{"id":121805,"date":"2010-02-17T00:00:00","date_gmt":"2010-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-govindbhai-on-17-february-2010"},"modified":"2015-07-13T15:47:53","modified_gmt":"2015-07-13T10:17:53","slug":"state-vs-govindbhai-on-17-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-govindbhai-on-17-february-2010","title":{"rendered":"State vs Govindbhai on 17 February, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Govindbhai on 17 February, 2010<\/div>\n
Author: S.R.Brahmbhatt,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/12247\/2009\t 8\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n\n \n\n\n \n\n\nSPECIAL\nCIVIL APPLICATION No. 12247 of 2009\n \n\n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE S.R.BRAHMBHATT\n \n \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n\n \n=========================================\n \n\n\nSTATE\nOF GUJARAT - Petitioner(s)\n \n\n\nVersus\n \n\n\nGOVINDBHAI\nKATHADBHAI MAYAID - Respondent(s)\n \n\n========================================= \nAppearance\n: \nMR NEERAJ SONI, ASST.GOVERNMENT\nPLEADER for Petitioner(s) : 1, \nMR NIKHIL D JOSHI for Respondent(s)\n: 1, \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE S.R.BRAHMBHATT\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 17\/02\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tHeard
\nlearned advocates for the parties.\n<\/p>\n
2.\tThe
\npetitioner, a second party employer, has approached this Court under
\nArticle 227 of the Constitution of India, challenging the order and
\naward dated 29.12.2008 passed in Reference (L.C.R.) No.254 of 1997,
\nwhereunder the Presiding Officer, Labour Court, Rajkot has allowed
\nthe reference partly and directed the petitioner to pay 20% backwages
\nwith continuity of service and benefit flowing from the Government
\nResolution 17.10.1988                                                <\/p>\n
                                  and cost of Rs.1,000\/- with
\nreinstatement.\n<\/p>\n
3.\tThis
\nCourt while issuing notice on 24.11.2009 passed the following order:-\n<\/p>\n
\t Notice
\nfor final disposal returnable on 21.12.2009. In the meantime and till
\nthe returnable date, there shall be ad-interim stay against the
\nimpugned award.\n<\/p>\n
\tAccordingly,
\nthe matter is taken up for final disposal. Hence, Rule. With the
\nconsent of the learned advocates for the parties, Rule is fixed
\nforthwith.\n<\/p>\n
4.\tThe facts in
\nbrief leading to filing of this petition deserve to be set out as
\nunder:-\n<\/p>\n
1)\tThe
\nrespondent workman had to raise industrial dispute as, on 22.2.1997,
\nhis services were terminated without following due procedure of law
\nand especially without complying with the provisions of Section 25F
\nof the Industrial Disputes Act, 1947. The workman vide communication
\nletter 19.3.1997 requested for reinstatement. However, rely thereto
\nwas never received. The dispute was raised and referred to the
\ncompetent Court, wherein it was marked as Reference (L.C.R.) No.254
\nof 1997. In the statement of claim, the workman contended that he has
\nworked for more than 1 year as a watchman and he was drawing daily
\nwage of Rs.44.10 ps. His services were terminated abruptly on
\n22.2.1997 without following due procedure of law and without
\ncomplying the provisions of Section 25F of the Industrial Disputes
\nAct,1947. The workman had put up continuous service of 1 year and
\ntherefore, the provisions of Section 25F were not attracted and his
\nservices ought not to have been terminated without paying him
\nretrenchment compensation and 1 month’s notice or notice pay in lieu
\nof the notice for bringing about an end to his service. The workman
\nalso contended that while terminating his service, his juniors were
\nretained and after termination fresh hands were recruited. Thus,
\nthere was a breach of Section 25G of the Industrial Disputes
\nAct,1947. The statement of claim was responded by the present
\npetitioner for filing written statement wherein the opponent employer
\ncontending that the work which was performed by the workman was not
\npermanent in nature. The employer is not being an industry and hence
\nreference was not maintainable. As and when there was work, the
\nworkman used to be engaged but as and when the work was over the
\nworkman was not retained. In view of this kind of engagement of the
\nworkman, there was no question of issuing workman, notice, notice pay
\nin lieu of notice or retrenchment compensation etc. as provided under
\nSection 25F of the Industrial Disputes Act,1947.\n<\/p>\n
2)\tIt was
\nfurther contended by the petitioner in the written statement that the
\nworkman never completed 240 days in a given year and, therefore, it
\nwas the duty cast upon the workman to produce evidence and prove to
\njustify the stand taken in the statement of claim. The petitioner,
\nfurther contended that there was no breach of the provisions of
\nSection 25F or breach of any other provisions of the Industrial
\nDisputes Act,1947 in terminating the services of the workman. The
\npetitioner put up a stand that the work performed by the workman was
\nsuch, which did not warrant his continuous engagement or employment.
