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2006 DIGILAW 578 (GUJ)

DHORAJI MUNICIPALITY v. HAKIM NAZIR MAULA SHAIKH

2006-09-05

RAVI R.TRIPATHI

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( 1 ) HEARD the learned Advocate, Mr. Premal Joshi, appearing on behalf of petitioner and learned Advocate, Mr. K. M. Paul, appearing on behalf of respondent on caveat. ( 2 ) IN the present petition, the petitioner has challenged the award passed by Labour Court, Rajkot in Reference No. 178 of 1994 dated 14. 7. 2006, whereby, the Labour Court, Rajkot has partly allowed the reference while setting aside termination order, granting reinstatement with continuity of service with 25% back wages of interim period. ( 3 ) LEARNED Advocate, Mr. Joshi, submitted that number of petitions are pending for claiming retirement dues by concerned employees against the petitioner. He also submitted that details have been narrated in Para. 9 of petition which disclose the liability of Municipality. Therefore, not to grant 25% back wages to the concerned workman and stay the back wages partly and direct the petitioner to reinstate the workman. Except that no other submission is made and no other decision is relied by Mr. Joshi. ( 4 ) I have considered the submissions made by learned Advocate,mr. Joshi and have also perused the award passed by labour Court, Rajkot. The dispute referred for adjudication on 6. 4. 1994. The statement of claim was filed by respondent workman vide Exh. 3. According to workman, he was working for more than 3 years in the post of Pagi receiving the daily wage of Rs. 33. 50 paise. His service was terminated on 27. 12. 1994. At the time of termination, provision of Section 25f of the I. D. Act,1947 has not been followed by petitioner. Junior employees were continued in service and new employees were recruited by petitioner. In spite of the sincere efforts made by respondent workman, he is not able to get any employment / gainful employment. The petitioner has filed written statement vide Exh. 9. According to petitioner, workman was working as Hangami daily wager and was paid minimum wage under the Act and he is not entitled reinstatement. He was not remained in continuous service with petitioner. Therefore, reference should have to be rejected. It is also made clear by the petitioner that as and when work is available, the respondent workman will be called by the petitioner. Before the Labour Court, workman was examined vide Exh. 14 and thereafter, vide Exh. 36, one witness Harishbhai Shah was examined by petitioner. Therefore, reference should have to be rejected. It is also made clear by the petitioner that as and when work is available, the respondent workman will be called by the petitioner. Before the Labour Court, workman was examined vide Exh. 14 and thereafter, vide Exh. 36, one witness Harishbhai Shah was examined by petitioner. No documentary evidence has been produced by petitioner in spite of the order passed by Labour Court on 10. 3. 1998 upon an application of respondent workman vide Exh. 10. Thereafter, Labour Court has framed the issue and decided the merits of the matter. The Labour Court has considered the submissions made by both the learned Advocates and also considered the documentary evidence as well as oral evidence led before the Labour Court. The finding given by Labour Court in Para. 12 and come to the conclusion that workman had completed continuous service of 360 days in a year. The documents in respect to muster roll of 1991/1992/1993 were in possession but, not produced by the petitioner in spite of the fact that Labour Court has directed to petitioner to produce the documents. The work which was performed by respondent workman was continued with the petitioner. The salary was paid to the workman after obtaining the signature in pay register but, pay register was also not produced on record in response to the order passed by Labour Court vide Exh. 10 application. Therefore, on the basis of these facts, after appreciating the oral as well as documentary evidence, the Labour Court has come to conclusion that workman had completed continuous service of 240 days in a year. ( 5 ) THE Labour Court has, in Para. 13, considered the defence which has been taken by petitioner. According to petitioner, the workman was appointed for the specific work and case of workman covered by Section 2 (oo) (bb) of the I. D. Act,1947. According to petitioner, as and when work was available, workman was appointed and after completion of the work, his service was terminated and, therefore, it does not amount to retrenchment within the meaning of Section 2 (oo) (bb) of the I. D. Act,1947. The case of the workman is covered by exception. According to petitioner, as and when work was available, workman was appointed and after completion of the work, his service was terminated and, therefore, it does not amount to retrenchment within the meaning of Section 2 (oo) (bb) of the I. D. Act,1947. The case of the workman is covered by exception. The Labour Court has considered this defence which has been taken by petitioner and come to conclusion that no appointment order was issued in favour of workman for specific work for specific period by the petitioner. No such documents produced on record by petitioner. No oral evidence led to that effect proving the said defence of petitioner. Therefore, in absence of such documents and oral evidence by the petitioner, the Labour Court has come to conclusion that defence of petitioner cannot be accepted. Exh. 13/1 to 13/3 are correspondence wherein name of the workman was not there. Therefore, Labour Court has not believed the said documents which were produced by petitioner. Said documents are dated 2. 4. 1993, 30. 4. 1993 and 31. 5. 1993. But service of the workman was terminated on 29. 12. 1993. Therefore, the Labour Court has come to conclusion that case of the workman is not covered by Section 2 (oo) (bb) of the I. D. Act,1947 {see : S. M. Nilajkar and others Vs. Telecom District Manager, Karnataka, 2003 (4) SCC 27 ). The Labour Court has considered that pay register was with the petitioner and muster roll was also with the petitioner but, none of the documents were produced by petitioner in spite of the order passed by labour Court. Thereafter, the Labour court has examined the matter considering various decisions in respect to the subject matter cited by petitioner and respondent. Ultimately, the Labour Court has come to conclusion that case of respondent is not covered by Section 2 (oo) (bb) of the I. D. Act,1947 and it amounts to retrenchment. Section 25f of the I. D. Act,1947 has been violated by petitioner and, therefore, termination order is required to be set aside. Ultimately, the Labour Court has come to conclusion that case of respondent is not covered by Section 2 (oo) (bb) of the I. D. Act,1947 and it amounts to retrenchment. Section 25f of the I. D. Act,1947 has been violated by petitioner and, therefore, termination order is required to be set aside. Thereafter, the Labour Court has considered the question of back wages in light of the various factors including miscellaneous work was done by the wife of the workman and length of service, nature of job and considering the fact that no evidence was led by petitioner before the Labour court for proving the gainful employment of the workman. At this stage, it is necessary to note that submissions which have been made by petitioner before this Court as narrated in Para. 9 of the present petition, such submissions were not made by petitioner before the Labour Court about financial condition of the petitioner and, therefore, the Labour Court has granted 25% back wages of interim period. ( 6 ) I have considered the reasoning given by the Labour Court while examining the dispute in question. The Labour Court has given cogent reasons in support of its conclusion. The finding of fact given by Labour Court is on the basis of appreciation of evidence, therefore, this Court cannot disturb the finding of fact unless it is perverse. Therefore, this Court cannot disturb such finding while exercising the power under Article 227 of the Constitution of India. Therefore, according to my opinion, the Labour Court has rightly dealt with the dispute and adjudicated according to law. For that, Labour Court has not committed any error which requires any interference by this Court while exercising the powers under Article 227 of the Constitution of India. (See : Indian Overseas Bank Vs. I. O. B. Staff Canteen Workers Union and another, reported in AIR 2000 SC 1508 , Para. 19 ). ( 7 ) HENCE, there is no substance in the present petition. Accordingly, present petition is dismissed.