Gujarat High Court
The State Of Gujarat vs Khumanbhai Vechanbhai Vasava & on 4 September, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/15268/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15268 of 2014
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THE STATE OF GUJARAT....Petitioner(s)
Versus
KHUMANBHAI VECHANBHAI VASAVA & 1....Respondent(s)
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Appearance:
GOVERNMENT PLEADER for the Petitioner(s) No. 1
MR PARESH M DARJI, ADVOCATE for the Respondent(s) No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 04/09/2015
ORAL ORDER
1. This petition is filed by the State of Gujarat through Executive Engineer under Articles 226 and 227 of the Constitution of India, wherein the petitioner has challenged the award and order passed by the Labour Court in Reference (LCN) No.342 of 1996, whereby the direction is given to the petitioner to reinstate the respondent workman with continuity of service and 20% back-wages.
2. Heard learned Assistant Government Pleader Ms. Megha Chitaliya for the petitioner and learned advocate Mr. Paresh M. Darji for the respondent - workman.
3. Learned AGP submitted that an industrial dispute came to be raised by the respondent - workman before the Assistant Labour Commissioner. The same was referred to the Labour Court for adjudication of the Page 1 of 14 HC-NIC Page 1 of 16 Created On Sat Nov 07 03:39:45 IST 2015 1 of 16 C/SCA/15268/2014 ORDER issue as to whether the workman is required to be reinstated on its original post with back-wages or not. The said reference was registered as Reference (LCN) No. 342 of 1996 before the Labour Court, Nadiad. The respondent - workman filed statement of claim vide Exh.5. It is the case of the respondent workman that he was working as Jeep Driver since May 1990 with the petitioner department. No appointment order was given to him. However, he has discharged his duty continuously. He was given the pay as per the Minimum Wages Act. In the year 1990-1991 he worked for 300 days and thereafter in the year 1991 he was transferred to Sub-Division 5, where he worked up to 31.12.1994. Thereafter he was transferred to Division No.2. There also he worked. However, in January 1996, he was illegally relieved from the services without issuance of notice or giving any notice pay. Thus, it is the case of the respondent workman in the statement of claim that the petitioner - employer has violated the provisions contained in Sections 25-F, 25-G and 25-H of the Industrial Disputes Act.
4. Learned A.G.P. thereafter pointed out that the petitioner filed written statement vide Exh.9 before the Labour Court, wherein the allegations levelled by the respondent workman was denied. It was specifically contended that the petitioner has not violated the provisions contained in Sections 25-F, 25-G and 25-H of the Industrial Disputes Act as alleged. It was specifically contended that the respondent workman was paid on vouchers on daily basis and therefore no Page 2 of 14 HC-NIC Page 2 of 16 Created On Sat Nov 07 03:39:45 IST 2015 2 of 16 C/SCA/15268/2014 ORDER appointment letter was given. That the petitioner has prayed before the Labour Court by placing documentary evidence on record that respondent workman had not completed 240 days in any of the year. However, in spite of the sufficient material placed on record, the Labour Court has passed the impugned award and order by which direction was given to the petitioner to reinstate the respondent workman with continuity of service and 20% back-wages.
5. Learned AGP further contended that the impugned order is illegal and perverse and therefore this Court may quash and set aside the same while exercising powers under Article 227 of the Constitution of India. She further contended that the respondent - workman was not permanent employee of the petitioner. He was working as a need base employee and therefore there was no necessity for the petitioner to issue any notice before reliving him. She further contended that as per the decision rendered by the Hon'ble Supreme Court in different cases, burden of proof lies on the workman to show that he had worked continuously for 240 days in 12 calendar months preceding to date on which his services were terminated. She further submitted that provisions of Sections 25-G and 25-H of the Industrial Disputes Act would not be applicable in this case. She, therefore, submitted that the impugned award and order be quashed and set aside. Learned AGP alternatively contended that the Labour Court could have awarded lumpsum compensation to the respondent workman instead of issuing direction to the petitioner Page 3 of 14 HC-NIC Page 3 of 16 Created On Sat Nov 07 03:39:45 IST 2015 3 of 16 C/SCA/15268/2014 ORDER to reinstate the respondent workman with continuity of service with 20% back-wages.
6. On the other hand, learned advocate Mr. Paresh M.Darji appearing for the respondent - workman contended that the Labour Court has not committed any error while passing the impugned order nor Labour Court exceeded its jurisdiction. Therefore, this Court may not interfere with the same and re-appreciate the evidence while exercising powers under Article 227 of the Constitution of India. He, further submitted that the Labour Court has specifically held considering the documentary as well as oral evidence on record that the petitioner employer has violated the provisions of Section 25-F, 25-G and 25-H of the Industrial Disputes Act and therefore given the direction to the petitioner to reinstate the respondent workman with continuity of service with 20% back-wages. Thus, no interference is required with regard to the findings recorded by the Labour Court. Learned advocate Mr. Darji has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Gauri Shanker v. State of Rajasthan, reported in 2015 (5) Scale 275.
