Gujarat High Court
State vs Pandor on 3 March, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/11015/2009 2/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11015 of 2009
To
SPECIAL
CIVIL APPLICATION No. 11026 of 2009
=========================================================
STATE
OF GUJARAT - Petitioner(s)
Versus
PANDOR
FATABHAI PUNJABHAI - Respondent(s)
=========================================================
Appearance
:
Mr.
Neeraj Soni, Mr. AL Sharma, Ms. Sachi Mathur and Ms. Vandana Bhatt,
AGPs for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1,
MR TR
MISHRA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 03/03/2010
ORAL
ORDER
Heard learned AGP Mr. Soni, Mr. Sharma, Ms. Sachi Mathur and Ms. Bhatt for petitioner State and learned Advocate Mr.Mishra for respondents workman in this group of petitions under Article 227 of Constitution of India.
On 9.2.2010, these petitions were adjourned to 16.2.2010 by passing following order:
Both the learned counsel for the parties have been making their submissions for final disposal of the matters. Hence, the matters are adjourned to 16.2.2010.
Copy of the order be maintained in each of the matter.
By filing these petitions, petitioner has challenged common award made by Labour Court, Godhra Exh. 62 in Reference (LCG) No.586/95 to 597/95 dated 5th January, 2009 wherein Labour Court, Godhra has set aside order of termination of service passed by first party by holding it as illegal and unreasonable. Under said award, petitioners first party were directed to pay an amount of Rs.20,000.00 to second party workmen within 30 days from date of publication of award in lieu of their relief of reinstatement and back wages for interim period. Labour Court also directed to petitioner to pay Rs.1001.00 to second party workmen towards costs of reference.
Learned AGP Mr. Soni raised contention before this court that industrial dispute was raised by respondents after about fourteen years and, therefore, labour court has committed gross error in deciding such belated and delayed reference which is contrary to provisions of ID Act, 1947. He further submitted that labour court,Godhra has not considered contention raised by petitioner that when work of Kadana Dam Yojana was in progress, several labourers were engaged for same work on daily wage basis and accordingly wages were also being paid for work. He submitted that daily wagers were also coming for work as per their convenience, whenever daily wagers were having another work, then, they were not coming for work of Kadana Dam. He further submitted that when work of Kadana Dam Scheme was likely to be over, several offices were closed and charge of said offices was handed over to the present petitioner authority. He further submitted that before labour court, no evidence was produced by respondent to show that workmen were working continuously from 1972 to 1980. He further submitted that workmen were engaged as daily wager, therefore, there is no question of terminating their service and there is also no question of compliance of section 25-F of ID Act by petitioners. He submitted that Labour Court, Godhra has not properly appreciated facts which were on record and evidence of petitioner and passed award which is apparently contrary to provisions of law. He submitted that it ought to have been appreciated by labour court that it is for concerned workmen to establish by leading proper evidence before labour court that he had completed 240 days continuous service in preceding 12 months from date of termination. He further submitted that as per record which has been produced by petitioner, muster roll, 240 days continuous service was not completed by any workman but that has not been taken into consideration by labour court. He relied upon decision of apex court in 2003 (2) SCC 25 and submitted that even unemployment of workmen has also not been proved by any of workman before labour court and, therefore, labour court has committed gross error in awarding Rs.20,000.00 lumsum amount in favour of respondent workmen in lieu of reinstatement and back wages for interim period. Except these contentions, no other contention is raised by learned Advocate Mr. Soni before this court.
Learned Advocate Mr. UT Mishra for respondents workmen submitted that labour court has rightly made award in question. He submitted that before labour court, one application Exh. 10 was given by workman with a prayer to direct petitioner to produce relevant record of muster roll, pay roll, vouchers for period from May, 1972 to December, 1980 wherein order was passed by labour court to produce documents which were demanded by workmen, thereafter, workman filed affidavit before labour court and one witness Javrabhai Arjanbhai has given oral evidence and he was cross examined by advocate for petitioner before labour court. Rest of workmen were not cross examined by advocate for petitioner before labour court and right of petitioner to make cross examination has been closed. He submitted that on behalf of petitioner, no oral evidence was produced on record and their right to led evidence has been closed by passing order below Exh. 55. Before labour court, on behalf of workmen, as per list Exh. 58, 60 and 61, decisions were cited in support of their oral arguments. Learned Advocate Mr. Mishra submitted that labour court has considered relevant record which was produced by workman and according to evidence of workman, they were in service from May, 1972 to December, 1980 and they have completed 240 days continuous service with petitioner and their services were terminated by petitioner authority without following procedure under section 25F of ID Act, 1947 and that aspect was rightly examined by Labour Court. He submitted that before labour court, no oral evidence was led and no one was examined on behalf of petitioner. He further submitted that before labour court, evidence of respondents had remained unchallenged because in cross examination done by advocate for petitioner before labour court, no question has been asked about completion of 240 days service within twelve months preceding date of termination. He further submitted that even no question was asked whether workmen were in service from 1972 to 1980 or not. Documents demanded by workmen were not produced on record by petitioner and no affidavit to that effect has been filed by petitioner before labour court and, therefore, labour court has rightly come to conclusion that such termination of service of workmen is amounting to retrenchment and section 25F has been violated by petitioner. He submitted that in view of delay in raising of an industrial dispute and considering daily wage of Rs.7.00 received by workmen at the relevant time, labour court has come to conclusion that instead of reinstatement and back wages, it is proper to award only Rs.20,000.00 in favour of workmen. For that, according to him, no error has been committed by Labour Court, Godhra which would require interference of this Court.
