SCA/13376/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13376 of 2004 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 ? ============================================= = GENERAL MANAGER B.S.N.L. NADIAD DIVISION, - Petitioner Versus BABUBHAI BHALABHAI PATEL - Respondent ============================================= = Appearance : MS PJ DAVAWALA for Petitioner MR YV SHAH for Respondent ============================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/11/2008 ORAL JUDGMENT The General Manager – BSNL, Nadiad Division- petitioner has approached this Court under Article 227 of the Constitution of India challenging the award and order dated 18/06/2004 SCA/13376/2004 2/7 JUDGMENT passed by the Industrial Tribunal, Nadiad in Reference (ITC) No.7 of 2002 whereunder the termination of service of the respondent-workman with effect from 28/09/2004 is held to be illegal and the petitioner is directed to reinstate the respondent-workman to his original post with continuity of service and 40 % of back wages only from 03/06/2002 onwards, within one month from the date of publication of this award, in default whereof the Tribunal has granted full back wages from the date of such default. 2. The facts in brief deserves to be set out as under: 2.1 The respondent herein, was constrained to raise the industrial dispute as per se, his services were terminated with effect from 28/09/1994 without following due procedure of law. The said dispute came to be referred to by the competent authority to the competent Court where it got numbered as Reference (ITC) No.7 of 2002. The Industrial Tribunal after recording evidence and analyzing the same came to a conclusion that the termination dated 28/09/1994 was illegal and hence ordered reinstatement of the workman with 40 % of back wages from 03/06/2002 onwards and ordered compliance thereof within one month failing which ordered full back wages from the date of such default. 3. Ms.Davawala, learned Advocate for the petitioner contended that the award and order impugned in this petition, suffers from patent perversity and deserves to be quashed and set aside. The Tribunal has not appreciated the real controversy and has proceeded as if there was a breach of Section 25 (F). The stand of the petitioner before the Tribunal SCA/13376/2004 3/7 JUDGMENT as it could be seen from the written statement filed was that the workman of his own volition abandoned the service and it was not discharged as it is projected. The conduct of the respondent-workman would also go to show that the workman was not interested in continuing and therefore he left the job of his own volition and did not bother to take up any remedy available including raising industrial dispute. The industrial dispute is raised for the first time by the respondent-workman only after a lapse of about seven years. The alleged date of termination being 28/09/1994 and only in the year 2001, a demand notice was issued. The inaction on the part of the respondent-workman for these many years would go to show that workman had not been interested in pursuing his remedy and that would also lend support to the version of the other written statement that he had abandoned the employment. She further submitted that oral testimony of employee of the BSNL who was deposed only on the basis of the record though slightly different than the written statement cannot change the scenario or till the compliance in favour of the workman, inasmuch as, there is no unequivocal admission coming forward from the testimony that this workman was discharged. Actually, looking to the testimony it can be said that the witness was deposing on the strength of the documents and it was more in realm of surmises and conjectures only. She further submitted that in-fact there was a move as one time measure to offer regular employment to the casual worker who was in the scheme as per the direction given by the Apex Court. The workman was also required to file affidavit with regard to his details. In the instance case, it could be seen from the record that no such affidavit had been filed in time that also would go to support that the workman had abandoned the SCA/13376/2004 4/7 JUDGMENT employment, as he was not interested in pursuing the same. A furnishing of affidavit afterwards is of no consequence, as the scheme did not envisage any such relaxation. She further submitted that the workman has not explained the inordinate delay of seven years in raising the industrial dispute. In-fact, this belated raising of industrial dispute itself would not amount to industrial dispute in light of law and therefore the impugned award and order deserves to be quashed and set aside. 