7. I have considered the arguments advanced on behalf of the learned advocates for the parties and the material placed on record and the impugned award and order.
8. From the material placed on record, it is Page 4 of 14 HC-NIC Page 4 of 16 Created On Sat Nov 07 03:39:45 IST 2015 4 of 16 C/SCA/15268/2014 ORDER revealed that the respondent workman was appointed as Jeep Driver in the year 1990 with Sub-Division of petitioner. He worked for a period of 300 days in the year 1990-1991. Thereafter, he was transferred to another Division where he worked during the period between 1991-1994. Once again he was transferred to Division No.2, where he worked as Ambassador Car Driver. Thus, he had worked during the period of 1990 to 1996 for more than 6 years. The Labour Court considered the oral as well as documentary evidence produced before it and held that the petitioner has not followed the procedure prescribed under Section 25-F, 25-G and 25-H of the Industrial Disputes Act and thereby violated the said provisions. The Labour Court has also considered the provisions contained in Section 25(B)(2) of the Industrial Disputes Act and held that the respondent workman was in continuous service of the petitioner and therefore petitioner has violated the provisions contained in Section 25-F of the Industrial Disputes Act. The Labour Court has further considered the deposition given by the respondent workman at Exh.24 wherein he has specifically stated that he is unemployed. In rebuttal of the said averment, the employer has failed to produce any material on record that the respondent workman was gainfully employed during the period between 1996 to the date of award. Thus, after considering the material, the findings of fact were given by the Labour Court, which are not required to be interfered by this Court by re-appreciating the evidence while exercising the powers under Article 227 Page 5 of 14 HC-NIC Page 5 of 16 Created On Sat Nov 07 03:39:45 IST 2015 5 of 16 C/SCA/15268/2014 ORDER of the Constitution of India.
9. In the case of recent decision of the Hon'ble Supreme Court in the case of Gauri Shanker (supra), the Hon'ble Supreme Court has observed and held as under:
"7. Both the parties have adduced evidence before the Labour Court in support of their respective claim and counter claim. The Labour Court has examined the evidence of the workman and the evidence of Munnalal, the witness of the respondent-Department wherein, in his affidavit evidence he has stated that the workman was posted as the Area Forest Officer in Sattasar Forest Division-Chattargarh from July, 1989 to May, 1991 and further stated that the contention of the workman that he was removed from the service on 1.1.1991 is incorrect. It is further elicited in his evidence by cross examination that there were many places of work and different muster rolls were being used and maintained for each site and he has further admitted that muster rolls of Dandi road site and Nursery (Dandi) both are separate and muster rolls of Dandi road site were not produced. From the submissions made by the parties and perusal of the record, the Labour Court observed that it has been submitted by the respondent-Department that in the reference of the industrial dispute there is no mention of the date on which the workman's services were dispensed with by the respondent- Department and the one year prior to the date of alleged removal, the workman has not worked for a single day with the respondent-Department. The said contention of the respondent-Department was disbelieved by the Labour Court and it has held that he has been removed from service on 1.4.1992. The Labour Court after referring to the judgments of this Court examined the plea in the claim statements with regard to the date of removal Page 6 of 14 HC-NIC Page 6 of 16 Created On Sat Nov 07 03:39:45 IST 2015 6 of 16 C/SCA/15268/2014 ORDER and referred to the judgments of this Court in the cases of Madan Pal Singh v. State of U.P. & Ors.[(2000) 1 SCC 683], Samishta Dube v. City Board, Etawah & Anr.[(1999)3 SCC 14] and H.D. Singh v. Reserve Bank of India & Ors. [1985 (4) SCC 201] and on examining the muster rolls of Dandi Nursery marked as Ext. M-1 to 25 it was held to be not proper. Further, it has held that the respondent-Department has deliberately concealed the period of work of the workman in the respondent- Department though he has continuously worked in the respondent-Department from 1.1.1987 to March, 1992 i.e. for more than 240 days in a calendar year. The Labour Court after hearing the parties and perusal of the record, adjudicated the points of dispute referred to it by answering the same in favour of the workman and holding that the respondent-Department failed to comply with the mandatory requirements as provided under Section 25F clauses (a) and (b) and Sections 25G and 25H of the Act, therefore, it was held by the Labour Court that the action of the respondent-Department was in contravention of the aforesaid statutory provisions of the Act and Rules 77 and 78 of the Central Industrial Dispute Rules, 1957. Thus it was held by the Labour Court that the termination order passed against the workman is illegal and void ab initio in law and therefore, it has passed the award of reinstatement on 28.06.2001, but denied back-wages for the reason that he has not worked from 1.4.1992 till passing of the award. Further, on account of the hardship and difficulties undergone by the workman during the said period it has observed that he is entitled for compensation of Rs.2,500/- and he is also entitled for receiving salary from the date of the award till the date of reinstatement.
