{"id":26233,"date":"2010-03-15T00:00:00","date_gmt":"2010-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-mukeshkumar-on-15-march-2010"},"modified":"2018-06-19T15:12:13","modified_gmt":"2018-06-19T09:42:13","slug":"state-vs-mukeshkumar-on-15-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-mukeshkumar-on-15-march-2010","title":{"rendered":"State vs Mukeshkumar on 15 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Mukeshkumar on 15 March, 2010<\/div>\n
Author: H.K.Rathod,&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\/13506\/2009\t 10\/ 10\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. 13506 of 2009\n \n\n \n \n=========================================================\n\n \n\nSTATE\nOF GUJARAT & 1 - Petitioner(s)\n \n\nVersus\n \n\nMUKESHKUMAR\nBACHUBHAI KADIYA - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMS\nSACHI MATHUR AGP for Petitioner(s) : 1 - 2. \nMR PH PATHAK for\nRespondent(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: 15\/03\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned AGP Ms. Sachi Mathur on behalf of petitioner, learned
\n\tadvocate Mr. PH Pathak appearing for respondent.\n<\/p>\n
The
\n\tpetitioner has challenged award passed by Labour Court dated
\n\t16\/3\/2009, Mehsana in reference (old no. 131\/1998) new no. 68\/2008.
\n\tThe Labour Court has granted reinstatement with continuity of
\n\tservice and giving lump sum amount of Rs. 5000\/- qua claim of back
\n\twages.\n<\/p>\n
Learned
\n\tAGP Ms. Mathur raised contention before this Court that Labour Court
\n\thas committed gross error in coming to such conclusion that workman
\n\thas completed more than 240 days preceding 12 months from date of
\n\ttermination.  She also raised contention that petitioner
\n\testablishment is not covered by definition of an  Industry
\n\tunder section 2 J of I. D. Act, 1947.\n<\/p>\n
The
\n\tservice of workman was not terminated or workman was not permanent
\n\temployee of petitioner establishment.  Therefore, award passed by
\n\tLabour Court is required to be set aside.  She also raised
\n\tcontention that in the year 1997, there was not work available.
\n\tTherefore, automatically service of respondent came to be end and
\n\tthere is no termination or positive action by petitioner. The view
\n\ttaken by Labour Court is erroneous contrary to record, which would
\n\trequire interference by this Court.\n<\/p>\n
Learned
\n\tadvocate Mr. Pathak appearing for respondent workman submitted that
\n\tbefore Labour Court, 240 days has completed by workman in April 1996
\n\tto March 1997 total period of working days comes to 222 days and
\n\tthat has been proved by workman vide exh 22 to 42.  If second &
\n\tfourth Saturday, Sunday as well as public holidays are included,
\n\tthen workman has completed 240 days continuous service within
\n\tpreceding 12 months from date of termination and section 25 F has
\n\tbeen violated and continuous service has been established by workman
\n\tas required under section 25 B of I. D. Act, 1947.  He relied upon
\n\tdecision of Apex Court in case of Moti Ceramic Industries Vs.
\n\tJivuben Rupabhai  reported in 2001 (I) CLR 156.\n<\/p>\n
He
\n\talso raised contention that witness of petitioner, who was examined
\n\tat exh 45 before Labour Court has also made clear in cross
\n\texamination that work was not available which required presence of
\n\tworkman, therefore, by oral order, his service was terminated.\n<\/p>\n
In
\n\tlight of this back ground, learned advocate Mr. Pathak submitted
\n\tthat Labour Court has rightly granted reinstatement and not granted
\n\tany back wages except awarded lump sum amount of Rs. 5000\/-.
\n\tAccording to him, Labour Court has not committed any error which
\n\twould require interference by this Court under Art. 227 of
\n\tConstitution of India.\n<\/p>\n
I
\n\thave considered submission made by both learned advocates and I have
\n\tperused award passed by Labour Court, Mehsana.  It is true that from
\n\t2002 to 2009 case was delayed because petitioner establishment
\n\tremained absent. The workman was examined on 19\/3\/2001 vide exh 8
\n\tand none present on behalf of petitioner.  Therefore, Labour Court
\n\thas passed ex parte order, which was challenged by petitioner in SCA
\n\tno. 1961\/2003.  The said petition has been disposed of by this Court
\n\tas petitioner was having alternative remedy to file application to
\n\tset aside ex parte award under Rule 26 (A). Thereafter, application
\n\twas made before Labour Court by petitioner at Kalol being Misc.
