{"id":62929,"date":"2010-04-06T00:00:00","date_gmt":"2010-04-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/president-vs-jadav-on-6-april-2010"},"modified":"2015-12-04T19:35:43","modified_gmt":"2015-12-04T14:05:43","slug":"president-vs-jadav-on-6-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/president-vs-jadav-on-6-april-2010","title":{"rendered":"President vs Jadav on 6 April, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Gujarat High Court<\/div>\n<div class=\"doc_title\">President vs Jadav on 6 April, 2010<\/div>\n<div class=\"doc_author\">Author: H.K.Rathod,&amp;Nbsp;<\/div>\n<pre>   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\/2841\/2010\t 10\/ 10\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\nSPECIAL\nCIVIL APPLICATION No. 2841 of\n2010 \n=========================================================\n\n \n\nPRESIDENT\n\/ SECRETARY - Petitioner(s)\n \n\nVersus\n \n\nJADAV\nNARSINHBHAI MEGHABHAI - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nASHISH D OZA 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: 06\/04\/2010 \n\n \n\nORAL\nORDER<\/pre>\n<p>Heard<br \/>\n\tlearned Advocate Mr. Ashish D. Oza for petitioner   Society.\n<\/p>\n<p>By<br \/>\n\tfiling this petition, petitioner has challenged award passed by<br \/>\n\tLabour Court, Bhavnagar in Reference NO. 441\/90 Exh.53 dated 21st<br \/>\n\tDecember, 2009. Labour Court has granted reinstatement with<br \/>\n\tcontinuity of service with 20 per cent back wages for intervening<br \/>\n\tperiod in favour of respondent workman.\n<\/p>\n<p>Mr.\n<\/p>\n<p>\tOza, learned Advocate appearing for petitioner has raised contention<br \/>\n\tbefore this court that it is case of respondent workman that he was<br \/>\n\tserving with petitioner continuously since 7 years and he was paid<br \/>\n\tRs.650.00 p.m. as salary. He further submitted that it was case of<br \/>\n\trespondent workman that his service was terminated by petitioner on<br \/>\n\t25.3.89 without showing any reason and with bias mind and,<br \/>\n\ttherefore, demand notice was served by respondent by RPAD on<br \/>\n\t19.7.1990 but was not reinstated and thus petitioner has committed<br \/>\n\tbreach of section 25(F), (G) and (H) of the ID Act, 1947. He further<br \/>\n\tsubmitted that it was case of petitioner that respondent was never<br \/>\n\temployed by petitioner. During period from 1983 to 4\/4\/89, he was<br \/>\n\tcalled for in all 254 days as and when work was required, in short,<br \/>\n\trespondent was being called for work on ad hoc \/ temporary basis and<br \/>\n\tas no work was available for him, he was not called for work after<br \/>\n\t1989. He further submitted that respondent had never completed 240<br \/>\n\tdays of service continuously and, therefore, section 25(F), (G) and<br \/>\n\t(H) of ID Act, 1947 would not apply in his case. He submitted that<br \/>\n\trespondent filed reference No. 441 of 1990 before labour court<br \/>\n\twherein labour court passed an award of reinstatement with 20 per<br \/>\n\tcent back wages with continuity of service. He submitted that labour<br \/>\n\tcourt has committed gross error in granting relief in favour of<br \/>\n\trespondent workman. Exh. 47 letter of appointment given by<br \/>\n\tpetitioner is produced on record before labour court in which it is<br \/>\n\tspecifically stated that the respondent was given appointment for a<br \/>\n\tperiod of 26 days alone and thereafter, his service came to be<br \/>\n\tterminated automatically and he was never in employment with<br \/>\n\tpetitioner authority. He submitted that labour court has committed<br \/>\n\terror in not considering these aspects while adjudicating reference.<br \/>\n\tHe further submitted that it was case of respondent that though he<br \/>\n\twas available for work, petitioner appointed two other employees and<br \/>\n\the was neglected. He submitted that vide Exh. 38, evidence of<br \/>\n\trespondent was recorded wherein it was specifically stated that when<br \/>\n\the was on job, Sunil Pathak and Narendra Barot were in service and<br \/>\n\tsaid two persons were senior to him, and, therefore, case of<br \/>\n\trespondent itself is not tenable but that aspect has not been<br \/>\n\tproperly examined by labour court and, therefore, labour court has<br \/>\n\tcommitted error in granting relief in favour of workman. He further<br \/>\n\tsubmited that labour court has commited an error in not considering<br \/>\n\tfacts and circumstances of case in their proper perspective and has<br \/>\n\terroneously come to conclusion that petitioner has committed breach<br \/>\n\tof section 25(F), (G) and (H) of ID Act, 1947 and has also committed<br \/>\n\tan error while awarding 20 per cent back wages for interim period.