IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7794 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus HASMUKHBHAI GOVINDBHAI PATEL -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 7794 of 2002 MR HD DAVE ASSTT GOVERNMENT PLEADER for Petitioner No. 1-1/2 MR HN BRAHMBHATT for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 01/05/2003 ORAL JUDGEMENT 1. Heard learned AGP Mr.H.D.Dave appearing on behalf of the petitioner - State and learned advocate Mr.H.N.Brambhatt appearing for respondent workman. 2. In the present petition, the petitioner - State of Gujarat has challenged the award passed by the Labour Court, Surat in Reference No.112 / 1991 dated 3rd August, 2000, wherein the labour court has granted only fresh appointment to the respondent workman without backwages of the interim period and also not granted continuity of service in favour of the respondent workman. 3. In the present petition, RULE, issued by this Court and notice as to interim relief returnable on 16th September, 2002 by order dated 19th August, 2002. Learned AGP Mr.H.D.Dave has submitted that the respondent workman was appointed as daily wager and he was involved in the theft case as per the information received by the petitioner from the police authority. Learned AGP Mr.H.D.Dave also submitted that service has not been terminated by the petitioner and the workman left the job at his own. It is also contended that the workman was doing the work of diamond cutting and receiving Rs.17.50 ps per day. Therefore, inspite of the call given by petitioner to the respondent workman, he had not joined the services and thereafter, the petitioner has informed the respondent workman to come with certificate from the police station but the workman has not turned up and that is how it is not case of termination and therefore, the labour court has committed gross error. He also submitted that once the labour court has come to the conclusion that the workman has left the job at his own and therefore, there is no need for the labour court to direct the petitioner to reinstate the respondent workman and therefore, this being contradictory finding, the labour court has committed gross error in passing such award. Learned AGP Mr.Dave has also pointed out that theft case resulted into criminal prosecution has been lodged against the respondent workman at Mahuva but he is not aware of the result of that criminal prosecution. 4. Learned advocate Mr.H.N.Brambhatt for the respondent workman has submitted that because the respondent workman was involved in the theft case, he was arrested by the police authority and that is how, he was not able to report for duties with the petitioner, so it was not voluntary act for not reporting for the duty or it was not a deliberate intention on the part of the respondent workman for not reporting on duty as there was compelling circumstances which did not permit the workman to report for duty with the petitioner. Learned advocate Mr.Brambhatt has submitted that the respondent workman came to be appointed with effect from 1st December, 1989 and remained in service upto 5th January, 1991 and his services was terminated by Dr.Naranbhai without any justification and therefore, the labour court is right in granting fresh appointment to the respondent workman and as such, no error has been committed by the labour court which in no way requires any interference by this Court. 5. I have considered submissions of the learned advocates for the parties. The petitioner has filed written statement at Exh.4 and 15. The documentary evidence produced on record by the petitioner vide Exh.11 & 17. The workman filed statement of claim vide Exh.7 and he was examined at Exh.18 and it was cross examined by the petitioner. Thereafter, on behalf of the petitioner, Dr.Naranbhai was examined vide Exh.24 and thereafter, the labour court has framed the issue and passed the award while coming to the conclusion that it is proved from the record that the workman has left the job on account of criminal prosecution but while deciding the Issue No.3, the labour court has come to the conclusion that if the workman had not reported for duty and even otherwise, he has left the job at his own also, then also, it is the duty of the employer to pass appropriate orders either to delete the name of the workman from the waiting list or from the muster roll by conducting departmental inquiry against the workman while terminating the service by observing principles of natural justice. When this exercise has not been done by the employer and since it is not the case of the petitioner that departmental inquiry was conducted and opportunity was given tot he respondent workman. Therefore, considering the entire facts and circumstances of the case, so also, the oral as well as documentary evidence and considering the fact that police complaint is lodged against the respondent workman at Mahuwa police station under Section 401 and 114 of the IPC and in connection with the said offence, the workman concerned was arrested by the police authority and lastly considering the aspect that the labour court has considered gainful employment keeping in mind admission of the respondent workman at Exh.10 wherein he admitted in his evidence that he used to do agricultural work as well as earning Rs.15/- per day and resultantly, the labour court has not granted any amount of backwages and even not granted continuity of service to the workman but the labour court has only granted fresh appointment without continuity of service without backwage, in my opinion, the labour court has passed very reasonable, just and proper award without committing any error. Therefore, when the labour court has not committed any error while passing the award impugned in this petition and as such no procedural irregularity is found apparently on the face of the record, there requires no interference by this Court while exercising the powers under Article 226 and 227 of the Constitution. 6. Therefore, there is no substance in this petition and the same deserves to be dismissed. In view of above discussion, present petition is rejected accordingly. Rule discharged. No order as to costs. Direct Service permitted to respondent. Date : 1-5-2003 [ H.K.Rathod, J.] #kailash#