\n\tcivil application no. 25\/2003 and on 11\/2\/2004, ex parte award has
\n\tbeen set aside and decided to pass bi-parte award.  Again,
\n\tpetitioner establishment remained absent. Therefore, cost has been
\n\tawarded to petitioner and on second occasion also ex parte award was
\n\tpassed, against which, an application to set aside ex parte award
\n\tfiled and ex parte award is set aside on condition to pay Rs. 7000\/-
\n\tto workman.  Against said award, SCA no. 10258\/2008 has been filed
\n\tby petitioner, wherein, this Court has directed to decide bi-parte
\n\treference by order dated 25\/2\/2008.  This facts suggested that there
\n\twas some lapse on part of petitioner establishment and due to that
\n\tmatter has been remained pending about more than 12 years.\n<\/p>\n
According
\n\tto workman, he was appointed or engaged on December, 1994. In the
\n\tyear 1995, he has completed 215 days service and in the year 1996 he
\n\thas completed 230 days service. His service was terminated in year
\n\t1997. Therefore, workman has raised industrial dispute, which has
\n\tbeen decided by Labour Court considering exh 22 to 42 produced by
\n\tworkman.  From April, 1996 to March 1997, workman has proved 240
\n\tdays continuous service.  If second and fourth Saturday, Sunday as
\n\twell as Public holidays are included, then it comes to more than 240
\n\tdays continuous service, which is proved before Labour Court as
\n\trequired under section 25 B of I. D. Act, 1947.  The said aspect has
\n\tbeen considered by Apex Court in case of Workmen of American
\n\tExpress International Banking Corporation Vs. Management of American
\n\tExpress International Banking Corporation  reported in AIR 1986 SC\n<\/p>\n
\t458.  <\/p>\n
Therefore,
\n\tLabour Court has rightly calculated 240 days service of workman and
\n\trightly considered decision of this Court in case of Moti
\n\tCeramic Industries Vs. Jivuben Rupabhai  reported in 2001 (I) CLR\n<\/p>\n
\t156. The Labour Court has rightly appreciated evidence of
\n\twitness of petitioner exh 45. This being an undisputed fact that at
\n\tthe time of terminating service on 16\/3\/1997, section 25 F has not
\n\tbeen followed by petitioner.  Therefore, Labour Court has rightly
\n\tset aside termination order as mandatory condition has not been
\n\tfollowed by petitioner.\n<\/p>\n
The
\n\tLabour Court has granted reinstatement in favour of workman with
\n\tcontinuity of service and not granted any amount of back wages of
\n\tinterim period and only awarded lump sum amount of Rs. 5000\/-.\n<\/p>\n
I
\n\thave also considered affidavit in reply filed by respondent and also
\n\tconsidering contention raised by respondent in its reply. The
\n\tcontention raised by petitioner that petitioner is not an Industry.
\n\tThis contention is raised before this Court first time, therefore,
\n\tcan not be entertained by this Court.  The petitioner has not led
\n\tany oral evidence in support of contention that petitioner is not an
\n\t Industry  before Labour Court. The first time such contention
\n\traised in absence of pleading and documents can not be entertained
\n\tas per recent decision of Apex Court reported in AIR 2010  SC 19.\n<\/p>\n
Recently,
\n\tapex Court has considered this aspect of violating section 25 F of
\n\tI. D. Act, 1947 in case of Ramesh Kumar Vs. State of Haryana
\n\treported in 2010 (1) SCALE 432.  The relevant discussion
\n\tmade in para 10, 11 and 13 are quoted as under:\n<\/p>\n
10)
\n\tIt is not in dispute that the appellant was appointed as a Mali and
\n\tposted at the residence of the Chief Minister in the year 1991. The
\n\tmaterials placed by the appellant before the Labour Court clearly
\n\tshow that he had worked for three years and there was no break
\n\tduring his service tenure. He was issued identity card to work in
\n\tthe residence of the Chief Minister and no reason was given<\/p>\n
for
\n\this termination. It is also his case that there was no show cause
\n\tnotice and no inquiry was conducted. The perusal of the order of the
\n\tLabour Court clearly shows that one Shri Nasib Singh, Junior
\n\tEngineer, who deposed as MW-1 on behalf of the Department has
\n\tcategorically stated that the workman was engaged by the Department
\n\ton muster rolls as Mali in December, 1991 and he worked up to
\n\t31.01.1993. He also stated that there was no break from December,
\n\t1991 to January, 1993 during which the workman was engaged.
\n\tThe Labour Court as per the materials placed rightly found that the
\n\tworkman has continuously worked from December 1991 to 31.01.1993. It
\n\talso found that the workman worked for 240 days with the Department
\n\twithin 12 calendar months preceding his date of termination i.e.