12. The learned counsel for the respondent- Department has sought to justify the impugned judgment contending that the High Court in exercise of its extraordinary and supervisory jurisdiction has held that he was a casual employee intermittently working with the Page 7 of 14 HC-NIC Page 7 of 16 Created On Sat Nov 07 03:39:45 IST 2015 7 of 16 C/SCA/15268/2014 ORDER respondent-Department. Therefore, the compensation was awarded in lieu of reinstatement of workman in his post by applying the Circular instructions issued by the State Government; the same need not be interfered with by this Court in exercise of its Jurisdiction as there is no mis-carriage of justice in the case on hand.
13. With reference to the aforesaid rival legal contentions urged on behalf of the parties, we have to answer the following contentious issues that would arise for our consideration :-
(a) Whether the Labour Court was justified in not awarding backwages and granting Rs.2,500/- as compensation in lieu of backwages though it has awarded reinstatement in the absence of gainful employment of workman?
(b) Whether the High Court in exercise of its supervisory jurisdiction under Articles 226 and 227, is justified in interfering with the finding of facts recorded on the points of dispute recorded by the Labour Court in the award passed by it?
(c) What award?
14. The aforesaid contentious points are
required to be answered in favour of the
workman for the following reasons:
It is not in dispute that the workman was employed with the respondent- Department in the year 1987 and on the basis of material evidence adduced by both the parties and in the absence of the non-production of muster rolls on the ground that they are not available, which contention of the respondent-Department is rightly not accepted by the Labour Court and it has recorded the finding of fact holding that the workman has worked from 1.1.1987 to Page 8 of 14 HC-NIC Page 8 of 16 Created On Sat Nov 07 03:39:45 IST 2015 8 of 16 C/SCA/15268/2014 ORDER 1.4.1992. The Labour Court has drawn adverse inference with regard to non-production of muster rolls maintained by them, in this regard, it would be useful to refer to the judgment of this Court in the case of Gopal Krishnaji Ketkar v. Mohd. Haji Latif & Ors. [AIR 1968 sc 1413] wherein it was held thus: "5. .........Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
This passage was cited with approval by this Court in a recent decision-- Biltu Ram & Ors. v. Jainandan Prasad & Ors. In that case, reliance was placed on behalf of the defendants upon the following passage from the Page 9 of 14 HC-NIC Page 9 of 16 Created On Sat Nov 07 03:39:45 IST 2015 9 of 16 C/SCA/15268/2014 ORDER decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh:-
"But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents."
The said finding of the Labour Court is re- affirmed by the learned single Judge which also affirmed the finding that the action of the respondent- Department in terminating the services of the workman w.e.f. 1.4.1992 is a case of retrenchment as defined under Section 2(oo) of the Act as the termination of the services of the workman is otherwise for misconduct by the respondent-Department. Further, undisputedly the non-compliance of the mandatory requirements as provided under the provisions of Sections 25F clauses (a) and
(b), 25G and 25H of the Act read with Rules 77 and 78 of the relevant Rajasthan Industrial Dispute Rules, 1958 has rendered the order of termination passed against the workman void ab initio in law. The Labour Court in the absence of any material evidence on record in justification of the case of the respondent- Department has rightly recorded the finding of fact and held that the order of termination passed against the workman is bad in law, the same being void ab initio in law it has passed an award for reinstatement of the workman in his post in exercise of its original jurisdiction under provision of Section 11 of the Act. The Labour Court has rightly followed the normal rule of reinstatement of the workman in his original post as it has found that the order of termination is void ab- initio in law for non compliance with the mandatory provisions of the Act referred to Page 10 of 14 HC-NIC Page 10 of 16 Created On Sat Nov 07 03:39:45 IST 2015 10 of 16 C/SCA/15268/2014 ORDER supra. However, the Labour Court is not correct in denying backwages without assigning any proper and valid reasons though the employer did not prove either its stringent financial conditions for denial of back wages or that workman has been gainfully employed during the period from the date of order of termination till the award was passed in favour of the workman except granting Rs.2,500/- as compensation for the suffering caused to the workman. The same is erroneously modified by the learned single Judge who recorded the finding of fact for the first time by holding that the workman is a casual employee intermittently working in the respondent-Department. The learned single Judge of the High Court has exceeded his jurisdiction under Articles 226 and 227 of the Constitution of India as per the legal principles laid down by this Court in the case of Harjinder Singh (supra) wherein this Court has held thus:-
"17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living Page 11 of 14 HC-NIC Page 11 of 16 Created On Sat Nov 07 03:39:45 IST 2015
11 of 16 C/SCA/15268/2014 ORDER concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."
