Gujarat High Court
Deputy vs Hakubha on 4 August, 2011
Author: R. Tripathi
Bench: Ravi R.Tripathi
Gujarat High Court Case Information System
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SCA/7409/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7409 of 2011
With
SPECIAL
CIVIL APPLICATION No. 7410 of 2011
To
SPECIAL
CIVIL APPLICATION No. 7412 of 2011
=========================================================
DEPUTY
EXECUTIVE ENGINEER - Petitioner(s)
Versus
HAKUBHA
NARUBHA ZALA - Respondent(s)
=========================================================
Appearance
:
Mr.NEERAJ
SONI, ASST GOVERNMENT PLEADER
for
Petitioner(s) : 1,
MR PR ABICHANDANI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 04/08/2011
COMMON
ORAL ORDER
Every matter filed by the Government authority is an example of inaction on the part of the concerned staff/ officers and glaring instance of not discharging duty by defending the matter as required under the law.
2. By this petition the Deputy Executive Engineer, Water Irrigation Sub Division, Morbi is before this Court challenging award and order dated 23.2.2010 passed by the learned Presiding Officer, Labour Court, NO.2, Rajkot in Reference (LCR) No.55 of 2008.
The learned Judge of the Labour Court was pleased to order reinstatement of the respondent workman with continuity of service, but without backwages.
3. It was the case of the respondent-workman before the learned Judge of the Labour Court that he has been working from 1989 to 1999. Despite clear case of the respondent workman the authorities/ officers/ persons in-charge of the affairs produced documentary evidence for only three years before the Court to bring on record that during the year 1992, he worked for 13 days; during 1993, he worked for 14 days and during 1995 he worked for 17 days. Not a word is coming forward as to why record for the years from 1989 to 1991, for the year 1994 and for years 1996 to 1999, was not produced.
The learned AGP in the midst of arguments submitted that, 'it is quite possible that reference was filed in the year 2008, the record must have been destroyed, because it is the practice that record is to be retained only for 5 years, thereafter, it has to be destroyed'. The submission is without any basis for the reason that if record for 1992, 1993 and 1995 could be produced, what prevented the authorities concerned from producing the record pertaining to the years 1994, 1996, 1997, 1998 and 1999, because if record for the years 1992, 1993 and 1995 was available there was no reason for which record for the year 1994 and for the years subsequent to 1995 could not have been available. Therefore, this submission is without any merit and therefore, it is rejected.
4. Not only they did not produce the relevant record, but as the learned Judge has observed in para 12 the statement of the respondent- workman was not questioned even in the cross-examination.
5. The learned Judge has rightly considered the decision of this Court in Special Civil Applications No.29146 of 2007, 29147 of 2007, dated 26.11.2007 and reproduced paras 8 and 9, which are reproduced hereinbelow for ready reference:
"Recently, all these aspects have been examined by this Court wherein labour Court has passed identical award in case of Executive Engineer & Ors. v. Shantuben Chhaganbhai Makwana reported in 2007 Lab IC 3661 as well as Executive Engineer (Stores) and another and Harsha M. Jani, reported in 2007 III LLJ page 703. In Executive Engineer & Ors. v. Shantuben Chhaganbhai Makwana reported in 2007 Lab IC 3661, this Court has considered the decision of the apex court in case of RM Yellatty (supra) as well as the decision of the apex court in case of M/s.
Sriram Industrial Enterprises Ltd. Versus Mahak Singh & Ors. reported in 2007 (3) Supreme Today page 553 and observed that In the said decision, the apex court has considered the decision in case of Range Forest Officer v. ST Hadimani reported in (2002) 3 SCC 25 and other all relevant decisions including the decision in case of Surendranagar District Panchayat versus Dahyabhai Amarsinh (2005) 8 SCC 750. In the said decision, the apex court has also considered the earlier three Judges decision of the apex court in case of RM Yellatty v. Assistant Executive Engineer (2006) 1 SCC 106 and held that the earlier decision of the apex court in Range Forest Officer v. ST Hadimani reported in (2002) 3 SCC 25 has been watered down. Relevant observations made by this court after considering the aforesaid decisions, in case of Executive Engineer & Ors. v. Shantuben Chhaganbhai Makwana reported in 2007 Lab IC 3661 from para 10 to 14 are reproduced as under:
"10. Law on this subject has recently been examined by the Apex Court and decided that in such circumstances when the workman is not having any evidence to prove completion of 240 days continuous service within one year, then, in such circumstances, employer shall have to produce documentary evidence which are in possession of the employer and if the evidence of the workman has not been challenged in cross examining the workman concerned, then labour court has right to believe the oral evidence of workman. In RM Yellatti versus Asstt. Executive Engineer, reported in 2005 (9)SCALE 139 = 2006 (1) SCC 106, this aspect has been examined by the apex court. It has been observed by the apex court in paras 17, 18 and 19 as under:
"17.
Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated 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 workmen stepping 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 earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non production of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down basic principle, namely, that the High Court under Art. 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case."
6. The learned AGP submitted that the learned Judge ought not to have granted continuity of service. The learned AGP was asked as to what are the benefits flowing from 'continuity of service' to the respondent- workman, the learned AGP does not have any information in that regard. That being so, even this submission cannot be accepted by this Court. Taking into consideration the award passed by the learned Judge in detail, this Court is of the opinion that no error is committed by the learned Judge in passing the award of reinstatement with continuity of service.
7. With these observations, the petitions are dismissed. Notice is discharged.
The Court feels that no useful purpose will be served by imposing cost, because ultimately it will be coming from the public exchequer. Therefore, no order as to cost is passed.
(RAVI R. TRIPATHI, J.) karim Top