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2002 DIGILAW 70 (GUJ)

STATE OF GUJARAT v. RAMESHBHAI JIVRAJBHAI RATHOD

2002-01-29

RAVI R.TRIPATHI

body2002
RAVI R. TRIPATHI, J. ( 1 ) DATE of decision: 29/01/2002 rule. Mr. B. A. Vaishnav, learned Advocate, appears and waives service of Rule on behalf of respondent-workman. With the consent of the learned Advocates appearing for both the sides, the petition is taken up for final disposal. ( 2 ) THE present petition is filed challenging the judgement and award dated 28/03/2001 passed by the Labour Court, Bhavnagar, in Reference (LCB) No. 319 of 1991, whereby the Reference of the respondent-workman was partly allowed and the respondent-workman was ordered reinstatement on his original post of driver with continuity of service and 50% back wages. ( 3 ) THE main contention raised by Mr. Siraj Ghori, learned AGP for the petitioners, is that as the respondent-workman was only rojamdar, the Labour Court could not have ordered reinstatement in view of the judgement of the Apex Court in the matter between State of Himachal Pradesh vs. Suresh Kumar Verma and Anr. , reported in AIR 1996 SC 1565 and as the petitioner is not an `industry being a Government Department, law of retrenchment is not applicable to the rojamdar, as held by the Apex Court in the matter of Himanshu Kumar Vidhyarthi Vs. State of Bihar, reported at AIR 1997 SC 3657 . ( 4 ) MR. Sriraj Ghori, learned AGP, also relied upon a judgement of the Apex Court in the matter between State of Gujarat vs. Pritamsingh Narsingh Parmar, reported in JT 2001 (3) SC 326, wherein, the Apex Court has held that the Forest Department of State of Gujarat is not an `industry. ( 5 ) MR. B. A. Vaishnav, learned Advocate appearing for the respondent-workman, submitted that the contentions raised by the learned AGP are misconceived inasmuch as the Labour Court, Bhavnagar, has recorded finding to the effect that there was breach of provisions of sections 25g and 25h and that the question of the workman having put in 240 days service, is not required to be applied as a condition precedent. Mr. Vaishnav also submitted that the aforesaid contentions raised by the learned AGP were never raised before the Labour Court and, therefore, the Labour Court was not having an opportunity to give its findings on the said contentions. ( 6 ) MR. Mr. Vaishnav also submitted that the aforesaid contentions raised by the learned AGP were never raised before the Labour Court and, therefore, the Labour Court was not having an opportunity to give its findings on the said contentions. ( 6 ) MR. B. A. Vaishnav, learned Advocate appearing for the respondent-workman, relied upon a judgement of the Division Bench of this Court in the matter between Bharat Industries Vs. Kamuben and Ors. , reported in 1995 (1) GLH (UJ) 6, wherein, this Court was considering the question of applicability of section 25g. In this case, the Court has held that continuous service for not less than one year, workman need not prove that he was in continuous service for one year for claiming relief on the ground of breach of section 25g. The relevant extracts of the said judgement are as under :"the Presiding Officer of the Labour Court has taken the view that so far as the applicability of Section 25g of the Industrial Disputes Act, 1947 is concerned, the workman who seeks relief for the breach of the said section, has not to prove that he has been in continuous service for not less than one year. We endorse the view expressed by the presiding officer. Section 25-G is an independent provision which prescribes the procedure for retrenchment under certain circumstances. It incorporates the principle, "last come-first go". In the context of the provisions of the said section, the concept of continuous service for not less than one year, which finds place in Section 25g and 25-F, has no relevances; under the circumstances, the writ petition is summarily rejected. " ( 7 ) MR. B. A. Vaishnav, learned Advocate for the respondent-workman, also relied upon a judgement of this Court in the matter between Rajkot Municipal Corporation vs. Kishor Govind, reported in 1996 (1) GLH 84 , wherein the Court was considering the provisions of sections 25a, 25b, 25f, 25g and 25h. In this case, the Court held that while considering the claim for benefits of sections 25g and 25h, continuous service for one year or more is not necessary. In this case, the Court held that while considering the claim for benefits of sections 25g and 25h, continuous service for one year or more is not necessary. The Court was pleased to held that, "on plain reading of the language of the section, condition of completing continuous service for one year or more is not required to be read into sections 25g and H and", therefore, reinstatement with back wages was ordered, which was not interfered with by this Court. ( 8 ) MR. B. A. Vaishnav, learned Advocate appearing for the respondent-workman, also relied upon a judgement of this Court in the matter between Deputy Executive Engineer, Magdalla Port Development Scheme, Surat, vs. Sukhabhai Gandabhai and ors. , reported in 2001 662, wherein, the Court has held that the daily rated workman is covered by the definition of workman and, therefore, provisions of section 25f are applicable to the daily rated workman. ( 9 ) MR. Siraj Ghori, learned AGP, submitted that assuming for the sake of argument that the department in question is an industry and that law of retrenchment is also applicable to the said department, the order granting reinstatement to a daily wager, is unwarranted and the same is required to be quashed and set aside by this Court. ( 10 ) MR. Siraj Ghori, learned AGP, is not able to assail the judgement and award of the Labour Court so far as it deals with the violation of provisions of sections 25g and 25h. He is also not able to show, whether the department has produced before the Labour Court any seniority list so as to contend that there was any breach of section 25g or that there was any breach of section 25h on his submission that other persons were recruited after the respondent-workman was terminated from service. ( 11 ) IN light of the aforesaid discussion, this Court does not find any substance in the present petition. The petition is, therefore, dismissed. Rule is discharged. No order as to Costs. .