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Gujarat High Court · body

2016 DIGILAW 155 (GUJ)

Executive Engineer v. Manuhai Bababhai Nayi

2016-01-21

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Hasurkar, learned advocate for the petitioner, and Mr. Rathod, learned advocate for the respondent. 2. In this petition, the petitioner has challenged an award dated 29.4.2005 passed by the learned Labour Court at Kalol in Reference (LCK) No. 93 of 1989 whereby the learned Labour Court directed the present petitioner to reinstate present respondent with continuity of service and 25% backwages. So far as the factual background is concerned, it has emerged from the impugned award that the respondent raised an industrial dispute on the allegation that he was employed by the petitioner and was working with the petitioner as Helper in the Store Department and his service was illegally and arbitrarily terminated without following procedure prescribed in law. The appropriate Government referred the said dispute for adjudication vide order of reference dated 3.7.1989. During the proceeding before the learned Labour Court, the respondent filed his statement of claim, wherein he alleged and claimed that he was appointed as Helper in the Store Department at Kalol Division w.e.f. 3.7.1987 and that he was appointed as permanent workman and his appointment was made on vacancy on permanent post. 3. The petitioner company filed written statement and opposed the reference and denied employer - employee relationship between the company and the workman. The petitioner company claimed that the respondent worked as contractor. Other factual aspects were also denied by the petitioner company. 4. During the proceedings, the deposition of present respondent was recorded. In his deposition, the respondent reiterated the details mentioned by him in the statement of claim and thereby, he supported the statement of claim and the relief prayed for. The petitioner herein examined a witness. His evidence, as discussed in the impugned award, run contrary to what the company claimed in its written statement, inasmuch as the company's witness in his evidence accepted that the respondent was employed in the company and he was appointed on Nominal Muster Roll ["NMR" for short] basis. 5. After considering the rival pleadings and respective evidence of the company and the claimant workman, learned Labour Court passed the award dated 29.4.2005, which is impugned in present petition. 6. Mr. Hasurkar, learned advocate for the petitioner company, submitted that the findings recorded by the learned Labour Court are on misreading of the evidence. He submitted that the respondent was not employee of the company. 6. Mr. Hasurkar, learned advocate for the petitioner company, submitted that the findings recorded by the learned Labour Court are on misreading of the evidence. He submitted that the respondent was not employee of the company. He also submitted that the respondent was paid amount as an independent contractor. He also submitted that the findings with regard to violation of Section 25F and 25G are incorrect. He submitted that even otherwise, the direction of reinstatement of person who was not employed in accordance with applicable rules, deserves to be set aside. 7. Mr. Rathod, learned advocate for the respondent workman, justified and supported the award. He submitted that the claimant workman had worked for more than 12 months and he was illegally terminated w.e.f. 22.12.1988 without following any procedure prescribed by law. He also submitted that when the respondent's service was terminated, juniors to him were retained and thereafter, certain other persons were engaged by the petitioner company. He submitted that besides the evidence of the respondent, the evidence of the witness of the petitioner company also supports the respondent's claim that he was employed by the petitioner company and that his service was terminated without payment of compensation. He submitted that so far as the reinstatement is concerned, the same may not be disturbed and so far as backwages is concerned, the Court may pass appropriate order on that count. 8. At the outset, it is necessary to mention that, today, during the hearing of present petition, Mr. Rathod, learned advocate for the respondent, submitted that in January-2013, the counsel of the company had made statement that the company has no objection to reinstate the respondent and to allow him to resume duty. Mr. Rathod, learned advocate for the respondent workman, further submitted that in view of the said statement, the respondent had reported for duty and the respondent has been reinstated w.e.f. 1.2.2013 and at present, the respondent is working in store department at Kalol w.e.f. 1.2.2013. 9. In view of the said statement by learned advocate for the respondent, the issue which would survive is with regard to backwages. 10. Even otherwise, when the impugned award is examined, it comes out that the learned Labour Court has taken note of the contradiction between the details mentioned in the written statement and the deposition by the witness of the petitioner company. 