SCA/8618/2008 4/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8618 of 2008 ========================================================= PARSHOTTAMBHAI MULJIBHAI VASAVA - Petitioner(s) Versus EXECUTIVE ENGINEER - Respondent(s) ========================================================= Appearance : MR H.S.MULIA for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 27/06/2008 ORAL ORDER
Heard
the learned advocate Mr. Mulia appearing for petitioner, learned AGP
Mr. Krunal Pandya appearing for respondent state authority. Rule.
Learned AGP Mr. Pandya waives the service of Rule on behalf of
respondent. Today, with consent of learned advocates, matter is
finally heard.
Earlier
in SCA no. 4732/08 with 4733/08 to SCA 4761/2008 with 7350/08 with
7621/08, this Court has passed an order on 14/3/2008, where Rule is
issued by this Court and following order is passed, which is quoted
as under:
1. Heard
learned advocate Mr. H.S. Mulia appearing on behalf of petitioners.
2. In
the present group of petitions, petitioners have challenged the award
passed by Labour Court, Bharuch in Reference No.396 of 2000 to 438 of
2000, 440 of 2000, 446 of 2000, 448 of 2000 to 471 of 2000 dated 31st
July 2007, wherein, Labour Court, Bharuch has rejected all the
references against the petitioners.
3. Learned
advocate Mr. Mulia submitted that Labour Court has committed gross
error in interpreting Section 25B(1) and 25B(2) of the Industrial
Disputes Act, 1947. He also submitted that Labour Court has also
committed error in interpreting Section 25F, 25G and 25H of the
Industrial Disputes Act, 1947. The contentions raised by petitioner
in the petition in ground ‘H’, ‘I’ and ‘J’, which are quoted as under
:
ýSH. xxx
Before
the Labour Court, in the Written Statement, the respondents has
admitted one facts that the petitioners were engaged as a daily wages
and as and when their services were required by the respondents, the
petitioners were called upon for work and accordingly, daily wages
were paid to the petitioners. Therefore, the question of the
termination does not arise.
In
the findings given by the Labour Court in Para 11b also despite that
the petitioners were engaged by the respondents as daily wages and
accordingly daily wages were paid to the petitioners and the services
were not terminated by the respondents. The petitioners further
submit that the Labour Court has considered the facts against
petitioners that no details of working days was given by the
petitioners and burden lies upon the petitioners to prove 240 days of
continuous service, but no documentary evidence is produced by the
petitioners to prove 240 days continuous service. Not only that but
the Labour Court has also came to the conclusion that the petitioners
have not filed any application calling for required documents from
the respondents like muster rolls, present card, vouchers, etc. The
petitioners have merely mentioning to call aforesaid documents from
the respondents, but no separate application was given and no order
of production was obtained form the Labour Court.
The
petitioners further state and submit that the Labour Court has
committed an error by not appreciating the stand taken by the
respondents, it is not the case of the respondents that at the time
of engaging the petitioners, an appointment letter was issued, pay
slips was given and present card and identity card were given to the
petitioners. When no documents were supplied by the respondents to
the petitioners, the petitioners cannot produce a single document to
justify the contention of remaining in continuous service of 240 days
in a year. It is duty of the Labour Court to find out the truth from
the record produced by the petitioners and respondents. But the
Labour Court has shown the hyper technical approach in the matters
instead of showing the practical approach. Therefore, the petitioners
submit that the Labour Court has committed gross error in rejecting
the references of the petitioners.
I. The
petitioners state and submit that a daily wager who remained in
service for number of years and completed more than 240 days, the
relevant record to disprove the facts of the petitioners were
available with the respondents, even though the same was not produced
by the respondents to rebut the case and evidence of the petitioners.
