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SCA/2861/2010 9/ 20 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2861 of 2010
To
SPECIAL
CIVIL APPLICATION No. 2868 of 2010
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
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 ?
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STATE
OF GUJARAT & 1 - Petitioner(s)
Versus
KATUBEN
TAPUBHAI - Respondent(s)
=========================================================
Appearance
:
MR
AL SHARMA AGP for
Petitioner(s) : 1 - 2.
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 04/03/2010
ORAL
ORDER
1. Heard
learned AGP Mr.A.L.Sharma for petitioners.
2. The
petitioners have challenged the common award passed by the Labour
Court, Bhavnagar in Reference Nos.55 to 59 of 1992, 64 of 1992, 78
and 79 of 1992, Exh.31, dated 18.7.2009.
2.1 The
Labour Court, Bhavnagar has granted reinstatement to each workman
except workman Nathabhai Tapubhai and Jayaben Meghabhai, who expired
during pendency of reference before the Labour Court, Bhavnagar. The
Labour Court, Bhavnagar has awarded only consequential benefits in
favour of legal heirs and representatives of deceased Nathabhai and
Jayaben. The Labour Court, Bhavnagar has not awarded any amount of
back wages in favour of any workman while granting only reinstatement
in service but, Labour Court, Bhavnagar has granted consequential
benefits in favour of the workmen.
3. Learned
AGP Mr.Sharma has raised contention before this Court that labour
Court has committed gross error in deciding reference and come to
conclusion that each workman has completed continuous service of 240
days within preceding 12 months from date of termination. He also
submitted that documents which are produced by petitioners have not
been properly considered and examined by labour Court. The record
which has been produced and details given by petitioners, from that
none of the workman has completed 240 days continuous service as
required under Section 25B of the I.D.Act. He submitted that service
has not been terminated by petitioners but, workmen themselves have
stopped coming and there is no written order of termination has been
issued by petitioners against workmen. He also submitted a specific
letter was written to present workmen for joining the work but,
respondents workmen did not reply to the same and did not turn up for
the work and therefore, labour Court has committed gross error in
granting relief in favour of respondents workmen. The benefit of
continuity of service is not granted by labour Court in favour of
respondents workmen while only granting reinstatement, that is also
bad and contrary to law. The workmen have not established
relationship between petitioners and workmen as an employer and
employee. The burden of proof is upon workman to prove 240 days
continuous service as required under Section 25B of the I.D.Act which
has not been proved by workmen. Therefore, burden is not shifted upon
employer to disprove these facts. The respondents workmen were daily
wager who were engaged for some work and when no work was available,
they were not provided the work by petitioners, that cannot consider
to be a termination of such workmen. Therefore, according to his
submissions, the labour Court has committed gross error in giving
direction of reinstatement in favour of respondents workmen. He
submitted that as and when work required, by letter dated 21.10.1991,
12.11.1991 and 18.12.2991 request was made to workmen to report for
duty but workmen have not reported for duty. Therefore, labour Court
has committed gross error in allowing reference in favour of
respondents workmen. He also submitted that details of presence which
were prepared on basis of documents Exh.35 to 49 where daily list of
daily workmen for one month period has been produced on record as
referred in Para.6 of the award which has not been properly
appreciated by Labour Court. Except that, no other submission is made
by learned AGP Mr.Sharma on behalf of petitioners.
4. I
have considered submissions made by learned AGP Mr.Sharma and also
perused the common award in question. Before the labour Court,
statement of claim was filed by workmen in support of their claim.
All the references were consolidated on 29.3.1995 vide Exh.10 and
vide Exh.35 dated 12.9.1997. According to workmen, they were working
for more than 8 years as a daily wager with petitioners, receiving
daily wage of Rs.24.75 ps. and their services were terminated by
petitioners in April,1991. Thereafter, demand was made by letter
dated 2.8.1991 and ultimately, matter has been referred by the
Conciliation Officer to concerned labour Court for adjudication.
