LPA/1993/2004 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1993 of 2004 In SPECIAL CIVIL APPLICATION No. 3880 of 2001 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT & 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 civil judge ? ========================================================= GUJARAT MARITIME BOARD & 1 - Appellant(s) Versus MANISH DILSUKHLAL DAVE & 1 - Respondent(s) ========================================================= Appearance : MS SEJAL K MANDAVIA for Appellants MR RA MISHRA for Respondent ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M. DOSHIT and HONOURABLE MR.JUSTICE K.M. THAKER 28th February, 2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.M. THAKER) Heard the learned counsel for the parties. LPA/1993/2004 2/12 JUDGMENT This Appeal under Clause 15 of the Letters Patent is preferred against the judgment and order dated 26th August, 2004 passed by the learned Single Judge in Special Civil Application No. 3880 of 2001. The above referred Special Civil Application was preferred by the present appellant – Gujarat Maritime Board [hereinafter referred to as, “the Board”] against the Award dated 30th September, 2000 passed by the Labour Court, Amreli in Reference Case [LCA] Old No. 29/95, which was subsequently re- numbered as Reference [LCA] No. 420 of 1998. By virtue of the said Award, the Labour Court directed the present appellant to reinstate the respondent with continuity of service and full backwages. The learned Single Judge, by the impugned judgment, modified the above award by partly allowing the petition. The learned Single Judge, by the impugned judgment, has directed that the appellant-Board shall reinstate the respondent on the post of work charge Clerk and pay salary from 1st October, 2001 till reinstatement. Feeling aggrieved by the said direction, the appellant has preferred the present Appeal. LPA/1993/2004 3/12 JUDGMENT Miss Mandavia, for the appellant Board, submitted that it was the respondent who, on his own volition, stopped reporting for duty from 24th February, 1993. She also submitted that the respondent was engaged intermittently initially from 19th January, 1987 to 31st July, 1987, and thereafter for three days i.e., from 4th August, 1992 to 6th August, 1992 and subsequently, during the period between 11th December, 1992 until the date from which the respondent stopped reporting for work and during the said entire tenure the respondent had not put in actual service for 240 days. She strenuously urged that the appellant-Board had not engaged any one else subsequently to do the same work. In her submission, the appellant-Board did not violate provisions under Sections 25-F, 25-G or 25-H of the Act. She submitted that in the facts of the case, the Award of the Labour Court and the impugned judgment are untenable and deserve to be set-aside. On the other hand, Mr. Mishra, for the respondent, submitted that the service of the respondent was unceremoniously terminated and the other persons were engaged subsequently without first LPA/1993/2004 4/12 JUDGMENT inviting the respondent, which resulted into violation of Section 25-H of the Act, and that therefore, the award as well as the impugned judgment are justified and do not deserve to be disturbed. Before the Labour Court, the present respondent had approached with a prayer for reinstatement with all consequential benefits on the ground that his service was illegally terminated with effect from 22nd February, 1993, aggrieved by which he had raised an industrial dispute which was referred for adjudication by way of the aforesaid Reference. The reference was contested by the present appellant by filing reply stating, inter alia, that the respondent was, during the period from 19th January, 1987 till 24th February, 1993 engaged intermittently and for varying span on daily wage basis in different categories and during the entire tenure, he had not put in actual service for 240 days. Before the Labour Court, oral evidence of the respondent was recorded and on behalf of the appellant, one Mr. Rameshbhai Chhaganbhai Patel, the Port Officer, was examined as its witness. The Labour Court has recorded in the award that even if it is to be believed that the LPA/1993/2004 5/12 JUDGMENT workman i.e., the respondent herein had not put in actual service of 240 days, then also, if the employer engaged another person for doing the same work which was being performed by the concerned workman, then the workman would be entitled for relief of reinstatement in view of the provision contained in Section 25-H of the Industrial Disputes Act, 1947 [hereinafter referred to as, “the Act”]. The Labour Court also recorded that there was breach of Sections 25-G & 25-H of the Act. On the basis of such findings, the Labour Court directed the appellant-Board to reinstate the respondent in service with full backwages and continuity of service. Being aggrieved by the said Award, the present appellant preferred the above writ petition. In the judgment impugned herein, the learned Single Judge has observed that the respondent was engaged on the post of Work Charge Clerk, therefore, his employment would be covered within the purview of Section 2 [oo] [bb] of the Act and consequently provisions of Section 25-F of the Act would not be attracted. The learned Single Judge, however, in view of the finding LPA/1993/2004 6/12 JUDGMENT recorded by the Labour Court that the respondent was not called for work though other persons were subsequently appointed and resultantly requirement of Sec. 25-H of the Act was not fulfilled, confirmed the Labour Court's order directing reinstatement. The learned Single Judge also came to the conclusion that the impugned award deserved to be modified as regards the direction for payment of backwages. Therefore, the said direction has been set-aside by the impugned judgment. The appellant Board, upon being aggrieved by the judgment, has preferred the present Appeal. It is noticed from the award that even before the Labour Court, neither it was the case of the respondent, nor did he prove, that he had put in actual service for 240 days. Further, it is required to be noted that the appellant, before the Labour Court, presented the defence that it was the respondent who had, on account of his father's transfer, left the place of work and stopped reporting for work from 24th