\n\t31.01.1993. It is useful to refer the definition of “retrenchment”
\n\tand “workman” in the Act which reads thus:\n<\/p>\n
“2
\n\t(oo) “retrenchment” means the termination by the employer
\n\tof the service of a workman for any reason whatsoever, otherwise
\n\tthan as a punishment inflicted by way of disciplinary action, but
\n\tdoes not include…….”\n<\/p>\n
2<\/span><\/p>\n
\t(s) “workman” means any person (including an apprentice)
\n\temployed in any industry to do any manual, unskilled, skilled,
\n\ttechnical, operational, clerical or supervisory work for hire or
\n\treward, whether the terms of employment be express or implied, and
\n\tfor the    purposes of any proceeding under this Act in relation to
\n\tan industrial dispute, includes any such person who has been
\n\tdismissed, discharged or retrenched in connection with, or as a
\n\tconsequence of, that dispute, or whose dismissal, discharge or
\n\tretrenchment has led to that dispute, but does not include any such
\n\tperson………….”\n<\/p>\n
25F.\n<\/p>\n
\tConditions precedent to retrenchment   of workmen. No workman
\n\temployed in any industry who has been in continuous service for not
\n\tless than one year under an   employer shall be retrenched by that
\n\temployer until- (a) the workman has been given one month’s notice in
\n\twriting indicating the reasons for retrenchment and the period of
\n\tnotice has expired, or the workman has been    paid in lieu of such
\n\tnotice, wages for the period of the notice;\n<\/p>\n
(b)
\n\tthe workman has been paid, at the time of<\/p>\n
retrenchment,
\n\tcompensation which shall be equivalent to fifteen days’ average pay
\n\tfor every completed year of continuous service or any part thereof
\n\tin excess of six months; and<\/p>\n
(c)
\n\tnotice in the prescribed manner is served on the appropriate
\n\tGovernment or such authority as may be specified by the  appropriate
\n\tGovernment by notification in the Official Gazette.”\n<\/p>\n
It
\n\tis not in dispute that the appellant is a “workman” as
\n\tdefined under Section 2 (s) and “retrenchment” if any it
\n\tshould be in accordance with Section 25F of the Act. Admittedly, in
\n\tthe case on hand, the workman was not given any notice or pay in
\n\tlieu of notice or retrenchment compensation at the time of his
\n\tretrenchment. In view of the same, the Labour Court has correctly
\n\tconcluded that his termination is in contravention of the provisions
\n\tof Section 25 F of the Act.  Though the Department has relied on a
\n\tcircular, the Labour Court on going through the same rightly
\n\tconcluded that the same is not applicable to the case of the
\n\tretrenchment.\n<\/p>\n
(11)<\/span><\/p>\n
\tIn addition to the factual conclusion by the Labour Court, namely,
\n\tcontinuance for a period of 24 days in a calendar year preceding his
\n\ttermination, the appellant has also placed relevant materials to
\n\tshow that persons  similarly situated have already been reinstated
\n\tand their services have been regularized. It is his grievance that
\n\tappellant alone has been meted out with the hostile discrimination
\n\tby the Department.     He also highlighted that in respect of some
\n\tof the workmen who were appointed and terminated, after similar
\n\tawards passed by the Labour Court, the Management did not challenge
\n\tthe same before the High Court by filing writ petitions. He also
\n\tpointed out that out that in some cases where a challenge was made
\n\tbefore the High Court by filing writ petitions however, after
\n\tdismissal of the writ petitions those persons were reinstated. In
\n\tfact, according to the appellant some of them were even regularized.\n<\/p>\n
(13)<\/span><\/p>\n
\tWe are conscious of the fact that an appointment on public post
\n\tcannot be made in contravention of recruitment rules and
\n\tconstitutional scheme of employment. However, in view of the
\n\tmaterials placed before the Labour Court and in this Court, we are
\n\tsatisfied that the said principle would not apply in the case on
\n\thand. As rightly pointed out, the appellant has not prayed for
\n\tregularization but only for reinstatement with continuity of service
\n\tfor which he is legally entitled to. It is to be noted in the case
\n\tof termination of casual employee what is required to be seen is
\n\twhether a workman has completed 240 days in the preceding 12 months
\n\tor not. If sufficient materials are shown that workman has completed
\n\t240 days then his service cannot be terminated without giving notice
\n\tor compensation in lieu of it in terms of Section 25F. The High
\n\tCourt failed to appreciate that in the present case appellant has
\n\tcompleted 240 days in the preceding 12 months and no notice or
\n\tcompensation in lieu of it was given to him, in such circumstances
\n\this termination was illegal.  All the decisions relied on by the
\n\tHigh Court are not applicable to the case on hand more particularly,
\n\tin view of the specific factual finding by the Labour Court.\n<\/p>\n
According
\n\tto my opinion, contention which has been raised by learned AGP Ms.
\n\tMathur can not be accepted.  The Labour Court has rightly considered
\n\tevidence on record and granted relief of reinstatement only with
\n\tcontinuity of service.  Due to delay, no back wages of interim
\n\tperiod has been awarded.  This being a balanced award, Labour Court
\n\thas not committed any error, which would require interference by
\n\tthis Court while exercising power under Art. 227 of Constitution of
\n\tIndia.\n<\/p>\n
Hence,
\n\tthere is no substance in present petition, same is dismissed.\n<\/p>\n
\t\t\t\t\t\t\t\t(H.K.RATHOD,
\nJ)<\/p>\n
asma<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Mukeshkumar on 15 March, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/13506\/2009 10\/ 10 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13506 of 2009 ========================================================= STATE OF GUJARAT & 1 – Petitioner(s) Versus MUKESHKUMAR BACHUBHAI KADIYA – Respondent(s) ========================================================= Appearance : […]<\/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-26233","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Mukeshkumar on 15 March, 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-mukeshkumar-on-15-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Mukeshkumar on 15 March, 2010 - 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