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2021 DIGILAW 618 (GUJ)

AHMEDABAD MUNICIPAL CORPO. v. RAJENDRA N SONI

2021-07-23

A.P.THAKER

body2021
JUDGMENT : 1. The petitioners have filed this petition under Articles 14, 16, 226 and 227 of the Constitution of India for the following prayers: A. Be pleased to admit the present Special Civil Application; B. Be pleased to allow this Special Civil Application by way of issuing appropriate writ, mandamus order or directions quashing and setting aside the impugned award dated 24/04/2006 passed by the Labour Court at Ahmedabad in Reference (LCA) No.1879 of 1995 annexed as Annexure – D by way of holding that the same is illegal, unjust and arbitrary and further be pleased to hold that there is no violation of the provisions of Section 25(g) & (h) of the I.D. Act and hence the respondent herein is not eligible and entitled for any relief. C. Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to grant interim relief by way of staying the implementation, execution and operation of the award dated 24/04/2006 passed by the Labour Court at Ahmedabad in Reference (LCA) No.1879 of 1995 annexed as Annexure – D. D. Be pleased to pass such other and further orders as the nature of the case may deem thought fit to pass such order. 2. Brief facts of the present case are that the workman - respondent herein was working with the Corporation, petitioner herein on the post of compounder and there was a reference pending before the Labour Court and during the pendency of the reference, the employer has terminated the service of the workman w.e.f. 01.07.1992 on the ground that there is no post vacant of the compounder. It is contended that since the respondent was not reinstated, he approached the Assistant Labour Commissioner and the Assistant Labour Commissioner has initiated conciliation proceedings which is failed, the Assistant Commissioner has made a reference under the I.D. Act to the Labour Court. It is contended that after termination of his service, he tried to get employment, but, he could not find out and he is unemployed. It is also contended that the job of the workman was terminated in nature. On all these grounds he has sought the relief for declaring that the action on the part of the employer in termination his service is illegal one and in directing the employer to reinstate with full back wages and continuity of service. It is also contended that the job of the workman was terminated in nature. On all these grounds he has sought the relief for declaring that the action on the part of the employer in termination his service is illegal one and in directing the employer to reinstate with full back wages and continuity of service. 2.1 The petitioner – Corporation has resisted the claim by filing its reply denying all the averments made by the workman. It was contended that the workman was working as a daily wager and he was provided the work as compounder without following procedure of recruitment between 18.02.1991 to 30.06.1992 depending upon the availability of the work and funds. It is contended that since there was non-availability of the work, the workman was not offered the work w.e.f. 01.07.1992. It is contended that the Labour Court has not properly appreciated the evidence on record and observation made by the Labour Court regarding the breach of Section 25G and 25H of the Industrial Disputes Act, 1947 (hereinafter be referred to as the “I.D. Act”.)It is further contended that in another reference being Reference (I.T.) No.322 of 1994, the workman had deposed that he had worked between 1802.1991 to 10.03.1991 for in all 21 days and had never worked w.e.f. 24.04.1990. It is contended that this fact clearly shows that there was no violation of the provision of Section 25G of the I.D. Act. It is also contended that the Labour court has not properly appreciated the fact that one Mr.Abdulkarim A. Soniwala was not a daily wager and, therefore, there was no violation of the provision of Section 25H of the I.D. Act. It is further contended that the Labour Court ought to have considered the fact that there was a delay of three years in raising the reference and there was no explanation of such delay. It is contended that the workman has never worked for 240 days in any of the years in past. On all these grounds, the petitioners have prayed to quash and set aside the impugned award and to allow the present petition. 3. Heard Mr.H. S. Munshaw, learned counsel for the petitioner and Mr.T. R. Mishra, learned counsel for the respondent, at length, through video conferencing. 4. Mr.H. S. Munshaw, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition. 3. Heard Mr.H. S. Munshaw, learned counsel for the petitioner and Mr.T. R. Mishra, learned counsel for the respondent, at length, through video conferencing. 