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2015 DIGILAW 777 (GUJ)

State of Gujarat v. Hakubhai Aapabhai Dhandhal

2015-08-06

G.R.UDHWANI, M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. 1. As common question of law and facts arise in the present group of Letters Patent Appeals, all these Letters Patent Appeals are decided and disposed of by this common judgment and order. 2. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge in Special Civil Application Nos. 9806/2014 to 9810/2014 by which the learned Single Judge has dismissed the said Special Civil Applications preferred by the appellants herein and has confirmed the common judgment and award dated 12.12.2013 passed by the learned Labour Court, Bhavnagar in Reference (LCB) Nos. 281/2005, 282/2005, 283/2005, 284/2005 and 286/2005 whereby the learned Labour Court directed the appellants herein to reinstate the concerned workmen with continuity of service with 50% of back wages, the appellants herein - original petitioners have preferred the present Letters Patent Appeals. 3. Facts leading to the present Letters Patent Appeals in nut-shell are as under: "3.1 That the concerned respondent No. 1 herein - original workmen were working as a daily wager in the office of Deputy Executive Engineer, Santri Main Work Sub-Division, Amreli. It appears that the concerned respective workmen were relieved somewhere in the year between 1985 to 1992. That the respective workmen were serving on different posts as daily wager such as driver, chokidar, labourer etc. That after a period of approximately more than 15 to 20 years i.e. in the year 2005 the concerned workmen approached the Labour Commissioner making grievance with respect to their illegal termination. That the said disputes came to be referred to the learned Labour Court, Bhavnagar which were numbered as Reference (LCB) Nos. 281/2005, 282/2005, 283/2005, 284/2005 and 286/2005. At this stage it is required to be noted that initially the references were made against the Executive Engineer, Irrigation Division, Bhavnagar; Deputy Executive Engineer, Sukhbhadar Irrigation Division, Paliyad, Taluka Botad and Superintendent Engineer, Bhavnagar, Irrigation Circle, Bhavnagar. As observed hereinabove and even according to the respective workmen they were working with the Deputy Engineer, Santri Main Sub-Division, Amreli who terminated their services illegally. However, no reference was made against the Sub-Division, Amreli. That the Deputy Executive Engineer, Santri Main Division, Amreli came to be joined as party to the reference subsequently after the references were made and during the course of the references. However, no reference was made against the Sub-Division, Amreli. That the Deputy Executive Engineer, Santri Main Division, Amreli came to be joined as party to the reference subsequently after the references were made and during the course of the references. 3.2 It was the case on behalf of the concerned respondent before the learned Labour Court that their termination somewhere in the year between 1985 to 1992 were absolutely illegal and in breach of section 25F, 25G and 25H of the Industrial Disputes Act, 1947 (hereinafter referred to as "ID Act"). It was also the case on behalf of the respective workmen that their agricultural lands were acquired for the Sukhbhadar Dam and therefore, as per the declaration made by the Government, to give employment to one person from each family, they were appointed and therefore also, their services could not have been terminated. The concerned workmen submitted their respective statements of claim. That the appellants herein filed the written statement. It was the case on behalf of the appellants herein that as such the office at Amreli Division has been closed in the year 1996 itself. It was also the specific case on behalf of the appellants herein that in none of the years the concerned workmen have worked for not less than 240 days in the preceding years and/or in any of the years. It was specifically denied that any workman junior to the concerned workmen are subsequently employed. That the concerned workmen filed the examination in chief in the form of affidavit at Exhs.24, 10 and 11. The concerned workmen came to be cross-examined. That on behalf of the appellants, muster roll etc. for the relevant year came to be produced on behalf of the appellants. That one Shri Mukesh Chimanlal Parikh came to be examined for and on behalf of the Deputy Executive Engineer, Sukhbhadar Irrigation Division at Exh.45. He was also cross-examined. On behalf of the Deputy Executive Engineer, Santri Main Sub-Division, one Shri Kirankumar Ratilal Kagda came to be examined at Exh.46. He also produced the documentary evidences to show that in none of the years the concerned workmen have worked for not less than 240 days. He was also cross-examined. On behalf of the Deputy Executive Engineer, Santri Main Sub-Division, one Shri Kirankumar Ratilal Kagda came to be examined at Exh.46. He also produced the documentary evidences to show that in none of the years the concerned workmen have worked for not less than 240 days. That the learned Labour Court partly allowed the aforesaid references and directed the appellant No. 2 herein - Deputy Executive Engineer, Sukhbhadar Irrigation Division to reinstate the concerned workmen with continuity of service and 50% of back wages. 3.3 Feeling aggrieved and dissatisfied with the common judgment and award passed by the learned Labour Court in Reference (LCB) Nos. 281/2005, 282/2005, 283/2005, 284/2005 and 286/2005, the appellants herein - original petitioners preferred Special Civil Application Nos. 9806/2014 to 9810/2014 and by impugned judgment and order the learned Single Judge has dismissed the said Special Civil Application Nos. 9806/2014 and 9810/2014 and has confirmed the common judgment and award passed by the learned Labour Court of reinstatement with continuity of service and 50% back wages. 