I have considered submissions made by both learned Advocates. I have also perused award passed by Labour Court, Godhra. Dispute has been raised by concerned employees after a period of sixten years because from 1972 to December, 1980, they were in service with petitioner working on Kadana Dam Project. Before Labour Court, an application Exh. 10 was submitted on behalf of workmen demanding production of certain documents from petitioner from May, 1972 to December, 1980 namely muster roll, pay register, vouchers wherein order was passed by labour court directing petitioner to produce documents on record or to file affidavit but before labour court, no such documents were produced by petitioner and affidavit was also not filed to that effect as per order passed by labour court below Exh. 10 and no one was examined before labour court by petitioner. Vide Exh.55, oral evidence was closed by petitioner before labour court, Godhra. Respondent workman Javrabhai was examined before labour court and others filed affidavit in support of their case. Petitioner has cross examined said Javrabhai and for rest of workmen, cross examination was not carried out by petitioner's advocate before labour court. Ultimately vide Exh. 53, oral evidence of workmen was closed and thereafter matter has been decided by labour court considering decisions relied upon by respondent workman, reported in 1999 LLR page 8; 1999 LLR 319; 2000 LLR 1199; 2000 (1) LLR 900; 2000 ALT page 586; 1997(3) GCD 705; 2002 (2) GLH 649; 2006 SCC L/S 152 (RM Yellatti's case and AIR 1986 SC 458 and one unreported decision of this court in Special CA NO.28944 of 2007 decided on 10.12.2007. Petitioner has produced on record written arguments at Exh. 59 and thereafter, issues were framed by labour court and after considering evidence, labour court has come to conclusion that workmen remained in continuous service from May, 1972 to December, 1980 and though order was passed by labour court in an application made by workmen for directing petitioner to produce documents, said order was not complied with by petitioner either by producing documents or by filing affidavit to that effect and no documentary evidence was produced by petitioner before labour court and therefore, in view of evidence produced by workmen, labour court has rightly come to conclusion that petitioner has committed breach of provisions of section 25F of ID Act while terminating services of workmen concerned and, therefore, termination has been held to be violative of sec. 25F of ID Act. However, labour court has granted lumsum amount of Rs.20000.00 in favour of workmen in lieu of reinstatement and back wages for intervening period, as compensation and, therefore, in view of that, contentions raised by the learned AGP appearing for petitioner cannot be accepted because no oral or documentary evidence was produced by petitioner for controverting say of workmen on oath before labour court. Such opportunity was made available by labour court to petitioner by passing order below Exh. 10 to produce documents, but said opportunity was not availed by petitioner either by producing documents or by filing affidavit to that effect and no documentary evidence was produced by petitioner before labour court. Therefore, according to my opinion, labour court has rightly relied upon evidence of workman who was cross examined by advocate for petitioner and on that basis, rightly held that continuous service of 240 days has been established and no rebuttal evidence was produced by petitioner before labour court. According to my opinion, such finding of fact recorded by labour court are based on appreciation of evidence on record which was not controverted by petitioner by producing any evidence to the contrary and, therefore, no interference is warranted. Recently, this aspect has been considered by apex court in case of Director, Fisheries Terminal Division versus Bhikubhai Meghajibhai Chavda, 2010 AIR SCW
542. It was a case of retrenchment. It was held that workman would have difficulty in having access to all official documents,muster rolls, etc., in connection with his service. Relevant observations made by apex court in para 10,11,12,13,14,15,16 and 17 of said decision are reproduced as under:
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."
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.
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."
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."
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.
It is also the case of the appellants that there is unexplained delay in approaching the labour court in adjudicating the imaginary grievance by the respondent-workman. In our view, there is no merit in this contention. The workman had approached the Conciliation Officer for resolving the dispute between the employer and the employee and it is only when the conciliation proceedings failed that the matter was referred to the labour court for final adjudication.
As regards contention raised by learned AGP Mr. Soni that labour court ought not to have made award in view of delay in raising of an industrial dispute, it is pertinent to note that when petitioner raised industrial dispute before Assistant Commissioner of Labour, such contention was not raised by petitioner and then, petitioner also not challenged terms of reference means order of reference before higher forum and participated in the proceedings of reference before labour court. Apart from that, looking to relief granted by labour court, it is clear that labour court has taken care of this aspect because labour court has granted only Rs.20,000.00 as compensation in lieu of reinstatement and back wages for intervening period by holding that termination is violative of section 25F of ID Act, 1947. Therefore, labour court has taken sufficient care while granting relief and has considered factor of delay while granting relief and has moulded relief accordingly in view of delay in raising of an industrial dispute on the part of workmen concerned. On this ground also, such contention raised by learned AGP cannot be accepted and same is therefore rejected.
In view of above observations made by apex court and in light of facts of present case, contentions raised by learned AGP cannot be accepted and same are therefore rejected. NO error is committed by labour court in deciding such reference and, therefore, matter does not call for any interference of this court in exercise of powers under Article 227 of the Constitution of India. Therefore, there is no substance in these petitions and same are, therefore, dismissed. Rule is discharged. Interim relief, if any, shall stand vacated with no order as to costs.
(H.K. Rathod,J.) Vyas Top