Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 691 (GUJ)

State of Gujarat v. Jagdishbhai Ranjitbhai Rana

2024-04-01

BIREN VAISHNAV, PRANAV TRIVEDI

body2024
ORDER : ORDER IN CIVIL APPLICATIONS 1. Heard Ms. Roshni Patel, learned AGP and Mr. J.A. Adeshara, learned advocate for the respondent-workmen. 2. Mr. Adeshara, learned advocate for the respondents-workmen would rely on an order of the co-ordinate bench of this court where the civil applications for condonation of delay were rejected on the ground that though the legal department had opined positively not to file an appeal and when the file went to the Chief Minister’s Office, the decision was overturned and an opinion was given by the Chief Minister’s office to file appeals in the said applications. However, we are not dealing with the said submission in light of the fact that since in identical cases, the appeals were admitted, we have dismissed them by separate order of even date. 3. Accordingly, delay is hereby condoned. Applications are accordingly allowed. ORDER IN LETTERS PATENT APPEALS 1. With the consent of learned AGP and learned advocate for the respondents – workmen, the appeals are taken up for hearing today. 2. These appeals arise out of the order dated 13.03.2023 passed by the learned Single Judge in the respective captioned petitions by which the learned Single Judge dismissed the petitions of the State confirming the awards passed by the Labour Court which were impugned in the respective writ petitions granting reinstatement with continuity of service and 25% backwages. 3. The facts leading to filing of the present appeals are that the respondent workmen were working as Class IV employees for more than 12 years and were terminated on 27.03.2006. Aggrieved, all the respondent workmen preferred references before the Labour Court at Nadiad. The Labour Court held that there was violation of Section 25F, G and H of the Industrial Disputes Act and directed the reinstatement of the respondent workmen on their original posts with continuity in service and 25% back wages for the interregnum period. 4. Ms. Roshni Patel, learned AGP appearing for the appellant State would submit that the Labour Court committed an error in granting reinstatement with 25% backwages and also granting continuity of service. She submitted that the respondent workmen after being terminated were working at different places and therefore the Labour Court ought not to have granted backwages. 5. Mr. Adeshara, learned advocate appearing for the respondents workmen supported the impugned award and the order of the learned Single Judge. She submitted that the respondent workmen after being terminated were working at different places and therefore the Labour Court ought not to have granted backwages. 5. Mr. Adeshara, learned advocate appearing for the respondents workmen supported the impugned award and the order of the learned Single Judge. He has stated that the amount of 25% backwages is already paid to the respondents. 6. Having heard learned advocates for both the sides, in light of the fact that identical appeals have been dismissed by this court today which read as below, these appeals are also required to be dismissed on the same terms: “1. These appeals arise out of the orders passed by the learned Single Judge in the respective captioned petitions by which the learned Single Judge dismissed the respective petitions of the State confirming the awards passed by the Labour Court which were impugned in the respective writ petitions. 2. Since the facts in these appeals are common, we shall take into consideration facts of Letters Patent Appeal No. 177 of 2022 for the sake of convenience. 2.1 Before the Labour Court, it was the case of the respondent workman that he was working in the establishment of the appellant State since November 1998 as Peon on a monthly salary of Rs. 1350/-. His service was terminated on and from 28.02.2006. It was his case that he had worked for over ten years in the establishment. 2.2 The contention of the appellant State was that the workman was working as a daily wager; that he had not worked for 240 days of service in each year; he was not entitled to reinstatement and backwages. The labour Court by the impugned award granted reinstatement with continuity of service. 3. Ms. Roshni Patel, learned AGP appearing for the appellant State would submit that the Labour Court committed an error in granting reinstatement without backwages and also granting continuity of service. It was her submission that the workmen had been negligent inasmuch as though the references were dismissed for default, the same were only restored after several years and therefore the State should not be saddled with extending benefits of reinstatement and continuity of service. She has submitted that so far as Letters Patent Appeal No. 250 of 2024 is concerned, the respondent was working elsewhere after his termination. 4. Ms. She has submitted that so far as Letters Patent Appeal No. 250 of 2024 is concerned, the respondent was working elsewhere after his termination. 4. Ms. Himani Kini, learned advocate appearing for the respondent workmen would support the award of the Labour Court as well as the order passed by the learned Single Judge. 