3.4 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge in Special Civil Application Nos. 9806/2014 to 9810/2014, the appellants herein - original petitioners have preferred the present Letters Patent Appeals." 4. Shri Harshil Shukla, learned AGP appearing on behalf of the appellants herein - original petitioners has vehemently submitted that the learned Single Judge has materially erred in dismissing the Special Civil Applications preferred by the appellants herein and confirming the common judgment and order passed by the learned Labour Court directing the appellant No. 2 herein to reinstate the concerned workmen with continuity of service and 50% of back wages. 4.1 It is further submitted by Shri Shukla, learned AGP that the learned Single Judge has not properly appreciated the fact that as such the concerned workmen raised industrial dispute after a period of approximately 15 to 20 years and therefore, when the industrial dispute was raised, there was no live dispute which could have been referred. It is submitted that therefore the learned Single Judge has materially erred in confirming the judgment and order passed by the learned Labour Court of reinstatement with continuity of service and 50% back wages. It is submitted that therefore the learned Single Judge has materially erred in confirming the judgment and order passed by the learned Labour Court of reinstatement with continuity of service and 50% back wages. 4.2 It is further submitted by Shri Shukla, learned AGP appearing on behalf of the appellants herein - original petitioners that as such the learned Single Judge has not properly appreciated the fact that the finding recorded by the learned Labour Court that there was a breach of section 25F, 25G and 25H of the ID Act is perverse and without any evidence. It is submitted that at no point of time either in the respective statement of claim or even in the deposition it was the case on behalf of the original workmen that they have worked for not less than 240 days in any of the years and/or in the last preceding year. It is submitted that infact no particulars were given by the concerned workmen with respect to any junior to them were subsequently employed. It is submitted that therefore finding recorded by the learned Labour Court that there is breach of section 25F, 25G and 25H of the ID Act is based on no evidence. 4.3 It is further submitted by Shri Shukla, learned AGP that the learned Single Judge has not properly appreciated the fact that as such the learned Labour Court had thrown the burden upon the appellants herein to prove that there was no breach of sections 25F, 25G and 25H of the ID act. It is submitted that as such the initial burden was upon the concerned workmen to establish and prove by leading cogent evidence that there is a breach of section 25F, 25G and 25H of the ID Act. It is submitted that despite the above whatever the material was available with the department, they were produced before the learned Labour Court. It is submitted that as per the record available (as, as such the Amreli Division was already closed in the year 1996 and the dispute was raised in the year 2005), the workman of Reference (LCB) No. 281/2005 worked for 128 days only and that too as a daily wager and for the period between 1981 to 1992 (Exh.22). It is submitted that as per the record available (as, as such the Amreli Division was already closed in the year 1996 and the dispute was raised in the year 2005), the workman of Reference (LCB) No. 281/2005 worked for 128 days only and that too as a daily wager and for the period between 1981 to 1992 (Exh.22). It is submitted that the workman of Reference (LCB) No. 282/2005 worked as daily wager for 399 days only for the period between 1988 to 1991. It is submitted that the workman of Reference (LCB) No. 283/2005 worked as a daily wager driver for 618 days only for the period between 1989 to 1992. It is submitted that the workman of Reference (LCB) No. 284/2005 worked only for 134 days only for the period between 1988 to 1991. It is further submitted that workman of the Reference (LCB) No. 286/2005 worked only for 94 days for the period between 1981 to 1989 (as per Exh.13). It is submitted that therefore, when in none of the years the concerned workman worked for not less than 240 days and in absence of any other documentary evidence on record and/or specific instances given by the concerned workmen that subsequently any junior to them were appointed, the learned Labour Court has materially erred in holding that there is a breach of section25F, 25Gand 25H of the ID Act and consequently has materially erred in directing the appellant No. 2 herein to reinstate the concerned workmen with continuity of service and 50% back wages. 4.4 It is further submitted that even otherwise the learned Labour Court had materially erred in directing the appellant No. 2 herein with whom the concerned workmen never worked, to reinstate the concerned workmen. In the alternative it is further submitted that assuming without admitting that there was breach of section 25F, 25Gand25H of the ID Act, considering the fact that the concerned workmen raised an industrial dispute after approximately 15 to 20 years and as they worked as daily wagers only and their appointments were not on sanctioned post and after following any procedure and the concerned divisional office where the concerned workmen were working i.e. Amreli Division was already closed in the year 1996, at the most the learned Labour Court could have awarded lump sum compensation. 