LPA/97820/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 978 of 2008 In SPECIAL CIVIL APPLICATION No. 24948 of 2006 With LETTERS PATENT APPEAL No. 979 of 2008 In SPECIAL CIVIL APPLICATION No. 24949 of 2006 With LETTERS PATENT APPEAL No. 980 of 2008 In SPECIAL CIVIL APPLICATION No. 24947 of 2006 With CIVIL APPLICATION No. 11009 of 2008 To CIVIL APPLICATION No. 11011 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD Sd/- HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ============================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ?NO 5 Whether it is to be circulated to the civil judge ?May be circulated to all the Labour Courts and Industrial Tribunals in the State of Gujarat. ============================================= = STATE OF GUJARAT & 2 - Appellant(s) Versus AMARSINH RANCHHODBHAI PARMAR - Respondent(s) ============================================= = Appearance : MR KP RAWAL ASSTT OVERNMENT PLEADER with MR SUNIT S SHAH GOVERNMENT PLEADER for Appellant(s) : 1 - 3. None for Respondent(s) : 1, ============================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD LPA/97820/2008 2/8 JUDGMENT and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 25/09/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. The appellant State has called into question common oral order of learned single Judge which is based on failure of the appellants themselves in defending their cases before the Labour Court. It is a typical and in no way unique pinnacle of a senseless spiral of litigation where public money is wasted at the cost of public time of the Court by multiplying litigations without any legal point and making a grievance out of utter neglect or collusion at the stage of trial. 2. Simple facts of the cases are that, five workmen approached the Labour Court in 1990 with the dispute and demand for reinstatement with back wages on the basis that their services were illegally terminated in the year 1988/1989 by forest officer concerned after nearly four years of continuous service. The appellant herein took up the defence that the workmen concerned had not completed 240 days of continuous service in any year and that they had left the service on their own; but did not lead any evidence whatsoever. Three workmen, respondents herein, were examined and cross-examined in evidence and had also applied for and obtained an order for production of documents by the appellant. The appellant did not comply with the order to produce the documentary evidence and, in absence of any evidence in defence, the Labour Court found that continuous service was proved and mandatory provisions of section 25-F LPA/97820/2008 3/8 JUDGMENT of the Industrial Disputes Act, 1947 were not complied in terminating the services and ordered reinstatement with 15% back wages on account of prolonged pendency of the references before it. Even as that common award was made on 10.03.2006, after pendency for 16 years, the appellant herein preferred writ petitions under Articles 226 and 227 of the Constitution which came to be summarily dismissed by the impugned order dated 02.12.2006. Almost two years thereafter and after condonation of delay of 185 days in filing appeals, the present appeals with applications for staying the impugned order (!!) have come up for admission hearing without any substantial ground and apparently for finishing the formality of carrying litigation upto the highest level in the State. 3. It is against the above dismal backdrop of facts that this Court was called upon to admit the appeals on one or the other flimsy ground, awaiting some new developments in law so that litigation survives practically beyond the working life of the respondents who entered the service of the appellants nearly 25 years ago. It was argued and then placed on record in the form of elaborate written submissions that the Labour Court ought not to have granted the relief of reinstatement with back wages only because it was lawful to do so and it ought to have taken into consideration several other factors, for which no factual foundation was ever laid. Judgment of the Apex Court in Haryana Urban Development Authority v. Om Pal [(2007) 5 SCC 742] was relied upon in support of the above submissions and following observations, as quoted in Chief Engineer, Ranjit Sagar Dam v. Sham Lal [AIR 2006 SC 2682], were emphasized: LPA/97820/2008 4/8 JUDGMENT "9. In R.M. Yellatti v. The Asst. Executive Engineer (2006 (1) SCC 106), the decisions referred to above were noted and it was held as follows: "Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case." 4. In view of preponderance of evidence in respect of continuous service and the mandatory provisions of section 25- F of the Industrial Disputes Act, 1947 and the impugned award being far from perverse or illegal, there was no scope for LPA/97820/2008 5/8 JUDGMENT interference under Article 226 of the Constitution and the impugned award was practically an invited or anticipated order from which further appeals were bound to be fruitless. That leads to the inference that such litigations carried further