10. Even otherwise, when the impugned award is examined, it comes out that the learned Labour Court has taken note of the contradiction between the details mentioned in the written statement and the deposition by the witness of the petitioner company. In its written statement, the petitioner company claimed that the respondent was not employed by it, but he worked with the company as a contractor. On the other hand, the witness of the petitioner company stated in his deposition that the respondent was employed by the petitioner company and that he was working on NMR basis. The witness of the petitioner company deposed in his evidence that he knew the respondent workman and that he is also aware that the respondent workman worked on NMR basis. The witness of the petitioner company admitted that the respondent's attendance was marked in NMR register. He also admitted that the company had not placed on record NMR before the learned Labour Court. He also admitted that the petitioner company did not produce on record pay register and/or attendance register, etc. before the learned Labour Court. The learned Labour Court took into account the said deposition by the witness of the petitioner company and had also took into account that the petitioner company had, despite such evidence by its own witness and despite evidence by the respondent workman, failed to place on record NMR register and attendance/pay register for the relevant period. 11. Having regard to the fact that the petitioner company failed to place the said material on record and also failed to place on record any material which would establish that the concerned workman had worked for less than 240 days, the learned Labour Court considered it appropriate to draw inference with regard to the fact that the respondent had worked for not less than 240 days during period of preceeding 12 months. The learned Labour Court also reached to the conclusion that the petitioner company had failed to place any material on record to controvert the respondent's contention that he was employed w.e.f. 3.7.1987 and that his service was terminated w.e.f. 22.12.1988. The learned Labour Court also took note of the fact that the petitioner company failed to place on record any evidence to establish that the respondent had not worked with it for any period and/or that his service was not terminated w.e.f. 22.12.1988. The learned Labour Court also took note of the fact that the petitioner company failed to place on record any evidence to establish that the respondent had not worked with it for any period and/or that his service was not terminated w.e.f. 22.12.1988. The learned Labour Court also noticed, from the admission by the witness of the petitioner company, that at the time when the service of the respondent was terminated, any compensation was not paid. In view of the fact that the service of the respondent was not terminated for any misconduct, learned Labour Court reached to the conclusion that the termination of the respondent's service amounted to retrenchment, however, since it was effected without payment of compensation and without complying the condition under Section 25F, the termination was illegal. 12. In light of the evidence by the witness of the petitioner company, the learned Labour Court recorded finding of fact and conclusion that the respondent workman was employee of the petitioner company and that he was engaged on NMR basis and he worked during his tenure on NMR basis. Having regard to the fact that the petitioner was engaged w.e.f. 3.7.1987 and the service was terminated w.e.f. 22.12.1988, the learned Labour Court also reached to the conclusion and recorded findings of fact that the respondent had worked for more than 12 months and in preceeding 12 months, he worked for not less than 240 days. Having reached to such conclusion, the learned Labour Court considered it appropriate to direct the petitioner company to reinstate the respondent. When the above aspects are taken into account and when the evidence by the witness of the petitioner company (details whereof are mentioned and discussed in the impugned award), are considered, then, it is found that there is no error in the findings recorded by the learned Labour Court. The learned Labour Court has not committed any error in holding that the termination is in violation of Section 25F. In this view of the matter and having regard to the fact that the service of the respondent was terminated without complying the condition prescribed under Section 25F of the Act, the respondent would be entitled for reinstatement in service as employee on NMR basis. 13. As mentioned at the outset, the petitioner company has already reinstated the respondent workman w.e.f. 1.2.2013. 13. As mentioned at the outset, the petitioner company has already reinstated the respondent workman w.e.f. 1.2.2013. In view of the fact that this Court has found that the learned Labour Court has not committed any error in holding that the respondent's termination from service was in violation of Section 25F and therefore, illegal and ab-initio void, the direction for reinstatement does not warrant interference more so when the petitioner has reinstated the respondent since February-2013 and more than 2 years have passed since then. So far as the direction for continuity of service is concerned, it is clarified that the continuity of service shall be considered as an employee on NMR basis and amongst NMR employees. 14. So far as petitioner's challenge against the direction to pay 25% backwages is concerned, in the facts of the case, more particularly the fact that the respondent was engaged on NMR basis and having regard to the fact that though the reference was registered in 1989, the respondent came forward before the learned Labour Court to get his evidence/deposition recorded after almost 12 months, the direction asking the petitioner company to pay 25% backwages is not justified and the said direction deserves to be set aside. Therefore, so far as the direction asking the petitioner company to pay 25% backwages is concerned, is hereby set aside. However, the direction asking the petitioner company to reinstate the respondent workman as NMR employee, i.e. on his original post as NMR employee is not disturbed. Consequently, the petition is partly allowed. Rule is made absolute to the aforesaid extent.