\nIn other words, the petitioner pleaded that the work was seasonal in
\nnature and therefore, the reference was not required to be accepted
\nand the Court may pass order accordingly.\n<\/p>\n
3)\tThe
\nworkman was cross-examined and the workman had to accept that the
\nworkman did not have any other material to justify that he was
\nworking since 1988. The Court, after perusing the testimony of the
\nworkman, came to the conclusion that the workman establishes his case
\nthat he had worked for 240 days and hence he was entitled to be
\naccorded retrenchment compensation, notice or notice pay in lieu of
\nnotice while terminating his services as there was admittedly no
\nnotice pay given and no notice was issued and no compensation was
\npaid. Therefore, his services were wrongfully terminated. The Labour
\nCourt, therefore, partly allowed the reference and ordered
\nreinstatement of the workman with continuity of service and 20% of
\nbackwages with cost of Rs.1,000\/- and directed to the petitioner to
\naccord the workman benefit flowing from the Government Resolution
\ndated 17.10.1988.\n<\/p>\n
5.\tThe
\nemployer being aggrieved and dissatisfied with this judgment and
\naward impugned, assailed the same in the present petition filed under
\nArticle 227 of the Constitution of India.\n<\/p>\n
6.\tShri Neeraj
\nSoni, learned Assistant Government Pleader has taken this Court
\nthrough the award impugned and contended that the Labour Court has
\ntravelled beyond its jurisdiction in issuing direction which is
\nimpugned award. The Labour Court could not have come to the
\nconclusion that the workman had established that he worked for more
\nthan 240 days in a given year. The Labour Court has evinced
\nperversity in recording its finding that not only the workman had
\ncompleted 240 days but he was working since 1988 and on that basis
\npassed the impugned order. The Labour Court has, without considering
\nthe material on record and without appreciating the testimony of the
\nworkman in its true spirit, wrongly drawn adverse inference and has
\nrendered judgment untenable in the eyes of law and  therefore, the
\nsame is required to be quashed and set aside. Shri Soni, learned
\nAssistant Government Pleader has further submitted that the workman
\ncannot be said to have established his case merely on the strength of
\nhis testimony and few Xerox copies wherein the same work is said to
\nhave been assigned to the workman. Those, Xerox copies and the
\ntestimony of the workman have been taken to be unimpeachable proof of
\nevidence for drawing the conclusion with regard to workman’s
\ncontinuity of service or completion of 240 days so as to attract the
\nprovisions of Section 25F of the Industrial Disputes Act,1947.
\nTherefore, when employer is a State within the meaning of Article 12
\nand when it is expected to discharge its duty qua its employee and
\nwhen such a set up available, engagement of casual hand for taking
\naway intermittent casual work without any proof of continuity of such
\nwork cannot be permitted in light of the decision of the Apex Court
\nin the case of Secretary, State of Karnataka and others vs.
\nUmadevi<\/a>(3) and others reported in (2006) 4 SCC 1. Moreover, the terms
\nof reference also would not go to show that nowhere the workman was
\never clamoring for any other benefits  apart from reinstatement.
\nThus, on that count it can be said that the order impugned deserves
\nto be quashed and set aside.\n<\/p>\n
7.\tShri
\nN.D.Joshi, learned advocate for the respondent workman contended that
\nthe Court has rightly drawn adverse inference in respect of
\nnon-production of the documentary evidence by the employer
\npetitioner. The workman has clearly stated in the statement of claim
\nthat he was working since 1988 or 1989 and when the Xerox copies of
\nsome of the documents produced would also go to show that the workman
\nwas assigned some work and when these Xerox copies remain
\nuncontroverted, the Court was justified in accepting that the workman
\nestablished his case for having worked for more than 240 days and on
\nthat basis if the order is passed, the same may not be opened to any
\nother or further scrutiny under Article 227 of the Constitution of
\nIndia. Shri Joshi, further submitted that the workman has been given
\nonly 20% of backwages and continuity of service and the order being
\njust and proper, this Court may not interfere with the same under
\nArticle 227 of the Constitution of India. Shri Joshi, has taken this
\nCourt through the documents accompanying the affidavit-in-reply filed
\nin this petition and contended that though the list of documents as
\nwell the Xerox copies in itself should not be considered as a great
\nfactor militating against the workman’s plea of having completed 240
\ndays, these documents would go to show that the workman was assigned
\nwork by the employer time and again and, therefore, on that basis
\nwhen the Court has recorded the same by its finding, this Court under
\nArticle 227 of the Constitution of India need not substitute the
\nsame. The Court under Article 227 of the Constitution of India may
\nnot go into the findings and, therefore, the petition itself is
\nrequired to be dismissed.\n<\/p>\n
8.\tThis Court
\nhas heard learned advocates for the parties and perused the documents
\nthereof.\n<\/p>\n
9.\tBefore
\nadverting the rival contentions of the learned advocates for the
\nparties, certain indisputable aspects of the matter as they emerge
\nfrom the record, deserve to be set out as under :-\n<\/p>\n
1).\tThe
\nworkman in his statement of claim has mentioned time and again that
\nhe has worked for more than 1 year continuously as a watchman which
\nwas permanent in nature.\n<\/p>\n
2).\tThe
\nworkman has mentioned in unequivocal terms in the statement of claim
\nthat the workman was receiving Rs.44.10ps per day as remuneration.
