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SCA/12247/2009 8/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12247 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
STATE
OF GUJARAT - Petitioner(s)
Versus
GOVINDBHAI
KATHADBHAI MAYAID - Respondent(s)
=========================================
Appearance
:
MR NEERAJ SONI, ASST.GOVERNMENT
PLEADER for Petitioner(s) : 1,
MR NIKHIL D JOSHI for Respondent(s)
: 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 17/02/2010
ORAL
JUDGMENT
1. Heard
learned advocates for the parties.
2. The
petitioner, a second party employer, has approached this Court under
Article 227 of the Constitution of India, challenging the order and
award dated 29.12.2008 passed in Reference (L.C.R.) No.254 of 1997,
whereunder the Presiding Officer, Labour Court, Rajkot has allowed
the reference partly and directed the petitioner to pay 20% backwages
with continuity of service and benefit flowing from the Government
Resolution 17.10.1988
and cost of Rs.1,000/- with
reinstatement.
3. This
Court while issuing notice on 24.11.2009 passed the following order:-
Notice
for final disposal returnable on 21.12.2009. In the meantime and till
the returnable date, there shall be ad-interim stay against the
impugned award.
Accordingly,
the matter is taken up for final disposal. Hence, Rule. With the
consent of the learned advocates for the parties, Rule is fixed
forthwith.
4. The facts in
brief leading to filing of this petition deserve to be set out as
under:-
1) The
respondent workman had to raise industrial dispute as, on 22.2.1997,
his services were terminated without following due procedure of law
and especially without complying with the provisions of Section 25F
of the Industrial Disputes Act, 1947. The workman vide communication
letter 19.3.1997 requested for reinstatement. However, rely thereto
was never received. The dispute was raised and referred to the
competent Court, wherein it was marked as Reference (L.C.R.) No.254
of 1997. In the statement of claim, the workman contended that he has
worked for more than 1 year as a watchman and he was drawing daily
wage of Rs.44.10 ps. His services were terminated abruptly on
22.2.1997 without following due procedure of law and without
complying the provisions of Section 25F of the Industrial Disputes
Act,1947. The workman had put up continuous service of 1 year and
therefore, the provisions of Section 25F were not attracted and his
services ought not to have been terminated without paying him
retrenchment compensation and 1 month’s notice or notice pay in lieu
of the notice for bringing about an end to his service. The workman
also contended that while terminating his service, his juniors were
retained and after termination fresh hands were recruited. Thus,
there was a breach of Section 25G of the Industrial Disputes
Act,1947. The statement of claim was responded by the present
petitioner for filing written statement wherein the opponent employer
contending that the work which was performed by the workman was not
permanent in nature. The employer is not being an industry and hence
reference was not maintainable. As and when there was work, the
workman used to be engaged but as and when the work was over the
workman was not retained. In view of this kind of engagement of the
workman, there was no question of issuing workman, notice, notice pay
in lieu of notice or retrenchment compensation etc. as provided under
Section 25F of the Industrial Disputes Act,1947.
2) It was
further contended by the petitioner in the written statement that the
workman never completed 240 days in a given year and, therefore, it
was the duty cast upon the workman to produce evidence and prove to
justify the stand taken in the statement of claim. The petitioner,
further contended that there was no breach of the provisions of
Section 25F or breach of any other provisions of the Industrial
Disputes Act,1947 in terminating the services of the workman. The
petitioner put up a stand that the work performed by the workman was
such, which did not warrant his continuous engagement or employment.
In other words, the petitioner pleaded that the work was seasonal in
nature and therefore, the reference was not required to be accepted
and the Court may pass order accordingly.
3) The
workman was cross-examined and the workman had to accept that the
workman did not have any other material to justify that he was
working since 1988. The Court, after perusing the testimony of the
workman, came to the conclusion that the workman establishes his case
that he had worked for 240 days and hence he was entitled to be
accorded retrenchment compensation, notice or notice pay in lieu of
notice while terminating his services as there was admittedly no
notice pay given and no notice was issued and no compensation was
paid. Therefore, his services were wrongfully terminated. The Labour
Court, therefore, partly allowed the reference and ordered
reinstatement of the workman with continuity of service and 20% of
backwages with cost of Rs.1,000/- and directed to the petitioner to
accord the workman benefit flowing from the Government Resolution
dated 17.10.1988.