4. Mr.H. S. Munshaw, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition. He has submitted that the award passed by the Labour Court has been stayed subject to the complaint under Section 17B of the I.D. Act. He has submitted that the workman was daily wager compounder during the period from 18.02.1991 to 30.06.1992 and he has hardly worked for 01 year and 03 months. He has submitted that as there was no work available with the employer, no work was assigned to the workman. According to him, the Labour Court has granted the prayer only on the ground that there is a breach of Sections 25G and H of the I.D. Act, however, it was not found that there was any breach of Section 25F of the I.D. Act. He has submitted that the workman is sailed workman as he is compounder. According to him, the engagement of the workman was of short period. According to him, while providing the work to the workman, no regular procedure was followed. He has submitted that the workman has filed a reference after a delay of three years and there is no such explanation offered by him. 4.1 Mr.Munshaw, learned counsel for the petitioner has submitted that the Labour Court has committed error of facts and law in arriving at the conclusion that there was a breach of Section 25H of the I.D. Act on the ground that one Mr.Abdulkarim A. Soniwala is employed, but he is not a daily wager and, therefore, there cannot be breach of Section 25H of the I.D. Act. While referring to the deposition of the workman, learned advocate for the petitioner has also submitted that the workman has admitted that he was daily wager. While referring to the communication, he has submitted that the work which was carried out by the workman was ‘essential service’, he was appointed only on daily wages. According to him, the observations made by the Labour Court for granting the relief to the workman is erroneous one. He has prayed to allow the present petition and to quash and set aside the impugned award. According to him, the observations made by the Labour Court for granting the relief to the workman is erroneous one. He has prayed to allow the present petition and to quash and set aside the impugned award. Alternatively, he has submitted that considering the long span of almost 14 years, some lump sum amount may be awarded as the compensation as full and final settlement. 5. Mr.Mishra, learned counsel for the respondent has submitted that the Labour Court has properly appreciated the facts and circumstances of the case and has properly granted the prayer of reinstatement with continuity of service. He has submitted that the Rules of the Municipality cannot override the provisions of the I.D. Act. According to him, when the workman was working and his service came to be terminated without following due process of the provisions of the I.D. Act, the workman is entitled to get reinstatement with continuity of service and full back wages. He has submitted that due to the award passed by the Labour Court, no harm is likely to be caused to the petitioners herein. He has submitted that though the workman has not filed any petition against the order of the Labour Court in not granting the full back wages, this Court under the scheme of of the Constitution may grant full back wages to the workman. 5.1 Mr.Mishra, learned counsel for the respondent has relied upon the following decisions: (1) Harjinder Singh Vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192 ; (2) Vikramadiya Pandey Vs. Industrial Tribunal, (2001) 2 SCC 423 ; (3) Raj Kumar Dixit Vs. Vijay Kumar Gauri Shanker, Kanpur Nagar, (2015) 9 SCC 345 ; (4) Bhavnagar Municipal Corporation Vs. Dharmendra B. Vegad rendered by the Division Bench of this Court in Letters Patent Appeal No.2290 of 2010 dated 30.12.2010; (5) Gauri Shanker Vs. State of Rajasthan, (2015) 12 SCC 754 ; (6) Jasmer Singh Vs. State of Haryana and another, (2015) 4 SCC 458 ; 6. In rejoinder, Mr.Munshaw, learned counsel for the petitioners has submitted that the workman has worked for few days only and, therefore, the back wages cannot be granted ipso facto. He has submitted that whether the workman is entitled for reinstatement after almost 14 years. He has submitted that the workman is outsider and he was not on waiting list. In rejoinder, Mr.Munshaw, learned counsel for the petitioners has submitted that the workman has worked for few days only and, therefore, the back wages cannot be granted ipso facto. He has submitted that whether the workman is entitled for reinstatement after almost 14 years. He has submitted that the workman is outsider and he was not on waiting list. According to him, the list was prepared after candidates appeared before the Staff Selection Committee, whereas, in the present case, the workman has not even appeared before the said Committee. He has submitted that the post on which the workman was working as Class III post and there is sanctioned set up. He has submitted that there are Recruitment Rules of the Municipality and there is also selection procedure. According to him, all these policies are required to be followed by the petitioners and since the petitioners have not been appointed by such procedure, the workman cannot have any right to reinstatement. He has submitted that the workman has worked as daily wager, who wants a Class III post. According to him, the workman is totally stranger and, therefore, he is not entitled to any sort of relief. Regarding his submission of compensation, he has relied upon the decision of the Apex Court in the case of Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh, (2013) 5 SCC 136 . 7. In the case of Assistant Engineer, Rajasthan Development Corporation and another (supra), the Apex Court has observed in paras-17, 20, 21 and 22 as under:- 17. In Deptt. Of telecommunications v. Keshab Deb, (2008) 8 SCC 402 , this Court said that even if the provisions of Section 25-F of the ID Act has not been complied with, the workman was only entitled to just compensation. 18. xxx xxx xxx 19. xxx xxx xxx 20. In U.P. SEB v. Laxmi Kant Gupta, (2009) 16 SCC 562 , this Court stated : (SCC p.564, para 9) “9…. now there is no such principle that for an illegal termination of service the normal rule is reinstatement with back wages, and instead the Labour Court can award compensation,” 21. 