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SCA/7234/2009 3/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7234 of 2009
=========================================
BHUPATBHAI
K DOKAL - Petitioner(s)
Versus
RANGE
FOREST OFFICER - Respondent(s)
=========================================
Appearance
:
MS
TRUSHA H MEHTA for Petitioner(s) : 1,
MR NEERAJ SONI,
ASST.GOVERNMENT PLEADER for Respondent(s) : 1,
NOTICE SERVED for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 11/02/2010
ORAL
ORDER
1. The
petitioner, a second party workman in Reference (L.C.J.) No.121 of
1996 has approached this Court under Article 227 of the Constitution
of India, challenging the award impugned dated 28.1.2009 passed by
the Presiding Officer, Labour Court, Junagadh, Camp at Porbandar
rejecting the said Reference for the reasons stated thereunder.
2.
The workman had to raise industrial dispute as his services came to
be terminated in the year 1986 without any rhyme or reason or without
complying with the provisions of the Industrial Disputes Act,1947.
However, he was reemployed on 17.11.1986 on daily wage basis and on
20.10.1995 his services were terminated without any due procedure of
law. This termination being illegal, the dispute was raised which was
referred to the competent Court wherein it was marked as reference
stated hereinabove. The Court after recording the reasons with regard
to employee’s inability to establish that he had worked for 240 days,
rejected the same and being dissatisfied with the said judgment and
award, the present petitioner has approached this Court by filing
this petition under Article 227 of the Constitution of India.
3. Ms.
Trusha Mehta, learned advocate for the workman, relying upon the
provisions of Sections 25B, 25F of the Industrial Disputes Act, 1947
and the decision of the Supreme Court in the case of Workmen of
American Express International Banking Corporation vs. Management of
American Express International Banking Corporation reported in (1985)
4 SCC 71, especially in paras 2 and 5, contended that the operation
of law, as extended on the statute book, makes it incumbent upon the
authorities to count the days on which the workman could not work on
account of either it being public holiday or for any reason
preventing the workman from discharging his duty despite his desire
to work and if that is accepted, then looking to the Annexure-I, the
workman is said have completed the period of 240 days to attract the
provisions of Section 25F of the Industrial Disputes Act,1947 and
non-compliance therewith would result into order of reinstatement
with appropriate relief of backwages.
4. Shri Soni,
learned Assistant Government Pleader submitted that even as the
formula suggested under Section 25 is taken into consideration, then
also the workman has not completed 240 days as could be seen from the
decision of American Express International
Banking Corporation (Supra). Shri Soni, learned Assistant Government
Pleader has submitted the following chart, which is enunciated in the
affidavit-in-reply filed on behalf of the respondent with regard to
the presence of the petitioner for the periods mentioned
hereinbelow:-
Month/
Year
Worked
days
October,
1994
23(10)
November,1994
24
December,1994
27
January,
1995
25
February,
1995
23
March,
1995
26
April,1995
24
May,1995
24
June,
1995
13
July,
1995
–
August,1995
–
September,
1995
–
October,
1995
2
5. This
Court has heard the learned advocates for the parties and has perused
the documents submitted therewith. In the peculiar facts and
circumstances of the case, the fact remains to be noted that the law
with regard to establishing the workman’s completion of 240 days is
now clear. Initially, the burden of establishing
completion of 240 days is on the part of the workman. In
the instant case, looking to the order impugned, it can well be said
that the Labour Court has not committed any error in concluding that
if the foundation is not led in the pleadings for a particular
submission, then that submission, which has bearing upon the factual
aspect, could not be examined even at the Court of first instance,
much less at the hearing of the petition filed before this Court
under Article 227 of the Constitution of India. This Court needs to
be mindful of the fact that the petition is filed under Article 227
of the Constitution of India and therefore, the same is to be viewed
from the restrictions inherent under the exercise of jurisdiction
under Article 227 of the Constitution of India. Hence, the order
impugned may not be interfered with, as in the instant case, the
findings recorded is based upon the pleadings and material available.
This Court would not like to enter into the merits of the case as the
petition being bereft of merits, deserves rejection and is
accordingly rejected. No order as to costs. Notice is discharged.
(S.
R. Brahmbhatt, J. )
sudhir
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