5. According
to workman, provisions of Section 25(F), (G) and (H) of the I.D.Act
have been violated by petitioners while terminating services of
workmen. The reply was filed by petitioners and according to reply,
workmen were working on daily wage basis as a labourer and none of
the workmen has completed 240 days continuous service and as and when
work required they were called by petitioners and lastly, on
21.10.1991, 12.11.1991 and 8.12.1991 by Regd.A.D. letter, workmen
were called by petitioners but, they were not remained present and
not resumed the duty and therefore, according to reply, there is no
termination order passed by petitioners. Before the labour Court,
each workman was examined and gave evidence and documents have been
produced on record. The petitioners have also produced muster of
daily rated employees as referred in Para.6 and Shri Aniruddh Trivedi
was examined being Dy. Executive Engineer vide Exh.31. The defence
which has been taken by petitioners that workmen stopped coming to
duty and there was no termination made by petitioners. According to
workmen, no documents have been given by petitioners to the workmen
about appointment, muster card, identity card, pay slip and voucher.
Therefore, it is very difficult for workmen to prove presence during
the period where they were remained in service. Vide Exh.23 and
Exh.55, prayer was made by workmen before labour Court to direct the
petitioners to produce relevant records before labour Court. Certain
decisions have been considered which have been relied by workmen
before labour Court as referred in award. The written arguments were
produced on record by petitioners vide Exh.53 and according to
written arguments, none of the workmen has completed 240 days
continuous service and burden is upon the workmen to prove it, which
has not been proved by workmen. Therefore, labour Court should not
have to presume 240 days completed by each workman. Vide Exh.17,
Katuben was examined; vide Exh.19 Bhikhabhai Mohanbhai was examined;
vide Exh.7 Jakalben Mohanbhai was examined and they were required to
work on Madhiya road doing miscellaneous work receiving Rs.24.75 ps.
daily wage from petitioners. Vide Exh.19 Shir Vasrambhai was
examined; and Shamu Tapu was also examined and they are related to
each other and considering evidence of workmen as well as Shri
Aniruddh Trivedi, witness of petitioners, certain decisions have been
relied by both parties before labour Court. Thereafter, issues have
been framed by labour Court and it has been decided in Para.10 by the
labour Court. The labour Court has considered evidence of witness of
petitioners vide Exh.31. This witness has admitted before labour
Court that he is not knowing the concerned workmen those who were
appointed or engaged for doing miscellaneous work on
Bhavnagar-Ahmedabad shot road doing work on road and they were
engaged in the year of 1990-91. The repairing work of road is a
continuous work and it required 15 to 17 daily wager and witness is
not aware about that what work has been carried out by these workmen.
The labour Court has come to conclusion that no engagement order has
been given by petitioners, even no termination order is also given by
petitioners and witness of petitioners is not having any information
or personal facts in respect to nature of work performed by workmen.
It is not an appointment made by petitioners to the workmen on
project, for that there is no written order has been issued in favour
of workmen. Therefore, labour Court has considered definition of
‘retrenchment’ with an exception Section 2(oo)(bb) of I.D.Act. The
details of working days which statement was produced by petitioners
vide Exh.12 where names of labourers means workmen concerned and
working days have been given which was prepared by petitioners on
basis of documents. On basis of aforesaid documents, witness of
petitioners at Exh.31 has made clear statement that none of the
workmen has completed 240 days continuous service. But in
cross-examination, said witness has admitted that muster roll, pay
register are maintained by petitioners and only xerox copy of
presence register statement was produced on record but original
presence register was not produced on record. Vide Exh.35 to 49 again
details of working days has been produced on record along with Exh.12
statement in respect to each workman. But, it is necessary to note
that statement at Exh.12 pertains to only year 1990-91 where there is
an ambiguity in respect to days of each workman. The reasoning given
by Labour Court, however considering details of working days in
respect to each workman produced on record by petitioners, the labour
Court has come to conclusion that petitioners have not produced any
original record before the labour Court but, merely a statement which
has been prepared has been produced vide Exh.12 and Exh.35 to Exh.49
where considering working days of each workman, none of the workmen
has completed continuous service of 240 days, as required under
Section 25(B) of I.D.Act. Looking to documents which has been
