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Gujarat High Court · body

2016 DIGILAW 396 (GUJ)

Executive Engineer v. Virendra H. Solanki

2016-02-18

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Ms. Shah, learned AGP for the petitioner State, and Mr. Mankad, learned advocate for the respondent. 2. In present petition, the petitioner State has challenged the award dated 13.4.2006 passed by the learned Labour Court, Bhavnagar in Reference (LCB) No. 588 of 1993 whereby the learned Labour Court held that the termination of the respondent workman's service was effected in contravention of Section 25F. Having reached such conclusion, the learned Labour Court directed the petitioner State to reinstate the respondent on his original post with continuity of service and 50% backwages. 3. Before proceeding further, it is relevant and necessary to mention at the outset that the learned AGP appearing for the petitioner State stated and declared that during pendency of the petition, the petitioner State reinstated the respondent workman w.e.f. 30.7.2007 and since then, the respondent worked in his original department. 3.1 On the other hand, Mr. Mankad, learned advocate for the respondent workman, while confirming the submission by learned AGP further submitted that the respondent workman died on 9.8.2015, i.e. during pendency of the petition, and by virtue of order dated 7.1.2016, the heirs/legal representatives are impleaded on record. 3.2 In view of the said submission and statement by learned AGP for the petitioner State and learned advocate for the respondent workman, the issue related to reinstatement is not required to be deliberated in detail and the issue which remains for consideration is in connection with the direction to pay 50% backwages. 4. So far as factual background is concerned, it has emerged from the record that the respondent workman was serving with the petitioner as driver at salary of Rs. 1,175/- and his service came to be terminated w.e.f. 13.8.1992. Feeling aggrieved by the said action of the petitioner State, the respondent workman raised industrial dispute which was referred for adjudication vide order of reference dated 13.8.1993. The said reference culminated into Reference (LCB) No. 588 of 1993. During the proceedings before the learned Labour Court, the respondent workman filed his statement of claim alleging, inter alia, that he was working with the petitioner since last two years and that he was employed as driver at salary of Rs. 1,175/- and he was arbitrarily discharged from service w.e.f. 13.10.1992. During the proceedings before the learned Labour Court, the respondent workman filed his statement of claim alleging, inter alia, that he was working with the petitioner since last two years and that he was employed as driver at salary of Rs. 1,175/- and he was arbitrarily discharged from service w.e.f. 13.10.1992. He alleged that before terminating his service or at the time of termination, the petitioner had not paid retrenchment compensation and the principles of natural justice were also not followed. He also claimed that he had worked for more than 240 days in preceeding 12 months, however, without following any procedure prescribed by law, the petitioner terminated his service. 4.1 The reference was opposed by the petitioner - Road and Building Department who filed their written statement and claimed that the respondent was engaged only on temporary and ad-hoc basis. He was working as daily wager and on hand receipt basis. The petitioner also claimed that he was intermittently and casually engaged during the period from 21.2.1992 to 20.6.1992 and during the said period, he had worked only for 109 days and that it was the respondent who himself voluntarily stopped reporting for work on and from 13.10.1992 and any order terminating his service was not passed by the competent authority. 4.2 After the pleadings were completed, depositions of the claimant workman and one Mr. Ranchhodbhai Nanjibhai witness of the petitioner was recorded. Thereafter, the learned Labour Court heard the submissions by the contesting parties and after considering the material on record and rival contentions raised by the contesting parties, learned Labour Court reached to the conclusion that the service of the respondent was terminated in contravention of Section 25F. Having reached such conclusion, learned Labour Court directed the petitioner to reinstate the respondent with continuity of service on original post and to pay 50% backwages. The petitioner is aggrieved by the said direction, hence, present petition. 5. Ms. Shah, learned AGP for the petitioner State, submitted that the petitioner had placed on record of the reference before the learned Labour Court the documents which contain details of respondent's attendance and the wages paid to the respondent. She submitted that the petitioner had placed on record the letter under which particular vehicle was assigned to the respondent. The log book of the said vehicle was also placed on record. She submitted that the petitioner had placed on record the letter under which particular vehicle was assigned to the respondent. The log book of the said vehicle was also placed on record. She also submitted that the statement of the respondent's attendance was also placed on record. According to the learned AGP, from the documents placed on record it was established that the respondent had not worked for 240 days during preceeding 12 months and actually, he had worked for only 109 days during entire tenure when he was intermittently and casually engaged by the petitioner. 6. It is not in dispute that the respondent was engaged by the petitioner. Actually, the document placed on record by the petitioner established the fact that the respondent was engaged by the petitioner and he worked for the petitioner. 