4.5 Making above submission, Shri Shukla, learned AGP has requested to allow the present Letters Patent Appeals and quash and set aside the impugned judgment and order passed by the learned Single Judge as well as the common judgment and award of the learned Labour Court of reinstatement of the concerned workmen with continuity of service and 50% back wages. 5. All these Letters Patent Appeals are opposed by Shri Yogen Pandya, learned advocate appearing on behalf of the concerned workmen. 5.1 It is submitted that in the facts and circumstances of the case, the learned Single Judge has not committed any error in dismissing the petitions and confirming the concerned judgment and awards. 5.2 It is submitted that it is true that there was a delay in raising the industrial dispute. However, on the ground of delay in raising the industrial dispute the references cannot be rejected. It is submitted that at the most the concerned workmen can be denied the back wages for raising the industrial dispute belatedly. In support of his above submissions, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Ajaib Singh v. Sirhind Co-op Mkg-Cum-Processing Service Society Ltd. reported in (1999)6 SCC 82 . 5.3 It is further submitted that in the present case the concerned workmen were land losers whose lands came to be acquired for Sukhbhadar Dam. It is submitted that as per the policy of the State Government, the employment was offered to them and therefore also, their services could not have been terminated. It is submitted that therefore the learned Single Judge has not committed any error in dismissing the petitions. 5.4 It is submitted that there is a specific finding given by the learned Labour Court that the termination of the respective workmen were in breach of section 25F, 25G and 25H of the ID Act and the said finding are on appreciation of evidence which are not required to be interfered by this Court. It is submitted that once it is found that the termination is in breach of section 25F, 25G and 25H of the ID Act, in that case, the concerned workmen is entitled to consequential relief of reinstatement. It is submitted that in such a case the submission on behalf of the State to award compensation cannot be accepted. It is submitted that once it is found that the termination is in breach of section 25F, 25G and 25H of the ID Act, in that case, the concerned workmen is entitled to consequential relief of reinstatement. It is submitted that in such a case the submission on behalf of the State to award compensation cannot be accepted. 5.5 It is further submitted by Shri Pandya, learned advocate appearing on behalf of the concerned workmen that infact the department did not produce any document/muster roll and/or even seniority list to dispute the case on behalf of the concerned workmen that there is any breach of section 25F, 25G and 25H of the ID Act. It is submitted that therefore in absence of any such material produced on behalf of the concerned department, the learned Labour Court rightly held that the termination of the concerned workmen was in breach of section 25F, 25G and 25H of the ID Act and the same is rightly confirmed by the learned Single Judge. Making above submissions and relying upon the decisions of the Hon'ble Supreme Court in the case of Jasmer Singh v. State of Haryana & Anr. reported in 2015(1) Scale 360 as well as in the case of Umrala Gram Panchayat v. Secretary, Municipal Employees Union & Ors. reported in 2015(4) Scale 334, it is requested to dismiss the present Letters Patent Appeals. 6. Heard learned advocates appearing for respective parties at length. We have gone through and considered the common judgment and award passed by the learned Labour Court as well as the impugned common judgment and order passed by the learned Single Judge. We have also perused the oral as well as documentary evidences on record produced by Shri Pandya, learned advocate appearing on behalf of the concerned workmen, produced for the perusal of this Court including the statement of claim submitted by the concerned workmen. At the outset it is required to be noted that the concerned workmen raised an industrial dispute after approximately 15 to 20 years. Even according to the concerned workmen, their services were terminated between 1985 to 1992, the particulars of which are as under: Sr. At the outset it is required to be noted that the concerned workmen raised an industrial dispute after approximately 15 to 20 years. Even according to the concerned workmen, their services were terminated between 1985 to 1992, the particulars of which are as under: Sr. No. Name of the workman Reference No. Date of termination even as per the workman 1 Bhadabhai Shivabhai Jhapadia 281/05 30.05.1985 2 Babubhai Dulabhai Khachar 282/05 30.01.1992 3 Hakubhai Aapabhai Ghaghal 283/05 20.12.1991 4 Valkubhai Dadubhai Khavad 284/05 22.10.1991 5 Bhanubhai Ukabhai Bharadiya 286/05 30.05.1985 It is not in dispute that the concerned workmen raised an industrial dispute for the first time in the year 2005. 