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2019 DIGILAW 979 (GUJ)

State of Gujarat v. Rameshbhai Vallabhabhai Joshi

2019-10-18

S.R.BRAHMBHATT, V.P.PATEL

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JUDGMENT : S.R. Brahmbhatt, J. 1. The Appellants/Original Petitioner Nos. 1 and 2 have taken out this Letters Patent Appeal (hereinafter referred to as "the LPA" for the sake of brevity) under Clause 15 of the Letters Patent Act, challenging the judgment and order of the learned Single Judge rendered in Special Civil Application No. 2498 of 2018 (for short "SCA 2498/2018") whereby, the learned Single Judge has dismissed the petition challenging the judgment and order of the learned Labour Court, Jamnagar in Reference (LCJ) No. 212 of 2006 on 27.10.2017 wherein the Labour Court while partly allowing the Reference of the present Respondent issued direction that the workman Respondent in the present proceedings be reinstated on his original post with continuity of service with 20% back wages. In case if there is any failure in compliance therewith within 30 days there from, the said amount was ordered to earn simple interest at the rate of 9% till the same is really paid. 2. The facts in brief as could be gathered from the order of the Labour Court and the learned Single Judge which is essentially required for appreciating the controversy deserve to be set out as under; 2.1 The Respondent workman was engaged as Driver/Peon since 9th March 2002 till 31.5.2003. Again on 8.10.2002 to 30.6.2003 and thereafter from 1.7.2003 to 8.5.2006 the date on which his services were terminated unceremoniously. 2.2. The workman raised industrial dispute which came to referred to the competent court, where in it was marked as Reference (LCJ) No. 212/2006. 2.3. The workman as per his statement of claim raised various contentions qua breach of provisions of Industrial Disputes Act 1947 (hereinafter referred to as "the ID Act" for the sake of brevity) and laid special emphasis upon the breach of Section 25(f) on account of the non-compliance with those provisions of the ID Act. The Labour Court framed points for determination as under: (a) Whether the workman has been removed illegally by the employer? (b) Whether the workman is entitled to relief of reinstatement with full back wages? (c) What order? The Labour Court framed points for determination as under: (a) Whether the workman has been removed illegally by the employer? (b) Whether the workman is entitled to relief of reinstatement with full back wages? (c) What order? After answering both the points in affirmation, the 3rd point was the direction, where under, as it is stated herein above, the workman was ordered to be reinstated with continuity of service and 20% of back wages on the basis of the reasons recorded in the order and award, which was assailed before this court by way of SCA 2498/2018 and, wherein, this court, on 14.2.2018, rendered detailed judgment and order, whereby the petition was dismissed. Being aggrieved and dissatisfied with the said judgment and order, the present Letters Patent Appeal has been preferred assailing the same. 3. Learned AGP Mr. Utkarsh Sharma appearing for the Appellant-State of Gujarat contended that the workman-Respondent could not have been ordered to be reinstated as the perusal of the order of the Labour Court would clearly indicate that there was no breach of Section 25(f) of the ID Act as alleged. The learned AGP further submitted that the workman has clearly indicated in his own statement of claim that the workman did not continuously serve the employer as he was called upon to work as and when there was a requirement. Therefore, keeping this admitted fact in to mind, the Labour Court ought not to have granted reinstatement with 20% back wages and continuity of service. 3.1. The learned AGP further submitted that the workman cannot be said to have established before the Labour Court that in the preceding order of termination the workman completed 240 days to invoke Section 25(f) of the ID Act. 3.2. Learned AGP further submitted that the court may consider in the alternative that the total period of service of the workman was such a small as to make him ineligible for receiving the larger benefit which otherwise would flow on account of the order of reinstatement with continuity of service. This is in fact not permissible as the workman who had rendered small period of service only for the period of 4 years is ordered to be reinstated with continuity of service which will be very harsh to the Appellant. 3.3. This is in fact not permissible as the workman who had rendered small period of service only for the period of 4 years is ordered to be reinstated with continuity of service which will be very harsh to the Appellant. 3.3. Learned AGP further submitted that the learned Single Judge ought to have appreciated this aspect and based thereupon ought to have allowed the petition. The learned Single Judge has in fact treated the petition to be one under Article 226 of the Constitution of India and therefore also the observation by the learned Single Judge may not itself be based upon the premise that the petition was filed under Article 227 of the Constitution of India and hence the restriction of the scope which is described by the court was in fact unwarranted and therefore the court may allow the Appeal and quash and set aside the order of the learned Single Judge as well as that of the Labour Court. 