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2013 DIGILAW 669 (GUJ)

Range Forest Officer v. Bhurabhai Rambhai Jalu

2013-11-20

N.V.ANJARIA

body2013
ORDER : 1. Heard learned Assistant Government Pleader Ms. Jyoti Bhatt for the petitioner. The present petition is against the judgment and award of the Labour Court whereby the Labour Court has directed reinstatement of the respondent-workman on his original post without any back wages. The workman was employed as labourer to do work of digging of soil, watering to the plants and such other related work, posted at Upleta under the office of the Forest Department. He was engaged in service since 16th October, 1996 and his services came to be dispensed with in 2001. 2. According to the case of the workman, he was not permitted to be on duty at Vadali on 01st January, 2002 and his services came to be illegally terminated. It was his case that he had put in continuous service and termination of his service therefore violated the provisions of the Industrial Disputes Act, 1947. According to the petitioner, the workman was transferred to a different place called Vadali on 21st December, 2001 where he did not present himself. However, thereafter no notice was issued to the workman calling upon him to resume duty. The respondent was employed on daily wage basis. Before the Labour Court he deposed at Exhibit 17 to give his evidence ascertaining his case. 3. The Labour Court recorded that workman was taken on service with effect from 16th October, 1996 and the petitioner-employer had not disputed the factum of workman's service having been taken since that date upto 2001. According to the workman he works since 1996 to 2001. This oral evidence led by the workman regarding he having worked for the said period was not refuted by the employer by leading any evidence in that regard. The employer did not produce any details about the muster roll, salary statement or any other details to show that the workman had not worked for the period. In the circumstances, the Labour Court passed the award. It held that the employer had failed to prove that the workman had abandoned service and further failed to lead any evidence to dislodge the case of the employer. 4. Ordinarily burden to prove continuous service of 240 days was rendered, lies on the workman, however, here the workman was Badli worker. The entire details about his service record was under the control of the employer. 4. Ordinarily burden to prove continuous service of 240 days was rendered, lies on the workman, however, here the workman was Badli worker. The entire details about his service record was under the control of the employer. The workman could not be expected to produce the record when he did not have any. In the facts of the case, the Labour Court could not be faulted in drawing adverse inference against the employer when employer had not led any evidence to show that workman had not put in continuous service of 240 days. From the oral evidence of the parties, it was, prima facie, established that the respondent-workman worked from 1996 till December, 2001 in the Forest Department. In the facts of the case, respondent-workman discharged initial burden. 4.1. In State of Gujarat vs. Karsanbhai Jesang, (2006) 1 GLR 695 , this Court held that there was initial burden regarding continuous service is established by oral evidence by workman, burden shifts on the employer. The employer had not given any document to workman regarding his service. The Court held that best evidence such as muster roll, wage slip to refute the case of workman was in the custody of the employer and yet it was not produced before the Labour Court. Similar principal was reiterated in State of Gujarat vs. Jitendra M. Raval, (2005) 1 GLR 594 and in Rajkot District Panchayat vs. Jayaben Mavjibhai, (2003) 23 GLH 435. 4.2. In Imtiaz Abbasbhai Shaikh vs. Weather Craft Ltd. and Others, (2011) 3 GLH 157 , this Court observed that it is established position of law that normally in the matters of employer-employee relationship, documentary evidence remains in the exclusive control of the employer and many a times employer, acting more smart than normally, do not allow any documentary evidence to come into existence. It was observed that the parties in such situation are not at the same level play field and the workmen are always on receiving end. 5. Turning to the present case, the Labour Court observed that employer had not disputed workman's service during the period from 1996 to 2001. Respondent-workman was daily rated workman, his service records were not produced by the employer to rebut the case of the workman, which was primarily established from oral evidence. In the circumstances, the Labour Court was justified in drawing adverse inference and accepting the case of the workman. Respondent-workman was daily rated workman, his service records were not produced by the employer to rebut the case of the workman, which was primarily established from oral evidence. In the circumstances, the Labour Court was justified in drawing adverse inference and accepting the case of the workman. Finding regarding breach of Section 25-F was therefore recorded. The same could not be faulted with in the factual and legal position obtained. Thus the impugned award of the Labour Court could not be said to be suffering from any error which directs reinstatement of the workman on the original post of daily wage without payment backwages. The challenge fails. Petition is rejected.