6.1 According to the department and so stated in the written statement as well as per the documentary evidences produced by the concerned department, none of the workmen worked for not less than 240 days in any of the years. The statement showing the number of days worked by the concerned workmen as per Exh.11 onwards is as under: Sr. No. Name of the workman Reference No. No. of days worked as daily wager 1. Bhadabhai Shivabhai Jhapadia 281/05 128 days for the period between 1981 to 1992 (Exh.22) 2. Babubhai Dulabhai Khachar 282/05 399 days for the period between 1988 to 1991 (Exh. 12) 3 Hakubhai Aapabhai Ghaghal 283/05 618 days for the period between 1989 to 1992 (Exh. 13) 4 Valkubhai Dadubhai Khavad 284/05 134 days for the period between 1988 to 1991 (Exh. 13) 5 Bhanubhai Ukabhai Bharadiya 286/05 94 days for the period between 1981 to 1989 (Exh. 13) 6.2 It is required to be noted that it was never the case on behalf of the concerned workmen either in the statement of claim or even in their deposition/examination in chief/affidavits that they had worked for not less than 240 days in any of the year more particularly the preceding year. In the cross-examination they have specifically admitted that they have not produced any documentary evidence. Even while holding that there is breach of section 25F of the ID Act, there is no specific finding recorded by the learned Labour Court that the concerned workmen had infact worked for not less than 240 days and that too in the last preceding year. Even while holding that there is breach of section 25F of the ID Act, there is no specific finding recorded by the learned Labour Court that the concerned workmen had infact worked for not less than 240 days and that too in the last preceding year. As observed herein above, the concerned workmen have miserably failed to prove that they had worked for not less than 240 days by producing any cogent evidence. As observed herein above it was never their case that they had worked for not less than 240 days. Assuming that it was their case, in that case also, the initial burden was upon them to prove that they had worked for not less than 240 days in the last preceding year and therefore, the termination is in breach of section 25F of the ID Act. From the impugned judgment and award passed by the learned Labour Court, it appears that the learned Labour Court has from the very beginning and initially shifted the burden upon the employer to prove that the concerned workmen had not worked for not less than 240 days. Under the circumstances, as such the finding recorded by the learned Labour Court that their alleged termination was in breach of section 25F of the ID Act is perverse and based on no evidence and the same cannot be sustained. 6.3 Similarly, even the finding recorded by the learned Labour Court that there is a breach of section 25G and 25H of the ID Act also cannot be sustained as the same is based on no evidence. In the deposition and/or even in the statement of claim, the concerned workmen had never given any specific instances that any of their junior are continued and/or employed. Under the circumstances, in absence of any such particulars and/or instances pointed out, the learned Labour Court had materially erred in holding that there is a breach of section 25G and 25H of the ID Act. The aforesaid aspects have not been properly appreciated by the learned Single Judge while dismissing the Special Civil Applications and by passing the impugned common judgment and order. The aforesaid aspects have not been properly appreciated by the learned Single Judge while dismissing the Special Civil Applications and by passing the impugned common judgment and order. 6.4 Even otherwise considering the number of days for which the concerned workmen worked and that too as daily wagers and the fact that even the concerned workmen were working as daily wagers with the office of Deputy Executive Engineer, Amreli Irrigation Division, which came to be closed in the year 1996 and as the project was completed/closed and thereafter Industrial Dispute came to be raised after approximately 15 to 20 years, the common judgment and award passed by the learned Labour Court of reinstatement with continuity of services and 50% back wages confirmed by the learned Single Judge by impugned common judgment and order cannot be sustained. It is required to be noted that despite the fact that even according to the concerned workmen they were working in the office of Deputy Executive Engineer, Amreli Irrigation Division and they have never worked with the appellant No. 2 herein - Office of Deputy Executive Engineer, Sukhbhadar Irrigation Division, the learned Labour Court has materially erred in directing the appellant No. 2 herein - Deputy Executive Engineer, Sukhbhadar Irrigation Division to reinstate the concerned workmen with whom the concerned workmen never worked. 6.5 Considering the aforesaid facts and circumstances, none of the decisions relied upon by Shri Pandya, learned advocate appearing on behalf of the concerned workmen shall be applicable to the facts of the case on hand and/or are of any assistance to them. Once it is held that the finding recorded by the learned Labour Court that there is a breach of section25F, 25G and 25H of the ID Act is based on no evidence and/or perverse, there is no question of any reinstatement of the concerned workmen and that too when the concerned Divisional Office where the concerned workmen were working has already been closed in the year 1996 and even the Industrial Dispute was raised after a period of 9 years thereafter and as such after a period of approximately 15 to 20 years from their alleged termination. 6.6 Under the circumstances, the impugned common judgment and order passed by the learned Single Judge dismissing the petitions and confirming the judgment and award passed by the learned Labour Court of reinstatement with continuity of service and 50% back wages cannot be sustained and the same deserves to be quashed and set aside. 7. In view of the above and for the reasons stated above, all these Letters Patent Appeals succeed. Impugned common judgment and order dated 22.08.2014 passed by the learned Single Judge in Special Civil Application Nos. 9806/2014 as well as the common judgment and award dated 12.12.2013 passed by the learned Labour Court, Bhavnagar in Reference (LCB) Nos. 281/2005, 282/2005, 283/2005, 284/2005 and 286/2005 are hereby quashed and set aside. Consequently, the concerned references stand dismissed. All these Letters Patent Appeals are accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs.