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SCA/7452/2001 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7452 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
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 ?
=========================================================
EXECUTIVE
ENGINEER - Petitioner(s)
Versus
A
D MAKRANI - Respondent(s)
=========================================================
Appearance
:
MR
SN SINHA for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 29/11/2010
ORAL
JUDGMENT
The petitioner has filed
this petition under Article 226 of the Constitution of India praying
for quashing and setting aside the award passed by the Labour Court,
Himmatnagar in LCH No.34 of 1996 dated 30.1.2001.
The petition was admitted
by this Court and rule was issued on 7.9.2001. While admitting the
petition the Court has observed that identical petition was filed by
the Electricity Company and interim relief was granted. The Court
has also observed that this petition is to be heard alongwith
Special Civil Application Nos.4896, 4898, 4900, 4901, 4902, 4903 and
4904 of 2001. All these petitions came to be disposed of by this
Court vide order dated 16.1.2006 and the award passed by the Labour
Court was quashed and set aside. So far as present petition is
concerned, despite service of notice nobody appears on behalf of the
respondent and hence the petition could not be disposed off. Till
this date no one has filed any appearance on behalf of the
petitioner and hence no useful purpose would be served by adjourning
the matter time and again.
Heard Mr.S.N.Sinha,
learned advocate appearing for the petitioner and perused the memo
of petition, impugned award and the documents attached therewith.
It is the case of the
petitioner that the respondent was working in the petitioner Board
as a daily wage labourer. He has neither completed 240 days in any
calendar year nor having completed 960 days in the period of four
consecutive years. This was a mandatory requirement as per
Establishment Circular No.446. The Labour Court found that the
respondent has been terminated without complying provisions of
Section 25(f) of Industrial Disputes Act and, therefore, while
allowing the reference directed the petitioner to reinstate the
respondent with full backwages.
Mr.Sinha, learned
advocate appearing for the petitioner submitted that the presumption
drawn by the Labour Court is contrary to the documentary evidence
which was produced by the petitioner showing Nominal Master Roll
with regard to the petitioner. As per the said documentary evidence
produced at Ex.25/4, the respondent had worked as daily wage basis
as under :-
Sr.No.
Year
No.
of working days
1
1983
141
2
1984
156
3
1985
176
4
1986
046
5
1987
039
Total
558
He has further submitted
that the respondent was on Nominal Master Roll as dailywager with
effect from March, 1983 to September, 1987 and that he was carrying
out the loading and unloading work in Truck No.GRM-3235. The
respondent has also admitted before the Labour Court that he was
paid for those days on which he had worked. These facts clearly
establish that during the period from 1983 to 1987 the respondent
had not worked 240 days in a calendar year.
Mr.Sinha further
submitted that the petitioner Board had issued a Circular dated
14.2.1985, which says that the employees who were at Nominal Master
Roll, for regularization of their services, if a person has worked
for 240 days in a year or has worked for 960 days with the Board in
four years of continuous service then such employee can be
regularized. In the present case the respondent does not fulfill
these two conditions. Mr.Sinha further submitted that this Court has
already disposed of Special Civil Application Nos.4896, 4898, 4900,
4901, 4902, 4903 and 4904 of 2001 which came to be allowed and award
passed by the Labour Court was quashed and set aside. He has,
therefore, submitted that following the said decision of this Court,
the present petition be allowed and rule be made absolute.
Having considered
submissions of Mr.Sinha and having gone through the impugned award
as well as the order passed by this Court in Special Civil
Application No.4896 of 2001 and other matters, the Court is of the
view that there is no question of granting backwages. Had the
respondent appeared before the Court and placed adequate material
and/or submissions in support of reinstatement the Court would have
considered his request. However, despite service of notice the
respondent had chosen not to appear before the Court. This gives
rise to presumption that he is not interested in reinstatement or he
might be working somewhere else. Even otherwise, after 2006 there
are many judgments of the Apex Court that a person who is a
dailywager and who has not completed 240 days in a calender year and
has worked only for limited period of two to three years he is not
entitled to reinstatement. Considering all these aspects, the Court
is of the view that the award passed by the Labour Court deserves to
be quashed and set aside in respect of backwages as well as
reinstatement. Accordingly, the impugned order is quashed and set
aside. This petition is accordingly allowed. Rule is made absolute
without any order as to costs.
(K. A. PUJ, J.)
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