Gujarat High Court
Chief vs Valabhai on 22 June, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/6490/2010 1/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6490 of 2010
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CHIEF
EXECUTIVE OFFICER AND VICE CHAIRMAN & 3 - Petitioner(s)
Versus
VALABHAI
SUKHABHAI C/O VASANTBHAI PAMNANI - Respondent(s)
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Appearance
:
MS
SEJAL K MANDAVIA for
Petitioner(s) : 1 - 4.
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/06/2010
ORAL
ORDER
Heard learned Advocate Ms. Sejal K.Mandavia for petitioner. By filing this petition, petitioner Gujarat Maritime Board has challenged award passed by Labour Court, Bhavnagar in Reference (LCA) No. 459 of 1994 Exh. 39 dated 10th March, 2010 wherein labour court has granted reinstatement with continuity of service with 20 per cent back wages for interim period.
Learned Advocate Ms. Mandavia for petitioner Board has raised contention before this Court that workman has not proved 240 days' continuous service and there is no specific finding given by labour court in respect to completion of 240 days' continuous service and yet, order of termination has been set aside by labour court which is clear error committed by labour court which apparent on the face of record. She further submitted that it is burden upon employee to prove 240 days' continuous service, before labour court and thereafter, onus shifts upon employer to disprove aforesaid facts. She further submitted that according to workman, he was in service for two and half years but he has not produced clear evidence for establishing 240 days' continuous service. She further submitted that therefore, it is duty of workman to prove it but there was no such evidence produced by workman before labour court for completion of 240 days continuous service within 12 months preceding date of termination. She submitted that mere statement made by workman on oath before labour court that he remained in service for two and half years cannot establish 240 days' continuous service because it depends upon working days of workman which is required to be proved by him by producing cogent evidence on record. She also submitted that in absence of such cogent evidence from workman, there is no clear finding given by labour court that workman has completed 240 days' continuous service within 12 months preceding date of termination. She referred to page 44 paragraph 8 finding given by labour court in respect to issue no.1 and submitted that there was no clear admission from petitioner before labour court that workman has completed 240 days' continuous service in preceding 12 months. Witness Shri Navnitbhai I. Vyas examined by petitioner at Exh. 24 before labour court has made clear statement on oath that workman was appointed as watchman on daily wage basis for particular work and also for a particular period but this fact has not been believed by labour court and, therefore, according to her submission, labour court has committed gross error. Except that, learned advocate Ms. Mandavia has not raised any other contention before this court. No decision has been cited by learned advocate Ms. Mandavia before this Court in support of contentions recorded herein above.
I have considered submissions made by learned advocate Ms. Mandavia for petitioner. I have also perused award passed by labour court. Industrial dispute was referred for adjudication on 11.11.1994. Service of workman was terminated on 19th May, 1994. Statement of claim was filed before labour court by workman at Exh.
7. According to workman, at the time of terminating his service, section 25F of ID Act, 1947 has not been followed by petitioner. Reply was filed by petitioner at Exh. 12 denying averments made by workman in his statement of claim. According to petitioner, workman was engaged or appointed as Hangami Chokidar on ad hoc basis and after completion of work, his service has been simply terminated by petitioner and therefore, as workman was not a permanent employee, question of following provisions of section 25F of ID Act, 1947 does not arise. After termination of service, workman, no new recruitment has been made by petitioner and workman has not collected legal dues which were offered by petitioner and, therefore, reference is required to be dismissed. This was case submitted by petitioner before labour court.
Before labour court, at Exh. 17, workman Valabhai Sukhabhai was examined and certain documents have been produced before labour court. Exh. 18, 19 and 20. Vide Exh. 21, his evidence has been closed and, thereafter, one witness Shri Navnit I. Vyas was examined before labour court vide Exh. 24. Thereafter, matter was heard by labour court. Written submissions were filed by petitioner before labour court at Exh. 38. Labour court has discussed oral evidence of both parties and also considered written submissions made by petitioner vide Exh. 38. After considering written submissions made by petitioner and decisions relied by petitioner,issues have been framed by labour court in para 6. Labour Court has considered oral evidence of workman and according to his evidence, he was in service with petitioner for a period of two and half years and his service was terminated on 19.5.1994. According to evidence of workman, no documents have been supplied by petitioner to him during course of employment namely presence card, identity card and pay slip, therefore, it was very difficult for workman to prove completion of 240 days' continuous service within 12 months preceding date of termination in absence of such documents. Labour Court has considered Exh. 24, evidence of Navnitbhai I. Vyas. In his evidence, it was not specifically denied by witness Shri Vyas that workman has not remained in continuous service for a period of two and half years and, therefore, there was no specific denial about work of two and half years as per his oral evidence and petitioner has kept mum as per oral evidence of its witness and no details have been produced