Gujarat High Court Case Information System
Print
LPA/219/2011 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 219 of 2011
In
SPECIAL
CIVIL APPLICATION No. 8063 of 2004
With
CIVIL
APPLICATION No. 1278 of 2011
In
LETTERS PATENT APPEAL No. 219 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
=================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
ANWAR
HUSSAIN SATAR & 14 - Appellant(s)
Versus
GUJARAT
MARITIME BOARD & 2 - Respondent(s)
=================================================
Appearance
:
MRS VASAVDATTA BHATT for
Appellant(s) : 1 - 11,11.2.1 - 15, 15.2.1, 15.2.2, 15.2.3,15.2.4
Mr
K B Naik for M/S TRIVEDI & GUPTA for Respondent(s) : 1,
None
for Respondent(s) : 2 -
3.
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date : 04/05/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard Ms. Vasavdatta Bhatt, learned counsel for the appellants
and Mr K.B. Naik, learned counsel for the respondent
No.1. This Letters Patent Appeal has been filed by the appellants
challenging the judgment of the learned Single Judge dated 8.12.2010
passed in Special Civil Application No.8063 of 2004 filed by the
respondent employer by which the award of the Labour Court granting
reinstatement with continuity of service without back wages was
challenged by the respondents and the learned Single Judge has
allowed the writ petition. The other writ petition being Special
Civil Application No.13393 of 2010 was filed by the appellant workmen
after seven years from the date of passing of the award dated
29.11.2003 and he claimed back wages which was not granted by the
Industrial Tribunal, Rajkot. The learned counsel for the appellants
has urged that the appellant workmen had worked for a period of 240
days in a calendar year in the last preceding year, therefore, they
were entitled to reinstatement in service with continuity of service
as well as back wages which has been controverted by the learned
counsel appearing for the respondent. The learned Single Judge has
recorded a finding of fact that in the last preceding year which
commences from 30.9.1987 to 30.9.1988 the appellants had worked only
for a period of 40-45 days as Safai Kamdar, after considering various
decisions of the Apex Court. The findings recorded by the learned
Single Judge is extracted below:-
“7.01. At
the outset, it is required to be noted that the concerned workmen
raised industrial dispute in the year 1991 challenging their
termination / retrenchment on and from 30/09/1988, inter-alia
alleging that their termination was in breach of Section 25(F),
25(G) and 25(H) of the Industrial Disputes Act, 1947. To prove that
the termination / retrenchment was in breach of sec.25(F) of the I.D.
Act, the workmen have failed to prove that they have worked for more
than 240 days in the last preceding year i.e. for the period between
30/9/1987 and 30/9/1988.
7.02. In
case of Surendranagar District Panchayat V/s. Dahyabhai Amarsinh
reported in (2005) 8
SCC 750 (supra), the Hon’ble Supreme Court held that the
initial onus/burden is on the workman to prove the fact that he has
worked for 240 days in the last preceding year. It is also held by
Hon’ble Supreme Court in the said decision that it is
necessary for the workman to produce relevant material to prove that
he has worked for not less than 240 days during the period of 12
calendar months preceding the date of termination. In the case before
the Hon’ble Supreme Court the workman relied upon the only
oral evidence that he has worked for more than 240 days in the last
preceding year and did not produce any evidence to prove the fact
that he has worked for 240 days. It is also required to be noted
that in the case before Hon’ble Supreme Court, adverse
inference was drawn by the Labour Court on non-production of the
relevant muster roll by the employer and in the said decision, in
para 18, the Hon’ble Supreme Court has observed and held as
under:-
“18. In
the light of the aforesaid, it was necessary for the workman to
produce the relevant material to prove that he had actually worked
with the employer for not less than 240 days during the period of
twelve calendar months preceding the date of termination. What we
find is that apart from the oral evidence the workman has not
produced any evidence to prove the fact that he has worked for 240
days. No proof of receipt of salary or wages or any record or order
in that regard was produced; no co-worker was examined; muster roll
produced by the employer has not been contradicted. It is improbable
that the workman who claimed to have worked with the appellant for
such a long period would not possess any documentary evidence to
prove nature of his engagement and the period of work he had
undertaken with his employer. Therefore, we are of the opinion that
the workman has failed to discharge his burden that he was in
employment for 240 days during the preceding 12 months of the date of
termination of his service. The courts below have wrongly drawn an
adverse inference for non-production of the record of the workman for
ten years. The scope of enquiry before the Labour
Court was confined to only 12 months preceding the date of
termination to decide the question of continuation of service for the
purpose of Section 25-F of the Industrial Disputes Act. The workman
has never contended that he was regularly employed in the Panchayat
for one year to claim the uninterrupted period of service as required
under Section 25-B(1) of the Act. In the facts and situation and in
the light of the law on the subject, we find that the respondent
workman is not entitled to the protection or compliance with Section
25-F of the Act before his service was terminated by the employer. As
regards non-compliance with Sections 25-G and 25-H suffice it to say
that witness Vinod Misra examined by the appellant has stated that no
seniority list was maintained by the department of daily-wagers. In
the absence of regular employment of the workmen, the appellant was
not expected to maintain seniority list of the employees engaged on
daily wages and in the absence of any proof by the respondent
regarding existence of the seniority list and his so-called
seniority, no relief could be given to him for non-compliance with
provisions of the Act. The courts could have drawn adverse inference
against the appellant only when seniority list was proved to be in
existence and then not produced before the court. In order to entitle
the court to draw inference
unfavourable to the party, the court must be satisfied that evidence
is in existence and could have been proved.”