\nThe workman in para 4 of the statement of claim has mentioned that
\nhis service was for more than 1 year.\n<\/p>\n
3).\tThe
\nworkman has though claimed that his juniors were continued while his
\nservices were terminated, not named any juniors who were said to have
\nbeen continued. The workman has though claimed that fresh hands were
\nengaged, no names have been said or spelt out in the statement of
\nclaim or in the testimony of the workman.\n<\/p>\n
4).\tThe
\nwritten statement is filed wherein the employer has taken a specific
\nstand that the workman had not completed 240 days in a given year.\n<\/p>\n
5).\tThe
\npetitioner employer has taken a stand that the workman was being
\nengaged as and when the work was available and, therefore, there was
\nno question of maintaining any seniority list in such a case.\n<\/p>\n
6).\tThe
\nemployer, second party, has also taken up a contention that the
\nworkman is called upon to prove his say that he had worked for 240
\ndays in a given year so as to justify his claim. The testimony of the
\nworkman also go to show that, at many a place, the workman has
\nadmitted that he did not have any evidence to justify his say that he
\nwas working continuously. However, the workman has relied upon the
\nXerox copies of some orders whereunder it is shown that the workman
\nwas given some work. The Xerox copies produced were not proved though
\nit is sought to be canvassed that those copies have remained
\nuncontroverted. The Labour Court has recorded its finding that the
\nworkman has proved his case that he had worked for more than 240
\ndays.\n<\/p>\n
7).\tThe
\nLabour Court has recorded its finding that the workman had completed
\n240 days as per Section 25F of the Industrial Disputes Act,1947.\n<\/p>\n
8).\tThe
\nLabour Court has also held that there was breach of Section 25G and
\naccordingly ordered reinstatement.\n<\/p>\n
9).\tThe
\nLabour Court has also recorded that the workman was receiving Rs.80\/-
\nfrom labour work which he was doing and hence only awarded 20% of the
\nbackwages.\n<\/p>\n
10.\tAgainst
\nthe aforesaid backdrop, now this Court shall examine the rival
\ncontentions of both the sides.\n<\/p>\n
\tThere
\ncannot be any dispute with regard to preposition of law under Article
\n227 of the Constitution of India. This Court would not replace or
\nsubstitute the findings recorded by the Labour Court in the first
\ninstance. But when the findings are assailed to be perverse and are
\nassailed to be findings based upon no material on record, then the
\nCourt must look into it and arrive at its appropriate conclusion. In
\nthe instant case, as could be seen from the record, the documents
\nwhich are said to have been documents indicative of continuous
\nservice are far and few indicating only assignment of duty which are
\nnot consistently assigned to the workman but that in itself would not
\nmerit evidence to show that the workman has continuously worked for
\nthe period. Application for production of documents is placed on
\nrecord but there is no order calling upon the party to produce the
\ndocuments. As against this, even the judgment impugned also is silent
\nwith regard to any such order. Therefore, the petitioner employer has
\ntaken a specific stand that the workman was given an particular kind
\nof work as and when the same was available the work was offered to
\nthe workman. There was no question of engaging fresh hands and so
\nalso there was no question of keeping the list, which is required to
\nbe viewed and the same would lend some credence to the stand. The
\ndocuments are not available  to indicate that the workman worked
\ncontinuously. The documents produced by the workman have been
\naccepted by the Labour Court . However, they could not have been
\naccepted as the documents are though not controverted but that in
\nitself would not attach any undue importance to be indicative of
\ncontinuous service on the part of the workman. Moreover, it is
\nrequired to be noted at this stage, that the workman in his testimony
\nhas stated that if he was not given Identity Card, if he was not
\ngiven appointment letter and even if he was not given any other
\ndocuments to show that there was relationship of employer and
\nemployee, he did not make any complaint to the concerned authority.
\nAll factors collectively put together would go to show that the
\nworkman did not establish his case so as to invoke provisions of
\nSection 25F of the Industrial Disputes Act, 1947. The breach thereof,
\ncannot be straightaway attracted to the State Employer only on the
\nstrength of oral testimony of the workman that too which is not
\nconsistent enough to suggest that the workman was continuously in
\nservice in the preceding year of termination. The paucity of material
\nought to have been persuaded by the Court and not to accept them and
\npass order fastening the employer with liability of giving employment
\nto the employee in terms of continuity of service and backwages.\n<\/p>\n
11.\tThe
\norder, in my view, therefore, can well be said to be an order which
\nis not sustainable in the eyes of law as the Labour Court has gone
\nahead with the presumption of continuity of service without there
\nbeing enough material and the same has been rendered perverse. Such
\norders cannot be countenanced and, therefore, the petition succeeds
\nand the order impugned is quashed and set aside.  Rule is made
\nabsolute to the aforesaid extent. There shall be no order as to
\ncosts.\n<\/p>\n
(S. R.\n<\/p>\n
Brahmbhatt, J. )<\/p>\n
sudhir<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Govindbhai on 17 February, 2010 Author: S.R.Brahmbhatt,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-121805","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Govindbhai on 17 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-govindbhai-on-17-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Govindbhai on 17 February, 2010 - 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