming for the sake of SCA/11890/2008 5/8 JUDGMENT submission that the workman had in-fact served in sister concern employer then also it would not entitle the workman to claim relief against both, especially when the workman has unequivocally not only in the claim of statement but in written submission also adhere to his claim that he was engaged by the the two employers and both of them were sister concern. It was duty cast upon the workman to establish that in-fact the management was the same and therefore he was singularly engaged by one employer against whom he could have claimed any relief. In the instant case, as it could be seen from the award it cannot be said that he has not worked under the two employers and merely by saying that they are sister concern, he cannot claim any benefits as such. The workman has in his own submission admitted that from 1988 afterwards he had no link with respondent No.1 and thereafter he was working with the sister concern and distributors, but without proving that sister concern was one unit, he could not have relied upon such submission for gaining relief from respondent No.1 and respondent No.2 has been closed down long back. In view of this, the order impugned in this petition deserves to be sustained. 5. This Court has heard learned Advocates appearing for both the sides and has perused the award impugned in this petition. 6. Statement of claims admittedly contains the SCA/11890/2008 6/8 JUDGMENT following. 1. Statement of claim clearly indicates that the workman had lodged claim against two independent employers viz., Linkan Pharmaceuticals and Gujarat Distributors. 2. In the statement of claim, it is averred by the workman that from 01/08/1983 to 31/12/1988 he was serving in respondent No.1 and from 01/01/1989 to 31/12/1995 he was transferred to Laxmi Distributors and from 01/01/1996 to 31/12/2000 he was transferred to respondent No.1. Again from 01/01/2001 to till he was relieved he was transferred to Gujarat Distributors. Here, the workman has specifically stated that thus he had worked in Linkan and other sister concern. 7. He has claimed that he was given continuity of service and the benefit of PF etc., and ultimately on 26/11/2002 unceremoniously his services came to an end. In support of his submission, the workman has produced some documents from Exh.21, Exh.32, Exh.33 and Exh.34 to Exh.43 and relying upon those documents an attempt is made to show that Linkan Pharmaceuticals was the sole management and / or employer but unfortunately the petitioner-workman could not successfully establish his say with regard to continuous employer with Linkan Pharmaceuticals – respondent No.1 herein above, as could be seen also from the written submission wherein time and again SCA/11890/2008 7/8 JUDGMENT unequivocally clear admission come on record to indicate that he was required to serve under the sister concern of his own volition and the story of transfer by Linkan Pharmaceuticals has not been established at all. 8. When these facts have not been established coupled with the fact that the Counsel even at the stage in 227 in this High Court has contended that the question of Section 25 (F) as such was not pressed into service. The utter state of confusion which has admittedly prevent not only in prosecuting a case before the Labour Court is rather percolated upto High Court so far as the stand of the petitioner-workman is concerned. 9. In view of this the order impugned cannot be said to be so perverse as to call for any interference under Article 227 of the Constitution of India. This Court is in agreement with the findings recorded by the Labour Court and this Court need not to dwell upon the other submission. Suffice it to say that the decision cited at the bar by learned Advocate for the petitioner do not have any applicability as it is in the instance case clearly admitted fact that two employers have been joined and the workman has measurably failed in indicating as to who is the employer. In such a situation, the award of the Labour Court cannot be said to be perverse calling for any interference under Article 227 of the Constitution of India. The petition fails and is SCA/11890/2008 8/8 JUDGMENT hereby rejected. However, there shall be no order as to costs. Notice discharge. (S.R.BRAHMBHATT, J.) sompura