5. Mr. Adeshara, learned advocate appearing for the respondent workmen in Letters Patent Appeal No. 250 of 2024 has also supported the impugned award and the order of the learned Single Judge. He has stated that the amount of 25% backwages is already paid to the respondent. 6. Perusal of the awards passed by the Labour Court so also the judgment of the learned Single Judge confirming the awards would indicate that it was an undisputed fact established before the Labour Court that the respondent workmen had rendered more than ten years of service. Having worked on a fixed wage of Rs. 1350/- it was their case that they had completed 240 days of service in each year preceding the termination and therefore their termination without following proper procedure under Section 25F of the Industrial Disputes Act, 1947 was a termination which was rightly set aside by the Labour Court. 6.1 The Labour Court has examined the witness of the employer who in his deposition has stated that there were no appointment orders nor any muster rolls available. However, in the cross examination he had admitted that the note of presence was kept by preparing a list on the basis of which the salary was paid for the days when the workmen’s presence was marked. It was further brought out in the cross examination which the Labour Court has observed is that the records of measurement works were kept on record establishing the presence of workmen from the year 1999 till 2007 was available and which will be produced. It was also pointed out that it had come on record that such documents showing the number of days that the workmen had worked though admitted to be available was not produced. Drawing adverse inference based on the decisions of Apex Court in the case of R.M. Yellati vs. Asst. It was also pointed out that it had come on record that such documents showing the number of days that the workmen had worked though admitted to be available was not produced. Drawing adverse inference based on the decisions of Apex Court in the case of R.M. Yellati vs. Asst. Executive Engineer, (2006) 1 SCC 106 and that of this court in the case of Bilimora Nagarpalika vs. Jashuben Jashavantbhai Solanki, 2013 (10) GLR 845, the Labour Court came to the conclusion that adverse inference had to be drawn. Observing that the workmen had been negligent in getting their awards restored, the Labour Court did not grant any backwages. 6.2 In light of the fact that breach of provisions of Section 25F of the Industrial Disputes Act was established inasmuch as looking to the tenure of service, the termination was without following such procedure, we find that the award of the Labour Court granting reinstatement cannot be faulted. 7. Perusal of the order of the learned Single Judge would also indicate that having appreciated the evidence on record, the learned Single Judge in paragraphs no. 8 and 9 observed thus: “8. Having heard learned advocates appearing for both the sides and on perusal of award under challenge as well as affidavit in reply filed by the respondent workmen and other documents available on record, it is an undisputed facts that none of the parties produced any documentary evidence in support of their respective submissions and the entire award was passed on the basis of oral evidence. In fact in examination in chief of one Mr. Harshan Ambalal Bhrambhatt, from DILR, he has admitted the fact that the respondent-workmen were employed as daily wagers and the nature of duty was of temporary nature and they were not given any appointment letter and even their presence also were not marked. It was also an admitted position as per the examination in chief of said Mr. Harshad Ambalal Bhrambhatt that lastly workmen were drawing salary of Rs. 1,350/- and even during the holidays the work related to measurement was carried out. In his examination in chief he has stated that the record of the measurement work done is available in the office and in case if he gets the record from the year 1999 to 2007, he will produce it on record. 1,350/- and even during the holidays the work related to measurement was carried out. In his examination in chief he has stated that the record of the measurement work done is available in the office and in case if he gets the record from the year 1999 to 2007, he will produce it on record. However, inspite of that, at no point of time, the record related to work done was produced before the Labour Court, Nadiad and, therefore, in absence of there being any evidence to show that the respondent workmen have not worked for 240 days or they have not served continuously with the petitioner, only oral evidence was considered by the Labour Court, Nadiad. Though the examination in chief of Mr. Harshad Ambalal Bhrambhatt is not produced by the petitioner along with the petition, the same is produced by the respondent workmen along with the affidavit in reply and, therefore, considering the same, this Court, without any doubt, can say that considering attempt on part of officer of petitioner no. 1, the Labour Court, Nadiad has rightly drawn adverse inference in favour of respondent- workmen. 