{"id":186291,"date":"2008-06-27T00:00:00","date_gmt":"2008-06-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/parshottambhai-vs-executive-on-27-june-2008"},"modified":"2017-05-16T06:37:09","modified_gmt":"2017-05-16T01:07:09","slug":"parshottambhai-vs-executive-on-27-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/parshottambhai-vs-executive-on-27-june-2008","title":{"rendered":"Parshottambhai vs Executive on 27 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Parshottambhai vs Executive on 27 June, 2008<\/div>\n
Bench: H.K.Rathod<\/div>\n
  \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\/8618\/2008\t 4\/ 9\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8618 of 2008\n \n\n=========================================================\n\n \n\nPARSHOTTAMBHAI\nMULJIBHAI VASAVA - Petitioner(s)\n \n\nVersus\n \n\nEXECUTIVE\nENGINEER - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nH.S.MULIA for\nPetitioner(s) : 1, \nNone for Respondent(s) :\n1, \n=========================================================\n\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 H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 27\/06\/2008 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tthe learned advocate Mr. Mulia appearing for petitioner, learned AGP
\n\tMr.  Krunal Pandya appearing for respondent state authority. Rule.
\n\t Learned AGP Mr. Pandya waives the service of Rule on behalf of
\n\trespondent.  Today, with consent of learned advocates, matter is
\n\tfinally heard.\n<\/p>\n
Earlier
\n\tin SCA no. 4732\/08 with 4733\/08 to SCA 4761\/2008 with 7350\/08 with
\n\t7621\/08, this Court has passed an order on 14\/3\/2008, where Rule is
\n\tissued by this Court and following order is passed, which is quoted
\n\tas under:\n<\/p>\n
1.\tHeard
\nlearned advocate Mr. H.S. Mulia appearing on behalf of petitioners.\n<\/p>\n
2.\tIn
\nthe present group of petitions, petitioners have challenged the award
\npassed by Labour Court, Bharuch in Reference No.396 of 2000 to 438 of
\n2000, 440 of 2000, 446 of 2000, 448 of 2000 to 471 of 2000 dated 31st
\nJuly 2007, wherein, Labour Court, Bharuch has rejected all the
\nreferences against the petitioners.\n<\/p>\n
3.\tLearned
\nadvocate Mr. Mulia submitted that Labour Court has committed gross
\nerror in interpreting Section 25B(1) and 25B(2) of the Industrial
\nDisputes Act, 1947. He also submitted that Labour Court has also
\ncommitted error in interpreting Section 25F, 25G and 25H of the
\nIndustrial Disputes Act, 1947. The contentions raised by petitioner
\nin the petition in ground ‘H’, ‘I’ and ‘J’, which are quoted as under
\n:\n<\/p>\n
\u00fdSH.\txxx<\/p>\n
\tBefore
\nthe Labour Court, in the Written Statement, the respondents has
\nadmitted one facts that the petitioners were engaged as a daily wages
\nand as and when their services were required by the respondents, the
\npetitioners were called upon for work and accordingly, daily wages
\nwere paid to the petitioners. Therefore, the question of the
\ntermination does not arise.\n<\/p>\n
\tIn
\nthe findings given by the Labour Court in Para 11b also despite that
\nthe petitioners were engaged by the respondents as daily wages and
\naccordingly daily wages were paid to the petitioners and the services
\nwere not terminated by the respondents. The petitioners further
\nsubmit that the Labour Court has considered the facts against
\npetitioners that no details of working days was given by the
\npetitioners and burden lies upon the petitioners to prove 240 days of
\ncontinuous service, but no documentary evidence is produced by the
\npetitioners to prove 240 days continuous service. Not only that but
\nthe Labour Court has also came to the conclusion that the petitioners
\nhave not filed any application calling for required documents from
\nthe respondents like muster rolls, present card, vouchers, etc. The
\npetitioners have merely mentioning to call aforesaid documents from
\nthe respondents, but no separate application was given and no order
\nof production was obtained form the Labour Court.\n<\/p>\n
\tThe
\npetitioners further state and submit that the Labour Court has
\ncommitted an error by not appreciating the stand taken by the
\nrespondents, it is not the case of the respondents that at the time
\nof engaging the petitioners, an appointment letter was issued, pay
\nslips was given and present card and identity card were given to the
\npetitioners. When no documents were supplied by the respondents to
\nthe petitioners, the petitioners cannot produce a single document to
\njustify the contention of remaining in continuous service of 240 days
\nin a year. It is duty of the Labour Court to find out the truth from
\nthe record produced by the petitioners and respondents. But the
\nLabour Court has shown the hyper technical approach in the matters
\ninstead of showing the practical approach. Therefore, the petitioners
\nsubmit that the Labour Court has committed gross error in rejecting
\nthe references of the petitioners.\n<\/p>\n
I.\tThe
\npetitioners state and submit that a daily wager who remained in
\nservice for number of years and completed more than 240 days, the
\nrelevant record to disprove the facts of the petitioners were
\navailable with the respondents, even though the same was not produced
\nby the respondents to rebut the case and evidence of the petitioners.\n<\/p>\n
\tThe
\nparties to the proceedings should not hide any material of facts from
\nthe Court and one has to disclose all the material which is there in
\nhis possession before the Labour Court and there is no need to pass
\nany order to production by the Labour Court. The petitioners submit
\nthat the Labour Court committed gross error in believing the mere
\ndenial of the respondents that the petitioners have not completed 240
\ndays service. The petitioners submit that in such circumstances, the
\nearly law laid down by the Hon’ble Apex Court in case of Range Forest
\nOfficer v. S.T. Hadimani<\/a> reported in 2002 AIR SCW-909 : (2002) 3 SCC
\n25 has been water down by the judgment of the Hon’ble Apex Court in
\ncase of R.M. Yallati v. Assistant Executing Engineer,<\/a> reported in
\n(2006) 1 SCC 106 : 2005 (9) Scale 139 has decided by the Hon’ble Apex
\nCourt in the recent decision in case of M\/s.Sriram Industrial
\nEnterprises Ltd., v. Mahak Singh & Ors.,<\/a> reportedi n 2007 AIR SCW
\n1712 in Para 34.  The Labour Court has not properly appreciated the
\ndecision of the Hon’ble Apex Court delivered in case of R.M. Yallati
\n(supra) and M\/s. Sriram Industrial Enterprises Ltd., (supra), which
\nsay that \u00fdSif no documents are supplied by the respondents while
\nengaging the daily wagers, then, the oral evidence or affidavit of
\nthe workman has to be considered as legal evidence and must be
\nbelieved unless the oral evidence of the employee is rebutted by the
\nrespondents, while producing the documentary evidence.\n<\/p>\n
J.\tThe
\npetitioners further state and submit that according to the
\nrespondents, the services of the petitioners were not terminated. The
\nrespondents have not allowed the petitioners to remain in continue
\nservice, therefore, discontinuation of the petitioners amounts to a
\nsimple termination, which is covered by the definition of
\nretrenchment as defined under Sec.2(oo) of the I.D. Act, 1947.
\nTherefore, the termination of the petitioners amounts to
\nretrenchment. It may be legal termination then also the petitioners
\nare entitled to the benefits of Section 25(H) of the I.D. Act, 1947.
\nThe Section 25(H) is reproduced as under :\n<\/p>\n
\u00fdSSeciton
\n25-H : Re-employment of retrenched workmen \u00fd  Where any workmen are
\nretrenched, and the employer to take into his employ any persons, he
\nshall, in such manner as may be prescribed, give an opportunity to
\nthe retrenched workmen who are citizen of India to offer themselves
\nfor re-employment, and such retrenched workmen] who offer themselves
\nfor re-employment shall have preference over other persons.\u00fd\u00fd<\/p>\n
The
\npetitioners submit that according to the aforesaid Section, the
\npetitioners are entitled to right of re-employment. Therefore, the
\npetitioners submit that after termination, if any daily wager is
\nrequired to be appointed or engaged, then, priority must be given to
\nthe petitioners. The petitioners state that according to the
\ninformation of the petitioners, Superintending Engineer, Karjan Nehar
\nCircle, Rajpipla addressed a letter dated 29.12.2008 to Section
\nOfficer, Narmada Water Resources and Water Suply and Kalpsar
\nDepartment ‘A\u00fd\u00fd branch informing that more than 105 posts of daily
\nwages is required by the Superintending Engineer, Karjan Naher
\nCircle, Rajpipla, The requirement of daily wagers is 302 against
\nwhich only 190 daily wages are working and more than 100 daily wages
\nare required and budget of Rs.1,65,000\/- is also sanctioned by the
\nState Government. Therefore, if respondents want to engage any new
\ndaily wages against aforesaid requirements, then, the petitioners are
\nentitled or their legal right to have priority as provided under
\nSection 25(H) of the I.D. Act, 1947. Therefore, petitioners pray to
\nthis Hon’ble Court to direct the respondents to consider the case of
\nthe petitioners for re-employment against aforesaid requirement. A
\ncopy of the letter dated 29.02.2008 of Superintending Engineer,
\nKarjan Naher Circle, Rajpipla is annexed herewith and marked as
\nAnnexure ‘D’ to this petition. \t\u00fdS<\/p>\n
4.\tSection
\n25B(1) has been interpreted by in case of Moti Ciramic Industries
\nv. Jivyben Rupabhai & Ors.<\/a> reported in 2000(2) GLR 1558,
\nwhere, this Court has, while interpreting the section, held that; \u00fdSif
\nany workman remained in continue service for a period of one year in
\nbetween if his service is not terminated and relationship as an
\nemployer and employee remained continue, then, question of continue
\nservice of 240 days for getting the benefit of Section 25F is not
\nnecessary\u00fd\u00fd. The Labour Court,
\nin this case, has prima facie misinterpreted the Section 25B(1) of
\nthe Industrial Disputes Act, 1947 which is contrary to the decision
\nof this Court in case of Moti Ciramic.\n<\/p>\n
5.\tLearned
\nadvocate Mr. Mulia further submitted that by letter dated 29th
\nFebruary 2008, a letter of Superintending Engineer, Karjan Canal
\nCircle, Rajpipla addressed to Section Officer, Narmada, Water
\nResources, Water Supply and Kalpsar Department mentioning and giving
\ndetail that in all, daily wagers are working 190 against the
\nrequirement of 302 employees, means, there are necessity and
\nrequirement of daily wager with the respondent.\n<\/p>\n
6.\tThe
\nLabour Court has considered two decisions of Apex court i.e. (i) R.M.
\nYallati v. Assistant Executive Engineer<\/a> reportedi n (2006) 1 SCC 106
\n: 2005 (9) Scale 139 and (ii) Range Forest Officer v. S.T. Hadimani<\/a>
\nreported in 2002 AIR SCW 909 : (2002) 3 SCC 25. But, Labour Court has
\nnot considered properly Para 17, 18 and 19 in case of R.M. Yallati.
\nThe said decision has given by the Hon’ble Bench consisting of three
\nHon’ble Judges of the Apex Court. In this case, looking to the
\nobservations made by Apex Court, the employer has not supplied any
\ndocuments to the workman viz., identity card, pay slip, muster roll,
\nwage slip, by which, workman can justify the relationship between
\nemployer and employee and also prove that whether he has worked for
\n240 days or not. In absence of evidence, self statement on oath is
\nthe only option with the workmen to prove his continue service of 240
\ndays. The application was given by workmen before the Labour Court
\ncalling the documents from the respondent, but, that documents were
\nnot produced by the employer. However, Labour Court has not properly
\nappreciated these facts. The Labour Court has not considered the
\nrecent decision of M\/s. Sriram Industrial Enterprises Ltd., v. Mahak
\nSingh & Ors.,,<\/a> where, a case of S.T. Hadimani as per observations
\nmade in Para 34 has been water down by decision of Hon’ble Bench
\nconsisting of three Judges in case of R.M. Yallati (supra). This
\nobservation was made by Apex Court in case of M\/s. Sriram Industrial
\nEnterprises Ltd., v. Mahak Singh & Ors.,<\/a> reported in 2007 AIR SCW
\n1712 in Para 34, when the decision of Apex Court in case of S.T.