7.03. In
the case of State of M.P. and others V/s. Arjunlal Rajak
reported in (2006)2
SCC 711, the Hon’ble Supreme
Court has observed that the onus to prove that workman had completed
240 days of work and he had not been gainfully employed within the
said period, was on the workman.
7.04. In
the case of Krishna Bhagya Jala Nigam Limited V/s. Mohammed Rafi
reported in (2009) 11 SCC 522 also the Hon’ble
Supreme Court has held that it is for the claimant to lead evidence
to show that he had, in fact, worked for 240 days in the last
preceding year of his termination. It is further observed by the
Hon’ble Supreme Court in the said decision that filing of an
affidavit is only his own statement in his favour and that cannot be
regarded as sufficient evidence for any court or tribunal to come to
the conclusion that a workman had, in fact, worked for 240 days in a
year. On non-production of the proof of receipt of salary or wages
for 240 days or order or record of appointment or engagement for the
said period, by the workman, the Hon’ble Supreme Court set
aside the judgement and award.
7.05. Considering
the facts of the case on hand, it appears that the concerned workmen
have not produced any document, evidence or proof to prove that they
had worked for more than 240 days in the last preceding year.
7.06. The
submission of Ms.Bhatt, learned advocate appearing on behalf of the
concerned workmen that the workmen have worked for 240 days
continuously during the period between 1982 and 1985, is not proved.
It is to be noted that as such it was the specific case on behalf of
the concerned workmen in the Statement of Claim that their services
have been terminated on and from 30/09/1988. Apart from the fact that
no document is produced by the workmen to prove and establish that
they have worked for 240 days in the last 12 months preceding their
alleged termination i.e. from 30/9/1988. In absence of any document,
material, proof and/or evidence worth the name, the Tribunal has
erred in holding that the alleged termination of the concerned
workmen was in breach of Sec.25(F) of the Industrial Disputes Act.
The finding given by the Labour Court that the concerned workmen
have worked for more than 240 days in the last preceding year and/or
their termination was in breach of sec.25(F) of the Act, is contrary
to the aforesaid decisions of the Hon’ble Supreme Court.
7.07. Now,
so far as the finding given by the Tribunal that the termination /
retrenchment of the concerned workmen was in breach of Section 25(G)
and 25(H) of the Industrial Disputes Act is concerned, the same is
based on no evidence. No document worth the name is produced by the
concerned workmen to prove and establish that their juniors have
been continued and/or some other workmen have been employed. Even
otherwise, considering the decision of the Hon’ble Supreme
Court in the case of Senior Superintendent Telegraph (Traffic),
Bhopal, Vs. Santosh Kumar Seal and others, reported in (2010)
6 SCC 773 and in the case of Jagbir singh V/s. Haryana State
Agriculture Marketing Board and another,
reported in (2009) 15
SCC 327, the impugned judgement and award passed by the
Tribunal directing the Gujarat Maritime Board – employer to
reinstate the concerned workmen, cannot sustain, as it appears that
the concerned workmen have worked only for 40 to 45 days as daily
wager – Safai Kamdar in the month of August and September,1988.”
After recording
the aforesaid finding, the learned Single Judge has allowed the writ
petition filed by the respondent and set aside the award of the
Industrial Tribunal, Rajkot dated 29.11.2003 passed in Reference
(IT) No.160/91 and the writ petition filed by the appellants has been
dismissed. We are in agreement that the view taken by the learned
Single Judge is well founded on both law and facts.
2. For
the aforesaid reasons, we agree with the view taken by the learned
Single Judge. The appeal is devoid of merit and is accordingly
dismissed.
CIVIL
APPLICATION NO. 1278 OF 2011
In
view of the order passed in the Appeal, Civil Application No.1278 of
2011 does not survive and is accordingly disposed of.
[V
M SAHAI, J.]
[G
B SHAH, J.]
msp
Top