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SCA/4431/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4431 of 2010
With
SPECIAL
CIVIL APPLICATION No. 4432 of 2010
To
SPECIAL
CIVIL APPLICATION No. 4436 of 2010
=========================================================
CHHAGAN
HIRA RAMANI & 5 - Petitioner(s)
Versus
EXECUTIVE
ENGINEER - Respondent(s)
=========================================================
Appearance
:
MR
H.S.MULIA for
Petitioner(s) : 1 - 6.
MS SACHI MATHUR, AGP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 13/04/2010
ORAL
ORDER
Heard
learned advocates appearing on behalf of respective parties.
Considering
submissions made by both learned advocates, RULE.
Leaned AGP Ms. Mathur waives service of notice of rule on behalf of
respondent State Authority.
According
to petitioner, these petitions have been filed challenging the award
passed by Labour Court, Jamnagar where reinstatement has been granted
as a fresh employee and without continuity of service. According to
petitioners, they were appointed as daily wages on various years and
working with respondent continuity and each petitioners had put more
than 240 days continue service with the respondent. The service of
petitioners were terminated orally by respondent on various dates,
therefore, dispute has been raised by petitioners before Labour
Court, Jamnagar. The Labour Court, Jamnagar has passed common award
on 10th
March 2010 whereby Labour Court has granted continuity of service in
favour of two employees and in case of present petitioners means rest
of six employees, Labour Court has denied the relief of continuity of
service and granted reinstatement as a fresh employee without any
reasons and justification. Therefore, present petition is filed by
petitioners.
The
dispute which has been raised by present petitioners along with other
two employees in all eight workmen being a Reference No.144 of 2005
to 150 of 2005 and 89 of 2006 which has been decided by Labour Court
by common award dated 10th
March 2010. The Labour Court has granted reinstatement with
continuity of service in favour of Shri Chhagan Pola Garasar and Shri
Gordhan Velaji Mendapara, but, in respect to present petitioners,
reinstatement has been granted as a fresh employees without
continuity of service and without back wages of interim period.
Before Labour Court, all references were consolidated and statement
of workmen were filed by petitioners in support of their dispute.
According to petitioners workmen, they were employed by respondent as
per facts stated in statement of claim from 1986, 1991, 1987, 1983,
1993, 1989, 1984, 1989, respectively and their services were
terminated in the year of 1991, 1995, 1991, 1987, 1995, 1994, 1991
and 1990, respectively. Therefore, according to petitioners, they
remained in service for aforesaid period with respondent as a
continue service completed 240 days continue service established by
workmen before Labour Court, Jamnagar, even though, services were
terminated by respondent by violating mandatory provisions of Sec.25F
of ID Act, 1947. Further contention was raised by workmen that at the
time when their services were terminated, junior employees were
remained in service and subsequent to their termination, fresh
employees have been taken in service, therefore, respondent has
violated Sec.25G and 25H of Industrial Disputes Act, 1947. The
respondent has filed written statement vide Ex.5 and Ex.9 in respect
to each reference against the claim of workman denying averments made
in statement of claim. Before Labour Court, in written statement,
contentions were raised by respondent that none of the workman has
completed 240 days continue service and they obtained the job
elsewhere and whenever work was available, they were given work.
Accordingly, their presence have been marked in muster roll and
considering the working days mentioned in muster roll, they were not
remained in continue service with respondent and completed 240 days.
Some of the muster roll have been produced by respondent before
Labour Court and certain decisions of this Court as well as Apex
Court has been relied upon by respondent. The petitioners workmen
have produced affidavit in support of their case at Ex.11, Ex.10,
Ex.5/A and Ex.9 and their evidence have been closed after
cross-examination made by respondent advocate. On behalf of
respondent, one Pravinbhai Jivrambhai was examined vide Ex.25 which
was cross-examined by Advocate of workmen.
After
considering entire evidence on record and submissions made by both
learned advocates, issues have been framed by Labour Court in Para 8
whether workmen have completed 240 days continue service or not. The
finding is given by Labour Court that except workmen Chhagan Hira
Ramani, Dadubhai Devubha Jadeja, Bachu Natha Natada and Gordhan Velji
Mendapara, remaining workmen have not completed 240 days continue
service with respondent, but, the finding has been given that Karshan
Rambhai, Chhagan Pola, Bharat Ganda and Rajesh Harji have not worked
with respondent. After termination of workmen, whether respondent has
given opportunity to concerned workmen for re-employment at the time
when fresh employees have been recruited, the answer is given by
Labour Court is ‘NO’ and whether workmen are entitled any amount of
back wages or not ? The Labour Court has also not granted any amount
of back wages in favour of workmen. These facts have been discussed
by Labour Court considering evidence which are on record. Vide Ex.7,
workmen have demanded documents from respondent for the year of 1986
to 1991; muster roll, pay register and seniority list where Labour
Court has passed an order directing the respondent to produce it
within 14 days or to file affidavit, but, certain documents have been
produced by respondent, but, that were not complete documents before
Labour Court. Therefore, on the basis of this evidence, Labour Court
has come to conclusion that workmen have completed 240 days continue
service with respondent, because, considering evidence of workmen and
also considering evidence of Pravinbhai Ex.25 and not produced entire
records and no appointment order has been issued and no other
documents have been supplied like identity card, pay slip and muster
card to concerned workmen, therefore, 240 days has been established
by workmen before Labour Court. Considering evidence of Pravinbhai
Jivrambhai Ex.25, fresh 7 to 8 employees have been recruited by
respondent, therefore, Sec.25H has been found to be violated relying
upon decision of this Court in case of Gujarat State Machine Tools
Corporation Ltd., Bhavnagar v. Dipak J. Desai reported in 1987 (1)
GLR 387 and Labour Court has come to conclusion that Sec.25H has been
violated by respondent. The service has been terminated by respondent
and workmen have not abandoned the job, therefore, Labour Court has
come to conclusion that service has been illegally terminated by
respondent, therefore, workmen are entitled right of reinstatement in
service as discussed while deciding Issue No.4. Thereafter, Labour
Court has considered delay in deciding reference and also delay in
raising industrial disputes while considering decision of this Court
as discussed above. Ultimately, Labour Court has considered one
decision of this Court in case of State of Gujarat and Ors. v.