<br \/>\n\tHe further submitted that labour court has committed an error in not<br \/>\n\tappreciating provisions of section 2(oo) (bb) of ID Act and has<br \/>\n\terroneously come to conclusion that respondent has fit case of<br \/>\n\treinstatement and back wages though respondent was called for work<br \/>\n\tfor specific time and that contract was not renewed due to lack of<br \/>\n\twork. In short, his submission is that the labour court has<br \/>\n\tcommitted error in granting relief in favour of respondent workman<br \/>\n\tbecause workman has not established completion of 240 days<br \/>\n\tcontinuous service and, therefore, question of compliance of section<br \/>\n\t25F by petitioner does not arise.\n<\/p>\n<p>I<br \/>\n\thave considered submissions made by learned Advocate Mr. Oza for<br \/>\n\tpetitioner. I have also perused impugned award made by labour court.<br \/>\n\tBefore labour court, statement of claim was filed by workman vide<br \/>\n\tExh. 3 contending inter alia that he was performing continuously<br \/>\n\tduties with petitioner establishment since last 7 years and was<br \/>\n\treceiving Rs.650.00 per month as salary. However, on 25.3.89, his<br \/>\n\tservice was terminated by petitioner establishment by way of an oral<br \/>\n\torder without there being any reason whatsoever by  adopting unfair<br \/>\n\tlabour practice and, therefore, workman had served<br \/>\n\tpetitioner-opponent by registered AD letter dated 19.7.1990 and<br \/>\n\tserved demand notice but of no avail and therefore industrial<br \/>\n\tdispute was raised by workman which was in turn referred to labour<br \/>\n\tcourt for adjudication. Before labour court, written statement was<br \/>\n\tfiled by petitioner at Exh. 7 wherein it was submitted that the<br \/>\n\tworkman was being engaged on hangami basis subject to requirement<br \/>\n\tand on each occasion, opponent has relieved him from service. In<br \/>\n\twritten statement, petitioner has admitted that by stop gap or<br \/>\n\tintermittently, workman worked from 1983 to 4.4.89 and workman was<br \/>\n\tgiven work by petitioner for total period of 254 days and his<br \/>\n\tservice was terminated on 29.4.88 and section 25F is not applicable<br \/>\n\tas workman has not completed 240 days continuous service within 12<br \/>\n\tmonths preceding date of termination.\n<\/p>\n<p>\tBefore<br \/>\n\tlabour court, respondent workman has produced certain documents and<br \/>\n\tpetitioner has also produced certain documents as discussed by<br \/>\n\tlabour court in para 4 of award. Certain certificates were produced<br \/>\n\tby workman Exh. 41, Exh.42, Exh.43 and Exh. 44. Vide Exh. 38,<br \/>\n\taffidavit of witness Khodabhai Ratnabhai Gelatar was filed who has<br \/>\n\tgiven identity card to workman Exh. 46 which is bearing signature of<br \/>\n\tworkman and Honourary Secretary and President. One xerox copy of<br \/>\n\tmembership 571. By Exh. 47, evidence has been closed. On behalf of<br \/>\n\tpetitioner, vide Exh. 49, Girishbhai Jagjivandas was examined.<br \/>\n\tPetitioner has produced certain documents as discussed in para 4\/1.<br \/>\n\tAccording to petitioner, workman has not completed continuous<br \/>\n\tservice of 240 days and has not proved it before labour court by<br \/>\n\tproducing cogent evidence on record. According to petitioner,<br \/>\n\tworkman has also not proved that juniors have retained in service at<br \/>\n\tthe time when service of workman was terminated. No document was<br \/>\n\tproduced on record to show that respondent was appointed on seasonal<br \/>\n\twork. Before labour court, submissions were made on behalf of<br \/>\n\tworkman by his learned Representative Shri Ghanshyambhai Parekh.