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2024 DIGILAW 1860 (GUJ)

STATE OF GUJARAT v. BHIKHABHAI MAGANBHAI PATEL

2024-10-07

M.K.THAKKER

body2024
JUDGMENT : M.K. THAKKER, J. 1. Rule returnable forthwith. Learned advocate Ms. Siddhi Vadodariya waives service of notice of Rule on behalf of respondent no. 1. 2. Since all petitions arising out of the same issue, a common order is passed. 3. At the outset, learned AGP Ms. Surbhi Bhati has fairly submitted under the instruction of Mr. Ashish Kiranchandra Patel, who is Deputy Executive Engineer present before this Court that issue is covered in the decision rendered by this Court in SCA No. 940 of 2012 which has attained finality and the same was implemented by the State. 4. It is the case of the petitioner that the respondent herein was called for the casual work with the concerned department at relevant point of time. The respondent were not regularly appointed with the department of State Government neither were given regular appointment. As they have been called to complete their particular task, and on completion of that work the service were brought to an end in the year 1999 and therefore, dispute is raised qua termination of the service which came to be referred to the competent court on account of failure of Conciliation proceedings. Learned court rendered its decision after recording its findings qua non compliance with section 25-F as a result, thereof the termination was found to be vitiated and illegal. Hence, ordered to be reinstated with 30% back wages along with cost, which is subject matter of challenge before this Court. 5. Heard learned AGP Ms. Surbhi Bhati for the State and learned advocate Ms. Siddhi Vadodariya for Thakkar and Pahwa Associates. 5.1. Learned AGP has submitted that petitioner is not covered under the definition of ‘industries’ as defined under the I.D. Act. The appointment was not a regular appointment and no appointment orders have been issued to the respondent workman and in absence of the same, causal workers or temporary workers cannot claim parity with regard to back wages along with emoluments granted to the regular State government employees. It is further submitted by the learned AGP Ms. Bhati that respondent has not completed 240 days with the concerned department and therefore, also no prayer can be granted with regard to reinstatement. Learned AGP Ms. It is further submitted by the learned AGP Ms. Bhati that respondent has not completed 240 days with the concerned department and therefore, also no prayer can be granted with regard to reinstatement. Learned AGP Ms. Bhati submits that learned labour court has committed error in shifting the onus to the State to prove the completion of 240 days though the State Authority has placed on record the concerned and incidental evidence to show that respondent herein has not worked for more than 240 days. Learned AGP Ms. Bhati further submits that as the nature of work is causal and temporary and on completion of particular task the concerned person are terminated. Ignoring the said aspect, learned labour court has awarded reinstatement along with 30% back wages. At the end, learned AGP Ms. Bhati fairly submits that all the issues were decided by this Court in the petition filed by the similarly situated persons and the award with regard to the reinstatement along with 25% back wages is confirmed. 5.2. On the other hand, learned advocate Ms. Siddhi Vadodariya has submitted that no adjudication is required in view of the fact that the issue is covered by the decision of this Court in SCA No. 940 of 2012 wherein order of reinstatement along with 25% back wages were confirmed. Learned advocate Ms. Siddhi Vadodariya submits that after considering the length of service learned labour court has awarded 30% back wages in the present case and therefore, no interference is required on any count and the petition is required to be dismissed. 6. Considering the submissions made by the learned advocates for the respective parties, the petition which are filed can be classified in 2 categories, one is petitioners who are at present in service and the other is the petitioners who have retired on attaining the age of superannuation. 6. Considering the submissions made by the learned advocates for the respective parties, the petition which are filed can be classified in 2 categories, one is petitioners who are at present in service and the other is the petitioners who have retired on attaining the age of superannuation. The details of the same are mentioned herein-below: Schedule-I S. No. SCA No. Petitioner Name Termination Date Reference LCV No. 1 2794/2019 Dhanabhai Nathubhai Chaudhari 09.05.1999 653/2000 2 2799/2019 Satishbhai Bhuikhubhai Patel 09.05.1999 670/2000 3 2802/2019 Mohanbhai Ranchhodbhai Patel 09.05.1999 646/2000 4 2803/2019 Vinubhai Chimanbhai Patel 09.05.1999 672/2000 5 2805/2019 Ganeshbhai Kalubhai Patel 09.05.1999 654/2000 6 2806/2019 Amratbhai Kolghabhai Patel 09.05.1999 660/2000 7 2816/2019 Ishwarbhai Mitthalbhai Patel 09.05.1999 644/2000 8 2818/2019 Ranjitbhai Surajibhai Patel 09.05.1999 661/2000 9 2821/2019 Maheshbhai Chimanbhai Patel 09.05.1999 667/2000 10 2822/2019 Shaileshbhai Mitthalbhai Patel 14.12.1993 09.05.1999 11 2823/2019 Jayeshbhai Ramanbhai Patel 09.05.1999 664/2000 Schedule-II Petitioners who have retired on attaining the age of super annuation: S. No. SCA No. Petitioner Name Termination Date Reference LCV No. 1 2793/2019 Bhikhabhai Maganbhai Patel 09.05.1999 657/2000 2 2795/2019 Bachubhai Chhnabhai Patel 09.05.1999 647/2000 3 2796/2019 Arvindbhai Laxmanbhai Patel 09.05.1999 648/2000 4 2798/2019 Ranchhodbhai Paragbhai Patel 09.05.1999 669/2000 5 2807/2019 Ramanbhai Ukaadbhai Patel 09.05.1999 650/2000 6 2810/2019 Gajanandbhai Devjibhai Patel 09.05.1999 658/2000 7 2811/2019 Kantibhai Paragbhai Patel 09.05.1999 665/2000 8 2812/2019 Balubhai Uttambhai Patel 09.05.1999 662/2000 9 2813/2019 Jivanbhai Vallabhbhai Patel 09.05.1999 656/2000 10 2814/2019 Parabhubhai Bapudbhai Patel 09.05.1999 675/2000 11 2819/2019 Kalyanji Kalidas Patel 09.05.1999 676/2000 7. This Court has after giving detailed reasons has confirmed the order passed by learned labour court in similarly situated persons who were also terminated in the year 1999 along with present petitioner, the relevant observation of SCA No. 940 of 