by the State with a huge cost to itself, to the respondent workmen and at the cost of precious public time of the Court has to be the result of either utter non-application of mind or some ingenuous application of a motivated mind. On the one hand, officers of the appellant department and assistant government pleader or representative of the appellant appear to have been helpless in properly putting and proving the essential facts before the Labour Court during the whole of 16 years of pendency of the reference cases and, on the other hand, the appellant appears to have the necessity to carry on the litigation without any obvious benefit to itself. Since this phenomena is becoming increasingly common and Courts are saddled with the burden of disposing such frivolous litigations, not in hundreds but thousands, it is deemed proper to issue directions as follows. 5. The above discussion and the following directions shall have to be viewed in the context of the pathetic situation prevailing in the labour judiciary wherein mandatory provisions of sections 10(2A) and 15 of the Industrial Disputes Act, 1947 for expeditious disposal of cases are flouted to the detriment of the parties on both sides and justice; and original purpose of adjudication is not served. Even as a number of departments of the Government employ, deploy and terminate services of a large number of casual, daily-rated or temporary labourers and workmen, after or without following due process of law, the welfare State which is supposed to be a model employer LPA/97820/2008 6/8 JUDGMENT appears as a litigant in not hundreds but thousands of cases every year. Compounded by utter neglect of the judicial proceedings epitomised in these cases, the activity of illegally or even legally employing and discharging large number of employees cause large number of litigations causing backlog, arrears and mounting costs for the parties. It would make an interesting study if someone surveys the amounts spent by the Government in last five years only on back wages and legal expenses for which the judicial system may as well be partly blamed. The plight of workmen waiting for justice for decades could only be imagined, if some relief were due to them. In a progressive State and country stepping into high-tech 21st century, it may appear anachronistic and archaic, but the reality is there, crying for urgent attention and immediate reforms at all levels. Her excellency Mrs.Pratibha Devisingh Patil, the President of India, addressing All India Seminar on "Judicial Reforms" on 23/24 February, 2008 said: "......We should also address the question as to how our Courts are crowded and to what extent this situation could be remedied. There could be so many administrative reforms that can prevent the number of litigations coming to courts. In a large number of cases pending in courts, especially in higher courts, Government is one of the parties, either as defendant or as appellant. These litigations are on account of lack of proper governmental administration. If the decision making authorities take firm, independent and impartial decisions, the citizens would not normally be driven to litigations. Lack of proper and good governance largely contributes to the number of cases in subordinate courts...." LPA/97820/2008 7/8 JUDGMENT 6. Therefore, the appeals are summarily dismissed as frivolous and wholly devoid of any substance, with costs of Rs.5,000/- in each appeal, with the following directions: (a) A copy of this judgment shall be served upon the Chief Secretary of the appellant State of Gujarat who shall order an enquiry by a high ranking officer of the forest department to enquire into the obvious lapses in leading proper evidence before the Labour Court in the cases of the respondent and recover the amount of costs from such of the officer/officers and/or pleaders of the State who may be found to have failed in their duty in representing the appellant properly before the Labour Court and in pressing for early disposal of the reference cases; (b) The amount of costs, as may be recovered after the enquiry as aforesaid, shall be paid to the Legal Services Authority at Ahmedabad; and (c) A copy of this judgment shall be placed before the Hon'ble the Chief Justice for considering issuance of general directions to all the Labour Courts and Industrial Tribunals to hold special disposal drives to dispose within six months all the cases pending since more than six years; and to implement the provisions of section 10 (2A) of the Industrial Disputes Act, 1947. The Chief Secretary, State of Gujarat is requested to issue appropriate directions for proper examination of the LPA/97820/2008 8/8 JUDGMENT awards and orders of the Court before carrying on the litigation. It is expected that the officers and authorities concerned of the State Government will look into the problem of unhealthy proliferation of litigation by the State. Civil applications for stay are meaningless and do not survive in view of the above order and accordingly stand disposed. Sd/- ( Bhagwati Prasad,J.) Sd/- ( D.H.Waghela, J.) (KMG Thilake)