produced on record Exh.12, Exh.35 to Exh.49, some of the workmen were
also in service in the year 1989. Therefore, labour Court has come to
conclusion that on basis of evidence of workmen, they were completed
240 days continuous service in each year with petitioners but, that
facts have not been disproved by petitioners before labour Court
while leading proper evidence on record or while producing relevant
original documents on record. Therefore, labour Court has relied upon
decision of Apex Court reported in 2007 (1) SCC (L&S) 961 and the
decision reported in 2005 (1) GLH 340. Considering various decisions
which have been relied by workmen and also considering Exh.58 the
record produced by petitioners where details have been given that
some of the persons were newly appointed or engaged by petitioners
after termination of respondents workmen. After appreciating
aforesaid evidence on record Exh.58, the labour Court has come to
conclusion that after 1983, number of labourers have been taken on
duty and they are at present also working with petitioners. The
witness of petitioners vide Exh.31 is not having any knowledge in
respect to nature of work performed by workmen and no letter has been
produced on record dated 21.10.1991 12.11.1991 and 19.12.1991 by
petitioners. From perusal of record and oral evidence of witness of
petitioners, the work which was carried out by workmen is remained
continued and also at present continued and petitioners are not able
to prove the facts before the labour Court that workmen have left the
job at their own volition and there is no question of termination by
petitioners. The petitioners have not served any notice to workmen
because of absence and no procedure has been followed before
terminating services of workmen. The seniority list is also not
published before 7 days in advance from date of termination.
5.1 In
light of the aforesaid evidence which are on record, the labour Court
has come to conclusion that services of workmen has been illegally
terminated, those who have completed continuous service of 240 days
in a proceeding 12 months from date of termination and Section 25(F),
(G) and (H) of I.D.Act has been violated by petitioners. Therefore,
only reinstatement order has been passed in favour of workmen without
giving any back wages of interim period with consequential benefits.
6. It
is necessary to note that evidence of workmen remained as it is and
according to their evidence, they were remained in service with
petitioners for about more than 8 years and completed 240 days
continuous service in different year. That facts remained
unchallenged because there is no rebuttal evidence has been produced
by petitioners before labour Court that they were not remained in
service for a period of 8 years continuously with petitioners. The
details of working days or presence of workmen which were given, it
is not a complete details as observed by labour Court. Therefore,
petitioners have produced certain records and certain records have
not been produced before labour Court. So in absence of complete
record for entire period, during which workmen were in service, the
labour Court has relied upon evidence of workmen and come to
conclusion that workmen have completed continuous service of 240 days
during the period of 12 months from date of termination.
7.
In light of this background, in the recent decision of Apex Court in
case of Director, Fisheries Terminal Division v. Bhikubhai
Meghajibhai Chavada reported in 2010 AIR SCW 542, similar question
has been examined by Apex Court. Relevant observations are in Para.9
to 16 which are quoted as under :
9. Per
contra, the learned counsel for the respondent submitted that the
workman immediately after his services were terminated by the
employer, had approached the conciliation officer and on failure of
the conciliation proceedings, had approached the State government to
make reference of the dispute for adjudication before the labour
court and, therefore, it cannot be said that the workman had
approached the labour court after a long lapse of time. It is further
submitted, that, the workman in his evidence, categorically had made
statement before the labour court that he had worked for more than
240 days in a preceding year and, since that evidence is not rebutted
by the employer by producing the relevant oral and documentary
evidence which would be in their possession, the labour court was
justified in drawing adverse inference against the employer. It was
further submitted, that, since the appellant failed to prove before
the labour court by producing necessary evidence that the appellant
industry is seasonal in nature, the labour court has not committed
any error whatsoever, to accept the oral assertion made by the
appellant before the labour court. It is further submitted, since the
findings of the labour court cannot be said as perverse findings or
based on no evidence, the High Court was justified in declining to
interfere with the findings of fact by the labour court in a petition
filed under Article 227 of the Constitution of India.
