SCA/9162/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9162 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= PRAKASHCHANDRA CHANDULAL CHAUHAN - Petitioner(s) Versus THE CHIEF OFFICER - Respondent(s) ========================================================= Appearance : MR DJ PANCHAL for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 29/08/2008 ORAL JUDGMENT 1. The petitioner has preferred this petition being SCA/9162/2008 2/7 JUDGMENT aggrieved by an award dated 4.5.2007 passed by the Labour Court, Bhavnagar in Reference No.313 of 1997, whereby the Labour Court has declined to grant relief of reinstatement and/or backwages as prayed for in Reference and instead has awarded compensation to the tune of Rs.40,000/-. 2. The facts involved in present petition are that as per the allegation made by the present petitioner, he was engaged in the respondent Nagarpalika since 1984 and then respondent Nagarpalika terminated his services w.e.f. 16.4.1994 without following procedure prescribed by law. On the basis of such allegation, the petitioner raised an industrial dispute claiming relief of reinstatement, full back-wages with other consequential benefits. The dispute was referred by the appropriate Government and it culminated into Reference (LCB) No.313 of 1997. The deposition of the petitioner was recorded before the Labour Court. The petitioner did not produce any documentary evidence. After examining the evidence available on record and upon considering the submission of contesting parties, the Labour Court came to the conclusion that the petitioner entered in the respondent Nagarpalika by way of back door entry as he was engaged without following procedure for appointment. The Labour Court in view of such findings also held the petitioner SCA/9162/2008 3/7 JUDGMENT was therefore, not entitled for protection of Section under Section 25F , the Labour Court has in the first instance also noticed that the petitioner had not produced any evidence, either documentary or oral to even prima facie establish his allegation that he was working with the respondent Nagarpalika since 1984. The Labour Court has also then held that the claim of the petitioner to regularize in his service cannot be accepted. After considering the material on record, the Labour Court considered it appropriate to award Rs.40,000/- as compensation to the petitioner and also held that in facts of the case, the relief prayed for i.e. reinstatement and back-wages etc. cannot be granted. Thus, with the direction to the respondent Nagarpalika to pay Rs.40,000/- as compensation, the Labour Court has disposed of the Reference by partly allowing the same in the aforesaid terms. 3. The petitioner feeling aggrieved by the said award has come with the prayer that the relief of reinstatement and back-wages deserves to be granted. 4. At the outset, it is required to be mentioned that in view of the submissions before this Court, the only case required to be examined is the case made out by the petitioner before the Labour Court. Since the issue about the justifiability of the Labour Court's decision to SCA/9162/2008 4/7 JUDGMENT grant compensation of Rs.40000/- is not examined on merits. This order or observation is not to be construed as this Court's approval about the Labour Court decision to grant Rs.40000/- as compensation in favour of the petitioner 5. Mr. Junaja, learned advocate appearing for the petitioner, submitted that the work which the petitioner was performing, is still available and some other persons have been engaged by the respondent and that therefore, even if the findings of the Labour Court, not accepting the breach of Section 25F are upheld then also there is breach of Section 25G and 25H and this aspect has not been considered by the Labour Court. In his submission, the Labour Court's award is, therefore, erroneous. He also submitted that the petitioner had requested for production of certain documents, however, the same were not produced and that therefore, the Labour Court ought to have drawn adverse inference and after drawing adverse inference, the relief prayed for by the petitioner ought to have been granted. No other submissions are made. 6. So far as the petitioner's submissions about alleged breach of Section 25-F is concerned, it is SCA/9162/2008 5/7 JUDGMENT necessary to note that no such case, in the first instance, appears to be made out by the petitioner in his statement of claim filed in the Labour Court. There is not a single averment about alleged breach of Section 25-F, 25-G and 25-H and/or any fact, aspect or detail is also not mentioned, which would provide some platform to make such allegation. It was necessary to mention, to establish breach of Section 25-H, that after his termination, any particular person was appointed by the Nagarpalika in the same category and on the same post, in which he was working and to establish breach of Section 25-G it was necessary for petitioner to demonstrate that a particular junior person was retained. Not only there is a conspicuous absence of such allegation or assertions in the statement of claim, no details even during the oral evidence have been mentioned by the petitioner. So far as oral evidence is concerned, it has been placed before the Labour Court in very casual manner inasmuch as a “four lines” affidavit is made, wherein, the petitioner has merely stated that what is stated in the statement of claim is true and on the other hand, as mentioned above, no details are disclosed in the statement of claim and/or any relevant and necessary averments are not made in the SCA/9162/2008 6/7 JUDGMENT statement of claim also. Under the circumstances, the petitioner has not mentioned anything and/or has not made out any case about any breach of Section 25-G and 25-H nor the petitioner has raised any contention in this regard before the Labour Court. Even otherwise, no material is brought on record by way of cogent evidence to substantiate the said allegation and submissions. Hence, the said contention is devoid of merits. So far as the contention about the breach of Section 25F is concerned, there is no error in conclusion recorded by the Labour Court and same is in the consonance with the law laid down by the Hon'ble Supreme Court. The Labour Court has rightly recorded that when the appointment itself is irregular and is not made by following regular procedure of recruitment after inviting names from the Employment Exchange and/or after inviting applications and conducting interview etc. then the protection of Section 25F would not be available. Further on perusal of the award, it does not transpire that the petitioner had made any attempt by leading any evidence to establish that he had completed actual work of 240 days during the tenure of his employment. On perusal of the award, it appears that the Labour Court has proceeded only on SCA/9162/2008 7/7 JUDGMENT baseless assumption that the petitioner must have put in work of 240 days and on such premise, the Labour Court has granted compensation to the tune of Rs.40,000/- to the petitioner. 8. The petitioner has not been able to show anything to this Court also, from the record before the Labour Court, which could compel this Court to justify interference in the award. So far as contention regarding breach of Section 25G is concerned as mentioned herein above, it was not even raised before the Labour Court and even otherwise it is devoid of merits and the breach is not established even prima facie. 9. The petitioner has not been able to establish any ground for interference with the decision of the Labour Court declining to grant the relief of reinstatement and/or back-wages. Hence, this petition is rejected. No order as to costs. (K.M.THAKER, J.) ynvyas