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Gujarat High Court · body

2022 DIGILAW 1568 (GUJ)

State Of Gujarat v. Bhavik Bhupatray Pandya

2022-11-14

A.Y.KOGJE

body2022
ORDER : 1. This batch of petitions under Article 226 of the Constitution of India are filed against the award of the Labour Court, Bhavnagar in various References. Parties to the reference are common, where reference has been made by the workman on one side and against Deputy Executive Engineer of Shetrunji Left Bank Canal Sub-Division of Bhavnagar. All these references by various awards have been disposed of and are now the subject matter of challenge both by the Employer-State Government and also by the individual workman. Therefore, each award is the subject matter of challenge in cross petitions. The details in Tabular form are given as under: Sr. no. S.C.A. Case No. Filed by the Government S.C.A. Case No. filed by the workman/Party NAME OF Workman Date of JOINING -as per Muster Roll Date of DISCHARGE By The Said Party - or - By AWARD of Labor Court. Re. L.C.B. No. And Date of Admission/Registration Date of AWARD of Labour Court and Details Special Civil Application Nos. (1) (2) (3) (4) (5) (6) (7) (8) 1. 18173/2021 19601/2021 Bhavik Bhupatrai Pandy 04/03/1995 20/04/2013 135/2016 Dt. 24/10/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 2 18175/2021 19605/2021 Girvansinh Mavubha Vala 14/01/1997 20/04/2013 133/2016 Dt. 24/10/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 3 18177/2021 19610/2021 Suresh Vanmali Chauhan 19/02/1996 20/04/2013 138/2016 Dt. 24/10/2017 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost 4 18178/2021 19616/2021 Dana Khoda Karit 10/10/1992 20/04/2013 141/2016 Dt. 15/11/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 3,000/- as cost 4 18178/2021 19616/2021 Dana Khoda Karit 10/10/1992 20/04/2013 141/2016 Dt. 15/11/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 5 18181/2021 19607/2021 Gobar Bala Chauhan 18/04/1996 20/04/2013 134/2016 Dt. 24/10/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost 6 18193/2021 19604/2021 Balashank ar Tuljaram Jani 08/04/1997 20/04/2013 131/2016 Dt. 24/10/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 7 18265/2021 19612/2021 Harpalsinh Ajinsinh Vala 13/12/1996 20/04/2013 139/2016 Dt. 24/10/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost 8 18268/2021 19619/2021 Jaydipsin h Pratapsin h Vala 19/02/1996 20/04/2013 136/2016 Dt. 24/10/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 9 18271/2021 19609/2021 Kamlesh Ramnik Josh 10/12/1992 20/04/2013 142/2016 Dt. 15/11/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 10 18335/2021 19602/202 Kamlesh Nanji Jani 07/10/1993 20/04/2013 137/2016 Dt. 24/10/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 3,000/- as cost. 10 18335/2021 19602/202 Kamlesh Nanji Jani 07/10/1993 20/04/2013 137/2016 Dt. 24/10/2016 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 11 18964/2021 19618/2021 Mavji Kalyan Bhatt 21/10/1983 29/12/2002 68/2011 Dt. 18/08/2011 Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 12 18333/202 - - - - - Vikram Java Lathiya 08/11/1996 30/04/2003 54/2010 Dt. 15/03/2010 Award Dt. 19/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge – i.e. dt. 30/04/2003 and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 13 18332/2021 - - - Dharamsi Java Lathiya 23/04/1996 30/04/2003 52/2010 Dt. 15/03/2010 Award Dt. 19/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge – i.e. dt. 30/04/2003 and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 14 19073/2021 19615/2021 Govind Mathur Jani 06/03/1994 20/04/2013 132/2016 Dt. 24/10/2016c Award Dt. 22/04/2021 As mentioned in it, the Order is passed to count service of Applicant as continue service from the date of discharge and to re-instate in service except the salary of un-attended days. Also it is directed to pay Rs. 3,000/- as cost. 15 18354/2021 - - - Bhadresh Ramnik Upadhya 20/11/1997 13/12/2000 125/2010 Dt. 29/12/2010 Award Dt. 02/07/2021 In which the period from the date of discharging the applicatnt i.e. from 31/12/2000 to date of production of raisining of demand i.e. dt. 29/09/2010 shall be considered as “dies non” , the consinued service is to be counted from the date of submitting the demand – ie. From dt. 29/08/2010, shall be reinstated in service along with 20% of wages of non-attended days. Also it is directed to pay Rs. 29/09/2010 shall be considered as “dies non” , the consinued service is to be counted from the date of submitting the demand – ie. From dt. 29/08/2010, shall be reinstated in service along with 20% of wages of non-attended days. Also it is directed to pay Rs. 3,000/- as cost 16 - - - - - 19613/2021 Jivankha Daadankha 22/12/2019 01/01/199 6 125/2010 Dt. 20/01/2012 Award Dt. 04/02/2021 In which, it is directed that as the Applicant has crossed the age limit of service/reached at the age of retirement. Hence, he is not to be re-instated, instead, it has been ordered that he shall be paid a lump-sum amount of Rs. 45,000/- as well as Rs. 3,000/- against the cost. The said payment has been done. 2. As the Department is common and the issue raised by both the sides are also similar in batch of these petitions, with the consent, all the petitions are taken up for joint hearing and final disposal. The facts are recorded from Special Civil Application No.18173 of 2021 and Special Civil Application No.19601 of 2021. 