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Executive vs Pandya on 6 April, 2010

Gujarat High Court
Executive vs Pandya on 6 April, 2010
Author: H.K.Rathod,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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SCA/223/2010	 9/ 9	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

SPECIAL
CIVIL APPLICATION No. 223 of 2010
 

 
 
=========================================================

 

EXECUTIVE
ENGINEER & 1 - Petitioner(s)
 

Versus
 

PANDYA
ASHOKKUMAR RAMNIKLAL - Respondent(s)
 

=========================================================
 
Appearance
: 
Mr.
Anand L. Sharma, AGP for Petitioner(s) : 1 - 2. 
MR DS VASAVADA for
Respondent(s) :
1, 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE H.K.RATHOD
		
	

 

 
 


 

Date
: 06/04/2010 

 

 
 
ORAL
ORDER

Heard
learned AGP Mr. Anand L. Sharma for petitioner State Authority and
learned Advocate Mr. DS Vasavada for respondent workman.

Petitioner,
Executive Engineer, Palitana and Bhavnagar has challenged award made
by Labour Court, Bhavnagar in Reference No. 565 of 1988 Exh. 79
decided on 29th August, 2009 wherein Reference has been
partly allowed by Labour Court while setting aside oral termination
order and granted reinstatement with continuity of service with 10
per cent back wages for interim period with costs of Rs.1000.00.

Learned
AGP Mr. Sharma for petitioner has submitted that present respondent
workman was working under petitioner from last six years and he was
paid Rs.587.00 p.m. as per statement of claim filed by workman. He
submitted that according to respondent, his service was terminated
by petitioner on 15th February, 1988. At that time, no
notice, notice pay and retrenchment compensation has been paid by
petitioner as required to be paid by petitioner under section 25F of
the ID Act, 1947. He submitted that workman alleged that his juniors
were continued in service when his service was terminated and,
therefore, industrial dispute was raised by respondent against such
termination which has been referred to for adjudication before
labour court, Bhavnagar. Written statement was filed by petitioner
before labour court opposing statement of claim filed by workman.
Averments made by workman in statement of claim were denied by
petitioner but according to petitioners, in June, 1986 to October,
1986, workman had worked for only 145 days and from July, 1987 to
January, 1988, he had worked for only 192 days and during monsoon
season, having limited work in flood-shell on Khari Dam, he was
engaged for daily wager and for that period, he was paid salary.
According to petitioner, as per written statement, when monsoon
season is over and work for Flood Cell was stopped, his work was
stopped as per order of Government along with other daily wagers and
his service was terminated on 13.1.1988 as per record and not on
15.2.1988. Application dated August, 1988 was made by respondent
workman wherein reply was given by petitioner on 12th
December, 1988. Respondent has not completed 240 days continuous
service and therefore, question of complying with section 25F does
not arise. He submitted that labour court has committed gross error
in coming to conclusion that workman has completed 240 days
continuous service with petitioner. He submitted that labour court
has committed gross error in deciding reference which is contrary to
record and law. He submitted that workman has not proved completion
of 240 days continuous service before labour court by producing
cogent evidence on record. He submitted that the respondent workman
was not working as operator but he was daily wage labour only and
allowed to work as seasonal employee for the period 1986-87 and
1988. He submitted that the labour court has committed gross error
in drawing an adverse inference against petitioner. He submitted
that labour court has committed error while coming to conclusion
that section 25-F and 25-G have been violated and workman has
completed 240 days continuous service as defined under sec. 25-B of
ID Act. He further submitted that labour court has not examined
matter properly under section 102 and 114 of the Indian Evidence
Act. In short, his submission that labour court has committed error
in granting relief in favour of workman and, therefore, matter would
require interference of this court.