The
parties to the proceedings should not hide any material of facts from
the Court and one has to disclose all the material which is there in
his possession before the Labour Court and there is no need to pass
any order to production by the Labour Court. The petitioners submit
that the Labour Court committed gross error in believing the mere
denial of the respondents that the petitioners have not completed 240
days service. The petitioners submit that in such circumstances, the
early law laid down by the Hon’ble Apex Court in case of Range Forest
Officer v. S.T. Hadimani reported in 2002 AIR SCW-909 : (2002) 3 SCC
25 has been water down by the judgment of the Hon’ble Apex Court in
case of R.M. Yallati v. Assistant Executing Engineer, reported in
(2006) 1 SCC 106 : 2005 (9) Scale 139 has decided by the Hon’ble Apex
Court in the recent decision in case of M/s.Sriram Industrial
Enterprises Ltd., v. Mahak Singh & Ors., reportedi n 2007 AIR SCW
1712 in Para 34. The Labour Court has not properly appreciated the
decision of the Hon’ble Apex Court delivered in case of R.M. Yallati
(supra) and M/s. Sriram Industrial Enterprises Ltd., (supra), which
say that ýSif no documents are supplied by the respondents while
engaging the daily wagers, then, the oral evidence or affidavit of
the workman has to be considered as legal evidence and must be
believed unless the oral evidence of the employee is rebutted by the
respondents, while producing the documentary evidence.
J. The
petitioners further state and submit that according to the
respondents, the services of the petitioners were not terminated. The
respondents have not allowed the petitioners to remain in continue
service, therefore, discontinuation of the petitioners amounts to a
simple termination, which is covered by the definition of
retrenchment as defined under Sec.2(oo) of the I.D. Act, 1947.
Therefore, the termination of the petitioners amounts to
retrenchment. It may be legal termination then also the petitioners
are entitled to the benefits of Section 25(H) of the I.D. Act, 1947.
The Section 25(H) is reproduced as under :
ýSSeciton
25-H : Re-employment of retrenched workmen ý Where any workmen are
retrenched, and the employer to take into his employ any persons, he
shall, in such manner as may be prescribed, give an opportunity to
the retrenched workmen who are citizen of India to offer themselves
for re-employment, and such retrenched workmen] who offer themselves
for re-employment shall have preference over other persons.ýý
The
petitioners submit that according to the aforesaid Section, the
petitioners are entitled to right of re-employment. Therefore, the
petitioners submit that after termination, if any daily wager is
required to be appointed or engaged, then, priority must be given to
the petitioners. The petitioners state that according to the
information of the petitioners, Superintending Engineer, Karjan Nehar
Circle, Rajpipla addressed a letter dated 29.12.2008 to Section
Officer, Narmada Water Resources and Water Suply and Kalpsar
Department ‘Aýý branch informing that more than 105 posts of daily
wages is required by the Superintending Engineer, Karjan Naher
Circle, Rajpipla, The requirement of daily wagers is 302 against
which only 190 daily wages are working and more than 100 daily wages
are required and budget of Rs.1,65,000/- is also sanctioned by the
State Government. Therefore, if respondents want to engage any new
daily wages against aforesaid requirements, then, the petitioners are
entitled or their legal right to have priority as provided under
Section 25(H) of the I.D. Act, 1947. Therefore, petitioners pray to
this Hon’ble Court to direct the respondents to consider the case of
the petitioners for re-employment against aforesaid requirement. A
copy of the letter dated 29.02.2008 of Superintending Engineer,
Karjan Naher Circle, Rajpipla is annexed herewith and marked as
Annexure ‘D’ to this petition. ýS
4. Section
25B(1) has been interpreted by in case of Moti Ciramic Industries
v. Jivyben Rupabhai & Ors. reported in 2000(2) GLR 1558,
where, this Court has, while interpreting the section, held that; ýSif
any workman remained in continue service for a period of one year in
between if his service is not terminated and relationship as an
employer and employee remained continue, then, question of continue
service of 240 days for getting the benefit of Section 25F is not
necessaryýý. The Labour Court,
in this case, has prima facie misinterpreted the Section 25B(1) of
the Industrial Disputes Act, 1947 which is contrary to the decision
of this Court in case of Moti Ciramic.
5. Learned
advocate Mr. Mulia further submitted that by letter dated 29th
February 2008, a letter of Superintending Engineer, Karjan Canal
Circle, Rajpipla addressed to Section Officer, Narmada, Water
Resources, Water Supply and Kalpsar Department mentioning and giving
detail that in all, daily wagers are working 190 against the
requirement of 302 employees, means, there are necessity and
requirement of daily wager with the respondent.