5. The
employer being aggrieved and dissatisfied with this judgment and
award impugned, assailed the same in the present petition filed under
Article 227 of the Constitution of India.
6. Shri Neeraj
Soni, learned Assistant Government Pleader has taken this Court
through the award impugned and contended that the Labour Court has
travelled beyond its jurisdiction in issuing direction which is
impugned award. The Labour Court could not have come to the
conclusion that the workman had established that he worked for more
than 240 days in a given year. The Labour Court has evinced
perversity in recording its finding that not only the workman had
completed 240 days but he was working since 1988 and on that basis
passed the impugned order. The Labour Court has, without considering
the material on record and without appreciating the testimony of the
workman in its true spirit, wrongly drawn adverse inference and has
rendered judgment untenable in the eyes of law and therefore, the
same is required to be quashed and set aside. Shri Soni, learned
Assistant Government Pleader has further submitted that the workman
cannot be said to have established his case merely on the strength of
his testimony and few Xerox copies wherein the same work is said to
have been assigned to the workman. Those, Xerox copies and the
testimony of the workman have been taken to be unimpeachable proof of
evidence for drawing the conclusion with regard to workman’s
continuity of service or completion of 240 days so as to attract the
provisions of Section 25F of the Industrial Disputes Act,1947.
Therefore, when employer is a State within the meaning of Article 12
and when it is expected to discharge its duty qua its employee and
when such a set up available, engagement of casual hand for taking
away intermittent casual work without any proof of continuity of such
work cannot be permitted in light of the decision of the Apex Court
in the case of Secretary, State of Karnataka and others vs.
Umadevi(3) and others reported in (2006) 4 SCC 1. Moreover, the terms
of reference also would not go to show that nowhere the workman was
ever clamoring for any other benefits apart from reinstatement.
Thus, on that count it can be said that the order impugned deserves
to be quashed and set aside.
7. Shri
N.D.Joshi, learned advocate for the respondent workman contended that
the Court has rightly drawn adverse inference in respect of
non-production of the documentary evidence by the employer
petitioner. The workman has clearly stated in the statement of claim
that he was working since 1988 or 1989 and when the Xerox copies of
some of the documents produced would also go to show that the workman
was assigned some work and when these Xerox copies remain
uncontroverted, the Court was justified in accepting that the workman
established his case for having worked for more than 240 days and on
that basis if the order is passed, the same may not be opened to any
other or further scrutiny under Article 227 of the Constitution of
India. Shri Joshi, further submitted that the workman has been given
only 20% of backwages and continuity of service and the order being
just and proper, this Court may not interfere with the same under
Article 227 of the Constitution of India. Shri Joshi, has taken this
Court through the documents accompanying the affidavit-in-reply filed
in this petition and contended that though the list of documents as
well the Xerox copies in itself should not be considered as a great
factor militating against the workman’s plea of having completed 240
days, these documents would go to show that the workman was assigned
work by the employer time and again and, therefore, on that basis
when the Court has recorded the same by its finding, this Court under
Article 227 of the Constitution of India need not substitute the
same. The Court under Article 227 of the Constitution of India may
not go into the findings and, therefore, the petition itself is
required to be dismissed.
8. This Court
has heard learned advocates for the parties and perused the documents
thereof.
9. Before
adverting the rival contentions of the learned advocates for the
parties, certain indisputable aspects of the matter as they emerge
from the record, deserve to be set out as under :-
1). The
workman in his statement of claim has mentioned time and again that
he has worked for more than 1 year continuously as a watchman which
was permanent in nature.
2). The
workman has mentioned in unequivocal terms in the statement of claim
that the workman was receiving Rs.44.10ps per day as remuneration.