on record how many days workman remained in service and though record was available with petitioner, but not produced being rebuttal evidence against oral evidence of workman. Thereafter, labour court has considered that this being undisputed facts, at the time of terminating service of workman, section 25F of ID Act, 1947 has not been followed by petitioner. Respondent was engaged by petitioner on the post of Khalasi but he was working as ad hoc Chokidar though appointment was given on the post of Khalasi. These facts were proved on the basis of evidence of Navnitbhai I. Vyas, witness for petitioner examined at Exh. 24. It is also clear from record that no written appointment order was issued in favour of workman and there was no conditional appointment order issued in favour of workman and it was not made clear in appointment order that workman has been engaged for a particular period and for a particular work. In absence of written order or condition, labour court has come to conclusion that workman was engaged by petitioner for the post of Khalasi but work of watchman was being taken from him and he has remained in continuous service of two and half years with petitioner. Learned Advocate Ms. Mandavia for petitioner has placed on record official letter received from Executive Engineer (Mech.) Ports, Nava Bandar, Bhavnagar which is showing details of working days in respect of present respondent Valabhai Sukhabhai from year November, 1991 to May, 1994, in tabular form, which is reproduced as under:
Sr. No. Month 1991 1992 1993 1994 1 January
-26 26 25 2
February
-24 23 23 3
March
-24 24 24 4
April
-25 24 24 5
May
-26 25 18 6
June
-25 24
-7
July
-25 26
-8
August
-23
-
-9
September
-25 25
-10
October
-24 26
-11
November 15 25 25
-12
December 26 26 26
-
Total Days 41 298 274 114 In view of the aforesaid working days in calender year 1992, respondent has completed 298 days and in the year 1993, respondent has worked for a period of 274 days and if the working days for a period of 12 months preceding date of termination are considered, date of termination is 19th May, 1994 and in the year 1994, workman has worked for a period of 114 days and from May, 1993 to December, 1993, workman has worked for a period of 177 days, therefore, total working days for a period of 12 months preceding date of termination comes to 291 days means more than 240 days meaning thereby respondent has satisfied requirement of section 25F of ID Act, 1947, means completion of 240 days continuous service and yet section 25F of ID Act, 1947 has not been followed by petitioner and defence of petitioner that inspite of informing respondent workman to take away legal dues and he has not taken away, for that, there was no specific evidence produced by petitioner on record. Not only that but subsequently, for that amount, no money order has been sent at the address of respondent workman and, therefore, it is a clear case of non compliance of section 25F of ID Act, 1947 and in view of working days which has been considered by labour court as two and half years continuous service as per oral evidence of workman Exh. 17. IN view of that, contention raised by learned Advocate Ms. Mandavia cannot be accepted. Labour Court has rightly examined matter and has rightly come to conclusion that section 25F has been violated and, therefore, termination of service of workman becomes void, ab initio and workman becomes entitled for right of reinstatement in view of breach of mandatory provisions of section 25F of ID Act, 1947 on the part of petitioner which has been rightly considered by labour court and accordingly relief of reinstatement has been rightly granted by labour court in favour of respondent. This aspect has been considered by Allahabad High Court in case of Gyanandera Dutt Trivedi v. Labour Court, U.P., Lucknow and Another reported in 2009-II-LLJ-620. Relevant observations are in Para.8 to 13 which are quoted as under :
8. I have carefully considered the submissions made by the learned counsel for the parties and perused the record.
The provisions of Section 6-N of the Act are para materia with the provision of Section 25-F of the Industrial Disputes Act, 1947. The various decisions rendered with reference to Section 25-F shall be applicable to the present case which is governed by Section 6-N of the Act also. In Mohan Lal v. Management of Bharat Electronics Ltd. AIR 1981 SC 1253 : (1981) 3 SCC 225 : 1981-II-LLJ-70, it was held that termination simplicitor of services of a temporary workman not falling within the excepted or excluded categories mentioned in Section 2(oo) would amount to 'retrenchment' and if immediately preceding the date of termination of service, such workman actually worked for not less than 240 days within a period of 12 months under the employer, he will be deemed to be in 'continuous service' for one year and therefore would be entitled to retrenchment compensation under Section 25-F(6-N) would render the order of termination ab intio void entitling him to a declaration for continuation in service with full back wages. A reference was also made to L Roberi D Souza v. Executive Engineer, Southern Railway and Anr., AIR 1982 SC 854 : (1982) 1 SSC 645 :
1982-I-LLJ-330, Raj Kumar College, Karmachari Union v. Principal, Rajkumar College, Raipur and Another, (1987) 55 FLR 93, Makhan Singh v. Narainpura Co-operative Agricultural Service Society Ltd. And Another, AIR 1987 SC 1892 : (1987) 3 SCC 571 : 1987-II-LLJ-533, Lallan Roi v. Presiding Officer Labour Court, Gorakhpur and Anr. 1995-I-LLJ-361 (All) and the decision of the Apex Court in Uptron India Ltd. v. Shammi Bhan and Anr., AIR 1998 SC 1681 : (1998) 6 SCC 538 : (198) 3 MLJ 76 : 1998-I-LLJ-1165.
In the case of State of U.P. v. Putti Lal and Anr. 2003-IV-LLJ (suppl) 820 (All-NOC) this Court held that the termination of services of a workman, who has worked for more than 240 days in the preceding / calendar year, without complying with the provisions of Section 6-N of the U.P.Industrial Disputes Act is illegal and unjustified.