3. Special Civil Application No.18173 of 2021 under Article-226 of the Constitution of India is filed by the State Government with following prayers: “(A) YOUR LORDSHIPS may be pleased to admit and allow the present petition; (B) YOUR LORDSHIPS may be pleased to quash and set aside the order passed in Reference (LCB) No.135 of 2016 dated 22.04.2021; (C) Pending the hearing your lordship be please to stay the order passed in Reference (LCB)No.135 of 2016 dated 22.04.2021;” 4. Special Civil Application No.19601 of 2021 under Article-226 of the Constitution of India is filed by the respondent-workman with following prayers: “[a] to allow this petition with costs and issue a writ of certiorari or any other writ, direction or order in the nature of writ, as may be deemed to be appropriate, modifying the said Award and grant the relief of some backwages from the date of termination i.e. from 20- 04-2013 till the raising of demand notice i.e. till 22-08-2016 and 100% salary, in view of the continuity of service, awarded by the said Award, dated 22-04-2021 till actual reinstatement and also direct the respondent to forthwith take back the petitioner in service in view of the said Award; [b] to dispose of the present petition expeditiously, pending admission, hearing and final disposal of this petition;” 5. The State Government is referred to as the petitioner-Department and the workman is referred to as the respondent-workman. 6. Learned AGP for the petitioner submitted that award of the Labour Court is erroneous both on facts as well as in law in as much as the respondent-workman before the Labour Court has failed to establish that the respondent-workman has worked for more than 240 days with the petitioner-Department. 7. It is submitted that in fact, it was burden of the respondent-workman to be discharged before the Labour Court that he has rendered services continuous for a period of 240 days, especially when the contention of the petitioner-Department was that the respondent-workman has not been appointed with the petitioner-Department by following due process and has not worked for a period of 240 days and engagement, if any, with the petitioner-Department, it is merely for a limited period as stop gap arrangement and after arrangement, the respondent-workman had himself stopped attending the work and therefore, there is no question of illegal termination from the service as claimed by the respondent-workman. It is submitted that the Labour Court has given erroneous findings without there being any evidence on record that the respondent-workman was working with the petitioner-Department for almost 20 years. It is submitted that as the respondent-workman has not worked with the petitioner-Department for more than 240 days in a year, he has not completed service of continuous service as contemplated in Section-25(B) of the Industrial Disputes Act and therefore, there cannot be any breach of Section-25(F), where the respondent-workman has failed to proof continuous service. 8. Learned AGP for the petitioner further submitted that the Labour Court has proceeded merely on presumptions and assumptions in accepting the statement of claim by the respondent-workman. 9. Learned AGP for the petitioner submitted that the reference is delayed, as according to the Department, the respondent-workman had abandon his service way back in the year 1995. However, even if, case of the respondent-workman is to be believed that he has orally terminated in the year 2013, then also the demand was raised only in the year 2016 and therefore, there is delay in raising an Industrial dispute. 10. Learned AGP for the petitioner has made feeble attempt by contending that the petitioner-Department is not an Industry within Section-22(J) of the Industrial Disputes Act. 11. 10. Learned AGP for the petitioner has made feeble attempt by contending that the petitioner-Department is not an Industry within Section-22(J) of the Industrial Disputes Act. 11. As against this, learned Advocate for the respondent-workman has vociferously argued regarding the conduct of Officers of the petitioner- Department for resorting to pick and choose policy, when it comes to produce the evidence on record regarding attendance of the respondent-workman with the petitioner-Department. Learned Advocate has made serious contention that large number of references were filed before the Labour Court, Bhavnagar and in each of such references, the Department was required to place on record necessary evidence in connection with the attendance of the respondent-workman. The