18. xxx xxx xxx 19. xxx xxx xxx 20. In U.P. SEB v. Laxmi Kant Gupta, (2009) 16 SCC 562 , this Court stated : (SCC p.564, para 9) “9…. now there is no such principle that for an illegal termination of service the normal rule is reinstatement with back wages, and instead the Labour Court can award compensation,” 21. In Santosh Kumar Seal, (2010) 6 SCC 773 , while dealing with a case of workmen who were engaged as daily wagers about 25 years back and had hardly worked for two or three years, this Court speaking through one of us (R. M. Lodha,J.) held that reinstatement with back wages could not be said to be justified and instead monetary compensation would subserve the ends of justice. It was held that compensation of Rs.40,000/- to each of the workmen would meet the ends of justice. 22. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that the dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief.” 8. In the case of Harjinder Singh (supra), the Apex Court has held and observed in paras-16, 18, 20 as under:- “16. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief.” 8. In the case of Harjinder Singh (supra), the Apex Court has held and observed in paras-16, 18, 20 as under:- “16. It is true that in the writ petition filed by it, the corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the corporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for construction work on 5.3.1986 and he worked in that capacity and also as Work Munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months' specified in order dated 5.2.1987, the appellant continued to work till 5.7.1988 when first notice of retrenchment was issued by the Managing Director of the corporation. Therefore, it was not open for the corporation to contend that the appellant had not completed 240 days service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of `last come first go' without any tangible reason. 18. While rejecting the argument, this Court analysed Sections 25-F, 25-H, , Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957, referred to Section 25-G and held: (S. Satyam case, (1996) 5 SCC 419 , SCC pp. 426- 27, para 7-9) "7. Section 25-H then provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re-employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for reemployment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention. Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not present any difficulty. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 125-F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for reemployment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available. Application of Section 25-H to the other retrenched workmen not covered by Section 25- F does not, in any manner, prejudice those covered by Section 25- F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25- F is available for re-employment. There is, thus, no reason to curtail the ordinary meaning of "retrenched workmen" in Section 25-H because of Rules 77 and 78, even assuming the rules framed under the Act could have that effect. 9. The plain language of Section 25-H speaks only of reemployment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate to the wide meaning of `retrenchment' given in Section 2(oo). Section 25-F also uses the word `retrenchment' but qualifies it by use of the further words "workman ... who has been in continuous service for not less than one year". Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words "workman ... who has been in continuous service for not less than one year". It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F." (emphasis supplied). “20. The distinction between Section 25-F and 25-G of the Act was recently reiterated in Bhogpur Coop. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F." (emphasis supplied). “20. The distinction between Section 25-F and 25-G of the Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd v. Harmesh Kumar, (2006) 13 SCC 28, in the following words: (SCC p.31, para 9) "9. We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Section 25-G and Section 25-H thereof he may not have to establish the said fact. See: Central Bank of India v. S. Satyam, (1996) 5 SCC 419 , Sasmishta Dube v. City Road, Etawah, (1999) 3 SCC 14 , SBI v. Rakesh Kumar Tewari, (2006) 1 SCC 530 and Jaipur Development Authority v. Ramsahai, (2006) 11 SCC 684 ." 9. In the case of Vikramaditya Pandey (supra), the Apex Court has observed that the appellant was employed as a clerk adhoc basis raised an industrial dispute challenging termination of his services, the Tribunal after holding inquiry and on basis of the evidence held that termination of service of appellant was clearly retrenchment. However, it refused to grant relief of reinstatement on the ground that regular appointment to post held by appellant could only be made by U.P. Cooperative Institutional Service Board. It was further observed therein that the appellant ought to have been ordered to be reinstated in service once it was found that his services were illegally terminated. 10. In the case of Raj Kumar Dixit (supra), the Apex Court has observed that in absence of any plea before the Labour Court, producing additional evidence by the employer before the High Court is totally impermissible in law if jurisdiction of High Court is limited to examine correctness of award passed by the Labour Court in exercise of its power of judicial review under Article 227. 