Gujarat High Court
State vs Rajiben on 3 March, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/13598/2009 4/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13598 of 2009
To
SPECIAL
CIVIL APPLICATION No. 13601 of 2009
=========================================================
STATE
OF GUJARAT - Petitioner(s)
Versus
RAJIBEN
RAYDHANBHAI CHAVDA - Respondent(s)
=========================================================
Appearance
:
MS
VANDANA BHATT AGP for Petitioner(s) : 1,
MR DM DEVNANI for
Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 03/03/2010
ORAL
ORDER
Heard learned AGP Ms. Bhatt on behalf of petitioner State of Gujarat through Range Forest Officer, Normal Division office, Morbi, learned advocate Mr. Murli Devnani on behalf of respondent workmen.
The petitioner has challenged common award passed by Labour Court, Rajkot in Reference case no. 81/94 to 84/94 decided on 22/7/2008 where Labour Court, Rajkot has set aside termination order and grant reinstatement with continuity of service with 30% back wages of interim period except one petitioner Raydhanbhai Chavda who died on 24/8/2007 during pendency of references. The labour Court has granted 30% amount of back wages from date of termination to death of Raydhanbhai.
Learned AGP Ms. Mathur raised various contention before this Court. She submitted that Labour Court has committed gross error in deciding references, which is contrary to law. The relationship as master and servant not established before Labour Court and workman has not completed 240 days continue service within preceding 12 months from date of termination and this aspect has been overlooked by Labour Court.
The burden of proof lies on workmen to prove before Labour Court by leading evidence that workmen had completed 240 days in last calender year but workmen had not proved it before Labour Court, Rajkot. Therefore, as per decision of Apex Court reported in 2002 (3) SCC 25, Labour Court has committed gross error not examined this matter to the effect that whether workman has proved 240 days continues service before Labour Court or not? The Industrial Dispute Act is not applicable, for that, learned AGP Ms. Mathur relied upon decision reported in 2001 (9) SCC 713.
She also submitted that petitioner is not an 'industry' within a meaning of Section 2 J of I. D. Act, 1947. The dispute has been raised after a period of two years from the date of termination i.e. September, 1992. She also submitted that daily wagers, who was engaged not holding any post and there is no need to issue any notice to such daily wager as required u/s 25 F of I. D. Act, 1947.
She submitted that workmen have not proved unemployment during interim period, even though, 30% back wages has been awarded by Labour Court in favour of respondent workmen. According to her submission, Labour Court has committed gross error in deciding said references.
Learned advocate Mr. Devnani appearing on behalf of respondent workmen submitted that before Labour Court, relevant documents have been produced by workmen. The workmen was examined before Labour Court and proved 240 days continue service. One Ashokkumar Chhotalal Masru who was examined on behalf of petitioner vide exh 49 admitted 240 days continue service of workmen. The Labour Court has rightly considered evidence of Ashokkumar Chhotalal Masru vide exh 49. The section 25 F of I. D. Act has not been complied with by employer. Therefore, Labour Court has rightly come to conclusion that termination of each workman is contrary to section 25 F of. I. D. Act.
Considering evidence of workmen that they are earning Rs. 500/- per month and also having income from Government project to provide work for 100 days in year, only 30% amount has been granted in favour of workmen. For that, according to him, Labour Court has not committed any error which would require interference by this Court.
I have considered submission made by both learned advocates and also perused award passed by Labour Court, Rajkot. The workmen were working with petitioner as a labourers for more than four years and was receiving Rs. 25/- wages per day. Their services were terminated in September 1992. Thereafter, notices has been given by workmen on 3/7/1993 which remained unanswered. Therefore, dispute has been raised before Labour Court. The written statement filed by petitioner denying averment made in statement of claim of respondent. The certain documents have been produced by workmen and one Shri Ashokkumar Chhotalal Masru, was examined on behalf of petitioner exh 49. The decision of Full Bench of this Court reported in 2004 (2) GLH 302 in case of Gujarat Forest Producer Gathers and Forest Works Union Vs. State of Gujarat is also produced on record. Thereafter, issues have been framed by Labour Court, Rajkot.