Officers of the petitioner-Department chose to file necessary record of attendance in connection with those workmen, whom they favoured, whereas in connection with those workmen, whom such Officers did not favour, they have pleaded that there is no record to establish attendance and on the basis of lack of evidence on their part, are claiming that the respondent-workmen have not completed 240 days. In fact, each of the respondent-workman was working with the petitioner-Department between 10 years to 20 years and therefore only, oral evidence, which was placed by the respondent-workman was rightly believed by the Labour Court and where an opportunity was given to the petitioner-Department to place on record, upon an application made by the respondent-workman to produce evidence on record of the Department. No such evidence was placed forthwith. Therefore, the Labour Court was justified to believe the evidence of the petitioner-Department on account of the absence of any evidence by the petitioner-Department. 12. Learned Advocate for the respondent-workman has submitted that demand was raised on 28-02-2016 against the oral termination of the respondent-workman on 20-04-2013, which is not an unreasonable delay more particularly, when the respondent-workman did not raise an industrial dispute on account of the assurance given by the petitioner- Department for reinstating him. This aspect is clear from the oral evidence of the respondent-workman, which is appreciated by the Labour Court. 13. This aspect is clear from the oral evidence of the respondent-workman, which is appreciated by the Labour Court. 13. Learned Advocate for the respondent-workman in support of his petition challenging the award, has submitted that the Labour Court, Bhavnagar ought to have framed the issues with regard to violation of Section-25(F), 25(G) and 25(H) of the Industrial Disputes Act, which was the basic contention of the respondent-workman in the reference, as the claim of the respondent-workman, who has rendered continuous service as defined in Section-25(B) of the Industrial Disputes Act and thereafter, oral termination of the respondent-workman has resulted in breach of Section-25(F), 25(G) and 25(H) of the Industrial Disputes Act. It is submitted that reasoning and finding on these two issues would have supported the respondent-workman to claim back-wages, which the Labour Court has failed to grant and has only granted directions for reinstating at his original post with continuity, but without back-wages. It is also submitted that the Labour Court ought to have taken into consideration the fact that from the date of oral termination in the year 2013 to grant of reinstatement in the year 2016, the respondent-workman has not gainfully employed elsewhere and therefore, was entitled to back-wages. It is also submitted that it would have been relevant aspect for the Labour Court to consider that where the nature of work was continuous and that the respondent-workman was engaged long back, persons who have joined the Department after the respondent-workman has been continued or fresh workmen were employed, resulting into breach of Section-25(G) and 25(H). It is therefore, claimed that the Labour Court ought to have granted 100% back-wages, while ordering reinstatement and continuity. 14. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the respondent-workman raised an industrial dispute claiming that he was serving as Daily Wager in Sathra Section of the petitioner-Department since the year 1992 and on 20-04-2013, without assigning any reasons and without any fault of the respondent-workman by oral order, services of the respondent-workman came to be terminated. The respondent-workman gave the demand notice on 22-08-2016 and on failure to reconciliation, reference was made by the State Government to the Labour Court, which was registered as Reference (LCB) No.135 of 2016. The impugned award came to be passed on 22-04-2021. The respondent-workman gave the demand notice on 22-08-2016 and on failure to reconciliation, reference was made by the State Government to the Labour Court, which was registered as Reference (LCB) No.135 of 2016. The impugned award came to be passed on 22-04-2021. It appears that immediately upon the award being issued, the respondent-workman addressed the communication on 10-06-2021 to join the duty, but was not permitted to do so. 15. Vide Exh-13, the Labour Court has recorded the evidence of the respondent-workman in the form of Affidavit and was thereafter, cross examined on behalf of the petitioner-Department. On behalf of the respondent-workman, documentary evidence vide Exh-14 was produced, which was seniority list placed by the petitioner-Department in connection with another reference raised by different workman being LCB No.398 of 2001, where said document was given vide Exh-17. On behalf of the petitioner-Department vide Exh-19, witness – Jayeshbhai Nanjibhai Bareya was examined by way of Affidavit