Bhikhubha Julubhai Vala and considered that if the dispute against
termination raised belatedly by workmen and length of service is not
much more, then, such employees can be directed to be reinstated as
fresh employees, therefore, only on that ground, considering less
number of years service of present petitioners, direction has been
issued by Labour Court to reinstate as a fresh employee and rest of
two workmen have been reinstated with continuity of service.
Learned
advocate Mr. Mulia submitted that in reported decision of this Court
in case State of Gujarat v. Bhikhubhai Julubhai Vala, dispute has
been raised belatedly and workman has completed only 82 days
presence, but, in facts of this case, present petitioners have
completed more than 240 days continue service as finding given by
Labour Court while deciding Issue No.2 and looking to facts given in
statement of claim by workmen, each workman has completed more than
four years service with respondent and against that facts, no
rebuttal evidence has been produced by respondent, even though,
Labour Court has committed gross error in denying reinstatement with
continuity of service to present petitioners. Therefore, learned
advocate Mr. Mulia submitted that Labour Court has committed
apparently error in granting discriminatory relief
amongst workmen, for that, there is no justification or reasons
given by Labour Court. Therefore, it requires interference by this
Court.
Learned
AGP Ms. Mathur submitted that Labour Court has rightly examined
matters and considered length of service which is found to be short
in respect to present petitioners, therefore, Labour Court has
rightly considered decisions of this Court in case of State of
Gujarat v. Bhikhubha (supra) and not granted continuity of service in
favour of petitioners, for that, according to her submission, Labour
Court has not committed any error which requires interference by this
Court.
I
have considered submissions made by both learned advocates and
perused entire award passed by Labour Court. Only relevant discussion
is made at Page 52 internal Page 15 of award dated 10th
March 2010 where considering the decision of this Court where only 82
days presence was there and there is a delay in raising dispute where
this Court has granted fresh appointment is not applicable to the
facts of presence case, because, present petitioner i.e. Chhagan Hira
Ramani, Karshan Ram Natada, Dadubhai Devubha, Bachu Natha Natada,
Bharat Ganda Natada and Rajesh Harji Tarapada have completed more
than 4 to 5 years continue service with respondent, for that, a
specific finding has been given by Labour Court while deciding Issue
No.2 and also come to conclusion that each workman has completed
continue service of 240 days and respondent has failed to prove or
establish before Labour Court that workman has not completed 240 days
continue service with respondent. So, each petitioner has completed
240 days continue service because
complete record was not produced by respondent and accordingly, Issue
No.2 has been decided by Labour Court and while deciding Issue No.4,
service of workmen have been terminated without following due process
of law and Sec.25H has been violated by respondent, therefore,
according to my opinion, interference is required by this Court in
discriminatory relief which has been granted by Labour Court in
respect of present petitioners and accordingly, when reinstatement
has been granted, then, question of granting employment as a fresh
employee does not arise. The Labour Court has committed gross error
in granting reinstatement in favour of petitioner as a fresh employee
without any legal justification and without giving any reasons in
support of its conclusion. Therefore, case of all workmen, those who
have raised dispute, was a common case based on common grounds, then,
question of bifurcation or giving discriminatory relief between them
does not arise. Therefore, direction against present petitioners that
they are reinstated in service as a fresh employee, that part is
required to be quashed and set aside which is not in accordance with
law and contrary to record.
Therefore,
only direction granting reinstatement as a fresh employee in respect
of petitioner is hereby quashed and set aside with a direction while
modifying the award in question in respect of present petitioners
that all the petitioners are entitled the relief of reinstatement
with continuity of service to original
post as Labour Court has not applied its mind while giving direction
in respect of present petitioners.
Accordingly,
award passed by Labour Court in respect of present petitioners in
each reference dated 10th
March 2010 is hereby modified and accordingly, directed to the
respondent to reinstate each petitioner in service with continuity of
service on their original post similarly as granted in favour of
Chhagan Pola Garsar and Gordhan Velji Mendapara by Labour Court.
Accordingly,
rule is made absolute to the aforesaid extent in each petition and
award passed by Labour Court dated 10th
March 2010 in respect of each petition is accordingly, modified to
the aforesaid extent. No order as to costs.
[H.K.
RATHOD, J.]
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