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2021 DIGILAW 929 (GUJ)

CHIEF OFFICER v. DINESHBHAI GOVINDBHAI HARIJAN

2021-10-08

A.S.SUPEHIA

body2021
JUDGMENT : 1. Since the common issue and facts are involved in the present writ petitions, the same are heard and decided analogously. 2. In the captioned writ petitions, the respondents-workmen have challenged the awards passed by Labour Court, Nadiad, wherein and whereby, the petitioner-Nagarpalika is directed to reinstate the respondent-daily wagers with continuity of service without back wages. 3. Learned advocate Mr.Mehulsharad Shah appearing for the petitioner-Nagarpalika has submitted that the award of the Labour Court suffers from non-application of mind as no evidence - either documentary or oral was produced before the Labour Court and the award is passed in favour of the respondents-employees only on conjunctures and surmises. It is submitted that the petitioner-Nagarpalika had initially passed a Resolution No.510 dated 22.10.1999 to convert the part time daily wagers to full time daily wagers, but vide order dated 16.12.1999, the Health Officer directed the Nagarpalika to postpone the implementation of the said order since there were instructions issued by the Election Commission due to election and by the order dated 21.12.1999, the Resolution was suspended. Ultimately, the Collector, while exercising the powers under Section 258 (1) of the Gujarat Municipalities Act, 1963 vide order dated 08.06.2001 had suspended those resolutions. It is submitted that because of the said resolutions, the respondents-workmen raised an industrial dispute alleging that they were terminated by the Nagarpalika and the same has culminated into the references. 4. It is submitted by the learned advocate Mr.Shah that by the order dated 21.06.2011, the reference was dismissed for want of evidence and thereafter, on an application filed by the respondents-employee, the case was restored vide order dated 17.03.2012. It is submitted that thereafter vide impugned award, the references were allowed. It is submitted that the respondents-employees did not produce any evidence before the Labour Court showing that they had actually worked for 240 days or were in fact the employees of Nagarpalika and the Labour Court without calling for necessary evidence or examining any evidence in this regard has passed the impugned award and hence, the same is required to be quashed and set aside. In support of his submissions, he has placed reliance on the judgment of the Coordinate Bench dated 23.07.2019 passed in Special Civil Application No.2685 of 2012 and has submitted that the employer is not obliged to maintain the seniority list of daily wages and burden lies upon the party who asserts violation of provisions of Sections 25G and 25H of the Industrial Disputes Act, 1947 (for short “the ID Act”). It is submitted that in the present case also it was for the respondents-employees to establish the dates of their appointment and their termination is in violation of Section 25G of the ID Act. Thus, it is submitted that since in absence of any evidence before the Labour Court, no award should have been passed directing the Nagarpalika to reinstate the respondents-employees in service. 5. In response to the aforesaid submissions, learned advocate Mr.U.T.Mishra appearing for the respondents has submitted that the Labour Court has precisely passed the award directing the Nagarpalika to reinstate the workmen in service since the Nagarpalika had passed a Resolution dated 22.10.1999, whereby it was decided to convert the part time daily wagers to full time daily wagers and hence, in view of the said resolution, the Labour Court has held that the employees were in fact working under the petitioner-Nagarpalika. It is submitted that the petitioner-Nagarpalika could have produced the evidence – either orally or documentary to show that they were being engaged by the Nagarpalika for undertaking necessary work, but since the same was not produced, the Labour Court has precisely relied upon the statement of the respondents-employees that they were engaged by the Nagarpalika. Thus, he has submitted that the impugned award may not be interfered. 6. I have heard the learned advocates appearing for the respective parties and the impugned awards are also perused. 7. The facts, which are not in dispute are that on 22.10.1999 Resolution No.510 was passed by the petitioner-Nagarpalika deciding to convert the part time daily wagers to full time daily wagers, but the same was subsequently suspended and ultimately, by order dated 08.06.2001, the Collector, while exercising the powers under Section 258(1) of the Gujarat Municipalities Act, 1963, has suspended the said resolution and such resolution has not been challenged by the respondents-employees. 8. It appears that thereafter the respondents-employees raised the industrial dispute, which culminated into the reference. 8. It appears that thereafter the respondents-employees raised the industrial dispute, which culminated into the reference. The reference was dismissed for want of evidence by the Labour Court by order dated 21.06.2011, however the same was restored vide order dated 17.03.2012 on the application made by the respondents-employees. 9. The Court has perused the award threadbare and a bare perusal of the award reveals that the same is passed without examining any documentary evidence establishing that the respondents-employees were engaged or working under the petitioner-Nagarpalika or they were engaged for any work. No muster roll or any seniority list or other documents or wage register anything is produced by the workmen. The only evidence, on which the award is premised, is Exh.11 i.e. the affidavit of the chief-examination of the applicant i.e. the Chief Officer. 