Learned
Advocate Mr. DS Vasavada appearing for workman has submitted that
workman was in service for more than six years and his service was
terminated on 15.2.1988 and he has completed 240 days continuous
service and number of documents were produced on record by workman
which were rightly considered and appreciated by labour court. For
that, as per his submission, labour court has not committed any
error which would require interference of this court. He also
submitted that witness Mohanbhai for establishment has admitted in
his cross examination at Exh. 67 that it is correct that workman was
on work in November December, 1987 and January, 1988 though work of
flood cell was not there and performed other work during said period
and record subsequent to 13.1.1988 has not been produced. He
submitted that there is no specific order issued in favour of
workman to allow to work only in flood cell and his presence was
marked in muster as well as his presence has been maintained and
keeping account by the petitioner. He further submitted that before
labour court, complete record was not produced by petitioner in
respect of the work which was performed by respondent workman. He
submitted that witness for petitioner admitted in his cross
exmination that during period from 1983 to 1988, various type of
work such as telephone operator, inward, outward and wireless
message has been taken from respondent workman and those documents
have not been shown to workman when inspection was carried out and,
therefore, labour court has rightly held that there was no seasonal
work wherein respondent workman was appointed by petitioner. He
also submitted that the labour court has rightly come to conclusion
that petitioner has not produced relevant record for the relevant
period from 1983 to 1988 such as pay register, muster register and
therefore, in absence of such documents, though demanded by workman,
same was not produced on record by petitioner, therefore, labour
court has rightly come to conclusion that workman has completed
continuous service from 1983 to 1988. He submitted that witness for
petitioner was examined at Exh. 67, Mohanbhai and certain documents
have been produced but documents for subsequent period have not been
produced on record and workman was not engaged absolutely for the
purpose of seasonal work alone means flood cell and from record for
period subsequent to 13.1.1988 has not been produced and, therefore,
labour court has rightly come to conclusion that workman has
completed 240 days continuous service as complete record was not
produced though demanded by workman and admittedly section 25F has
not been complied with by petitioner and, therefore, labour court
has rightly set aside termination and has rightly granted relief of
reinstatement and 10 per cent back wages for interim period
considering total period of service as well as pendency from 1988 to
2009 and, therefore, such award cannot be considered to be
unreasonable, unjust and therefore, no interference is required by
this Court while exercising powers under Article 227 of the
Constitution of India.

I
have considered submissions made by both learned advocates. I have
also perused impugned award made by labour court. Period from which
workman was remaining in service was, as per workman from 1983 to
1988 and his service was terminated on 15th February,
1988 and reference was made on 29th November, 1988.
Labour court considered documents as mentioned in para 4 of award.
Labour court has considered certain decisions of this court as well
as apex court and issues have been framed in paragraph 6 of award.
Labour court has come to conclusion that the dispute raised by
workman is covered by section 2(k) of ID Act, 1947. Workman was
examined before labour court and witness Mohanbhai was examined
before labour court at Exh. 67. Record from 1985 to 1988 was
produced before labour court. In those documents, name of workman
was found but according to workman, he was in service from 1983 to
1988 and witness Mohanbhai for petitioner admitted in his cross
examination that other work was also being given to workman and,
therefore, petitioner has not produced complete record of msuter
roll, pay register, telephone, inward and outward register, wireless
etc. Vide Exh. 65, workman has produced evidence to the effect that
after retrenchment of workman, new workmen were engaged in 1988.
Shri LV Nakiya was engaged on 31.10.1988 and made permanent from
1.4.2000, despite that, workman was not called by petitioner before
engaging fresh workmen and no evidence contrary to such evidence of
workman was produced by petitioner and, therefore, labour court has
come to the conclusion that section 25-H of the ID Act, 1947 has
been violated by petitioner. At Exh. 67, witness for petitioner,
Shri Mohanbhai has admitted that in November-December, 1987 and
January, 1988, work of flood cell was not available and workman has
remained continue in service and no record has been produced for
period subsequent to 13.1.1988. Labour court has also considered
that while workman was in service, petitioner has not supplied any
documents to workman such as identity card, pay slip, copy of muster
card and orders of appointment and termination and before labour
court also, relevant documents demanded by workman have not been
produced by petitioner. Therefore, labour court has considered oral
evidence of workman against which no rebuttal evidence was produced
by petitioner for controverting say of workman that he has completed
continuous service of 240 days in 12 months preceding date of
termination. Initially, it is the burden upon the workman to prove
that he has completed 240 days continuous service within 12 months
preceding date of termination or not. In this case, such burden has
been discharged by workman by giving oral evidence that he remained
in continuous service from 1983 to 1988 and completed 240 days
continuous service and his service was terminated by petitioner in
breach of section 25F of ID Act. Such evidence of workman had
remained unchallenged and uncontroverted because there is no
rebuttal evidence produced by petitioner before labour court that
workman has not completed 240 days continuous service as per his
deposition before labour court. Petitioner was directed by labour
court to make production of entire record from 1983 to 1988 but that
record was not produced by petitioner before labour court,
therefore, labour court has drawn adverse inference and come to
conclusion that workman has completed 240 days continuous service
and undisputedly section 25F has not been complied with by
petitioner but petitioner was contending that petitioner is not
required to comply with such provision as workman has not completed
240 days continuous service. As against evidence produced by
workman that after his retrenchment, new workmen were engaged, Shri
LV Nakiya was engaged on 31.10.1988 and made permanent from
1.4.2000, no evidence was produced by petitioner to controvert such
evidence and, therefore, labour court has come to conclusion that
section 25H is violated by petitioner. Labour Court has considered
termination of 1988, reference made in 1988 and evidence given by
workman on 27.8.2008.Therefore, labour court has granted relief of
reinstatement with only 10 per cent back wages for interim period.
Therefore, 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. [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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