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2021 DIGILAW 608 (GUJ)

STATE OF GUJARAT v. GULAMHAIDER IBRAHIM AGHARIYA

2021-07-22

NIRZAR S.DESAI, R.M.CHHAYA

body2021
ORDER : R.M.CHHAYA , J. 1. Heard Mr. Dhawan Jayswal, learned Assistant Government Pleader for the appellant. 2. Feeling aggrieved and dissatisfied by the order dated 3.12.2020 read with the order dated 21.12.2020 passed by the learned Single Judge (Coram: Mr. Ashutosh J. Shastri, J.) rendered in Special Civil Application no.14804 of 2020, the appellant has preferred this appeal under Clause 15 of the Letters Patent. 3. Before considering the submissions made by Mr. Dhawan Jayswal, learned Assistant Government Pleader for the appellant, it would be appropriate to refer to the factual matrix arising out of this appeal. 4. That, the private respondent herein was appointed as a Driver on daily wage basis on 19.11.1992 and was discontinued and terminated from service with effect from 1.8.2009. Being aggrieved by the same, the private respondent raised a dispute as provided under Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”), which came to be registered as Reference LCP no.9 of 2014 before the Presiding Officer of Labour Court, Palanpur, District Banaskantha. It was the case of the private respondent before the Labour Court that he was appointed as Driver with effect from 19.11.1992 on daily wage basis and was paid minimum wages. It was the case of the private respondent that he has worked for more than 240 days in every year i.e. from 1992 till 2009. It was the case of the private respondent before the Labour Court that inspite of an application filed by the private respondent before the appellate authority not to discontinue or terminate his service, his service came to be discontinued and terminated arbitrarily. It was the case of the private respondent before the Labour Court that the appellate authority has committed breach of Sections 25F, G and H of the Act. It was specifically case of the private respondent that without following procedure and without giving any notice or notice pay and/or compensation arbitrarily, the service of the respondent has been discontinued and terminated from 1.8.2009. As per the award, the respondent was examined at Exh.23 and the respondent also adduced documentary evidence at Exh.36. The appellant also examined one of his witness – Shri Dipak Karsanbhai Sonar at Exh.32 and also produced documentary evidence at Exh.15. As per the award, the respondent was examined at Exh.23 and the respondent also adduced documentary evidence at Exh.36. The appellant also examined one of his witness – Shri Dipak Karsanbhai Sonar at Exh.32 and also produced documentary evidence at Exh.15. The Labour Court, after appreciating the evidence on record both oral and documentary evidence adduced by both the sides and after appreciation of the evidence on record, came to the conclusion that even as per the log book which is produced on record at Exh.36 and other evidence on record came to a finding of fact that the respondent has worked from 19.11.1992 till 30.7.2009 continuously. The Labour Court, upon appreciation of the evidence, came to the conclusion that the order of 29 days has been produced on record which clearly proves the fact that the respondent has worked as ad-hoc Driver with the appellant–organization and he has worked for more than 240 days in the last 12 months preceding his discontinuation from service. After appreciating the evidence as a whole and relying upon the judgment of the Hon'ble Apex Court in the case of Divisional Manager, New India Assurance Company Ltd. Vs. V.A. Sankaralingam, reported in 2009 (1) GLH 503 , the Labour Court came to the conclusion that the respondent is covered under the definition of “workman” as defined under Section 25 of the Act and was pleased to hold that the respondent has worked for 240 days in the last 12 preceding months and thus, the Labour Court came to the conclusion that there is breach of provisions of Section 25F of the Act. However, upon appreciation of the evidence on facts, the Labour Court was ultimately pleased to partly allow the Reference and passed the award by reinstating the respondent with continuity of service, however, without any backwages along with cost of Rs.1,500/-. 5. The appellant herein, being aggrieved by the said judgment and award, preferred a Writ Petition under Articles 226 and 227 of the Constitution of India and raised several contentions and grounds as mentioned in Paragraph 4 of the Writ Petition. The learned Single Judge, after considering the evidence on record and after considering the grounds raised by the appellant while dismissing the petition and confirming the judgment and award, was pleased to observe thus:- “5. The learned Single Judge, after considering the evidence on record and after considering the grounds raised by the appellant while dismissing the petition and confirming the judgment and award, was pleased to observe thus:- “5. Having heard the learned Assistant Government Pleader appearing on behalf of the State and having gone through the material on record, prima facie it is found that the grievance of the respondent workman was well being examined by the learned Presiding Officer. It was consistent direction only with a view to see that he may not continue to work on the position and ultimately has been discontinued on 01.08.2019. It has been categorically found by the learned Presiding Officer of the Labour Court that even after confirmation of service, he has continuously worked till the date of his termination and there is a clear violation of Section 25 F of the Industrial Disputes Act and this finding of violation of Section 25 F of the Industrial Disputes Act is culled out from the material on record , which led before