\nHadimani is water down, even though, this decision has been taken
\ninto account by Labour Court, Bharuch.\n<\/p>\n
7.\tTherefore,
\nquestion raised by petitioner in the present group of petitions
\nrequires detailed examination.\n<\/p>\n
8.\tHence,
\nRULE.\n<\/p>\n
9.\tMeanwhile,
\nit is directed to respondent to consider the letter dated 29th
\nFebruary 2008 \u00fd  Page 60 \u00fd  Annexure ‘D’ and to consider the
\npresent petitioners for providing the work as a daily wager against
\nthe vacancies if requirement is there and also consider for
\nre-employment as daily wager against the vacancies to the present
\npetitioners without prejudice to the rights and contentions of the
\nrespondent on or before 15th April 2008.\n<\/p>\n
10.\tDirect
\nservice is permitted today.\n<\/p>\n
This
\n\tCourt has directed to respondent to consider present petitioner for
\n\tproviding work as daily wager against the vacancies, if requirement
\n\tis there and also consider for re-employment as daily wager against
\n\tthe vacancies to present petitioner without prejudice to rights and
\n\tcontentions of respondent.\n<\/p>\n
This
\n\tpetitioner is initially working as daily wager with the respondent.
\n\tHis service was terminated, against which he approached to Labour
\n\tCourt, Bharuch. The Labour Court, Bharuch has rejected reference,
\n\twhich was filed by petitioner on the ground that petitioner is not
\n\table to prove his case before Labour Court.  That award is under
\n\tchallenged in group of SCA no. 4732\/2008.  The rest of the two
\n\tpetitions SCA no. 7621\/2008 and SCA no. 7350\/2008 filed by the
\n\tpetitioners, those who are not approached to Labour Court, Bharuch
\n\tagainst their termination, but they were similarly situated daily
\n\twagers working with respondents and their services were terminated
\n\tat the relevant time.\n<\/p>\n
The
\n\tquestion is that in case of legal termination by the employer, then
\n\talso amounts to retrenchment within the meaning of Section 2(oo) of
\n\tI. D. Act 1947.  In case if after retrenchment of the workman, work
\n\tis available or vacancies are available, then u\/s 25(H), it is the
\n\tlegal obligation of employer to give preference to earlier
\n\temployees, those who have been retrenched by respondent.\n<\/p>\n
Learned
\n\tadvocate Mr. Mulia appearing for petitioner submitted that
\n\tpetitioner is prepared to work whenever work is available with
\n\trespondent and whatever kind of work is available with respondent.\n<\/p>\n
Considering
\n\tthe submissions made by both the learned advocates that petitioner
\n\tis prepared to work as daily wager whenever work and vacancy is
\n\tavailable and whatever work is available with respondents.\n<\/p>\n
Therefore,
\n\tit is directed to respondents to consider present petitioner for
\n\tre-engagement as daily wager against work and vacancies whenever
\n\tavailable with respondents and also against whatever nature of work
\n\tis available with respondent and so long this petitioner is not
\n\tre-engaged by respondent against vacancies and work, it is directed
\n\tto respondent not to engage any new employees or fresh hands as
\n\tdaily wagers.\n<\/p>\n
Therefore,
\n\tin light of the aforesaid observations and directions, present
\n\tpetition is disposed of without expressing any opinion on merits.\n<\/p>\n
The
\n\tRule is discharged.  Direct service is permitted.\n<\/p>\n
\t\t\t\t\t\t\t\t(H.K.RATHOD,
\nJ)<\/p>\n
asma<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Parshottambhai vs Executive on 27 June, 2008 Bench: H.K.Rathod 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) : […]<\/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-186291","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nParshottambhai vs Executive on 27 June, 2008 - 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\/parshottambhai-vs-executive-on-27-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Parshottambhai vs Executive on 27 June, 2008 - 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