and cross examination by the respondent-workman. Vide Exh-20 and Exh-21, the petitioner-Department has produced details regarding attendance of the respondent-workman and tabular information of yearly attendance of the respondent-workman. Vide Exh-9, application was given by the respondent-workman before the Labour Court calling upon the petitioner-Department to place relevant documents, which were in custody of the petitioner-Department. As per application, seven documents were demanded, which included the Seniority List of the Daily Wager, Watchman cum Beldar, List of work, which was taken from the respondent-workman by the petitioner-Department, list of workmen, who were at the relevant time still engaged with the petitioner-Department and also the details regarding Attendance Sheets, Salary Slips, Attendance Cards, Vouchers and Cash-books for the period between 1992 to 2013, even if such work has taken through the Contractor. In connection with this application, Exh-9, order came to be passed on 19-09-2019 directing the petitioner-Department to place on record original Attendance Sheets, Salary Slips and Vouchers of previous two years, prior to terminating the respondent-workman and also Seniority List as on 2013. Remaining documents were not called for under the aforesaid Order. 16. In response, it appears that the petitioner-Department could only produce Exh-19 and Exh-20, which is tabular form simply indicating the days on which the respondent-workman has remained present, which is claimed to have been prepared on basis of office record, but cannot be treated as evidence, which was called for by order under Exh-9. 17. 16. In response, it appears that the petitioner-Department could only produce Exh-19 and Exh-20, which is tabular form simply indicating the days on which the respondent-workman has remained present, which is claimed to have been prepared on basis of office record, but cannot be treated as evidence, which was called for by order under Exh-9. 17. In the opinion of the Court, failure to produce the evidence as ordered for by the Labour Court entitled the Labour Court to infer against the petitioner-Department regarding fact of service period of the respondent-workman and therefore, was justified in accepting the claim of the respondent-workman being in service since 1992 as Chokidar cum Beldar. 18. At this stage, it would be appropriate to refer to discussion of the impugned award, wherein the Labour Court has categorically found that despite the order below Exh-9, where an option was given either to file an Affidavit or place on record the evidence regarding Attendance Sheets and Salary Slips/Vouchers, the petitioner-Department has failed to do either and in this connection, the Labour Court has also appreciated that the petitioner-Department has resorted to pick and choose policy, when it comes to place on record of the documentary evidence regarding Attendance of respondent-workman in various references. The Labour Court has also referred to cross examination of witness on behalf of the petitioner-Department, wherein he has deposed that as and when the Daily Wagers were being engaged with the petitioner-Department, Muster Roll was maintained, remuneration was paid by Vouchers and section-wise, the Attendance Sheets have been maintained of all the Daily Wagers. Therefore, the Labour Court has held that the respondent-workman has discharged his burden by his oral evidence regarding his engagement and continuous service, whereby the burden shifted on the petitioner-Department, which the petitioner-Department ought to have discharged on its own. The petitioner-Department has failed to discharge such burden, even after specific directions contained in order below Exh-9. Therefore, the Labour Court has given findings that with oblique motive, the petitioner-Department has not produced on record relevant evidence regarding Attendance of the respondent-workman with the petitioner- Department. 19. With regard to the claim of the petitioner-Department of there being delay in raising industrial dispute, when the petitioner-Department contended that the respondent-workman had himself stopped attending and reliance being placed on Circular dated 01-04-2000 by which practice of maintaining Muster for Daily Wager was completely barred. 