Gujarat High Court
Banaskantha vs Purabhai on 8 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/3610/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3610 of 2010
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BANASKANTHA
DISTRICT PANCHAYAT - Petitioner(s)
Versus
PURABHAI
MULABHAI BHANGI - Respondent(s)
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Appearance
:
MR
HS MUNSHAW for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 08/04/2010
ORAL
ORDER
Heard learned Advocate Mr. HS Munshaw for petitinoer. Petitioner has challenged award passed by Labour Court Palanpur District Banaskantha in Reference NO. 253/96 (Old No. 1949/91) Exh. 47 dated 11.12.2009 wherein labour court has granted only 30 per cent back wages for a period from the date of termination till date of retirement of workman to concerned workman.
Learned Advocate Mr. Munshaw raised contention that the respondent was appointed on ad hoc basis for maintenance and repairs of Road, subject to receiving grant from the Government. Respondent has not established 240 days continuous service before labour court. As per Annexure D page 25/A, working days of workman have been given wherein for none of year from 1982 to 1987, workman has been completing 240 days continuous service and, therefore, labour court has committed gross error while coming to conclusion as per page 22 that workman has completed 240 days continuous service by drawing adverse inference on the ground that total and complete record has not been produced by petitioner. He submitted that labour court has not granted reinstatement because workman has reached the age of superannuation and, therefore, 30% back wages granted for which labour court is having no jurisdiction to pass such award, therefore, according to him, labour court has committed gross error which would require interference of this Court.
I have considered submissions made by learned Advocate Mr. Munshaw. I have also perused award passed by labour court. I have also considered statement of claim filed by workman who was working as labourer with effect from 1975 with petitioner panchayat and his service was terminated on 1st November, 1988. Written Statement was filed by petitioner before labour court denying averments made by workman in his statement of claim. Thereafter, oral evidence of witness for establishment Shri PJ Balia was recorded at Exh. 30. He was also cross examined by representative for workman. Labour court has considered statement of claim, written statement and evidence of witness for petitioner. Dispute has been referred to for adjudication on 25.9.1991. As per the statement of claim filed by workman, he was earlier in service with petitioner for about thirteen years from 1975 to 1988. Written statement was filed at Exh. 22.Thereafter, vide Exh. 13 and Exh. 17, certain documents were produced by workman before labour court. Workman was examined vide Exh. 12 and for petitioner, certain documents are produced on record vide Exh. 31 and one witness Shri PJ Balia was examined at Exh. 30 before labour court and thereafter, issues have been framed by labour court and issues no.1 and 2 are decided by labour court in para 6.
After considering evidence on record, labour court has rightly come to conclusion that workman was appointed on 15th December, 1975 and he remained in service upto 1988 and therefore, workman has worked as daily wager with petitioner. Labour Court has considered evidence of workman Exh. 12. Labour court considered evidence of witness for petitioner at Exh. 30 wherein it was deposed by him that for the year 1987-88, workman has worked for total actual 215 days. In year of 1984-85, completed 271 days continuous service. Then, labour court considered cross examination of said witness for petitioner Exh. 30 wherein it was admitted by him that while considering working days, Sundays and Public Holidays have not been taken into consideration. Therefore, labour court held that if Sundays and Public Holidays are included in total working days for the year 1987-88, then, workman has completed 240 days continuous service as per decision of this court reported in 2000(3) GLH page 322 in case of State of Gujarat versus Navinchandra Mandavia and anotehr decision of this court in case of St ate of Gujarat versus JM Raval, 2005 (1) GLH page 340.
In view of these facts, labour court has rightly come to conclusion that workman has established completion of 240 days continuous service and his service was terminated in breach of section 25F of ID Act, 1947, on the basis of evidence on record and, therefore, considering evidence of workman, at the time of giving evidence, age of workman was 55 years and complaint was made on 25th July 1991, he was aged about 40 years. In view of this back ground, labour court has considered evidence of workman wherein workman has stated that he has remained unemployed but it has not been stated whether he has made effort for getting job at any place or not. Deposition was given by workman on 30.11.2000. Labour court has come to conclusion that because of carelessness of both parties, adjudication of reference has been delayed. Considering these aspects, labour court granted only 30 per cent back wages for interim period from date of termination till date of retirement of workman. Therefore, contentions raised by learned Advocate Mr. HS Munshaw for petitioner cannot be accepted because labour court has rightly applied mind and after this much delay from 1991 to 2010, natural relief of reinstatement is having no much effective meaning because within short time, workman would retire and, therefore, instead of granting reinstatement, labour court granted 30 per cent back wages for interim period. Labour Court is having power and jurisdiction under section 11A of ID Act, 1947, in case, if labour court is satisfied that termination order is unjustified, means not justified by employer, then, to pass appropriate orders on some conditions while exercising discretionary jurisdiction in favour of workman, therefore, contentions raised by learned advocate MR. Munshaw that labour court has no jurisdiction, cannot be accepted. Entire matter has been examined by labour court on the basis of almost undisputed facts and accordingly relief has been granted while keeping in mind delay occurred in deciding reference, for that, Apex Court has held in reported decision 2009 AIR SCW 2904 that due to delay, if relief not granted to workman for which workman is entitled, then, it amounts to that workman would suffer double jeopardy, therefore,according to my opinion, labour court has not committed any error which would require interference of this court. [See : (i) Delhi Administration through Directorate of Social Welfare, Delhi v. Presiding Officer and Others 2004-I-LLJ 910 (Delhi)
(ii) Ramesh Kumar v. State of Haryana 2010 (1) Scale 432 (iii) Director, Fisheries Terminal Division v. Bhikubhai Meghjibhai Chavda 2010 AIR SCW 542 (iv) Krishan Singh v. Executive Engineer, Haryana State Agriculture Marketting Board, Rohtak (Haryana) - 2010 (2) Scale 848].
In view of above discussion, contentions raised by learned Advocate Mr. Munshaw before this Court cannot be accepted and same are therefore rejected accordingly.
Accordingly, there is no substance in this petition and same is therefore, required to be dismissed. In result, this petition is dismissed.
(H.K. Rathod,J.) Vyas Top