Gujarat High Court
Executive vs Shankerbhai on 22 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/6104/1994 2/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6104 of 1994
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EXECUTIVE
ENGINEER - Petitioner(s)
Versus
SHANKERBHAI
MAKANBHAI PATEL - Respondent(s)
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Appearance
:
Ms.
Vandana Bhatt, AGP for Petitioner(s) : 1,
RULE SERVED for
Respondent(s) : 1,
MS RV ACHARYA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/04/2010
ORAL
ORDER
Heard learned AGP Ms. Vandana Bhatt for petitioner, Executive Engineer, Ambika Division,Navsari and Ms. RV Acharya, learned Advocate for respondent.
By filing this petition, petitioner has challenged award passed by Labour Court, Navsari Exh. 21 in Reference No. 78 of 1988 dated 25.2.1993. Labour Court, Navsari has granted reinstatement with continuity of service with full back wages for interim period and also imposed cost of Rs.150.00 against petitioner by directing petitioner to implement award within 30 days from date of publication.
Learned AGP Ms. Vandana Bhatt raised contention before this court that Labour Court Navsari has committed gross error in passing award in absence of petitioner. According to her submission, respondent was engaged as casual labourer for a period of 323 days starting from 29.11.1980 to December 31, 1987, as per annexure B to petition. According to her submission, respondent was engaged by Deputy Executive Engineer, Chikhli Irrigation Sub Division as a casual labourer on daily wage basis for the afore said period. She submitted that respondent was engaged as a casual labourer for purpose of carrying out repairs of canal as and when such repairs were found necessary. She further submitted that respondent was lastly engaged on 14.11.1987 by Deputy Executive Engineer, Chikhli Irrigation Sub Division and thereafter, respondent himself had stopped coming for work. She submitted that on earlier occasion also, in the year 1981, respondent himself had stopped coming for work. She submitted that thereafter, respondent had approached Assistant Commissioner of Labour Valsad and false complaint of illegal termination was filed. She further submitted that while filing such complaint, respondent had joined Sectional Officer, Chikhli Section. She further submitted that Sectional Officer, Chikhli Section is not the authority who was engaging casual labourers and respondent was not engaged by him. She further submitted that Sectional Officer Shri RP Koli, for reasons best known to him, did not bring anything to notice of higher authorities and entire case had come to notice of petitioner on 25th January, 1994 when notice of this Hon'ble Court in Misc.Civil Application NO. 22 of 1994 was served upon petitioner. She further submitted that thereafter, petitioner had inquired into the matter and it was found that notification dated 13.4.1993 publishing award of labour court was also received by Sectional Officer and he has not brought anything to notice of petitioner or concerned Deputy Executive Engineer or any other authorities. She has submitted that petitioner is alleging that Sectional Officer has not brought anything to the notice of higher authorities for reason that he wanted to help respondent workman out of way. She further submitted that therefore, petitioner had asked Sectional Officer to submit explanation and explanation submitted by him was not accepted by petitioner and therefore, proposal was made to Superintending Engineer for initiating action against Sectional Officer Shri Koli and all other responsible persons. She submitted that thereafter, petitioner immediately wrote to his higher authorities for challenging award before this Court and legal department has given sanction and accordingly this petition was filed by petitioner before this court in 1994. She submitted that this being an ex parte award passed against petitioner due to negligence of sectional officer and respondent was engaged as casual labourer, and sectional officer who was made party in reference was constantly remaining absent before labour court and not defended case properly