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LPA/103/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 103 of 2011
In
SPECIAL CIVIL APPLICATION No. 9558 of 2009
To
LETTERS
PATENT APPEAL No. 127 of 2011
In
SPECIAL CIVIL APPLICATION No. 9582 of 2009
=========================================================
DHARMSHIBHAI
GANDUBHAI - Appellant(s)
Versus
STATE
OF GUJARAT THRO EXECUTIVE ENGINEER & 1 - Respondent(s)
=========================================================
Appearance :
MR
PP MAJMUDAR for
Appellant(s) : 1,MR SHAKTI S JADEJA for Appellant(s) : 1,
MR NJ
SHAH, AGP for Respondent(s) : 1,
None for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 21/01/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present appeals arise against the common judgement and order dated
13.01.2010 passed by the learned Single Judge of this Court in the
concerned Special Civil Application, whereby the petitions have been
allowed and the award of the Labour Court is set aside.
We
have heard Mr.Majmudar, learned counsel appearing for the appellants
at length.
The
contention raised on behalf of the appellants is that the learned
Single Judge was more guided by the aspects of delay and it has been
submitted that even if the findings recorded by the learned Single
Judge is considered for the breach of section 25F of the Industrial
Disputes Act (hereinafter referred to as ‘the Act’), there is no
consideration whatsoever by the learned Single Judge for the breach
of sections 25G & H, which has been found by the Labour Court.
It was therefore submitted that the award passed by the Labour Court
even if maintained on the said aspects, the order passed by the
learned Single Judge deserves to be interfered with. It was also
submitted that on the aspects of delay, at the most, the Labour
Court could decline the backwages which came to be denied in the
present case and the learned counsel also submitted that the
appellants are not pressing for continuity in service and they would
be satisfied if the reinstatement is maintained. He therefore
submitted that the order passed by the learned Single Judge be
interfered with.
We
may record that the learned Single Judge has elaborately considered
the facts which are at para 19. The another aspects is that the
learned Single Judge upon the material on record, after considering
the award of the Labour Court, has found that there was delay of
about 19 years in raising the dispute and therefore, the matter is
required to be examined from that point of view. The aspects of
breach of provisions of section 25F of the Act is concerned, it is
by now well settled that the burden is upon the workman to prove
that he had worked for 240 days continuously in the last preceding
year prior to the termination. The case of the respondent before
the Labour Court was that the workman had abandoned the work, but
the Labour Court was guided by the consideration that even if the
workman had abandoned the job, it was required for the employer to
send an intimation for such purpose and therefore, it cannot be said
that the workman had abandoned the job. In our view, even if such
aspect remains, then also the workman would not get away from the
liability to prove that he had continuously worked for 240 days if
he was to assert the right based on the alleged breach of section
25F of the Act. No material is produced on record to substantiate
the said contention and the Labour Court on surmises and conjectures
had drawn the adverse inference. Therefore, it is rightly found
that when it was not proved that the workman had completed 240 days,
the breach of the provisions of section 25F is not rightly concluded
by the Labour Court.
It
is true that in the impugned judgement no observations are made for
the alleged breach of section 25G & H of the Act for which the
finding is recorded by the Labour Court in the impugned award. We
have considered the award and more particularly the relevant
findings recorded by the Labour Court in the said award. It appears
that except bare statement of the workman that the persons joined
the service afterwards were retained, no other evidence whatsoever
is produced. Even that statement made in the deposition by the
workman can be said as vague as anything inasmuch as no names of any
such workman are given by the appellants herein. Therefore, in
absence of the details of the name, atleast any of such workman who
were retained in service, the right as sought to be canvassed under
section 25G & H of the Act has been wrongly accepted by the
Labour Court, just on a mere circumstance that the seniority list
was not maintained as per the relevant Gujarat Rules. It deserves
to be recorded that even if the right under section 25G and H of the
Act is independently to be considered, than the rights available
under section 25F of the Act, burden will be upon the workman to
prove that the juniors were retained in service and the principles
of last come first go was not maintained. Unless the names are
given in the deposition, it cannot be said that the burden was
discharged. Further, no details are stated about those persons who
were retained or whether any one by name whether was subsequently
engaged in the deposition of the workman concerned. Therefore, the
adverse inference recorded by the Labour Court could only be said as
surmises and conjectures without their being any warrant in law.
Merely because the seniority list was not maintained, ipso facto
would not result into the breach of the provisions of section 25 G &
H of the Act. But it would be required for the workman to bring the
evidence on record stating that a particular junior by name was not
retrenched but he was retrenched or a particular person by name
was offered reemployment though he was junior and he was not offered
reemployment. It is only thereafter, the burden may shift to the
employer to prove that the persons so named as junior was neither in
fact junior or by giving date of appointment or otherwise. If the
burden which falls upon the workman was not satisfactorily
discharged, the aspect of non-maintenance of the seniority list
would hardly have an relevance nor the presumption or adverse
inference could be drawn as considered by the Labour Court in the
impugned award.
In
view of the aforesaid, we find that the findings recorded by the
learned Single Judge on the aspect of delay and the alleged breach
of the provisions of section 25F of the Act does not call for
interference. Further, even if the contention is considered of the
appellants for the alleged breach of section 25G & H of the
Act, in view of the reasons recorded by us hereinabove, we find that
the findings recorded by the Labour Court in the award was perverse
to the record and hence, the award passed on the said finding also
cannot be sustained.
In
view of the aforesaid observations and discussions, we find that the
ultimate decision taken by the learned Single Judge of allowing the
petition by setting aside the award of the Labour Court does not
call for interference.
Hence,
all the appeals are meritless and therefore, dismissed.
(JAYANT
PATEL, J.)
(J.C.
UPADHYAYA, J.)
*bjoy
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