4. The Counsel appearing for the Respondent workman invited court's attention to the elaborate discussion by the Labour Court and submitted that the Labour Court has clearly recorded its finding qua breach of Section 25(f) of the ID Act. The said finding has rightly not been interfered with before this court in the subsequent proceedings, and now therefore, when there are concurrent findings of facts qua the workman Respondent establishing completion of 240 days, itself has to attract the provision of Section 25(f) of the ID Act, this court in the LPA may not interfere therewith. 4.1. The learned Counsel appearing for the Respondent workman further submitted that the workman had established before the Labour Court that he was in employment and he has been terminated without following due procedure of law. The workman without whiling away time raised the industrial dispute, the remedy available to the workman, and therefore, thereafter the passage of time, could not have been permitted to the workman so as to deprive him continuity or the reduction in wages. The workman without whiling away time raised the industrial dispute, the remedy available to the workman, and therefore, thereafter the passage of time, could not have been permitted to the workman so as to deprive him continuity or the reduction in wages. However, the workman has chosen not to challenge the award so far as reduction in back wages is concerned, but that in itself may not weigh with the court in any manner rather the same may be appreciated by the court to hold that the workman has not been granted full back wages and continuity as required to be granted as the workman was deprived of his services without there being any justification as provided in law. 4.2. Learned Counsel appearing for the Respondent further submitted that the documents which were sought to be produced also do not indicate that there was a complete record available. On the contrary the Appellant choose not to present either or could not present the complete record of the services and therefore the inference would go against the Appellant/Original Opponent in the Reference and when there is finding only recorded qua breach of Section 25 (f) of the ID Act, this court may not interfere with the said finding. 5. This court has heard learned Counsels appearing for the parties and perused the papers. 5.1 The following indisputable aspects therefore deserve to be set out as under in order to appreciate the controversy namely; (i) The workman's engagement as workman employee in the establishment of the present Appellant No. 2 is not disputed. (ii) It has come out unequivocally in the findings of the court that the engagement of the workman by the Appellant No. 2 has not been disputed, meaning thereby, there exists relation of employer and employee or employer and workman. (iii) The workman was not appointed on any fixed appointment nor has that been urged before the court at the first instance by the employer. (iv) The workman had performed his duties and there was no ground of misconduct or otherwise for framing about an end to his service. (v) The abrupt termination of the service of the workman was brought about without following the procedure of law, specially Section 25(f) of the ID Act. (iv) The workman had performed his duties and there was no ground of misconduct or otherwise for framing about an end to his service. (v) The abrupt termination of the service of the workman was brought about without following the procedure of law, specially Section 25(f) of the ID Act. (vi) The workman has established before the court at the first instance that in the preceding year of his termination he completed 240 days and this being a finding of fact needs to be appreciated in a proceeding. (vii) The Labour Court has granted continuity of service with 20% back wages only bearing in mind the fact that the workman could not have been said to have been absolutely unemployed as he had sustained himself and his family. Therefore the greater reduction is effected in the back wages portion. (viii) The learned Single Judge has elaborately discussed the aspect of not only the completion of 240 days and the breach of Section 25(f) of the ID Act but the scope of the jurisdiction of this court under Article 227 of the Constitution of India. (ix) The learned Single Judge is concur with the findings of the fact. Being dissatisfied, the Appeal is preferred under Clause 15 of the Letters Patent. 6. Against the aforesaid backdrops of factual aspect when we peruse the judgment of the Labour Court, we have observed that the present Appellants in fact failed in justifying their assertion in respect of the provision of Section 25(f) of the ID Act. The Labour Court has, based upon the evidence adduced before it, recorded clear finding qua the Respondent being workman, the Respondent workman completing 240 days in the preceding year and the lack of compliance with Section 25(f) of the ID Act. The Labour Court has also recorded that the non-production of complete record of service also would militate against the employer Respondent in the Reference. When the learned Single Judge has appreciated this aspect and not interfered with, we are of the view that the Letters Patent Appeal also would not require to be entertained. We are of the view that the Labour Court's judgment needed no interference nor is the order of the learned Single Judge calls for any interference in the Letters Patent Appeal. We are of the view that both the orders passed are speaking and in consonance with law. We are of the view that the Labour Court's judgment needed no interference nor is the order of the learned Single Judge calls for any interference in the Letters Patent Appeal. We are of the view that both the orders passed are speaking and in consonance with law. As a result thereof, Appeal fails and is hereby rejected. 7. Civil Application No. 2/2019 (for stay) does not survive, stands disposed of in view of the disposal of the main matter.