10) From
the facts as set out herein above and the submissions made by the
learned counsel for the parties, the question that requires to be
decided whether the labour court and the High Court was justified in
allowing the claim of the workman. It is not the case of the
appellant that it is not an industry as defined under Section 2(J) of
the Act, but it was its specific stand before the labour court and
also the High Court that it is only a seasonal industry and employ
workman like the respondent only during fishing season and are
relieved at the end of the season and, therefore, the labour court
and the High Court were not justified in not only directing the
reinstatement of workman into service but also the payment of back
wages. This submission of the learned counsel in the appeal requires
to be answered with reference to Section 25A of Industrial Disputes
Act. The Section is as under:
25A.
Application of sections 25C to 25E.-(1) Sections 25C to 25E inclusive
[shall not apply to industrial establishments to which Chapter VB
applies, or–] (a) to industrial establishments in which less than
fifty workmen on an average per working day have been employed in the
preceding calendar month; or (b) to industrial establishments which
are of a seasonal character or in which work is performed only
intermittently.
(2) If
a question arises whether an industrial establishment is of a
seasonal character or whether work is performed therein only
intermittently, the decision of the appropriate Government thereon
shall be final.
11) It
is now well settled by several judgments of this court, that, where a
workman is employed for a seasonal work or temporary period, the
workman cannot be said to be retrenched in view of Section 2(00)(bb).
It is relevant to take note of what is stated by this court in the
case of Morinda Co-operative Sugar Mills Ltd. vs. Ram Kishan (1995) 5
SCC 653, it was stated by this court :
….that
since the work done by the respondents is only a seasonal work, the
respondents cannot be said to have been retrenched in view of what is
stated in sub clause (bb) of Section 2(00) of the Act.
12) In
the normal course, it is the decision of the appropriate Government
which is final in determination whether the said industry is seasonal
in nature. As has been observed by the labour court and the High
Court, there has been nothing brought on record by the appellants to
support their contention that fisheries is a seasonal industry. There
has been no order from the Government which has been produced by the
appellants to state that the fisheries industry is seasonal. There
has been no mention of any decision on the part of the appropriate
Government with regard to declaring fisheries as a seasonal industry.
Therefore, we concur with the finding of the labour court wherein
they have concluded that the appellant cannot be classified as a
seasonal industry.
13) The
next contention of the learned counsel for the appellant is that the
respondent had not worked for 240 days during the preceding twelve
months on daily wages and, therefore, the respondent cannot claim any
protection under the provisions of Industrial Disputes Act, 1947. The
case of the respondent before the labour court was that as he had
completed working for more than 240 days in a year, the purported
order of retrenchment is illegal, as conditions precedent as
contained in Section 25F of the Industrial Disputes Act, 1947 were
not complied with.
14) Section
25B of the Act defines continuous service . In terms of Sub
section (2) of Section 25B that if a workman during a period of
twelve calendar months preceding the date with reference to which
calculation is to be made, has actually worked under the employer 240
days within a period of one year, he will be deemed to be in
continuous service. The respondent claims he was employed in the year
1985 as a watchman and his services were retrenched in the year 1991
and during the period between 1985 to 1991, he had worked for a
period of more than 240 days. The burden of proof is on the
respondent to show that he had worked for 240 days in preceding
twelve months prior to his alleged retrenchment. The law on this
issue appears to be now well settled. This court in the case of R.M.
Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has
observed :
However,
applying general principles and on reading the aforesaid judgments,
we find that this Court, has repeatedly taken the view that the
burden of proof is on the claimant to show that he had worked for 240
days in a given year. This burden is discharged only upon the workman
stepping up in the witness box. This burden is discharged upon the
workman adducing cogent evidence, both oral and documentary. In cases
of termination of services of daily-waged earners, there will be no
letter of appointment of termination. There will also be no receipt
of proof of payment. Thus in most cases, the workman (the claimant)
can only call upon the employer to produce before the Court the
nominal muster roll for the given period, the letter of appointment
of termination, if any, the wage register, the attendance register,
etc. Drawing of adverse inference ultimately would depend thereafter
on the facts of each case.