The Labour Court has considered definition of Industry u/s 2 J of I. D. Act, 1947. The systematic activities carried out by petitioner as per evidence of Rajiben Raydhanbhai Chavda exh 20, where she was working as labourer in Nursery of Forest Department maintaining plant and keeping watch upon such plant, provided water to such plant as well as arranging it properly. By doing this work, labourers were getting Rs. 25/- per day wages. The Forest department was selling plants to private parties. The Forest Department was also selling honey and other relevant materials to public at large and receiving income from selling such articles. Against evidence of workmen, there is no rebuttal evidence produced by witness of petitioners before Labour Court.
Therefore, considering evidence of Rajiben Raydhanbhai and Ashokkumar Chhotalal Masru vide exh 49, Labour Court has come to conclusion that looking to systematic activities carried out by petitioner department with help of relationship as employer employee and service to men kind providing plant and other material as well as honey to public at large, receiving income as a price. Therefore, decision of Full bench of this Court as referred above, where this question has been considered and such activities carried out by department is considered to be an 'industry' within a meaning of section 2 J of I. D. Act 1947 considered by Labour Court. The Labour Court has rightly come to conclusion that nursery division of Forest department is satisfying ingredients of definition of industry as given in section 2 J of I. D. Act, 1947.
As per evidence of workman exh 20, they were working in service from 1989 to 1992 and their details of working days provided by petitioner vide exh 22. On that basis, presence register was produced on record except muster roll in respect to September to November, 1989, which suggested presence of 497 days upto 15/4/1991. In case of Madhuben Raydhanbhai her working days comes to 336. The presence of Raydhanbhai Chavda comes to 480 as well as presence of Jayuben Raydhanbhai comes to 479 days. Therefore, if working days of four months of the year 1989, for which relevant records have not been produced, has been included then each workman has completed 240 days continuous service within a meaning of section 25 F of I. D. Act. This fact has been proved on the basis of record produced by petitioner exh 22 and also considering evidence of Ashokkumar Chhotalal Masru exh 49. Therefore, contention raised by learned AGP Ms. Mathur that 240 days has not been proved or established by workmen can not be accepted because continuous service of 240 days has been established by workmen on the basis of exh 22, exh 49 and evidence of workmen exh 20.
It is an undisputed fact that at the time of terminating service, section 25 F has not been complied with and same has been violated. Therefore, Labour Court has come to conclusion that petitioner has violated mandatory provision of section 25 F of I. D. Act at the time of terminating service of four workmen and reinstatement order with 30% back wages of interim period has been passed in favuor of workmen except Raydhanbhai who died during pendency of references.
The petitioner has not led any rebuttal evidence before Labour Court. The service of each workman has been orally terminated, that facts have been admitted by witness Ashokkumar Chhotalal Masru of petitioner exh 49. The total service which has been proved by workman is about four years and completed 240 days continuous service within preceding twelve months from date of termination and none compliance of section 25 F is not disputed by petitioner.
Therefore, contention raised by learned AGP Ms. Mathur can not be accepted. The Labour Court has rightly granted reinstatement in such cases with 30% back wages. Before Labour Court, it was not case of petitioner that no work is available and there is no vacancy is available with petitioner. Therefore, Labour Court has rightly granted reinstatement in favour of workmen.
I have considered reasoning given by Labour Court and also considering evidence led before Labour Court by respective parties. According to my opinion, 240 days has been proved by workmen before Labour Court and section 25 F has been violated. The reinstatement order has been rightly passed because it was not a case of petitioner that no work is available. Therefore, no error is committed by Labour Court, Rajkot which would require interference by this Court.
The Labour Court has rightly examined matter on the basis of legal evidence and finding of fact given by Labour Court can not be disturbed by this Court while exercising power under article 227 of Constitution of India. Hence, there is no substance in present petitions, all are dismissed. No order as to costs.
(H.K.RATHOD, J) asma Top