The workman in para 4 of the statement of claim has mentioned that
his service was for more than 1 year.
3). The
workman has though claimed that his juniors were continued while his
services were terminated, not named any juniors who were said to have
been continued. The workman has though claimed that fresh hands were
engaged, no names have been said or spelt out in the statement of
claim or in the testimony of the workman.
4). The
written statement is filed wherein the employer has taken a specific
stand that the workman had not completed 240 days in a given year.
5). The
petitioner employer has taken a stand that the workman was being
engaged as and when the work was available and, therefore, there was
no question of maintaining any seniority list in such a case.
6). The
employer, second party, has also taken up a contention that the
workman is called upon to prove his say that he had worked for 240
days in a given year so as to justify his claim. The testimony of the
workman also go to show that, at many a place, the workman has
admitted that he did not have any evidence to justify his say that he
was working continuously. However, the workman has relied upon the
Xerox copies of some orders whereunder it is shown that the workman
was given some work. The Xerox copies produced were not proved though
it is sought to be canvassed that those copies have remained
uncontroverted. The Labour Court has recorded its finding that the
workman has proved his case that he had worked for more than 240
days.
7). The
Labour Court has recorded its finding that the workman had completed
240 days as per Section 25F of the Industrial Disputes Act,1947.
8). The
Labour Court has also held that there was breach of Section 25G and
accordingly ordered reinstatement.
9). The
Labour Court has also recorded that the workman was receiving Rs.80/-
from labour work which he was doing and hence only awarded 20% of the
backwages.
10. Against
the aforesaid backdrop, now this Court shall examine the rival
contentions of both the sides.
There
cannot be any dispute with regard to preposition of law under Article
227 of the Constitution of India. This Court would not replace or
substitute the findings recorded by the Labour Court in the first
instance. But when the findings are assailed to be perverse and are
assailed to be findings based upon no material on record, then the
Court must look into it and arrive at its appropriate conclusion. In
the instant case, as could be seen from the record, the documents
which are said to have been documents indicative of continuous
service are far and few indicating only assignment of duty which are
not consistently assigned to the workman but that in itself would not
merit evidence to show that the workman has continuously worked for
the period. Application for production of documents is placed on
record but there is no order calling upon the party to produce the
documents. As against this, even the judgment impugned also is silent
with regard to any such order. Therefore, the petitioner employer has
taken a specific stand that the workman was given an particular kind
of work as and when the same was available the work was offered to
the workman. There was no question of engaging fresh hands and so
also there was no question of keeping the list, which is required to
be viewed and the same would lend some credence to the stand. The
documents are not available to indicate that the workman worked
continuously. The documents produced by the workman have been
accepted by the Labour Court . However, they could not have been
accepted as the documents are though not controverted but that in
itself would not attach any undue importance to be indicative of
continuous service on the part of the workman. Moreover, it is
required to be noted at this stage, that the workman in his testimony
has stated that if he was not given Identity Card, if he was not
given appointment letter and even if he was not given any other
documents to show that there was relationship of employer and
employee, he did not make any complaint to the concerned authority.
All factors collectively put together would go to show that the
workman did not establish his case so as to invoke provisions of
Section 25F of the Industrial Disputes Act, 1947. The breach thereof,
cannot be straightaway attracted to the State Employer only on the
strength of oral testimony of the workman that too which is not
consistent enough to suggest that the workman was continuously in
service in the preceding year of termination. The paucity of material
ought to have been persuaded by the Court and not to accept them and
pass order fastening the employer with liability of giving employment
to the employee in terms of continuity of service and backwages.
11. The
order, in my view, therefore, can well be said to be an order which
is not sustainable in the eyes of law as the Labour Court has gone
ahead with the presumption of continuity of service without there
being enough material and the same has been rendered perverse. Such
orders cannot be countenanced and, therefore, the petition succeeds
and the order impugned is quashed and set aside. Rule is made
absolute to the aforesaid extent. There shall be no order as to
costs.
(S. R.
Brahmbhatt, J. )
sudhir
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