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SCA/2841/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2841 of
2010
=========================================================
PRESIDENT
/ SECRETARY - Petitioner(s)
Versus
JADAV
NARSINHBHAI MEGHABHAI - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH D OZA for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 06/04/2010
ORAL
ORDER
Heard
learned Advocate Mr. Ashish D. Oza for petitioner Society.
By
filing this petition, petitioner has challenged award passed by
Labour Court, Bhavnagar in Reference NO. 441/90 Exh.53 dated 21st
December, 2009. Labour Court has granted reinstatement with
continuity of service with 20 per cent back wages for intervening
period in favour of respondent workman.
Mr.
Oza, learned Advocate appearing for petitioner has raised contention
before this court that it is case of respondent workman that he was
serving with petitioner continuously since 7 years and he was paid
Rs.650.00 p.m. as salary. He further submitted that it was case of
respondent workman that his service was terminated by petitioner on
25.3.89 without showing any reason and with bias mind and,
therefore, demand notice was served by respondent by RPAD on
19.7.1990 but was not reinstated and thus petitioner has committed
breach of section 25(F), (G) and (H) of the ID Act, 1947. He further
submitted that it was case of petitioner that respondent was never
employed by petitioner. During period from 1983 to 4/4/89, he was
called for in all 254 days as and when work was required, in short,
respondent was being called for work on ad hoc / temporary basis and
as no work was available for him, he was not called for work after
1989. He further submitted that respondent had never completed 240
days of service continuously and, therefore, section 25(F), (G) and
(H) of ID Act, 1947 would not apply in his case. He submitted that
respondent filed reference No. 441 of 1990 before labour court
wherein labour court passed an award of reinstatement with 20 per
cent back wages with continuity of service. He submitted that labour
court has committed gross error in granting relief in favour of
respondent workman. Exh. 47 letter of appointment given by
petitioner is produced on record before labour court in which it is
specifically stated that the respondent was given appointment for a
period of 26 days alone and thereafter, his service came to be
terminated automatically and he was never in employment with
petitioner authority. He submitted that labour court has committed
error in not considering these aspects while adjudicating reference.
He further submitted that it was case of respondent that though he
was available for work, petitioner appointed two other employees and
he was neglected. He submitted that vide Exh. 38, evidence of
respondent was recorded wherein it was specifically stated that when
he was on job, Sunil Pathak and Narendra Barot were in service and
said two persons were senior to him, and, therefore, case of
respondent itself is not tenable but that aspect has not been
properly examined by labour court and, therefore, labour court has
committed error in granting relief in favour of workman. He further
submited that labour court has commited an error in not considering
facts and circumstances of case in their proper perspective and has
erroneously come to conclusion that petitioner has committed breach
of section 25(F), (G) and (H) of ID Act, 1947 and has also committed
an error while awarding 20 per cent back wages for interim period.
He further submitted that labour court has committed an error in not
appreciating provisions of section 2(oo) (bb) of ID Act and has
erroneously come to conclusion that respondent has fit case of
reinstatement and back wages though respondent was called for work
for specific time and that contract was not renewed due to lack of
work. In short, his submission is that the labour court has
committed error in granting relief in favour of respondent workman
because workman has not established completion of 240 days
continuous service and, therefore, question of compliance of section
25F by petitioner does not arise.
I
have considered submissions made by learned Advocate Mr. Oza for
petitioner. I have also perused impugned award made by labour court.
Before labour court, statement of claim was filed by workman vide
Exh. 3 contending inter alia that he was performing continuously
duties with petitioner establishment since last 7 years and was
receiving Rs.650.00 per month as salary. However, on 25.3.89, his
service was terminated by petitioner establishment by way of an oral
order without there being any reason whatsoever by adopting unfair
labour practice and, therefore, workman had served
petitioner-opponent by registered AD letter dated 19.7.1990 and
served demand notice but of no avail and therefore industrial
dispute was raised by workman which was in turn referred to labour
court for adjudication. Before labour court, written statement was
filed by petitioner at Exh. 7 wherein it was submitted that the
workman was being engaged on hangami basis subject to requirement
and on each occasion, opponent has relieved him from service. In
written statement, petitioner has admitted that by stop gap or
intermittently, workman worked from 1983 to 4.4.89 and workman was
given work by petitioner for total period of 254 days and his
service was terminated on 29.4.88 and section 25F is not applicable
as workman has not completed 240 days continuous service within 12
months preceding date of termination.
Before
labour court, respondent workman has produced certain documents and
petitioner has also produced certain documents as discussed by
labour court in para 4 of award. Certain certificates were produced
by workman Exh. 41, Exh.42, Exh.43 and Exh. 44. Vide Exh. 38,
affidavit of witness Khodabhai Ratnabhai Gelatar was filed who has
given identity card to workman Exh. 46 which is bearing signature of
workman and Honourary Secretary and President. One xerox copy of
membership 571. By Exh. 47, evidence has been closed. On behalf of
petitioner, vide Exh. 49, Girishbhai Jagjivandas was examined.
Petitioner has produced certain documents as discussed in para 4/1.
According to petitioner, workman has not completed continuous
service of 240 days and has not proved it before labour court by
producing cogent evidence on record. According to petitioner,
workman has also not proved that juniors have retained in service at
the time when service of workman was terminated. No document was
produced on record to show that respondent was appointed on seasonal
work. Before labour court, submissions were made on behalf of
workman by his learned Representative Shri Ghanshyambhai Parekh.