6. The
Labour Court has considered two decisions of Apex court i.e. (i) R.M.
Yallati v. Assistant Executive Engineer reportedi n (2006) 1 SCC 106
: 2005 (9) Scale 139 and (ii) Range Forest Officer v. S.T. Hadimani
reported in 2002 AIR SCW 909 : (2002) 3 SCC 25. But, Labour Court has
not considered properly Para 17, 18 and 19 in case of R.M. Yallati.
The said decision has given by the Hon’ble Bench consisting of three
Hon’ble Judges of the Apex Court. In this case, looking to the
observations made by Apex Court, the employer has not supplied any
documents to the workman viz., identity card, pay slip, muster roll,
wage slip, by which, workman can justify the relationship between
employer and employee and also prove that whether he has worked for
240 days or not. In absence of evidence, self statement on oath is
the only option with the workmen to prove his continue service of 240
days. The application was given by workmen before the Labour Court
calling the documents from the respondent, but, that documents were
not produced by the employer. However, Labour Court has not properly
appreciated these facts. The Labour Court has not considered the
recent decision of M/s. Sriram Industrial Enterprises Ltd., v. Mahak
Singh & Ors.,, where, a case of S.T. Hadimani as per observations
made in Para 34 has been water down by decision of Hon’ble Bench
consisting of three Judges in case of R.M. Yallati (supra). This
observation was made by Apex Court in case of M/s. Sriram Industrial
Enterprises Ltd., v. Mahak Singh & Ors., reported in 2007 AIR SCW
1712 in Para 34, when the decision of Apex Court in case of S.T.
Hadimani is water down, even though, this decision has been taken
into account by Labour Court, Bharuch.
7. Therefore,
question raised by petitioner in the present group of petitions
requires detailed examination.
8. Hence,
RULE.
9. Meanwhile,
it is directed to respondent to consider the letter dated 29th
February 2008 ý Page 60 ý Annexure ‘D’ and to consider the
present petitioners for providing the work as a daily wager against
the vacancies if requirement is there and also consider for
re-employment as daily wager against the vacancies to the present
petitioners without prejudice to the rights and contentions of the
respondent on or before 15th April 2008.
10. Direct
service is permitted today.
This
Court has directed to respondent to consider present petitioner for
providing work as daily wager against the vacancies, if requirement
is there and also consider for re-employment as daily wager against
the vacancies to present petitioner without prejudice to rights and
contentions of respondent.
This
petitioner is initially working as daily wager with the respondent.
His service was terminated, against which he approached to Labour
Court, Bharuch. The Labour Court, Bharuch has rejected reference,
which was filed by petitioner on the ground that petitioner is not
able to prove his case before Labour Court. That award is under
challenged in group of SCA no. 4732/2008. The rest of the two
petitions SCA no. 7621/2008 and SCA no. 7350/2008 filed by the
petitioners, those who are not approached to Labour Court, Bharuch
against their termination, but they were similarly situated daily
wagers working with respondents and their services were terminated
at the relevant time.
The
question is that in case of legal termination by the employer, then
also amounts to retrenchment within the meaning of Section 2(oo) of
I. D. Act 1947. In case if after retrenchment of the workman, work
is available or vacancies are available, then u/s 25(H), it is the
legal obligation of employer to give preference to earlier
employees, those who have been retrenched by respondent.
Learned
advocate Mr. Mulia appearing for petitioner submitted that
petitioner is prepared to work whenever work is available with
respondent and whatever kind of work is available with respondent.
Considering
the submissions made by both the learned advocates that petitioner
is prepared to work as daily wager whenever work and vacancy is
available and whatever work is available with respondents.
Therefore,
it is directed to respondents to consider present petitioner for
re-engagement as daily wager against work and vacancies whenever
available with respondents and also against whatever nature of work
is available with respondent and so long this petitioner is not
re-engaged by respondent against vacancies and work, it is directed
to respondent not to engage any new employees or fresh hands as
daily wagers.
Therefore,
in light of the aforesaid observations and directions, present
petition is disposed of without expressing any opinion on merits.
The
Rule is discharged. Direct service is permitted.
(H.K.RATHOD,
J)
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