9. As far as the contention of the learned AGP in respect of dismissal of references for default and subsequent restoration of the same after delay of few years is concerned, I am in complete agreement with the statement of Mr. Bairagar, learned advocate that at the relevant point of time the order of restoration was not challenged by the State Government and in fact the State Government participated in the proceedings of references before the Labour Court, Nadiad and, therefore, at this stage, such stand even if taken by the State Government, the same cannot be accepted. Bairagar, learned advocate that at the relevant point of time the order of restoration was not challenged by the State Government and in fact the State Government participated in the proceedings of references before the Labour Court, Nadiad and, therefore, at this stage, such stand even if taken by the State Government, the same cannot be accepted. Somewhere the contention of learned AGP in respect of the fact that considering the date of termination in the year 2006 and considering the fact that all these years the respondent workmen have not been reinstated and due to their absence, their references were dismissed and subsequently restored after delay of few years, a presumption be so for the respondent workmen that they might have got job elsewhere and, therefore, that will render the impugned award a nullity cannot be also accepted for the reason that while passing the award under challenge the Labour Court, Nadiad was conscious about the fact that the respondent workmen were terminated in the year 2006 and thereafter references were preferred in the year 2007 and thereafter the industrial dispute was raised in the year 2007 and thereafter the references were dismissed for default and subsequently were restored and, therefore, the Labour Court, Nadiad has rightly considered that the respondent workmen remained negligent for almost 10 years and, therefore, negligence of respondent workmen cannot be burden upon present petitioners by granting back wages to the respondent workmen and, therefore, the Labour Court, Nadiad has rightly denied the back wages to the respondent workmen.” 8. Much emphasis was laid by learned AGP Ms. Patel by harping on the fact that continuity of service ought not to have been granted to the respondent workmen. In light of the decision of the Apex Court in the case of Nandkishore Shravan Ahirrao vs. Kosan Industries (P) Ltd. AIR 2020 SC 1776 , where the Apex Court in paragraph no. 7 observed as below, we are of the opinion that once an order of reinstatement on the breach of the provisions of Section 25F of the Industrial Disputes Act is established, continuity of service ought to be followed. “7. Ex-facie, the Labour Court having awarded reinstatement to the appellant, continuity of service would follow as a matter of law. The award of the Labour Court dated 27 February 2008 does not specifically deny continuity of service. “7. Ex-facie, the Labour Court having awarded reinstatement to the appellant, continuity of service would follow as a matter of law. The award of the Labour Court dated 27 February 2008 does not specifically deny continuity of service. Hence the observation of the High Court to the effect that the Labour Court had denied continuity of service is erroneous and would accordingly stand corrected in terms of what has been observed herein-above. The appellant would be entitled to continuity of service.” 9. We may take note the fact that when the awards were restored in the interregnum the State has not in any manner challenged the restoration of the award and therefore the said argument is not available to the State. 10. So far as Letters Patent Appeal No. 250 of 2024 is concerned, the only distinguishing feature in this appeal is that the award therein was not dismissed for non-prosecution and therefore not holding the respondent responsible for that aspect, the Labour Court has awarded reinstatement with 25% backwages. In view of the fact that 25% backwages have already been paid to the respondent workman, we do not intend to disturb the award of the Labour Court at this stage. 11. In light of the above, appeals are hereby dismissed. Connected civil applications, if any, shall stand disposed of. However, while dismissing the appeals, we take note of the order passed by a co-ordinate bench of this court on 31.03.2022 stating that in case the appeal is dismissed, the appellants shall be liable to pay interest at the rate of 6% per annum on such amount due and payable. While confirming the order of reinstatement with continuity of service, we hold that the observation regarding payment of dues with 6% interest at the time of admission, shall not apply. 12. We also note that in Letters Patent Appeal No. 1120 of 2021 since pending the petition and appeal, the respondent workman attained the age of superannuation on 31.12.2020, while upholding the award of reinstatement with continuity of service, since the consequential benefit of actual reinstatement may not be available to the respondent, other consequential benefits as if the respondent was reinstated shall follow.” 7. In view of the above, present appeals are dismissed. The order of the learned Single Judge impugned in the present appeals is confirmed. No costs.