According to evidence of workman Exh. 38 and Exh. 49, evidence of
witness for petitioner, in all from 1983 to 1989, only 254 days work
has been proved and workman has not produced any other evidence
before labour court where 240 days continuous service is proved
within 12 months preceding date of termination. Labour Court has
considered that no documentary evidence has been produced by
petitioner as per its defence that the workman was engaged for
seasonal work. Labour Court has also considered that no order in
writing has been given to workman to the effect that workman has
been given work for any particular type of work and for any
particular period and as and when such work is over, service of
workman would automatically come to an end. Considering the cross
examination of the witness for opponent and reply of opponent,
labour court considered that opponent establishment has, after
terminating service of workman, engaged new employees and junior
employees have also been continued whereas workman has not been
called at the time of new appointment. Labour Court has also
considered that workman has given clear names of new juniors
continued by petitioner, in his examination in chief but on that
point, there was no any cross examination done nor any evidence was
produced controverting such oral evidence of workman and, therefore,
labour court held that there is breach of section 25(G) and (H) of
ID Act, 1947.In para 6 of award, labour court has framed the issues
and reasons are given by labour court from para 8 onward. After
considering submission of petitioner that applicant workman was
given appointment by total four different orders, one is for 120
days, second is for 30 days, third is for 58 days and then fourth
for 50 days and thereafter, from 26th June, 1985, another
26 days and Exh. 47 appointment order which was not issued by
petitioner for particular period or for any particular project,
labour court has come to conclusion that when appointment is not
made for any specific period or specific project, section 2(oo) (bb)
would not apply. Labour Court considered working days as referred to
at page 45 from 1983 to 1989, total of which comes to 254 days.
Labour Court considered evidence of witness for opponent Girishbhai
Jagjivandas at Exh. 49. It is stated by him that presence of
rojamdar is not being marked, respondent was rojamdar, applicant was
not being paid wage of days for which he worked on each day but was
being paid monthly, presence of rojamdar was being marked in
calendar and calendar was being maintained till making of payment.
Vouchers of salary presence have not been produced. Rojmel has been
produced from 1990. Working days in Exh. 48 are written on the basis
of vouchers. Said vouchers are not with him. Considering such
evidence, labour court has come to the conclusion that when salary
has been paid to workman on the basis of voucher and working days is
also calculated on the basis of voucher, then, it is the duty of
petitioner to produce entire vouchers before labour court from 1983
to 1989 during which workman remained in service. Rojmel original is
produced by petitioner bank for period from 1st March,
1990 to 30th March, 1994and according to that rojmel,
persons have been appointed on the post of clerk as daily wager and,
therefore, considering such evidence, labour court has come to
conclusion that from 1990 to 1994, employees have been appointed as
daily wager after termination of service of respondent workman and,
therefore, section 25H has been violated by petitioner. As the
petitioner has not produced rojmel and vouchers for a period from
7.11.1983 to 28.2.1990, the period during which workman was in
service, Labour Court has drawn adverse inference against
petitioner and has come to conclusion that workman has proved 240
days continuous service as per his evidence Exh. 38 and section 25F
has been violated by petitioner and after considering number of
decisions of this court as well as apex court, labour court has come
to conclusion that section 25F is violated and, therefore, set aside
order of termination. Labour Court also considered question of back
wages and unemployment and also considered that workman has not been
gainfully employed during interim period. Labour Court also
considered that dispute has been raised by workman in 1990 and Exh.
7 reply was filed by petitioner in the year 1992 and workman was
examined on 3rd March, 2009 and cross examined on 5th
March, 2009 and thereafter witness of petitioner was examined on
17th September, 2009 which was over on 19th
September, 2009 and considering all these aspects, labour court
granted only 20 per cent back wages while granting normal relief of
reinstatement with continuity of service for interim period.
Therefore, considering award made by labour court as a whole,
according to my opinion, labour court has not committed any error
which would require interference of this court in exercise of powers
under Article 227 of the Constitution of India. Therefore,
contentions raised by learned Advocate Mr. Oza cannot be accepted
because same are contrary to record. It is an undisputed fact that
workman was provided no documents in respect to his service and
workman was working as daily wager whose presence was marked on
voucher and working days are also mentioned in voucher and salary is
also paid to workman on voucher but those vouchers which were very
relevant and important document, were not produced by petitioner
before labour court for the period from 1983 to 1989 and thus,
petitioner has not brought true and correct picture of working days
of workman before labour court and therefore, according to my
opinion, labour court was right in drawing an adverse inference
against petitioner because after giving oral evidence and producing
whatever evidence available with him, workman has discharged his
burden and burden was being shifted on petitioner to produce
evidence to show that workman has not completed 240 days within 12
months preceding date of termination which has not been done by
petitioner. Therefore, according to my opinion, labour court has
rightly held that section 25F, G and H have been violated by
petitioner. Labour Court has applied mind and has given cogent
reasons for granting relief in favour of workman, therefore, it does
not require any interference of this court in exercise of powers
under Article 227 of the Constitution of India. [See : Director,
Fisheries Terminal Department versus Bhikubhai Meghajibhai Chavda,
2010 AIR SCW 542; RM Yellatti versus Assistant Executive Engineer,
AIR 2006 SC 355; Rameshkumar versus State of Haryana, 2010 (1) SCALE
432; Harjinder Singh versus Punjab State Warehousing Corporation,
2010 (1) SCALE page 613].
Therefore,
in view of aforesaid discussion and decisions of apex court as
referred to above, there is no substance in this petition and
accordingly this petition is dismissed.
(H.K.
Rathod,J.)
Vyas
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