10.1 In the said decision, the Apex Court has observed in para- 19 as under:- “19. Awarding compensation to an amount of Rs. 2 lakhs to the workman by the High Court in lieu of reinstatement of the appellant-workman along with 50% back wages is once again contrary to the well settled principles of law as has been laid down by this Court in a catena of cases, particularly, the case of Punjab Land Development and Reclamation Corporation Ltd v. Labour Court, (1990) 3 SCC 682 wherein the Constitution Bench held that the order of termination simpliciter has to be held bad in law for noncompliance of the mandatory requirements provided under the Act and further held that the order of termination will be rendered void-ab-initio in law and therefore, the workman is entitled for all benefits for which he is legally entitled to in law.” 11. The Division Bench of this Court dated 30.12.2010 rendered in the case of Bhavnagar Municipal Corporation (supra) has observed in para-3 as under:- “3…….Consequently, it was observed that when there is clear violation of Section 25H, the workman is entitled to relief of reinstatement as reemployment and the continuity of service which has been granted with back wages, cannot be allowed by the labour Court. In the case of Ajaib Singh Vs. The Sirhind Cooperative Marketing-cum- Processing Service Society Ltd., ( AIR 1999 SC 1351 ), the Hon'ble Apex Court observed that the provisions of Article 137 of the Schedule to Limitation Act, 1967 are not applicable to the proceedings under the ID Act, and the relief under it cannot be denied to the workman, merely on the ground of delay. Even in a case where delay is shown to be existing, the tribunal, labour Court or board, dealing with the Downloaded on : Fri Jul 23 10:48:44 IST 2021 LPA/2290/2010 4/5 JUDGMENT case, can appropriately mould the relief by declining to grant back wages to the workman till the date he raises the demand regarding his illegal retrenchment/termination or dismissal. In the instant case, there is concurrent finding that provisions of Section 25H of the ID Act have been violated, as nine employees, those who were appointed or engaged along with the respondent, were subsequently engaged by the appellant Corporation. In almost identical situation, in the case of Agriculture Produce Market Committee Vs. In the instant case, there is concurrent finding that provisions of Section 25H of the ID Act have been violated, as nine employees, those who were appointed or engaged along with the respondent, were subsequently engaged by the appellant Corporation. In almost identical situation, in the case of Agriculture Produce Market Committee Vs. Kanubhai Laxmanbhai Patel (2009-II-LLJ41(Guj)), this Court directed to reinstate retrenched workman when junior in service was given priority and Section 25H was thereby contravened.” 12. In the case of Gauri Shanker (supra), the Apex Court has observed in para-22 as under:- “22. The Labour Court has rightly followed the normal rule of reinstatement of the workman in his original post as it has found that the order of termination is void ab-initio in law for non compliance with the mandatory provisions of the Act referred to supra. However, the Labour Court is not correct in denying backwages without assigning any proper and valid reasons though the employer did not prove either its stringent financial conditions for denial of back wages or that workman has been gainfully employed during the period from the date of order of termination till the award was passed in favour of the workman except granting Rs.2,500/- as compensation for the suffering caused to the workman. The same is erroneously modified by the learned single Judge who recorded the finding of fact for the first time by holding that the workman is a casual employee intermittently working in the respondent- Department.” 13. In the case of Jasmer Singh (supra), the Apex Court has observed in para-15 as under:- Accordingly, Issue No. 3 is answered against the respondent-management. The relevant paragraph from Ajaib Singh's, (1999) 6 SCC 82 is extracted herein below: (SCC p. 90, para 10) "10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages....." 14. Having considered the submissions made by learned counsel for both the sides coupled with the aforesaid decisions and the materials placed on record, it appears that there is no dispute that the workman was working with the employer. It also appears from the award of the Labour Court that the workman has filed documentary evidence in addition to his oral evidence, whereas, on behalf of the petitioners, none has been examined. It also appears that from 01.07.1992, the service of the workman was terminated. As the stand taken by the petitioners, no work was assigned to the workman from 01.07.1992, this factum of coming to an end of service of the workman is admitted by both the sides. It also reveals from the observations made by the Labour Court that the workman was working since last nine years. It is also observed by the Labour Court that there is no proof that the workman has worked for 240 days and, therefore, it was held by the Labour Court that there is no proof that the workman was working continuously under Section 25B of the I.D. Act. It was also held by the Labour Court that as there was no continuous service within the meaning of Section 25B of the I.D. Act, there was no need of any issuance of any notice or notice pay or retrenchment