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2015 DIGILAW 265 (GUJ)

STATE OF GUJARAT v. BHARAT KUMAR K VORA

2015-03-10

AKIL ABDUL HAMID KURESHI

body2015
JUDGMENT : 1. This petition is filed by the State Government challenging the judgment and award dated 21.04.2006 passed by the Labour Court, Junagadh in Reference (L.C.J.) No.26/1997. The said Reference was made at the instance of the respondentworkman who was engaged as a workcharge Clerk for a short period between January 1984 to October 1984 by the Irrigation Department of the State Government. His case is that his service was terminated illegally on 15.10.1984 violating the provisions of Sections 25F and 25G of the Industrial Disputes Act. However, it is an admitted position that he did not challenge his termination by raising an industrial dispute for a long period of time. Only in the year 1996, he approached the Assistant Labour Commissioner on the ground that juniors and freshers were being recruited without offering reengagement to the workman and this action was therefore violative of Section 25H of the Industrial Disputes Act. The Assistant Labour Commissioner made a Reference on 08.11.1996 to the competent Labour Court to decide whether the termination of the workman on 15.10.1984 was legal. 2. In such reference, the Labour Court rendered its impugned judgment and award. The Labour Court believed that the termination was in violation of Sections 25F and 25G of the Industrial Disputes Act and that in the year 1996 when fresh workmen were engaged, not offering reemployment to the workman was violative of Section 25H of the Industrial Disputes Act. 3. Before the Labour Court, it was pointed that the workman had started his own legal practice since 1991. The Labour Court therefore, while setting aside termination with all consequential benefits, directed reinstatement with full backwages till the workman was enrolled as a lawyer and 50% backwages for the remaining period. It is this award which the Government has challenged in this petition. 4. Having heard learned counsel for the respective parties and having perused the materials on record, it becomes abundantly clear that the workman had worked only for a few months during January 1984 to October 1984. For his alleged illegal termination on 15.10.1984, the workman raised no industrial dispute for more than 10 years thereafter. It is only in the year 1996 that he questioned his termination. For his alleged illegal termination on 15.10.1984, the workman raised no industrial dispute for more than 10 years thereafter. It is only in the year 1996 that he questioned his termination. Quite unacceptably the Labour Court not only set aside the termination, also awarded full backwages for the entire period even during the time when the workman had taken no effective steps to challenge his termination. 50% backwages was limited from the time the workman was found to be engaged in legal practice. 5. Apart from such unacceptable approach of the Labour Court, I notice that there was scanty evidence about the number of days the workman had worked during the few months when he was engaged as a workcharge employee. The workman had not produced any evidence to establish that during the relevant period, he had put in a minimum of 240 days of actual work, a burden essentially was on the workman. Even the Labour Court has not come to any definite conclusion that his termination was in violation of Section 25F of the Industrial Disputes Act. The question of application of Section 25F of the Industrial Disputes Act would arise provided the workman had worked for a minimum of continuous period of one year or deemed continuous period as provided in Section 25B of the Industrial Disputes Act. In absence of any such proof, the Labour Court committed a serious error in invoking breach of Section 25F of the Industrial Disputes Act. 6. Without any explanation the workman raised industrial dispute after 12 years of the termination. The Labour Court not only ignores such gross delay, set aside the termination with all consequential effect including full backwages. If the case of the workman that his termination was in breach of Section 25G of the Industrial Disputes Act, he should have questioned within a reasonable period. Even with respect to the alleged breach of Section 25H of the Industrial Disputes Act the Labour Court has without definite findings held in favour of the workman. The names of the persons engaged in the year 1995 as alleged nowhere appear in the judgment. Whether such an engagement is by way of regular recruitment is not clear. It was primary duty of the workman to establish that after his disengagement either juniors or freshers offered engagement to his exclusion. The names of the persons engaged in the year 1995 as alleged nowhere appear in the judgment. Whether such an engagement is by way of regular recruitment is not clear. It was primary duty of the workman to establish that after his disengagement either juniors or freshers offered engagement to his exclusion. The Labour Court on mere ipse dixit issued rule in favour of the workman on all counts without sufficient evidence on record. 7. In the result, the impugned award is set aside. Rule made absolute. The petition is disposed of, accordingly.