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2016 DIGILAW 548 (GUJ)

State of Gujarat v. Alkhabhai Viththalbhai Vanker

2016-03-08

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Ms. Amita Shah, learned AGP for the petitioner State, and Mr. Nilay H. Patel, learned advocate, for Mr. M.S. Shah, learned advocate for the respondent workman. 2. In this petition, the petitioner has challenged the award dated 27.7.2011 passed by the learned Labour Court, Himatnagar in Reference (LCH) No. 113 of 2002 whereby the learned Labour Court directed the petitioner State to reinstate the respondent on his original post with continuity of service, however, without any backwages. Feeling aggrieved by the said direction, the petitioner State has filed this petition. 3. The Court admitted the petition vide order dated 14.3.2012. While admitting the petition, the Court, by way of interim relief, stayed the operation granting benefit of continuity of service, however, declined to stay operation of the direction to reinstate the workman. The order dated 14.3.2012 passed by the Court while admitting the petition reads thus:-- "Rule. Interim relief qua continuity of service is granted on condition that the respondent workman shall be reinstated in service within a period of thirty days from the date of receipt of the writ of the order of this Court." 4. In view of rejection of the interim relief qua direction to reinstate the workman, the petitioner State reinstated the respondent. 5. Learned advocate for the respondent workman has not disputed the fact that the respondent is reinstated. Actually, learned advocate for the respondent workman submitted that the respondent is working with the petitioner since 2012. 6. So far as factual background is concerned, it has emerged from the submissions by learned AGP for the petitioner State and learned advocate for the respondent workman and from the material on record that the respondent raised industrial dispute against the petitioner State on the ground that his service came to be terminated by oral order w.e.f. 30.6.1992. The respondent workman claimed that his service was illegally terminated. The dispute raised by the respondent workman came to be referred for adjudication by order of reference dated 30.9.2002. The said order of reference came to be registered as Reference (LCH) No. 113 of 2002. The respondent workman claimed that his service was illegally terminated. The dispute raised by the respondent workman came to be referred for adjudication by order of reference dated 30.9.2002. The said order of reference came to be registered as Reference (LCH) No. 113 of 2002. Before the learned Labour Court, the respondent workman filed his statement of claim and alleged that his superior officer terminated his service by oral order on 30.6.1992 and that at the time of his termination from service, retrenchment compensation was not paid or any other amount towards notice pay etc. was also not paid. He also alleged that his service was not terminated for any misconduct and he was not granted opportunity of defence and hearing. The workman also alleged that his service was abruptly terminated without following prescribed procedure of law. 6.1 The opponent State i.e. present petitioner opposed the reference. In the written statement filed on behalf of the State, it was claimed that the claimant workman was intermittently engaged on daily wage basis and that too as and when need for engaging additional person arose. The petitioner State denied the allegation by the respondent and claimed that it was the claimant who had stopped reporting for duty. The State also claimed that the claimant had never worked for 240 days in any year during the period from 1989-1991. The petitioner State also claimed that during the period of 12 months in 1989, the workman had intermittently worked for 219 days and in 1990 the workman had intermittently worked for 235 days and in 1991 the claimant had worked for 24 days. It was also claimed that the claimant was never engaged after following prescribed procedure for selection and recruitment and he was not engaged on any vacancy on sanctioned post on permanent establishment. The reference was opposed also on the ground that the respondent raised dispute after 10 years. It was also claimed that the claimant was never engaged after following prescribed procedure for selection and recruitment and he was not engaged on any vacancy on sanctioned post on permanent establishment. The reference was opposed also on the ground that the respondent raised dispute after 10 years. 6.2 After the stage of evidence was concluded, the learned Labour Court heard the submissions by learned advocate for the claimant and the opponent state and after taking into account the material available on record, the learned Labour Court concluded that the respondent workman had worked for 240 days in preceding 12 months, however, at the time when the claimant was discontinued, the opponent State had not complied the condition under section 25F inasmuch as the notice pay and retrenchment compensation was not paid to the claimant workman. The learned Labour Court also concluded that the opponent State had engaged certain workmen after the service of the claimant was terminated and the said person continued in the employment with the State. Having recorded such finding of fact, the learned Labour Court reached to the conclusion that the termination of the claimant's service was illegal and therefore, the claimant should be reinstated. Consequently, the learned Labour Court passed the award dated 27.7.2011 with above-mentioned directions. 7. Ms. Shah, learned AGP assailed the impugned award and submitted that the petitioner State had established that the claimant had worked only for 219 days, 235 days and 24 days during the period of 12 months in 1989, 1990 and 1991 respectively and that, therefore, the findings recorded by the learned Labour Court with regard to breach under section 25F on the ground that the retrenchment compensation was not paid, is unjustified and contrary material available on record before the learned Labour Court. She also submitted that the claimant workman had voluntarily stopped reporting for duty and the State had not terminated the service of the claimant. 8. Learned advocate for the respondent workman submitted that the learned Labour Court has recorded finding of fact that the State failed to establish that the workman had stopped reporting for duty and that the respondent had worked for 240 days. He further submitted that in view of the State's failure to place on record attendance or pay register the learned counsel has drawn adverse inference. He further submitted that in view of the State's failure to place on record attendance or pay register the learned counsel has drawn adverse inference. The learned advocate for the respondent workman submitted that the direction passed by the learned Labour Court is based on evidence available on record and that, therefore, the said directions do not warrant any interference. 