2012 is as under: “12. The findings recorded by the Labour Court unequivocally go to establish that the workmen were continuously serving with the employer for all the years when their services came to be terminated. The factum of workmen being continuous in service has been established by the workmen, as finding to that effect is recorded. The petitioners have not indicated anywhere as to how and in what manner this finding could be classified to be perverse or not untenable. The factum of workmen being continuous in service has been established by the workmen, as finding to that effect is recorded. The petitioners have not indicated anywhere as to how and in what manner this finding could be classified to be perverse or not untenable. On the contrary, the evidences and its appreciation by the Court coupled with the truncated production of documentary evidences on the part of the employer would rather indicate that the said finding deserves to be confirmed, as it is based upon the evidences and its appreciation which this Court may not re-appreciate in exercise of the power under Article 226 of the Constitution of India. 13. The further finding recorded by the Court is in respect of non compliance of the provisions of Section 25-f and other provisions of the I.D. Act, namely; 25-g and 25-h, the Labour Court's discussion qua this finding also indicate that the Court has based upon these findings on appreciation of evidences to indicate that the employer failed in dislodging the established facts on the part of the workmen that they were continuously working and before bringing about termination of their services they were paid either the compensation for retrenchment, nor were they paid one month wages in lieu of the notice, nor notice or notice pay. All these factors have gone into only one direction, which was rightly pleaded on the part of the workmen that there was a breach of Section 25-f. As a result whereof, the Court thought it fit to order reinstatement keeping in view the number of service, which they have rendered. 14. So far as, back wages are concerned, the Court has recorded its finding, which in my view need not be now gone into at this stage, as the counsels have accepted the same so far as the workmen are concerned. 15. The Court was unable to agree with the submissions raised on behalf of the respondent that the workmen have failed in categorically calling upon the employer to produce documents. The burden cannot be said to have been discharged by the workmen, as the statement of claim categorically contained and the fact that the same has not been controverted, cannot be said to have been awarding further any efforts on the part of the workmen. The burden cannot be said to have been discharged by the workmen, as the statement of claim categorically contained and the fact that the same has not been controverted, cannot be said to have been awarding further any efforts on the part of the workmen. Besides, Shri Pathak, at this stage has invited this Court's attention to Exhibit-43 under which there is a specific demand raised and granted by the Court for production of document and, therefore, this submission is of no avail to the petitioners. 16. The contention qua back wages is also sought to be pressed into service by inviting Court's attention pointedly to the findings recorded by the Court, wherein it has recorded that some of the workmen engaged in agricultural and labour activities. To this, learned advocate Shri Pathak, has submitted that the findings cannot be said to be indicative of gainful employment, as envisaged under I.D. Act, so as to deny complete back wages. Therefore, the Labour Court has appropriately curtail the quantum of back wages. 17. This Court has also unable to accept the submission made at the bar qua modification of the order, so far as, the back wages are concerned, as the back wages cannot be said to be granted without consideration of the relevant factors. The Court has appreciated the evidence of the workmen in which the workmen have said that they were not engaged anywhere gainfully. Though, on the part of the workmen or some of the workmen being engaged in agricultural activities without any further evidence on the part of the employer to establish that they were gainfully employed. The Labour Court was to examine the matter on its own and when the Labour Court has curtail as much as 75% of back wages, this Court is of the considered view that the same needs no interference in these proceedings. 18. The Court, therefore, is of the considered view that these petitions have been filed assailing the order of Labour Court and when examined the challenge under Article 227 or even for that matter under Article 226, the Court is of the considered view that the order has not resulted into any miscarriage of justice, nor are they in any manner illegal so as to call for any interference. The Court is of the view that the Labour Court has considered all the aspects and after taking them into consideration passed the order, which cannot be said to have resulted into any perversity so as to call for any interference. The petitions being meritless, deserve dismissal and are accordingly dismissed. Rule is discharged in each matter. Interim relief, if any, stands vacated in each matter. However, there shall be no order as to costs. 19. In view of the orders passed in this group of matters, no order in present Civil Application.” 8. Hence, this petition is partly allowed qua modifying the awarded with regard to the back wages and instead of 30% the petitioners mentioned in Schedule-I who are still in service shall be granted 25% back wages in addition to the confirmation of the award of reinstatement as it was granted in SCA No. 940 of 2012, whereas, for the petitioners who have retired and are mentioned in Schedule-II hereinabove, be awarded 25% back wages. 9. It was informed by learned AGP Ms. Bhati that the workman has expired in petition filed being SCA No. 2797 of 2019, 2800 of 2019, 2801 of 2019, 2804 of 2019, 2824 of 2019 and 2825 of 2019. These matters are segregated from the group and adjourned on 09.12.2024 for impleading the heirs on record. 10. In view of the above judgment, Civil Applications if any, be disposed of. 11. Resultantly, this petition is partly allowed. Rule is made absolute to the above extent.