19. With regard to the claim of the petitioner-Department of there being delay in raising industrial dispute, when the petitioner-Department contended that the respondent-workman had himself stopped attending and reliance being placed on Circular dated 01-04-2000 by which practice of maintaining Muster for Daily Wager was completely barred. However, the Labour Court has observed that no such Circular was placed on record for appreciation of the same. Moreover, nothing is placed on record regarding the respondent-workman having abandon the service, as even the deposition of the witness on behalf of the petitioner-Department has not supported this case. 20. The evidence of Jayeshbhai Nanjibhai Bareya, the Deputy Executive Engineer vide Exh-19, admits to the engagement of the respondent-workman with the petitioner-Department in the year 1995. In the cross examination, this witness has deposed that the petitioner-Department has not placed any documentary evidence in support of the claim of the petitioner-Department or against claim of the respondent-workman. In his evidence, he has mentioned that nature of work is perennial and as on today, the work is being executed through the respondent-workman who was junior to the respondent-workman. It is also stated that whenever required, the respondent-workmen from other divisions have also been called for, for executing the work of the petitioner- Department. The claim of the petitioner-Department that the respondent-workman had abandon the service, was therefore, rightly not believed and the Labour Court arrived at conclusion that cause of action to raise industrial dispute occurred only in the year 2013, when the respondent-workman was orally terminated. In the deposition of the respondent-workman, it is coming on record that after being terminated, the respondent-workman did wait on account of assurance given by the Officers of the petitioner-Department of being absorbed again with the petitioner-Department. There is no reason for this Court to disbelieve such findings given by the Labour Court more particularly, when the petitioner-Department is unable to bring anything more than this on record of the Court. 21. With regard to the contention of the petitioner-Department regarding the Department not being an Industry, such contention need not be deliberated upon in great detail in view of the decision of the Apex Court in case of Bangalore Water-Supply & Sewerage Board, etc. 21. With regard to the contention of the petitioner-Department regarding the Department not being an Industry, such contention need not be deliberated upon in great detail in view of the decision of the Apex Court in case of Bangalore Water-Supply & Sewerage Board, etc. v/s. R. Rajappa & others reported in 1978 AIR 548 and finding given in this connection to the Issue No.2, wherein Reference is also made to other Judgment of the Apex Court including the decision of Gujarat Forest Producers, Gatherers And Forest Workers Union v/s State of Gujarat reported in 2004(2) GLR 1488 . At this stage, it would be pertinent to refer to the decision of this Court in case of Navnitray Parmanand Jani v/s. Deputy Executive Engineer and others passed in Special Civil Application No.20706 of 2018 and allied matters, which came to be disposed of by Common Oral Judgment dated 24-10-2019, wherein identical facts were examined by this Court and held in favour of the respondent-workman by directing reinstatement and continuity. Aforesaid order was thereafter modified by Oral Order dated 29-11-2019. 22. The Court has considered the contention raised by the respondent-workman with regard to the breach of Section-25(F) and (G). In the opinion of the Court with nature of evidence available on the record, the Labour Court has proceeded to appreciate it in the right perspective and merely because, the evidence on behalf of the petitioner- Department indicated that nature of work was perennial and was being executed by other Juniors, would not make it necessary for the Labour Court to examine the same, when the Labour Court has considered the wider issue of reinstating the respondent-workman with continuity. Claim of the respondent-workman for examining the issue was for the purpose of back-wages in that case also, burden to bring on record the evidence to claim back-wages, would still lie on the shoulders of the respondent –workman. Perusal of the record would indicate that for the purpose of claiming back-wages, the respondent-workman has not discharged his burden by placing on record necessary evidence of him having discharged his duties from 1992 till 2013 and has not received any remuneration for the same. Perusal of the record would indicate that for the purpose of claiming back-wages, the respondent-workman has not discharged his burden by placing on record necessary evidence of him having discharged his duties from 1992 till 2013 and has not received any remuneration for the same. Moreover, from the year 2013 till raising demand, the respondent-workman has only claimed that he was given assurance by some Officers of being absorbed, whereas no concrete evidence in this regard, in the opinion of the Court, is placed before the Labour Court for its appreciation. Hence, the Court does not find any reason to interfere with the findings of the Labour Court even on this count on behalf of the respondent -workman (petitioner of cross petition). 23. In view of the aforesaid, all the petitions filed both by the Employer State & the workman deserve to and are hereby dismissed and the award of the Labour Court in the respective references are hereby maintained. Notice is discharged with no order as to costs.