7. So far as the issue related to respondent's service is concerned, the respondent claimed that his service was terminated by oral order dated 13.8.1992 whereas the petitioner's claimed that it was the respondent who voluntarily stopped reporting for work. 8. The learned Labour Court has not accepted the petitioner's claim that the respondent had voluntarily stopped reporting for work. From the record, it has emerged that the petitioner had not given any notice to the respondent for not remaining present and for not reporting for duty. The petitioner had not even conducted any inquiry or other proceedings against the respondent for remaining absent without leave. Moreover, any intimation asking the respondent to resume his duty was also not given by the petitioner. Having regard to the cumulative effect of such facts, the learned Labour Court reached to the conclusion that the petitioner employer failed to establish that the respondent had voluntarily stopped for reporting for work. 9. During hearing of the petition, it is not disputed by the learned AGP that any intimation was never given to the respondent and any proceedings against him for remaining absent without leave were also not initiated. She also could not dispute the fact that any notice calling for his explanation as to why he was remaining absent without permission or asking him to immediately report for duty were not issued by the petitioner. 10. She also could not dispute the fact that any notice calling for his explanation as to why he was remaining absent without permission or asking him to immediately report for duty were not issued by the petitioner. 10. In this view of the matter, the conclusion recorded by the learned Labour Court that the petitioner failed to establish that the respondent had voluntarily stopped reporting for work is not sustainable, cannot be faulted. The learned Labour Court has not committed any error in recording the conclusion that the petitioner failed to establish that the respondent had voluntarily stopped reporting for duty. On this count, it is also necessary to note that the respondent had served a notice dated 21.12.1992 asking the petitioner to reinstate him. If the respondent had voluntarily abandoned the service, then, such demand notice would not have been given by the respondent workman. Besides this, upon receipt of such notice, the petitioner could have replied the said notice and in its reply, the petitioner could have mentioned the fact that it was he who was not reporting for duty and had voluntarily stopped for duty. The fact that the petitioner did not give any reply to the said notice supports and justifies the conclusion by the learned Labour Court. 11. The aforesaid conclusion lead the Court to further conclusion that the said respondent's service was brought to an end by action of the petitioner. Then, the question would arise as to whether the termination was effected in accordance with law or not. 12. On this count, the learned Labour Court has recorded finding of fact that the respondent's service was not terminated in accordance with law. 13. In this context, it is appropriate to note that the respondent workman claimed that he had worked for 240 days in preceeding 12 months, though the petitioner denied the said claim of the respondent, however, complete record of respondent's attendance was not placed on record before the learned Labour Court. The learned Labour Court has recorded the findings of fact that the petitioner did place documents on record namely attendance register and some log book but the record was not complete and there were discrepancies in the entries in the log book and the attendance register. 14. The learned Labour Court has recorded the findings of fact that the petitioner did place documents on record namely attendance register and some log book but the record was not complete and there were discrepancies in the entries in the log book and the attendance register. 14. The learned Labour Court has also recorded finding that the document placed on record by the petitioner are not of entire period during which the respondent was engaged by the petitioner. Actually, the learned Labour Court has recorded finding of fact to the effect that the document which are placed on record are misleading and the petitioner did not appear before the learned Court with clean hands. When such finding of fact is recorded by the learned Labour Court, this Court would not sit in appeal over such conclusion unless from the record of the learned Labour Court it is demonstrated that the said observation and findings are perverse. 15. In present case, the petitioner has failed to establish that the said observation and findings are perverse. Any material to dispute the said observation and conclusion by the learned Labour Court is not placed on record of this petition or brought to the notice of this Court. In this view of the matter, the said conclusion by the learned Labour Court cannot be faulted. 16. The foregoing discussion brings out that it was established before the learned Labour Court that, (a) the petitioner failed to establish that the respondent voluntarily abandoned the service, (b) the petitioner failed to establish that it had not terminated the service of the respondent, and (c) it was established that the respondent had worked for 240 days during 12 months preceeding the date on which his service was terminated; (d) the petitioner had not paid retrenchment compensation to the respondent. 17. In this view of the matter, the petitioner was obliged to comply the requirements prescribed under Section 25F i.e. to pay retrenchment compensation. Undisputedly, the said requirement was not complied. Under the circumstances, the direction to reinstate the respondent workman cannot be faulted. 18. So far as issue related to backwages is concerned, the petitioner has not placed any evidence on record which would establish that the respondent was gainfully employed during the interregnum. Undisputedly, the said requirement was not complied. Under the circumstances, the direction to reinstate the respondent workman cannot be faulted. 18. So far as issue related to backwages is concerned, the petitioner has not placed any evidence on record which would establish that the respondent was gainfully employed during the interregnum. However, on the consideration that ordinarily a driver would not have remain unemployed, the learned Labour Court denied 50% backwages and awarded only 50% backwages while directing the petitioner to reinstate the respondent. Under the circumstances, the said direction does not warrant any interference. The petition fails and is, accordingly, rejected. Rule is discharged.