This Court again/held in the case of State of U.P. v. Presiding Officer / Labour Court, U.P.Gorakhpur and Anr. (2007) 3 UPLBEC 2756 that non-observance of Section 6-N of the Act prior to retrenchment renders the retrenchment totally unsustainable at law.
The unreported judgment of this Court dated September 4, 1998 given in Writ Petition No.3739/1984, Hira Lal v. Labour Court., U.P. Lucknow and Anr. Relied upon by the petitioner applies with full force to the facts and circumstances of the present case.
On the strength of the above decisions the learned counsel for the petitioner urged that the impugned order of termination of the services of the petitioner was illegal and void ab intio as it was against the mandatory provisions of Section 6-N of the Act and that the Presiding Officer of the Labour Court was not justified in awarding the amount of compensation even though he had recorded a clear finding that the termination order was bad in law on account of non-compliance of the provisions of Section 6-N of the Act. The learned counsel vehemently argued that the compensation is to be paid at the time of retrenchment and not subsequently. In support of his contention he placed reliance on the decision State Bank of India v. N. Sundra Money AIR 1976 SC 111 :
(1976) 1 SCC 822 : 1976-I-LLJ-478 in which it has been held that retrenchment compensation must be paid at the time of retrenchment.
13. Sri Masoodi, learned counsel appearing for the opposite party No.2 has failed to cite any decision to the contrary which may give strength to his submissions. After considering the entire case law cited on behalf of the petitioner, I am of the view that the impugned order of termination of service of the petitioner dated July 19, 1979 is nothing but an attempt to camouflage the order of retrenchment. The order of termination simpliciter in nature is virtually an order of retrenchment. A workman cannot be retrenched unless the requirements as mentioned in Section 6-N of the Act are complied with. Admittedly no compensation was paid tot he petitioner at the time of his retrenchment i.e. termination of his service although at the time, the service of the petitioner were terminated, the petitioner had admittedly worked continuously for more than four years in the Establishment. The Presiding Officer of the Labour Court also found the order of termination to be illegal and yet he made an order for payment of compensation in lieu of termination. The course adopted by the Presiding Officer of the Labour Court cannot be justified. It did not fall within his domain or jurisdiction to pass an order for payment of compensation in lieu of the retrenchment of the petitioner. In view of the decisions referred to above, the petitioner is entitled to reinstatement in service Recently, apex court has considered same question in case of Director, Fisheries Terminal Division v. Bhikubhai Meghjibhai Chavda 2010 AIR SCW 542.
Relevant para 13 to 16 of said judgment are quoted as under:
13) 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."
15) 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."
16) 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.
In view of above observations made by Allahabad High Court and Apex Court, labour court has rightly granted relief of reinstatement in favour of respondent workman with continuity of service. Labour Court has also rightly examined matter for considering question of back wages as discussed in award. Labour Court has considered evidence of workman who remained unemployed after termination and on that question, no cross examination has been made by petitioner's advocate and no statement of gainful employment of respondent has been made by witness for petitioner and kept complete mum and considering aforesaid aspect, labour court has thought it fit to grant 20 per cent back wages with consequential benefits while exercising discretionary powers and also considered relevant factors because workman was not permanent workman and, therefore, labour court has rightly examined matter while granting 20 per cent back wages for interim period while considering length of service, nature of work and ad hoc employment and gainful employment not proved by other side and, therefore, grant of 20 per cent back wages for interim period cannot be considered as unreasonable or unwarranted in law and, therefore, labour court has not committed any error in passing aforesaid award in favour of workman. Labour Court has discussed entire oral evidence as well as documentary evidence produced by both parties. Labour court has given clear finding that workman has completed 240 days continuous service because total period of two and half years has not been seriously disputed by petitioner. This finding is enough for proving completion of 240 days continuous service. Even otherwise, considering letter received by learned Advocate Ms. Mandavia from petitioner, it also proves completion of 240 days' continuous service by workman within 12 months preceding date of termination as considered by this court as referred above. Before labour court, petitioner has not pointed out or raised any contention that reinstatement of workman is not possible. For that, no cogent evidence has been produced by petitioner before labour court. Therefore, contentions raised by learned Advocate Ms. Mandavia in that regard cannot be accepted. Reasons given by labour court are based on legal evidence, therefore, it cannot be considered to be finding given by labour court as baseless and perverse and, therefore, according to my opinion, labour court has perfectly decided dispute, for that, no error has been committed by labour court which would require interference of this court in exercise of powers under Article 227 of Constitution of India. Labour Court has examined facts on the basis of record and gave finding of fact while deciding dispute and this court is having limited jurisdiction under Article 227 of Constitution of India and cannot disturb finding of fact unless it is baseless and perverse. [See : (1) State of Haryana v. Manoj Kumar reported in 2010 AIR SCW 1990 decided on 9th March 2010;
(2)Harjinder Singh v. Punjab State Warehousing Corporation reported in 2010 AIR SCW page 1357.
Hence, there is no substance in this petition and same is, therefore, dismissed.
(H.K. Rathod,J.) Vyas Top