on behalf of Government. She submitted that respondent workman has not completed 240 days continuous service and also not remained in continuous service and he was appointed by petitioner on fixed terms covered by exception of section 2(oo)(bb) of ID Act, 1947 and, therefore, labour court has committed gross error in passing such an ex parte award against petitioner. Affidavit in rejoinder is filed by one Hitesh Shah, Executive Engineer, Ambika Division, Navsari where also same facts have been narrated by petitioner. According to affidavit in rejoinder, in para 6, specific averment is made by petitioner that respondent was casual labourer and was not regular and was not available when work was available. Persons those who are made permanent have completed five years continuous service as per GR dated 17th October, 1988 but respondent has never fulfilled conditions of said GR dated 17th October, 1988 and, therefore, award passed by labour court in favour of respondent is required to be set aside. Respondent workman has filed affidavit in reply and according to respondent, he was casual labourer for a period of 323 days starting from 29th November, 1980 to 31st December, 1987. According to respondent, his service was terminated by petitioner on 16.11.1987 without any notice or notice pay in lieu thereof and without payment of retrenchment compensation and, therefore, immediately, dispute was raised which was referred to labour court, Navsari for adjudication. Before labour court, application was filed by respondent workman after filing of reply by petitioner wherein it was prayed by respondent to direct petitioner to produce all relevant documents vide Exh. 10 and 14 which were allowed but no documents have been produced by petitioner before labour court and no rebuttal evidence is also produced on record and evidence of respondent workman remained unchallenged. According to respondent workman, there was carelessness and negligence on the part of the petitioner in not appearing before labour court, Navsari after filing reply Exh. 9 and no documents demanded by workman were produced on record and, therefore, in absence of that, according to respondent, labour court has rightly examined matter against petitioner and for that, labour court is having no other option but to pass such ex parte award.
Learned AGP Ms. Vandana Bhatt relied upon certain decisions produced along with petition, reported in AIR 1994 SC 1638, 1997(3) GLR page 2461, 2006(4) SCC page 1, 2006 SCC L/S page 1 in case of RM Yellatti. After relying upon aforesaid decisions, she submitted that labour court has committed gross error in passing ex parte award against petitioner and, therefore, same is required to be quashed and set aside.
Learned Advocate Ms. RV Acharya appearing on behalf of respondent workman raised contention that in present petition, no affidavit of Mr. RP Koli, Sectional Officer is filed by petitioner, who remained absent and who has not brought facts to notice of higher authority, therefore, in absence of affidavit of Shri RP Koli, Sectional Officer, whatever contentions raised by petitioner in this petition having no meaning and substance. She submitted that in reference proceedings, Sectional Officer was party who remained absent before labour court after filing reply though notice was issued by labour court, Navsari was received by Sectional Officer. Statement of claim was filed by workman before labour court and according to case of workman, he was appointed in the year 1980 and his service was terminated on 16.11.1987, meanwhile, respondent has remained in continuous service, and at the time of terminating his service, no opportunity was given to workman by giving notice or notice pay in lieu thereof and no retrenchment compensation was paid to workman. Sectional Officer has filed reply Exh. 9 means notice issued by labour court was received by him and in response to that, reply was filed by him and thereafter, no advocate has been engaged by petitioner and certain documents demanded by workman vide Exh. 10 and 14 were also not produced by petitioner though said application Exh. 10 and 14 were allowed by labour court, Navsari.
