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SCA/3610/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3610 of 2010
=========================================================
BANASKANTHA
DISTRICT PANCHAYAT - Petitioner(s)
Versus
PURABHAI
MULABHAI BHANGI - Respondent(s)
=========================================================
Appearance
:
MR
HS MUNSHAW for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 08/04/2010
ORAL
ORDER
Heard
learned Advocate Mr. HS Munshaw for petitinoer. Petitioner has
challenged award passed by Labour Court Palanpur District
Banaskantha in Reference NO. 253/96 (Old No. 1949/91) Exh. 47 dated
11.12.2009 wherein labour court has granted only 30 per cent back
wages for a period from the date of termination till date of
retirement of workman to concerned workman.
Learned
Advocate Mr. Munshaw raised contention that the respondent was
appointed on ad hoc basis for maintenance and repairs of Road,
subject to receiving grant from the Government. Respondent has not
established 240 days continuous service before labour court. As per
Annexure D page 25/A, working days of workman have been given
wherein for none of year from 1982 to 1987, workman has been
completing 240 days continuous service and, therefore, labour court
has committed gross error while coming to conclusion as per page 22
that workman has completed 240 days continuous service by drawing
adverse inference on the ground that total and complete record has
not been produced by petitioner. He submitted that labour court has
not granted reinstatement because workman has reached the age of
superannuation and, therefore, 30% back wages granted for which
labour court is having no jurisdiction to pass such award,
therefore, according to him, labour court has committed gross error
which would require interference of this Court.
I
have considered submissions made by learned Advocate Mr. Munshaw. I
have also perused award passed by labour court. I have also
considered statement of claim filed by workman who was working as
labourer with effect from 1975 with petitioner panchayat and his
service was terminated on 1st November, 1988. Written
Statement was filed by petitioner before labour court denying
averments made by workman in his statement of claim. Thereafter,
oral evidence of witness for establishment Shri PJ Balia was
recorded at Exh. 30. He was also cross examined by representative
for workman. Labour court has considered statement of claim, written
statement and evidence of witness for petitioner. Dispute has been
referred to for adjudication on 25.9.1991. As per the statement of
claim filed by workman, he was earlier in service with petitioner
for about thirteen years from 1975 to 1988. Written statement was
filed at Exh. 22.Thereafter, vide Exh. 13 and Exh. 17, certain
documents were produced by workman before labour court. Workman was
examined vide Exh. 12 and for petitioner, certain documents are
produced on record vide Exh. 31 and one witness Shri PJ Balia was
examined at Exh. 30 before labour court and thereafter, issues have
been framed by labour court and issues no.1 and 2 are decided by
labour court in para 6.
After
considering evidence on record, labour court has rightly come to
conclusion that workman was appointed on 15th December,
1975 and he remained in service upto 1988 and therefore, workman has
worked as daily wager with petitioner. Labour Court has considered
evidence of workman Exh. 12. Labour court considered evidence of
witness for petitioner at Exh. 30 wherein it was deposed by him that
for the year 1987-88, workman has worked for total actual 215 days.
In year of 1984-85, completed 271 days continuous service. Then,
labour court considered cross examination of said witness for
petitioner Exh. 30 wherein it was admitted by him that while
considering working days, Sundays and Public Holidays have not been
taken into consideration. Therefore, labour court held that if
Sundays and Public Holidays are included in total working days for
the year 1987-88, then, workman has completed 240 days continuous
service as per decision of this court reported in 2000(3) GLH page
322 in case of State of Gujarat versus Navinchandra Mandavia and
anotehr decision of this court in case of St ate of Gujarat versus
JM Raval, 2005 (1) GLH page 340.
In
view of these facts, labour court has rightly come to conclusion
that workman has established completion of 240 days continuous
service and his service was terminated in breach of section 25F of
ID Act, 1947, on the basis of evidence on record and, therefore,
considering evidence of workman, at the time of giving evidence, age
of workman was 55 years and complaint was made on 25th
July 1991, he was aged about 40 years. In view of this back ground,
labour court has considered evidence of workman wherein workman has
stated that he has remained unemployed but it has not been stated
whether he has made effort for getting job at any place or not.
Deposition was given by workman on 30.11.2000. Labour court has come
to conclusion that because of carelessness of both parties,
adjudication of reference has been delayed. Considering these
aspects, labour court granted only 30 per cent back wages for
interim period from date of termination till date of retirement of
workman. Therefore, contentions raised by learned Advocate Mr. HS
Munshaw for petitioner cannot be accepted because labour court has
rightly applied mind and after this much delay from 1991 to 2010,
natural relief of reinstatement is having no much effective meaning
because within short time, workman would retire and, therefore,
instead of granting reinstatement, labour court granted 30 per cent
back wages for interim period. Labour Court is having power and
jurisdiction under section 11A of ID Act, 1947, in case, if labour
court is satisfied that termination order is unjustified, means not
justified by employer, then, to pass appropriate orders on some
conditions while exercising discretionary jurisdiction in favour of
workman, therefore, contentions raised by learned advocate MR.
Munshaw that labour court has no jurisdiction, cannot be accepted.
Entire matter has been examined by labour court on the basis of
almost undisputed facts and accordingly relief has been granted
while keeping in mind delay occurred in deciding reference, for
that, Apex Court has held in reported decision 2009 AIR SCW 2904
that due to delay, if relief not granted to workman for which
workman is entitled, then, it amounts to that workman would suffer
double jeopardy, therefore,according to my opinion, labour court has
not committed any error which would require interference of this
court. [See
: (i) Delhi Administration through Directorate of Social Welfare,
Delhi v. Presiding Officer and Others 2004-I-LLJ 910 (Delhi)
(ii) Ramesh Kumar v. State of Haryana 2010 (1) Scale 432 (iii)
Director, Fisheries Terminal Division v. Bhikubhai Meghjibhai Chavda
2010 AIR SCW 542 (iv) Krishan Singh v. Executive Engineer,
Haryana State Agriculture Marketting Board, Rohtak (Haryana) – 2010
(2) Scale 848].
In
view of above discussion, contentions raised by learned Advocate Mr.
Munshaw before this Court cannot be accepted and same are therefore
rejected accordingly.
Accordingly,
there is no substance in this petition and same is therefore,
required to be dismissed. In result, this petition is dismissed.
(H.K.
Rathod,J.)
Vyas
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