9. I have heard submissions by learned AGP for the petitioner State and learned advocate for the respondent workman. Having examined the material on record and after considering the submissions by learned advocate for the claimant workman and learned AGP and having regard to the findings of fact recorded by the learned Labour Court in the impugned award and the reasons recorded by the learned Labour Court to support and justify the final decision, this Court finds that the learned Labour Court has not committed any error in holding that the petitioner State should reinstate the respondent workman. During his deposition, the respondent workman had brought on record that one Mr. Revabhai Pasabhai was recruited/employed after he was engaged and accordingly, Mr. Revabhai Pasabhai was junior to him, however, while his service was terminated, said Mr. Revabhai Pasabhai, a junior workman, was continued in his service. 10. The said evidence by the claimant workman was not controverted by the petitioner State and any evidence contrary to the said evidence was not placed on record before the learned Labour Court. Therefore, the learned Labour Court accepted the claimant's submission that the termination of his service was bad in law since the workman junior to him was continued in service while his service was terminated. The said evidence established breach of Section 25-H of the Act. 11. In view of the fact that the learned Labour Court has recorded the said finding of fact which is based on evidence obtaining on record and the learned Labour Court has accepted the said evidence after taking into account the fact that the State did not place on record any contrary evidence, the said finding of fact does not warrant any interference. 12. The learned Labour Court has also taken into account the fact that the witness of the petitioner State accepted and admitted, during his deposition, that the office/department did not maintain any seniority list and the seniority list was never prepared or displayed. 12. The learned Labour Court has also taken into account the fact that the witness of the petitioner State accepted and admitted, during his deposition, that the office/department did not maintain any seniority list and the seniority list was never prepared or displayed. The learned Labour Court noticed, from the evidence on record, that the requirement prescribed by Rule 81 for maintaining and displaying the seniority list was also not complied and consequently, the claimant's termination was in violation of Section 25-G read with Rule 81. 13. The learned Labour Court took into consideration that the claimant had worked continuously for the period from 1989 to 1992 and the said fact was even admitted by the witness of the petitioner State and that since the petitioner State failed to place on record the attendance register or the pay register, it could not be established as to whether the workman had worked for 240 days in preceding 12 months or not and that, therefore, it was just, legal and proper to draw adverse inference that the workman had worked for 240 days in preceding 12 months. The inference on this count is drawn by the learned Labour Court in view of the petitioner's failure to place on record the attendance register and pay register. The said course adopted by the learned Labour Court cannot be faulted. 14. However, even if it is considered that the learned Labour Court should not have drawn such inference, then also in view of the fact that a person junior to present respondent was continued while service of the petitioner was senior to said Mr. Revabhai Pasabhai was terminated and having regard to the fact that the witness of the petitioner State accepted and admitted that the office/department never maintained seniority list, the findings and conclusions recorded by the learned Labour Court viz. (a) breach of Section 25-G read with Rule 81 of the Industrial Disputes (Gujarat) Rules and breach of the principle 'last-in, first-out' was not followed, are established and that, therefore, it is also established that the termination of the claimant workman is in breach of statutory provision. Having regard to the aforesaid aspect, the decision by the learned Labour Court that the respondent workman deserves to be reinstated, cannot be faulted. 15. Having reached to such conclusion, the learned Labour Court held that the termination of claimant's service is illegal. Having regard to the aforesaid aspect, the decision by the learned Labour Court that the respondent workman deserves to be reinstated, cannot be faulted. 15. Having reached to such conclusion, the learned Labour Court held that the termination of claimant's service is illegal. When the above-mentioned aspects are taken into account and the discussion in the award is also considered, then it emerges that the said findings of fact are recorded by the learned Labour Court on the basis of the evidence available on record and therefore, the said findings of fact cannot be said to be perverse. The conclusions recorded by the learned Labour Court are based on evidence on record and the learned Labour Court has also recorded sufficient and cogent reasons to support and justify its conclusion and finding. 16. Now, so far as the order directing the petitioner to treat the claimant's service as continuous is concerned, the said direction is not sustainable in law and deserves to be set aside. On this count, it is necessary to recall that the claimant was working as daily wager and that the claimant raised dispute with regard to termination from service after about 10 years. In view of the said delay coupled with the fact that the claimant was working as daily wager, the direction granting continuity of service cannot be sustained. The said direction deserves to be set aside. Consequently, the order directing the petitioner State to reinstate the claimant, i.e. present respondent is confirmed. However, so far as the direction granting continuity of service is concerned, for the above-mentioned reasons, the said direction is not sustainable and deserves to be aside. Consequently, the direction granting continuity of service is set aside. In the result, the petition is partly allowed and with the aforesaid modification, the petition is hereby disposed of. Rule is made absolute to the aforesaid extent.