allowance and, therefore, there is no breach of Section 25F of the I.D. Act. 15. It was also held by the Labour Court that as there was no continuous service within the meaning of Section 25B of the I.D. Act, there was no need of any issuance of any notice or notice pay or retrenchment allowance and, therefore, there is no breach of Section 25F of the I.D. Act. 15. Now, while relying upon the Conciliation Case i.e. I.D.C. No. No.483 of 1992, there is observation regarding the written statement filed by the petitioners herein that the workman was working on the post as an outsider and however, he has treated an approved candidate and there is also averment that the workman was working on purely adhoc, temporary basis as a “reliever” and he has worked from 24.04.1990 to 30.06.1990. There is version of the petitioner herein in the aforesaid proceeding, the present workman i.e. respondent herein has worked for 274 days. The Labour Court has considered the documentary evidence regarding the list of the compounder wherein the name of one Babubhai Patel at Sr.No.7 is shown, whose appointment date is 01.08.1990, whereas, the workman’s date of appointment is 24.04.1990. Thus, those persons who have appointed later on have been retained; the service of the workman – respondent herein has come to an end. In this regard, considering the materials placed on record by the workman, the Labour Court has observed that there is clear breach of Section 25G of the I.D. Act. 16. It also appears from the award that for the year 1992, there was list of compounder, which is placed on record at Exhibit 28. The name of one Mr.Abdulkarim A. Soniwala is shown at Sr.No.10 and his date of appointment is shown as 12.11.1992, whereas, the workman i.e. respondent’s service came to be terminated on 01.07.1992. This facts reveals that Mr.Abdulkarim A. Soniwala has been appointed after termination of service of the respondent herein. In that view of the matter, it was observed by the Labour Court that there is clear breach of Section 25H of the I.D. Act and also Rule 82 of the Industrial Disputes (Gujarat) Rules, 1966. 17. Regarding gainful employment by the workman, it has been observed that in his oral deposition, the workman has clearly stated that he was unemployed. Against those averments, the petitioners have not led any evidence worth the name. 17. Regarding gainful employment by the workman, it has been observed that in his oral deposition, the workman has clearly stated that he was unemployed. Against those averments, the petitioners have not led any evidence worth the name. However, there is other evidence produced by the workman to substantiate his plea that he was not gainfully employed. After appreciating the materials placed on record, ultimately, the Labour Court has partly allowed the reference by directing the petitioners to reinstate the workman with continuity of service without any back wages. 18. Now, considering the materials placed on record, it clearly appears that whatever submissions made by the learned counsel for the petitioners are concerned, there is no basis put forward before the Labour Court. The petitioners have not even led any oral evidence on the grounds which are raised in the present petition. In absence of such materials, the Labour Court has dealt with the evidence placed on behalf of the workman. No fault can be found with the reasoning and observations of the Labour Court. It was for the petitioners to lead sufficient evidence on record before the Labour Court, however, no such evidence has been lead by the petitioners regarding the nature of work of Mr.Abdulkarim A. Soniwala, that he was not a daily wager. The copy of the deposition of the workman in another reference being Reference (I.T.) No.322 of 1994 is placed on record wherein he has deposed that the copy of the letter dated 17.09.1992 of the Deputy Municipal Commissioner at Exhibit 28 has been produced, wherein it is admitted that the workman has worked for 274 days from 24.07.1990 till 06.06.1992. From the cross-examination of the workman, it appears that his service was that of Reliever and he has not appeared before the Selection Committee. It is also found that the workman has admitted in his cross-examination that since last five years, he has not worked for 90 days. 19. Now, in view of the aforesaid letter of the Deputy Municipal Commissioner which was exhibited in another reference, it clearly appears that even on 10/17.09.1992, the workman has completed 274 days in the petitioner – Corporation. 20. It is pertinent to note that no materials regarding status of Mr.Abdulkarim A. Soniwala is produced by the employer. Therefore, in absence thereof, the observations of the Labour Court cannot be termed as perverse one. 20. It is pertinent to note that no materials regarding status of Mr.Abdulkarim A. Soniwala is produced by the employer. Therefore, in absence thereof, the observations of the Labour Court cannot be termed as perverse one. On perusal of the entire materials placed on record, it clearly appears that the Labour Court has not committed any error of facts and laws in passing the impugned award and the same is sustainable in the eyes of law. 21. In view of the aforesaid discussions, the present petition deserves to be dismissed and accordingly, it is dismissed. The impugned award dated 24.04.2006 passed by the Labour Court at Ahmedabad in Reference (L.C.A.) No.1879 of 1995 is hereby confirmed. 22. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.