February, 1993. The respondent had approached the Court with a prayer for reinstatement with all benefits on the ground that the persons junior to him were continued LPA/1993/2004 7/12 JUDGMENT in employment though his service was terminated and certain persons were subsequently engaged. In other words, he based his claim on the ground of violation of Section 25-G and 25-H of the Act. This was obviously denied by the appellant-Board. It transpires that the appellant-Board had placed on record the details regarding the persons who were described by the respondent, in his evidence, as his juniors who were continued in employment or were subsequently engaged. In light of the said details, it is submitted by the appellant that the said persons were in fact, either senior to him or were working in different categories. It is pertinent that by an application the respondent had asked for production of certain documents and order was also passed by the Labour Court pursuant to which the said documents and details appear to have been produced which gives out the details regarding the date of joining and the nature of work performed by the persons named by the respondent as his juniors. It comes out from the said details that one Mr. Borisagar, whose reference was made by the respondent, had been engaged by the appellant-Board LPA/1993/2004 8/12 JUDGMENT from 1st April, 1988 as Watchman. It is pertinent to note that the respondent did work as a watchman but that was during the period from 19th January, 1987 to 31st July, 1987, and thereafter, he was never engaged as watchman. The respondent had not questioned or challenged the said cessation of work as watchman and instead, he had taken up the employment as Works Clerk from 4th August, 1992. Thus, the engagement of the said Mr. Borisagar from 1st April, 1988 would have no relevance or bearing in the matter and cannot be of any assistance to the respondent in advancing his case where the matter in dispute is alleged termination in February, 1993. Mr. M.D Koladia, whose name also came to be mentioned by the respondent, was engaged by the appellant-Board from 29th April, 1991. Thus, he cannot be termed as junior to the respondent since the respondent was engaged, for the first time, as Works Clerk from 4th August, 1992. The other person named by the respondent was one Mr. Sachin Pathak, who was engaged by the appellant Board from 9th November, 1993 in the category of Typist, and consequently, his case cannot be said to be comparable with the respondent. The respondent also LPA/1993/2004 9/12 JUDGMENT mentioned names of two other persons, namely, Mr. M.D Vadhvana and Mr. Atul D. Chavdhanghar. The former was engaged as daily wage Clerk from 1st February, 1983 and the later from 3rd February, 1992 as work charge clerk. Thus, the case of said two persons also, like other persons named by the respondent, does not help the respondent. The said evidence has not been controverted or disproved by the respondent. The Labour Court, even after making reference of said evidence in the Award, has failed to address the said aspects and record finding as to how any one of the aforesaid persons can be said to be junior to the respondent or can be said to have been engaged subsequently, for the same work, without first inviting the respondent. While passing the award and arriving at the conclusion that there was breach of Sections 25-G & 25-H of the Act, the Labour Court has lost sight of the said material evidence which, apparently, is not disproved in any manner. In that view of the matter, the finding of the Labour Court that there was breach of Sections 25-G & 25-H is unsustainable. Since the award is based on such finding, the same is consequentially unsustainable. LPA/1993/2004 10/12 JUDGMENT It is, however, relevant to note that during the proceedings before the Labour Court as well as in the above writ petition, the case of the appellant Board was that it had not relieved the respondent from service and it was the respondent who had stopped coming to work of his own. It was also not the case of the appellant Board before the Labour Court that the work which was being performed by the respondent is not available. Even before us, the appellant-Board has not raised the plea that for want of work, reinstatement is not feasible. In that view of the matter, when the learned Single Judge has confirmed the Labour Court's order directing reinstatement, it would not be open or justiciable for the appellant Board to now say that the respondent cannot be employed. We have been informed that subsequent to the impugned judgment and during the pendency of the present Appeal, the respondent has been reinstated in service at Jafrabad i.e., at his original place of work. In the circumstances, we are not inclined to disturb the direction requiring the appellant-Board to reinstate the respondent. While objecting to the said direction, the appellant- LPA/1993/2004 11/12 JUDGMENT Board overlooks that before approaching the Labour Court, the respondent had requested the appellant Board to allow him to discharge his duties, however, the appellant-Board did not respond to the said request. The respondent, in his deposition before the Labour Court, appears to have showed readiness to go for work and forgo the claim for backwages. Even at that juncture, the appellant did not respond. Thus, we are of the view that in absence of any specific and established case for want of work, the said direction is not required to be interfered with at this stage, more so when the respondent is already reinstated. However, so far as the directions for continuity of service and payment of salary from the date of the judgment is concerned, the same are not justified in view of the fact that the award is found to be unsustainable. Thus, so far as directions for continuity and payment of salary is concerned, the same are not sustained and are set-aside. In view of the aforesaid discussion, the Appeal is partly allowed. The direction for reinstatement of the respondent-workman is not disturbed. However, the directions regarding continuity and payment of salary LPA/1993/2004 12/12 JUDGMENT are set-aside. The appointment of the respondent, made pursuant to the award of the Labour Court, will be treated as fresh appointment. The parties shall bear their own cost. {K.M Thaker, J.} {Ms. R.M Doshit, J.} Prakash*