the learned Presiding Officer. It has also been found by the learned Presiding Officer that there is a violation of Section 25 G of the Industrial Disputes Act as well and this finding is on critical analysis of the evidence led before the learned Presiding Officer and as such, this fact finding authority has minutely examined the material on record and then arrived at a conclusion, which in no case can be considered as perverse in any form. There appears to be no material irregularity or illegality of any nature in exercise of jurisdiction. As a result of this, the finding arrived at by the learned Presiding Officer is perfectly justified in the eye of law. 6. Apart from that the learned Presiding Officer on account of passage of time has taken care of the interest of State exchequer and has not awarded any backwages and as such, such a balance view which has been taken based upon the critical analysis of evidence on record, this court would not like to exercise extraordinary jurisdiction particularly when, it is not possible for this Court to substitute any finding in the absence of any perversity or material irregularity on the basis of very same material. That being the case, this is not a fit case in which exercise of extraordinary jurisdiction deserves to be undertaken. 7. That being the case, this is not a fit case in which exercise of extraordinary jurisdiction deserves to be undertaken. 7. Additionally, while coming to the conclusion, the Court is to mindful of the settled position of law on the issue of exercise of extraordinary jurisdiction, which has been succinctly propounded in the decision reported in (2013) 9 SCC 374 . Paragraphs 6 and 7 the observation of the Apex Court are kept in mind by this Court while not entertaining the petition. This being the position, no case is made out. The petition stands dismissed with no order as to costs.” 6. Mr. Dhawan Jayswal, learned Assistant Government Pleader appearing for the appellant has raised the following contentions:- 6.1 That, the learned Single Judge as well as the Labour Court have failed to appreciate that the appointment of the respondent was only for 29 days. 6.2 It was further contended that the learned Single Judge as well as the Labour Court have committed an error in granting continuity of service. 6.3 It was further contended that the respondent approached the Labour Court after a delay of 5 years and therefore, the Reference itself was bad. No other or further submissions, averments, grounds and/or contentions are made by Mr. Jayswal, learned Assistant Government Pleader appearing for the appellant. 7. We have gone through the judgment and award passed by the Labour Court as well as the impugned order passed by the learned Single Judge, confirming the judgment and award passed by the Labour Court. 8. As far as the first contention raised by the learned Assistant Government Pleader for the appellant is concerned, it is a matter of fact that the respondent was appointed to work for 29 days at a time. However, the finding of fact arrived at by the Labour Court based upon the appreciation of the evidence on record clearly establishes the fact, which is again based on evidence, such as, log book maintained by the appellant which clearly shows that the respondent has worked as a daily wage Driver from 19.11.1992 till 30.7.2009 continuously. The finding of fact arrived at by the Labour Court that thus, the respondent has worked for 240 days in each year as such establishes the fact that the respondent has worked continuously from 19.11.1992 to 30.7.2009. The finding of fact arrived at by the Labour Court that thus, the respondent has worked for 240 days in each year as such establishes the fact that the respondent has worked continuously from 19.11.1992 to 30.7.2009. The documentary evidence clearly establishes the fact that by a series of such order of 29 days, the service of the respondent was continuous in nature from 19.11.1992 till 30.7.2009. In opinion of this Court therefore, the finding of fact arrived at by the Labour Court and confirmed by the learned Single Judge is based upon cogent evidence produced by the respondent and the said evidence is of the appellant itself. No other or contrary evidence has been produced or led by the appellant and therefore, the evidence on record clearly establishes the fact that the service of the respondent came to be terminated admittedly without giving any notice or notice pay and/or compensation. The appellant has not been able to establish even remotely that such procedure has been followed by the appellant. In light of such unimpeachable evidence on record, the Labour Court has therefore rightly come to the conclusion that there is breach of Section 25F of the Act. Such finding of fact has been rightly and succinctly considered by the learned Single Judge. There is no material on record to take any contrary view. 9. As far as the contention of continuity of service is concerned, it deserves to be reiterated that even as per the orders passed by the appellant, the respondent has continuously worked from 19.11.1992 till 30.7.2009 i.e. for almost 17 years and therefore, the Labour Court, having rightly appreciated the evidence on record and believed that the respondent has worked continuously, has correctly applied the provisions of the Act, more particularly, Section 25F of the Act and has also rightly granted continuity of service. 10. As far as the delay of 5 years is concerned, the same is correctly appreciated by the Labour Court by not granting any backwages to the appellant. 11. All the 3 grounds raised by the appellant therefore fail and the appeal, being meritless, deserves to be dismissed and is hereby dismissed. Connected Civil Application also stands dismissed. However, there shall be no order as to costs.