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Gujarat High Court · body

2017 DIGILAW 145 (GUJ)

State of Gujarat v. Parmar Rasikbhai Makanbhai

2017-01-20

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Joshi, learned AGP for the petitioner State, and Ms. Kamani and Mr. Pathak, learned advocates for the respondent workman. 2. In present petition, the Dy. Executive Engineer, R & B Department, has challenged award dated 7.3.2006 passed by learned Labour Court at Ahmedabad in Reference (LCA) No. 608 of 1998 whereby the learned Labour Court has directed the petitioner to reinstate the respondent claimant with 25% backwages and with continuity of service. 3. So far as factual background is concerned, it has emerged from the record that present respondent i.e. original claimant raised industrial dispute with the allegation that he was working with the opponent employer since May 1982 at the salary of Rs. 500/- and that the opponent employer illegally and arbitrarily terminated his service on 1.4.1985 by oral order without following procedure prescribed by law. The claimant alleged that his service was terminated in breach of Section 25F, Section 25G and Section 25H of the Industrial Disputes Act [hereinafter referred to as "the Act"] as well as in violation of principles of natural justice and without any fault on his part. With such allegations, the claimant demanded that he should be reinstated in service. 3.1 The opponent employer i.e. present petitioner opposed the reference and denied the allegations by the claimant. In its written statement, the opponent employer i.e. present petitioner contended that the claimant was engaged on daily wage basis as a casual labourer on ad-hoc basis and for temporary period. The opponent employer also contended that the claimant actually worked from 28.3.1985 to 16.4.1985 and during the said period, he worked only for 20 days. According to the opponent employer, thereafter, his service was not required and that therefore, he was not engaged. It was also claimed that during the said period of about three weeks, the claimant was engaged on daily wage basis and that therefore, the claimant has no right to continue in service or to demand reinstatement. The opponent employer also contended that in place of the claimant, any other person was not engaged and that therefore, the allegations about breach of statutory provisions are misconceived and baseless. With such submissions, the opponent employer contended that the reference should be rejected. 3.2 Both the parties led oral and documentary evidence. The opponent employer also contended that in place of the claimant, any other person was not engaged and that therefore, the allegations about breach of statutory provisions are misconceived and baseless. With such submissions, the opponent employer contended that the reference should be rejected. 3.2 Both the parties led oral and documentary evidence. Upon conclusion of the evidence, the learned Labour Court heard submissions by learned advocates for the claimant workman and opponent employer and after considering material on record and rival submissions, the learned Labour Court passed the impugned award with above mentioned directions. 4. Mr. Joshi, learned AGP, assailed the impugned award. He submitted that the learned Labour Court failed to appreciate that the claimant had raised dispute as an afterthought and the said aspect was clear in view of the fact that the claimant's service was discontinued in April 1985 whereas he raised dispute in 1998, i.e. after 13 years. According to learned AGP, such dead and stale dispute should not have been entertained by the learned Labour Court and the reference deserved to be rejected on the said ground alone. He further submitted that the claimant had not placed any material on record to establish that he joined service in May 1982 and that he worked for the period from May 1982 to April 1985 and despite such fact, the learned Labour Court passed the impugned award and ignored the fact that the claimant had worked only for 20 days. According to learned AGP, the learned Labour Court passed the impugned award by disregarding the facts and the evidence available on record and that the learned Labour Court ignored the fact that the claimant did not place any material on record to support his allegations. He also submitted that since the claimant had worked only for 20 days and he did not work for 240 days in preceding 12 months, there was no need to comply provisions under Section 25F, Section 25G or Section 25H of the Act and that therefore, it cannot be said that the opponent employer committed breach of such provision. 5. Per contra, Mr. Pathak and Ms. Kamani, learned advocates for the respondent workman, submitted that the petitioner failed to place on record attendance register or pay register and that therefore, the learned Labour Court has rightly drawn adverse inference against the petitioner. 5. Per contra, Mr. Pathak and Ms. Kamani, learned advocates for the respondent workman, submitted that the petitioner failed to place on record attendance register or pay register and that therefore, the learned Labour Court has rightly drawn adverse inference against the petitioner. Learned advocates also submitted that the claimant did not have any material in his possession to establish that he worked for period of 3 years and that therefore, the employer was obliged to place attendance register and pay register so that it can be ascertained and established that the claimant had worked with the petitioner establishment from May 1982, however, the opponent failed to place any material on record and therefore, there is no illegality or error in the impugned award of the learned Labour Court. Learned counsel submitted that after having drawn adverse inference against the employer, the learned Labour Court examined as to whether the employer had followed procedure under Section 25F and 25G of the Act or not, and on such examination, the learned Labour Court found that the opponent failed to pay retrenchment compensation and junior persons were continued in service and that therefore, the learned Labour Court passed the impugned award with direction to reinstate the respondent with 25% backwages and that therefore, the award cannot be termed arbitrary or unreasonable as well as the learned Labour Court has recorded the fact that the employer committed breach of statutory provision. With such submissions, learned advocates for the workman submitted that the petition may be rejected. 6. I have considered rival submissions and material available on record as well as the impugned award. 