<br \/>\n\tAccording to evidence of workman Exh. 38 and Exh. 49, evidence of<br \/>\n\twitness for petitioner, in all from 1983 to 1989, only 254 days work<br \/>\n\thas been proved and workman has not produced any other evidence<br \/>\n\tbefore labour court where 240 days continuous service is proved<br \/>\n\twithin 12 months preceding date of termination. Labour Court has<br \/>\n\tconsidered that no documentary evidence has been produced by<br \/>\n\tpetitioner as per its defence that the workman was engaged for<br \/>\n\tseasonal work. Labour Court has also considered that no order in<br \/>\n\twriting has been given to workman to the effect that workman has<br \/>\n\tbeen given work for any particular type of work and for any<br \/>\n\tparticular period and as and when such work is over, service of<br \/>\n\tworkman would automatically come to an end. Considering the cross<br \/>\n\texamination of the witness for opponent and reply of opponent,<br \/>\n\tlabour court considered that opponent establishment has, after<br \/>\n\tterminating service of workman, engaged new employees and junior<br \/>\n\temployees have also been continued whereas workman has not been<br \/>\n\tcalled at the time of new appointment. Labour Court has also<br \/>\n\tconsidered that workman has given clear names of new juniors<br \/>\n\tcontinued by petitioner, in his examination in chief but on that<br \/>\n\tpoint, there was no any cross examination done nor any evidence was<br \/>\n\tproduced controverting such oral evidence of workman and, therefore,<br \/>\n\tlabour court held that there is breach of section 25(G) and (H) of<br \/>\n\tID Act, 1947.In para 6 of award, labour court has framed the issues<br \/>\n\tand reasons are given by labour court from  para 8 onward. After<br \/>\n\tconsidering submission of petitioner that applicant workman was<br \/>\n\tgiven appointment by total four different orders, one is for 120<br \/>\n\tdays, second is for 30 days, third is for 58 days and then fourth<br \/>\n\tfor 50 days and thereafter, from 26th June, 1985, another<br \/>\n\t26 days and Exh. 47 appointment order which was not issued by<br \/>\n\tpetitioner for particular period or for any particular project,<br \/>\n\tlabour court has come to conclusion that when appointment is not<br \/>\n\tmade for any specific period or specific project, section 2(oo) (bb)<br \/>\n\twould not apply. Labour Court considered working days as referred to<br \/>\n\tat page 45 from 1983 to 1989, total of which comes to 254 days.<br \/>\n\tLabour Court considered evidence of witness for opponent Girishbhai<br \/>\n\tJagjivandas at Exh. 49. It is stated by him that presence of<br \/>\n\trojamdar is not being marked, respondent was rojamdar, applicant was<br \/>\n\tnot being paid wage of days for which he worked on each day but was<br \/>\n\tbeing paid monthly, presence of rojamdar was being marked in<br \/>\n\tcalendar and calendar was being maintained till making of payment.<br \/>\n\tVouchers of salary presence have not been produced. Rojmel has been<br \/>\n\tproduced from 1990. Working days in Exh. 48 are written on the basis<br \/>\n\tof vouchers. Said vouchers are not with him. Considering such<br \/>\n\tevidence, labour court has come to the conclusion that when salary<br \/>\n\thas been paid to workman on the basis of voucher and working days is<br \/>\n\talso calculated on the basis of voucher, then, it is the duty of<br \/>\n\tpetitioner to produce entire vouchers before labour court from 1983<br \/>\n\tto 1989 during which workman remained in service. Rojmel original is<br \/>\n\tproduced by petitioner bank for period from 1st March,<br \/>\n\t1990 to 30th March, 1994and according to that rojmel,<br \/>\n\tpersons have been appointed on the post of clerk as daily wager and,<br \/>\n\ttherefore, considering such evidence, labour court has come to<br \/>\n\tconclusion that from 1990 to 1994, employees have been appointed as<br \/>\n\tdaily wager after termination of service of respondent workman and,<br \/>\n\ttherefore, section 25H has been violated by petitioner. As the<br \/>\n\tpetitioner has not produced rojmel and vouchers for a period from<br \/>\n\t7.11.1983 to 28.2.1990, the period during which workman was in<br \/>\n\tservice,   Labour Court has drawn adverse inference against<br \/>\n\tpetitioner and has come to conclusion that workman has proved 240<br \/>\n\tdays continuous service  as per his evidence Exh. 38 and section 25F<br \/>\n\thas been violated by petitioner and after considering number of<br \/>\n\tdecisions of this court as well as apex court, labour court has come<br \/>\n\tto conclusion that section 25F is violated and, therefore, set aside<br \/>\n\torder of termination. Labour Court also considered question of back<br \/>\n\twages and unemployment and also considered that workman has not been<br \/>\n\tgainfully employed during interim period. Labour Court also<br \/>\n\tconsidered that dispute has been raised by workman in 1990 and Exh.<br \/>\n\t7 reply was filed by petitioner in the year 1992 and workman was<br \/>\n\texamined on 3rd March, 2009 and cross examined on 5th<br \/>\n\tMarch, 2009 and thereafter witness of petitioner was examined on<br \/>\n\t17th September, 2009 which was over on 19th<br \/>\n\tSeptember, 2009 and considering all these aspects, labour court<br \/>\n\tgranted only 20 per cent back wages while granting normal relief of<br \/>\n\treinstatement with continuity of service for interim period.<br \/>\n\tTherefore, considering award made by labour court as a whole,<br \/>\n\taccording to my opinion, labour court has not committed any error<br \/>\n\twhich would require interference of this court in exercise of powers<br \/>\n\tunder Article 227 of the Constitution of India.  Therefore,<br \/>\n\tcontentions raised by learned Advocate Mr. Oza cannot be accepted<br \/>\n\tbecause same are contrary to record. It is an undisputed fact that<br \/>\n\tworkman was provided no documents in respect to his service and<br \/>\n\tworkman was working as daily wager whose presence was marked on<br \/>\n\tvoucher and working days are also mentioned in voucher and salary is<br \/>\n\talso paid to workman on voucher but those vouchers which were very<br \/>\n\trelevant and important document, were not produced by petitioner<br \/>\n\tbefore labour court for the period from 1983 to 1989 and thus,<br \/>\n\tpetitioner has not brought true and correct picture of working days<br \/>\n\tof workman before labour court and therefore, according to my<br \/>\n\topinion, labour court was right in drawing an adverse inference<br \/>\n\tagainst petitioner because after giving oral evidence and producing<br \/>\n\twhatever evidence available with him, workman has discharged his<br \/>\n\tburden and burden was being shifted on petitioner to produce<br \/>\n\tevidence to show that workman has not completed 240 days within 12<br \/>\n\tmonths preceding date of termination which has not been done by<br \/>\n\tpetitioner. Therefore, according to my opinion, labour court has<br \/>\n\trightly held that section 25F, G and H have been violated by<br \/>\n\tpetitioner. Labour Court has applied mind and has given cogent<br \/>\n\treasons for granting relief in favour of workman, therefore, it does<br \/>\n\tnot require any interference of this court in exercise of powers<br \/>\n\tunder Article 227 of the Constitution of India. [See : Director,<br \/>\n\tFisheries Terminal Department versus Bhikubhai Meghajibhai Chavda,<br \/>\n\t2010 AIR SCW 542; RM Yellatti versus Assistant Executive Engineer,<br \/>\n\tAIR 2006 SC 355; Rameshkumar versus State of Haryana, 2010 (1) SCALE<br \/>\n\t432; Harjinder Singh versus Punjab State Warehousing Corporation,<br \/>\n\t2010 (1) SCALE page 613].\n<\/p>\n<p>Therefore,<br \/>\n\tin view of aforesaid discussion and decisions of apex court as<br \/>\n\treferred to above, there is no substance in this petition and<br \/>\n\taccordingly this petition is dismissed.\n<\/p>\n<p>(H.K.\n<\/p>\n<p>\tRathod,J.)<\/p>\n<p>Vyas<\/p>\n<p>\t\t   \u00a0\u00a0\u00a0<\/p>\n<p>\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Gujarat High Court President vs Jadav on 6 April, 2010 Author: H.K.Rathod,&amp;Nbsp; Gujarat High Court Case Information System Print SCA\/2841\/2010 10\/ 10 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2841 of 2010 ========================================================= PRESIDENT \/ SECRETARY &#8211; Petitioner(s) Versus JADAV NARSINHBHAI MEGHABHAI &#8211; Respondent(s) ========================================================= Appearance : MR ASHISH [&hellip;]<\/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-62929","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>President vs Jadav on 6 April, 2010 - Free Judgements of Supreme Court &amp; 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\/president-vs-jadav-on-6-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"President vs Jadav on 6 April, 2010 - Free Judgements of Supreme Court &amp; 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