Gujarat High Court
Surendranagar vs Danubhai on 30 August, 2011
Author: V. M. Sahai
Bench: V. M. Sahai
Gujarat High Court Case Information System
Print
LPA/120/2007 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 120 of 2007
In
SPECIAL
CIVIL APPLICATION No. 24421 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
sd/-
HONOURABLE
MR.JUSTICE G.B.SHAH
sd/-
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
No
2
To
be referred to the Reporter or not ?
No
3
Whether
their Lordships wish to see the fair copy of the judgment ?
No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
No
5
Whether
it is to be circulated to the civil judge ?
No
=================================================
SURENDRANAGAR
DISTRICT PANCHAYAT & 1 - Appellant(s)
Versus
DANUBHAI
VASRAMBHAI - Respondent(s)
=================================================
Appearance
:
MR HS MUNSHAW for Appellant(s)
: 1 - 2.
RULE SERVED for Respondent(s) :
1,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 30.08.2011
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. We have heard Mr H.S. Munshaw, learned counsel for the appellants. Though served, none appears on behalf of the respondent.
2. Being aggrieved and dissatisfied by the order dated 27.11.2006 passed by the learned Single Judge rejecting Special Civil Application No.24421 of 2006 preferred by the present appellants and confirming the order dated 21.2.2006 passed by the Labour Court, Surendranagar in Reference (LCS) No.101 of 1995 by which the appellant was directed to reinstate the respondent in service with continuity without back wages, the present Letters Patent Appeal has been preferred by the appellants.
3. The brief facts of the case are that the Surendranagar District Panchayat is running a Veterinary clinic at Village Sara, Taluka Muli, District Surendranagar under the administration, supervision and direction of the Government of Gujarat. The Government of Gujarat has sanctioned the strength of staff for all Veterinary Dispensaries throughout the State of Gujarat and the same was running and managed by the District Panchayat out of the grant provided by the State Government. The Government of Gujarat has sanctioned three posts for the Veterinary dispensary established at Village Sara, Taluka Muli. One post of Veterinary Officer, one of Dresser and one post of Peon. Post of Veterinary Officer is a Class II officer cadre and the posting shall be made by the Government of Gujarat according to the recruitment procedure. So far as the posts of Dresser and Peon are concerned, they are Class IV cadre and the employees are recruited, posted and transferred by the competent authority of the District Panchayat. Regular recruitment for various cadres is made as per the recruitment rules by the District Panchayat Service Selection Committee and thereafter appointment orders, transfer orders etc. are passed by the competent authority under the Act. So far as the Veterinary dispensary at village Sara is concerned, the post of Dresser as well as peon were vacant in the year 1992 and therefore, the present respondent was appointed as temporary, ad hoc and part time Dresser for the first time w.e.f. 5.8.1992 and he had worked for 196 days between the period 5.8.1992 to 21.4.1993. As against regular post of Peon which was vacant had been filled up after following the recruitment procedure for regular appointment, the service of the respondent was terminated. After more than one year the respondent approached the Labour Court at Surendranagar by way of filing Reference (LCB) No.101 of 1995 praying for reinstatement in service with continuity and back wages. The Labour Court by award dated 21.2.2006 ordered for reinstatement of the respondent in service with continuity but without back wages on the ground of violation of provisions of Section 25(F) and (G) of the Industrial Disputes Act, 1947. This award was challenged before the learned Single Judge by preferring Special Civil Application No.24421 of 2006. The learned Single Judge, by order dated 27.11.2006 rejected the writ petition and confirmed the award passed by the Labour Court as stated above. The order is challenged in this Letters Patent Appeal.
4. Learned counsel for the appellant has submitted that the respondent was an employee as purely temporary, ad hoc and part time basis as the posts of regular Dresser and Peon were vacant and once the post of Peon is already filled up through regular employee, there was no requirement of any part time Dresser, his services were terminated. The different periods given in Annexure 'A' shows that the respondent had worked in all 197 days only and the Labour Court has erred in passing the award without assigning any cogent reasons that the provisions of Section 25(F) and (G) of the Industrial Disputes Act was violated. Mr Munshaw has further submitted that the learned Single Judge ought to have appreciated that the respondent was appointed purely on temporary, ad hoc and part time basis as Dresser and no procedure for regular recruitment was followed at the time of appointment of the respondent. He has further submitted that the respondent had no right to continuity of service or reinstatement in service as per the provisions of law though the learned Single Judge has wrongly rejected the writ petition by holding that no oral or documentary evidence was produced before the Labour Court to show that the workman was not eligible for appointment as Dresser/ Peon.
5. We have carefully perused the award at Annexure 'C' passed in Reference (LCS) No.101 of 1995 dated 21.2.2006 by the Labour Court, Surendranagar. It appears that the appellant/original opponent had engaged Advocate, appeared and filed reply in July, 2000 in the said Reference. It is also the fact that after reply, no documentary evidence like Muster Roll, pay register, seniority register etc. had been produced and not only that but chief examination of the present respondent-original applicant at Exh.15 remained unchallenged as the appellant/original opponent had not cross-examined the respondent/original applicant. Learned counsel for the appellant has raised so many points as referred above but it is important to note that the appellants should have produced all the documents as referred above before the Court when the said documents were in their possession and should have remained active and take part in the proceedings seriously. The appellants have failed in producing any documentary evidence in support of their case and therefore, an adverse inference can easily be drawn. We are of the considered opinion that the Judge, Labour Court has rightly appreciated the documents which are forthcoming on the record and put all his efforts to justify the same. We have also considered the order dated 27.11.2006 passed by the learned Single Judge in Special Civil Application No.24421 of 2006 and the relevant paragraph of the same is extracted below:
"Be it noted that the petitioner did not raise the plea that the workman was not eligible for appointment as a Dresser/Peon. The plea raised by the petitioner has not been proved before the Court below either by oral or by documentary evidence. Nor did the petitioner cross examine the workman. In absence of any evidence before the Court below except the oral evidence of the workman, the impugned judgment cannot be held to be erroneous or illegal."
In view of the aforesaid, we do not find any illegality either in the order passed by the learned Judge, Labour court, Surendranagar.
6. Learned counsel for the appellant, in support of his submissions, has placed reliance on the following:
(i) Uttaranchal Forest Hospital Trust v. Dinesh Kumar (3008) SCC 542
(ii) Divisional Manager, New India Assurance Co.Ltd. v. A Sankaralingam AIR 2009 SCC 309
(iii) Union of India and Others v. A.S. Pillai and Others. (2010) 13 SCC
448.
We have carefully perused the cases relied on by the learned counsel for the appellant. In the present case, as discussed above, no documentary evidence has been produced and the oral evidence forthcoming on the record had not been controverted by cross-examination and hence the ratio laid down in the above cases and the observations made therein are not applicable to the case on hand. We are in complete agreement with the view taken by the learned Single Judge and we find no illegality or infirmity either in the the impugned order passed by the learned Single Judge or by the Labour Court, Surendranagar.
7. In the result, this Letters Patent Appeal No.120/07 is devoid of any merit and it is accordingly dismissed. The impugned judgment dated 27.11.2006 passed by the learned Single Judge in Special Civil Application No.24421 of 2006 is confirmed. There shall be no order as to costs.
sd/-
[V M SAHAI, J.] sd/-
[G B SHAH, J.] msp Top