7. It has emerged from the record that the claimant failed to establish any of his allegations and claim. The claimant did not place any material on record to establish that he worked with the opponent from May 1982 and/or he worked continuously and regularly from 1982 to 1985. The claimant also failed to place on record any material to establish that he worked for 12 months and 240 days in preceding 12 months. Despite such fact, only on the ground that the opponent did not place any material on record, the learned Labour Court has drawn adverse inference against the opponent employer. 8. The claimant also failed to place on record any material to establish that he worked for 12 months and 240 days in preceding 12 months. Despite such fact, only on the ground that the opponent did not place any material on record, the learned Labour Court has drawn adverse inference against the opponent employer. 8. The learned AGP contended that during his deposition, the claimant did not mention name of a single person, who according to his claim and allegation, was junior to him and yet he (i.e. the junior person) was continued in service after his (i.e. claimant's) service came to be terminated. In absence of any evidence, which could establish that persons junior to the claimant were actually continued in service, the learned Labour Court could not have recorded conclusion about breach of Section 25G. The learned AGP submitted that the claimant was obliged to atleast mention name of the person/s who, according to him, was junior and yet he was continued in service. In present case, neither name of the person and date of joining in service by such person was mentioned by the claimant nor any other corroborating evidence to establish that the junior person was continued in service was placed on record and that in absence of such evidence, the learned Labour Court's presumption that junior persons were continued in service is erroneous and unsustainable. 9. However, learned advocates for the claimant opposed the said submission by learned AGP and asserted that the claimant had examined four witnesses namely, Mr. N.M. Parmar, Mr. H.B. Vaghela, Mr. A.B. Patel and Mr. Shailesh Pramodray and out of the said four witnesses Mr. Shailesh Pramodray, one of the witnesses of the claimant, deposed before the learned Labour Court that he was junior to the claimant and was continued in service after the service of the claimant was discontinued. 10. It appears that with reference to petitioner's claim about breach of Section 25G, the learned Labour Court relied on the deposition of said witness Mr. Shailesh Pramodray and on that basis, the learned Labour Court held that the opponent committed breach of Section 25G. 11. Of course, the learned Labour Court has also recorded that the opponent committed breach of Section 25H, however, from deposition, names of any persons who came to be subsequently appointed, does not come out. 12. Shailesh Pramodray and on that basis, the learned Labour Court held that the opponent committed breach of Section 25G. 11. Of course, the learned Labour Court has also recorded that the opponent committed breach of Section 25H, however, from deposition, names of any persons who came to be subsequently appointed, does not come out. 12. In this background, even if the submission by learned AGP to the effect that the claimant had not worked for about 240 days in preceeding 12 months is believed, then also, in light of the evidence by the witnesses who were examined on behalf of the claimant, it appears that the claimant worked with present petitioner and at the time when his service was discontinued, person junior to him was continued in employment. Therefore, the findings of fact recorded by learned Labour Court with regard to breach of Section 25G cannot be faulted. 13. In this background, the legality and justiciability of the final direction are required to be examined. 14. It has emerged from the record that the claimant worked on daily wage basis with the petitioner and that he was engaged on ad-hoc and casual basis for temporary period. It has also emerged that there was no material before the learned Labour Court to assume that the claimant had worked from 1982 to 1985. However, the evidence by the witnesses of the claimant atleast establish the fact that the claimant worked with present petitioner and that at the time when his service came to be discontinued, person junior to him was continued in service. 15. At the same time, the fact that the claimant raised dispute after delay of 13 years cannot be ignored. 16. When undisputedly the dispute was raised after delay of 13 years, the learned Labour Court could not have and ought not have mechanically passed the direction to consider claimant's service continuous. By virtue of such direction, the claimant cannot get benefit of continuity of service for 13 years during which he did not raise any dispute and he also cannot get benefit of continuity of service for period of another 8 years, i.e. from 1998 to 2006 during which the proceedings continued before the learned Labour Court. By virtue of such direction, the claimant cannot get benefit of continuity of service for 13 years during which he did not raise any dispute and he also cannot get benefit of continuity of service for period of another 8 years, i.e. from 1998 to 2006 during which the proceedings continued before the learned Labour Court. In absence of any material about total length of service of the claimant and in face of undisputed fact that the dispute was raised after delay of 13 years, such direction ought not and could not have been granted. Therefore, the said direction deserves to be set aside. 17. For the same reasons, the direction to pay 25% backwages is also not sustainable and deserves to be set aside. 18. During hearing of this petition, it is given out by learned counsel for the claimant that during the period, i.e. after the award was passed and during pendency of present petition, the petitioner paid last drawn wages to the claimant in accordance with Section 17B of the Act. 19. Under the circumstances, it has emerged that in light of the deposition by one Mr. Shailesh Pramodray, the conclusion by learned Labour Court about breach of Section 25G cannot be faulted. Therefore, this Court is not inclined to interfere with the order directing the petitioner to reinstate the claimant. However, for the reasons mentioned hereinabove, the order directing payment of 25% backwages and order granting continuity of service for intervening period cannot be sustained and that therefore, the said directions, i.e. direction to pay 25% backwages and direction granting continuity of service are set aside. With aforesaid observations and clarifications, present petition is partly allowed. Orders accordingly. Rule is made absolute to the aforesaid extent.