The said principle has been reiterated by this Court in Jasmer Singh v. State Of Haryana & Anr. (Civil Appeal NO. 346 of 2015 decided on 13.1.2015).
15. Therefore, in view of the above said case, the learned single Judge in exercise of its powers under Articles 226 and 227 of the Constitution of India erroneously interfered with the award of reinstatement and future salary from the date of award till date of reinstatement as rightly passed by the Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workman has worked from 1.1.1987 to 1.4.1992 and that non-compliance of the mandatory requirements under Sections 25F, 25G and 25H of the Act by the respondent- Department rendered its action of termination of the services of the workman as void ab initio in law and instead the High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement. The learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down in catena of cases by this Court.
16. In view of the foregoing reasons, the modified award passed by the learned single Judge of the High Court which was affirmed by the Division Bench of the High Court has rendered the impugned judgment and order bad in law as it suffers from not only erroneous reasoning but also an error in law. Therefore, the same are liable to be set aside. Hence, we pass the following order:-
(a) The appeal of the workman is Page 12 of 14 HC-NIC Page 12 of 16 Created On Sat Nov 07 03:39:45 IST 2015 12 of 16 C/SCA/15268/2014 ORDER
allowed. The judgment and orders of the learned single Judge and the Division Bench of the High Court are hereby set aside and the award of the Labour Court is restored in so far as the order of reinstatement is concerned;
(b) The respondent-Department is further directed to reinstate the workman in his post and pay 25% back-wages from the date of termination till the date of award passed by the Labour Court and full salary from date of award passed by the Labour Court till the date of his reinstatement by calculating his wages/salary on the basis of periodical revision of the same within six weeks from the date of the receipt of the copy of this judgment."
10. Thus, keeping in mind the decision rendered by the Hon'ble Supreme Court in above case, the facts of the present case are required to be considered. In the present case, the respondent workman was appointed as jeep driver in the year 1990 and has worked in different division till 1996. Thus, he has worked for more than six years. From the evidence produced on record before the Labour Court, the Labour Court has held that the petitioner has not followed the procedure prescribed under Section 25-F, 25-G and 25-H of the Industrial Disputes Act. The Labour Court also held that the respondent workman was in continuous service of the petitioner and therefore the petitioner has also violated the provisions of Section 25(B)(2) of the Industrial Disputes Act. Thus, in the facts of the present case, the Labour Court has rightly directed the petitioner to reinstate the respondent workman with continuity of service and 20% back-wages.
Page 13 of 14HC-NIC Page 13 of 16 Created On Sat Nov 07 03:39:45 IST 2015 13 of 16 C/SCA/15268/2014 ORDER The scope of judicial review is very limited while exercising the powers under Article 227 of the Constitution of India and this Court cannot re- appreciate the evidence.
11. In view of the aforesaid discussion, the petition is required to be dismissed and according it is dismissed.
(VIPUL M. PANCHOLI, J.) Jani Page 14 of 14 HC-NIC Page 14 of 16 Created On Sat Nov 07 03:39:45 IST 2015 14 of 16 C/SCA/15268/2014 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 15268 of 2014 [On note for speaking to minutes of order dated 04/09/2015 in C/SCA/15268/2014 ] ========================================================== THE STATE OF GUJARAT....Petitioner(s) Versus KHUMANBHAI VECHANBHAI VASAVA & 1....Respondent(s) ========================================================== Appearance:
GOVERNMENT PLEADER for the Petitioner(s) No. 1 MR PARESH M DARJI, ADVOCATE for the Respondent(s) No. 1 MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 06/11/2015 ORAL ORDER
1. Learned Assistant Government Pleader for the petitioner has filed a note for speaking to minutes dated 03.11.2015 before the Registry of this Court, wherein, it has been stated that due to inadvertence and typographical error, the phrase "continuity of service" has been wrongly mentioned at several places i.e. I) in the last line of para 1; II) in the last line of para 4; III) in the last line of para 5; IV) in the 7th last line of para 6; V) in the 17th line at Page 1 of 2 HC-NIC Page 15 of 16 Created On Sat Nov 07 03:39:45 IST 2015
15 of 16 C/SCA/15268/2014 ORDER page no.7 of para ; and VI) in the 7th line from the bottom and last line of para 10, and therefore, the same is required to be deleted.
2. In view of the aforesaid note, the phrase "continuity of service" stands deleted from the aforementioned lines in the order dated 04.09.2015, passed in Special Civil Application No.15268 of 2014.
3. Present note for speaking to minutes stands disposed of accordingly.
(VIPUL M. PANCHOLI, J.) ANKIT Page 2 of 2 HC-NIC Page 16 of 16 Created On Sat Nov 07 03:39:45 IST 2015 16 of 16