4. Shri Shah, learned Advocate for the respondent- workman contended that the admitted position as it is recorded by the industrial Court is that the petitioner did not maintain a seniority list of casual worker. This is an admission coming on record, as could be seen from the testimony of the petitioner's witness, who was Assistant Manager deposing before the Court. The version with regard to the abandoning of job also cannot be said to be sustainable in view of the fact that the witness has deposed contrary to the statement made in the written statement and he has also stated that he was making the statement on the basis of the record available and after seeing the same. He further submitted that assuming for the sake of submitting without conceding that the workman did not complete 240 days continuous service in the preceding year then also in itself militating against the order of reinstatement and, inasmuch as, the mandatory provision of Section 25 (G) and (H) of the I.D. Act had not been complied with as could be seen from the record. He further submitted that the first seniority list is not maintained by the petitioner, as required as per Rule 57 of the Central Rules and while offering employment as One Time Measure no care is taken to SCA/13376/2004 5/7 JUDGMENT offer the same to the present respondent-workman. He further submitted that the witness of BSNL has also stated in his testimony that as the mobile technology was introduced, the work offer to perform to casual labourers was given to contractors and therefore they were not required to engage and therefore casual labourers were relieved. This would require to be considered and the Tribunal has rightly considered the same and ordering reinstatement. He further submitted that it is the duty of the employer to issue a Registered Post A.D. Notice before making any new appointment. He further submitted that the order impugned in this petition cannot be said to be so perverse so as to warrant any interference under Article 227 of the Constitution of India. Hence, the present petition deserves to be quashed and set aside. 5. This Court has heard the learned Advocate for the respective parties at length and has perused the impugned award in this petition. The award as such is required to be viewed from the facts narrated herein above. The undisputed facts remains to be noted that the days of working of the respondent-workman as recorded by the Tribunal in paragraph – 6 clearly indicate that the respondent-workman did not continuously work for 240 days in preceding years of his so- called termination. The Tribunal has proceeded as if 240 days in the preceding years has been completed and the provision of Section 25 (F) of the ID Act was applicable. It also deserves to be noted that there is no explanation whatsoever with regard to raising belated demand for reinstatement, except mentioning that, some assurance was given by someone from the Department that the respondent-workman would be taken SCA/13376/2004 6/7 JUDGMENT on job. In absence of any cogent evidence and / or proper explanation detailing reasons for not raising dispute for long period of seven years in itself would pause serious impediment in way of allowing the reference and ordering reinstatement. The Tribunal ought not to have ignored the fact that the workman did not complete 240 days in the preceding year of his so-called retrenchment. The entire award has proceeded on the basis and reliance upon Section 25 (G) and (H) of the ID Act is absolutely cursory without there being any proper finding in this behalf. In absence of any case put up by the workman in his statement of claim, it was not expected of the employer to meet with the submission with regard to non-compliance with Section 25 (G) and (H) of the ID Act. The workman, of course, has given some names in his oral evidence, that in itself is not sufficient for laying down the basis for complaining and proving the breach of Section 25 (G) and (H) of the ID Act. The Court has hastened to adhere that the Tribunal was also under duty to examine and record its finding with regard to one time measurement adopted by the employer for offering employment to all the casual workers and that in itself would show that there was no breach of Section 25 (G) and (H) of the ID Act. Moreover, the belated raising of industrial dispute especially when the scheme for offering employment to all the temporary workers had been floated right then in the year 1994-95, as could be seen from the pleadings and the workman not applying and / or making himself available would also militate against his claims for reinstatement in the belatedly raised industrial disputes after lapse of about seven years from the date of so-called retrenchment. 6. This Court is of the considered view that though the SCA/13376/2004 7/7 JUDGMENT limitation is not applicable to the dispute, but the delay in itself in this peculiar facts and circumstances cannot be brushed aside by merely saying that the delay has not prejudiced the employer as only 40 % of back wages is awarded from the date of his filing of the reference. In-fact, the one time measurement of offering employment had been undertaken and it was also a duty cast upon the workman to make himself available and to avail the opportunity as and when the offer had been made by and large. The workman not being available and not even raising dispute about that in itself would go to show that the workman had not been interested in pursuing his remedy. 7. The Court is, therefore, of the considered view that the award which is patently proceeded on a footing as if there was a breach of Section 25 (F) and cursory reference to Section 25 (G) and (H) of the Act, would not be sufficient to sustain the same. The same is, therefore, full of perversity calling for its quashing and accordingly the same is quashed and set aside. The petition is allowed. Rule made absolute to the aforesaid extent only. However, there shall be no order as to costs. (S.R.BRAHMBHATT, J.) sompura