15) Applying
the principles laid down in the above case by this court, the
evidence produced by the appellants has not been consistent. The
appellants claim that the respondent did not work for 240 days. The
respondent was a workman hired on a daily wage basis. So it is
obvious, as this court pointed out in the above case that he would
have difficulty in having access to all the official documents,
muster rolls etc. in connection with his service. He has come forward
and deposed, so in our opinion the burden of proof shifts to the
employer/appellants to prove that he did not complete 240 days of
service in the requisite period to constitute continuous service. It
is the contention of the appellant that the services of the
respondent were terminated in 1988. The witness produced by the
appellant stated that the respondent stopped coming to work from
February, 1988. The documentary evidence produced by the appellant is
contradictory to this fact as it shows that the respondent was
working during February, 1989 also. It has also been observed by the
High Court that the muster roll for 1986-87 was not completely
produced. The appellants have inexplicably failed to produce the
complete records and muster rolls from 1985 to 1991, inspite of the
direction issued by the labour court to produce the same. In fact
there has been practically no challenge to the deposition of the
respondent during cross-examination. In this regard, it would be
pertinent to mention the observation of three judge bench of this
court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas
[(2004) 8 SCC 195], where it is observed:
A
Court of Law even in a case where provisions of the Indian Evidence
Act apply, may presume or may not presume that if a party despite
possession of the best evidence had not produced the same, it would
have gone against this contentions. The matter, however, would be
different where despite direction by a court the evidence is
withheld.
16) It
is not in dispute that the respondent s service was terminated
without complying with the provisions of Section 25F of Industrial
Disputes Act. Section 25G of the Act provides for the procedure for
retrenchment. The section reads-
25G.
Procedure for retrenchment.- Where any workman in an industrial
establishment, who is a citizen of India, is to be retrenched and he
belongs to a particular category of workmen in that establishment, in
the absence of any agreement between the employer and the workman in
this behalf, the employer shall ordinarily retrench the workman who
was the last person to be employed in that category, unless for
reasons to be recorded the employer retrenches any other workman.
The
labour court based on the pleadings and evidence on record has come
to the conclusion that the services of some of the employees junior
to the respondent was continued after the respondent was discharged
from its duties. The dates of joining of some of the fellow employees
of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not
produced by the appellants. The appellants have clearly failed to
prove that the services of no junior employee was continued when the
services of the respondent was terminated. Thus, the procedure laid
down in Section 25G has also not been followed. The findings on facts
by the labour cannot be termed as perverse and need no interference.
8. Recently,
the Apex Court has examined similar aspect in the case of Harjinder
Singh v. Punjab State Warehousing Corporation reported in 2010 (1)
Scale 613. Relevant observations are in Para.17, 18, 19, 36 to 43,
which is quoted as under :
17.
Before concluding, we consider it necessary to observe that while
exercising jurisdiction under Articles 226 and/or 227 of the
Constitution in matters like the present one, the High Courts are
duty bound to keep in mind that the Industrial Disputes Act and other
similar legislative instruments are social welfare legislations and
the same are required to be interpreted keeping in view the goals set
out in the preamble of the Constitution and the provisions contained
in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and
43A in particular, which mandate that the State should secure a
social order for the promotion of welfare of the people, ensure
equality between men and women and equitable distribution of material
resources of the community to sub-serve the common good and also
ensure that the workers get their dues. More than 41 years ago,
Gajendragadkar, J, opined that the concept of social and economic
justice is a living concept of revolutionary import; it gives
sustenance to the rule of law and meaning and significance to the
ideal of welfare State State of Mysore v. Workers of Gold
Mines AIR 1958 SC 923.
18. In Y.A. Mamarde v. Authority under the Minimum Wages Act (1972) 2 SCC 108, this Court, while interpreting the provisions of Minimum Wages Act, 1948, observed:
The anxiety on the part of the society for improving the general economic condition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised countries and the Act which is a pre-constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen s Compensation Act, the Employees Insurance Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
36. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institution of the national life. This was also made clear in Kesavananda Bharati (supra) by Justice Mathew at para 1728, p. 1952 and His Lordship held that the Directive Principles nevertheless are:
&fundamental in the governance of the country and all the organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience.
37. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother J. Singhvi that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above.
38. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our Constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
39. Commenting on the importance of Article 38 in the Constitutional scheme, this court in Sri Srinivasa Theatre and Others vs. Government of Tamil Nadu and others [(1992) 2 SCC 643], held that equality before law is a dynamic concept having many facets. One facet- the most commonly acknowledged- is that there shall be not be any privileged person or class and that none shall be above the law. This Court held that Art 38 contemplates an equal society [Para 10, pg. 651].
40. In Indra Sawhney and Others vs. Union of India and Others [1992 Supp. (3) SCC 217], the Constitution Bench of the Supreme Court held that:
The content of the expression equality before law is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39-A, 41 and 46. [at Paras 643, pg. 633]
41. Therefore, the Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. That is why it was said in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others – [(1979) 3 SCC 466], while interpreting the land reforms Act, that beneficial construction has to be given to welfare legislation. Justice Krishna Iyer, speaking for the Court, made it very clear that even though the judges are constitutional invigilators and statutory interpreters they should also be responsive to part IV of the Constitution being one of the trinity of the nation s appointed instrumentalities in the transformation of the socio-economic order . The Learned Judge made it very clear that when the Judges when decode social legislation, they must be animated by a goal oriented approach and the Learned Judge opined, and if I may say so, unerringly, that in this country the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme. [Para 1, p. 468]
42. I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
43. I am of the view that any attempt to dilute the constitutional imperatives in order to promote the so called trends of Globalisation , may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal. Here if we may remember Tagore who several decades ago, in a slightly different context spoke of eventualities which may visit us in our mad rush to ape western ways of life. Here if I may quote the immortal words of Tagore:
We have for over a century been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness and overwhelmed by the speed. We agreed to acknowledge that this chariot-drive was progress, and the progress was civilization. If we ever ventured to ask progress toward what, and progress for whom , it was considered to be peculiarly and ridiculously oriental to entertain such ideas about the absoluteness of progress. Of late, a voice has come to us to take count not only of the scientific perfection of the chariot but of the depth of the ditches lying in its path.
9. In light of aforesaid observations made by Apex Court where decision of this Court challenged before Apex Court by appellant Fisheries Department wherein also termination is of 1991 and Apex Court has considered that once the evidence is given by workman and on that basis, 240 days working has been established, then burden shifts upon the employer to produce all relevant record or evidence being a rebuttal evidence to disprove the facts stated by workman. That burden has not been discharged by petitioners before labour Court and therefore, according to my opinion, the labour Court has rightly come to conclusion on basis of evidence on record that workman has completed continuous service of 240 days within a meaning of Section 25(B) of I.D.Act.
10. It is necessary to note that Section 25(B)(1) requires continue service of 1 years which has been completed by each workman irrespective of the fact, whether workman has completed 240 days continuous service or not. Section 25(B)(2) of the I.D.Act require to complete 240 days within a period of preceding 12 months from date of termination or considering entire Section 25(B), if it is established by workmen before labour Court, then mandatory provision of Section 25(F) of the I.D.Act is required to be complied with by the petitioners which has not been complied with being a undisputed facts and therefore, relief of reinstatement has been rightly granted in favour of workmen denying entire back wages of more than 20 years to the workmen with consequential benefits.
11. Therefore, according to my opinion, contentions raised by learned AGP Mr.Sharma cannot be accepted and looking to evidence on record, conclusion arrived at by labour Court, cannot be considered to be baseless and perverse. On the contrary, conclusion of labour Court is based on legal evidence and workmen’s evidence remained unchallenged because evidence of petitioners Exh.31 is not giving clear evidence before labour Court in respect to facts, and not proved documents which were produced by petitioners and also not proved working days of respondents workmen which were not having in knowledge of facts by said witness. Therefore, there is no rebuttal evidence produced by petitioners before labour Court, against the evidence of workmen. Therefore, according to my opinion, labour Court has not committed any error which requires interference by this Court while exercising powers under Article 227 of the Constitution of India. Hence, there is no substance in present petition. Accordingly, present petition is dismissed.
(H.K.RATHOD,J.)
(vipul)
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