10. At this stage, it would be apposite to refer to the decision of the Supreme Court in the case of State of Uttarakhand & Ors. vs. Sureshwati, (2021) 3 SCC 108 , wherein the Supreme Court has reiterated the observations made in the case of Bhavnagar Municipal Corporation and Others vs. Jadeja Govubha Chhanubha and Another, (2014) 16 SCC 130 , which read as under:- “26. A division bench of this Court in Bhavnagar Municipal Corpn. v. Jadeja Govubha Chhanubha held that : “7. It is fairly well-settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25-B of the Industrial Disputes Act, 1947. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25- B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court in Range Forest Officer v. S.T.Hadimani, Municipal Corpn., Faridabad v. Siri Niwas, M.P. Electricity Board v. Hariram, Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan,: 2004 SCC (L&S) 1055], Surendranagar District 11 (2014) 16 SCC 130 . The decisions of this Court in Range Forest Officer v. S.T.Hadimani, Municipal Corpn., Faridabad v. Siri Niwas, M.P. Electricity Board v. Hariram, Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan,: 2004 SCC (L&S) 1055], Surendranagar District 11 (2014) 16 SCC 130 . Panchayat v. Jethabhai Pitamberbhai and R.M. Yellatti v. Executive Engineer unequivocally recognise the principle that the burden to prove that the workman had worked for 240 days is entirely upon him. So also the question whether an adverse inference could be drawn against the employer in case he did not produce the best evidence available with it, has been the subject-matter of pronouncements of this Court in Municipal Corpn., Faridabad v. Siri Niwas and M.P. Electricity Board v. Hariram [M.P. Electricity Board v. Hariram, reiterated in RBI v. S. Mani. This Court has held that only because some documents have not been produced by the management, an adverse inference cannot be drawn against it.” The Supreme Court has reiterated proposition of law that it is well settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25B of the Industrial Disputes Act, 1947. Unequivocally the burden lies on the workman to prove that he has worked for 240 days, which in the present case is absolutely missing. The Coordinate Bench in the judgment dated 23.07.2019 passed in Special Civil Application No.2685 of 2012, while examining the similar issue has held that in order to give findings with regard to breach of Section 25G of the ID Act, the workman has to establish the specific date of his appointment and he has to prove that the persons named in the seniority list are retained in service. The Court has also held that the employer is not obliged to maintain the seniority list of the daily wagers and the burden lies upon the party. 11. In the present case, as noticed from the award, it is apparent that neither the respondents-workmen have produced any documents to show that they were engaged by the present petitioner-Nagarpalika and they had worked continuously for 240 days nor any seniority list etc. was also produced. 11. In the present case, as noticed from the award, it is apparent that neither the respondents-workmen have produced any documents to show that they were engaged by the present petitioner-Nagarpalika and they had worked continuously for 240 days nor any seniority list etc. was also produced. The industrial dispute has been raised by the respondents-employees by placing reliance on the resolution dated 22.10.1999 passed by the Nagarpalika to convert the part-timers into full time employees. Indisputably, the said Resolution has been suspended by the Collector, while exercising the powers under Section 258(1) of the Gujarat Municipalities Act, 1963 vide order dated 08.06.2001. Such orders are also not challenged before any forum. The resolution dated 22.10.1999 is neither examined nor it is called for. It is also not produced before this Court. In order to arrive at the findings in favour of the employees, it was necessary for the Labour Court to examine the true nature and import of the Resolution as to whether the said resolution was in force or any right flows from it in favour of the employees. The subsequent order passed by the Collector suspending the Resolution was also required to be examined. 12. Under the circumstances, since the award suffers from aforementioned irregularities, the matters are remanded to the Labour Court, Nadiad to decide the issue afresh. During the pendency of these petitions, it is informed that the respondents-employees are engaged by the Nagarpalika subject to the outcome of the present petitions, as it appears that due to the interim orders passed by this Court, the respondents-employees are reinstated and are being engaged in work subject to the outcome of these petitions. 13. In this view of the matter, the petitioner is directed to continue such respondents-employees in service, who are engaged if the work is available till the references are decided by the Labour Court. The Labour Court is directed to decide the reference, preferably within a period of six months from the date of receipt of the writ of this judgment. 14. Accordingly, the petitions are allowed. Rule is made absolute. 15. In view of the order passed in the writ petitions preferred by the Nagarpalika, the petitions filed by the respondents-employees being Special Civil Application Nos.4611, 4331, 4754, 4703 and 4914 of 2018 are hereby rejected.