Before labour court, workman was examined at Exh. 19 but right of petitioner to cross examine workman was closed by labour court because no one was remaining present for petitioner before labour court and, thereafter, matter was kept for evidence of petitioner and yet, no one was examined on behalf of petitioner before labour court and therefore, right of petitioner to lead oral evidence was also closed by labour court, Navsari. Notice was issued by labour court, Navsari Exh. 3 to petitioner and Exh.4 is notice of hearing issued to petitioner. Vide Exh. 7, another notice was issued by labour court to petitioner fixing hearing on 15.3.1989 which was received by petitioner and original acknowledgment was received from Department of Posts Exh. 8 also produced on record and thereafter, another notice was served Exh. 11 to petitioner and yet, petitioner remained absent and ultimately, further notice of hearing was also issued vide Exh. 12 which was also received by petitioner and original acknowledgment is on record at Exh. 13 received from department of posts. Thereafter also, petitioner was remaining absent before labour court and therefore, further notice was issued by labour court Exh. 15 to petitioner by RPAD which was also received by petitioner but no appearance was filed by petitioner and no one remained present before labour court on behalf of petitioner. Therefore, as per submission made by learned Advocate Ms. Acharya for respondent, more than sufficient opportunity was given to petitioner to remain present before labour court and defend proceedings before labour court, Navsari but after filing reply Exh. 9, petitioner has not taken care to remain present before labour court, Navsari and, therefore, by purshis Exh. 20, it was prayed by respondent workman to decide matter in absence of petitioner. Petitioner was examined before labour court at Exh. 18 and according to his evidence, he was in service with petitioner from 1980 as a labourer having his working timing from 8.00 a.m. To 5.00 p.m., but at that time, no muster, or identity card or pay slip has been supplied to concerned workman. He was receiving Rs.11.50 plua DA and, thereafter, his service was terminated in the year 1987 illegally, without giving him opportunity of hearing and also without complying with mandatory provisions of section 25-F of ID Act, 1947. According to respondent, he was in continuous service with petitioner from 1980 till date of termination of his service as a labourer and he also made it clear that no written order of termination was issued by petitioner and even at present, if petitioner is prepared to reinstate him, he is prepared to resume and work with petitioner. When evidence of respondent was recorded before labour court, at that time, petitioner was remaining absent and, therefore, oral evidence of respondent workman was not cross examined by petitioner and, therefore, oral evidence of respondent workman remained unchallenged and uncontroverted. Then, labour court has considered that after filing of reply Exh. 9 by petitioner, inspite of receiving number of notices issued by labour court, Navsari on various occasions, no care has been taken by petitioner to attend proceedings by remaining present before labour court, Navsari, no advocate was engaged by petitioner and no documentary evidence has been produced by petitioner and no oral evidence was led by petitioner before labour court. Therefore, in view of that, labour court considered unchallenged and uncontroverted evidence of respondent workman based on affidavit of workman. In such a situation, labour court was not having option but to rely upon evidence of petitioner, therefore, in such circumstances, labour court granted relief of reinstatement with continuity of service with full back wages for interim period, therefore, she submitted that labour court has not committed any error in passing impugned award in favour of respondent workman.
I have considered submissions made by both learned advocates. I have also perused award passed by labour court, Navsari, being ex parte award. I have considered one important fact that no application was made by petitioner immediately before labour court, Navsari for setting aside ex parte award under rule 26A/26B of Industrial Disputes (Gujarat) Rules, 1966. Instead of that, straightway, petitioner approached this court by filing present petition.
After considering submissions made by learned AGP Ms. Bhatt on behalf of petitioner and learned Advocate Ms. Acharya on behalf of respondent workman, nowhere affidavit of sectional officer Shri RP Koli has been filed by petitioner who can explain about absence before labour court. Mere averments are made in petition that sectional officer Shri RP Koli has not brought facts of reference to the notice of higher authorities. Such mere averments are not enough. It is duty of petitioner to establish before this Court by facts by producing affidavit of Shri RP Koli, sectional officer who was remaining absent after filing reply Exh. 9 before labour court, Navsari. So, why sectional officer Shri RP Koli was not remaining present before labour court, for that, no explanation is established by petitioner. No affidavit of Shri RP Koli to that effect has been filed by petitioner before this court. Therefore, absence of petitioner before labour court, Navsari has remained unexplained and no justification is given by petitioner for remaining absent before labour court, no sufficient case has been shown before this court by petitioner for remaining absent before labour court, Navsari. In such a situation, labour court is having no option but to accept say of workman by relying upon evidence of workman which has remained unchallenged and on that basis, according to my opinion, relief has been rightly granted by labour court, Navsari in favour of respondent workman. It is duty of petitioner to establish sufficient cause for not remaining present before labour court, Navsari but for that, except averments and allegations made by petitioner against sectional officer Shri RP Koli, no evidence is produced by petitioner before this court that he wanted to help respondent and, therefore, remained absent and not brought such things to notice of higher authorities. Therefore, in view of this, contentions raised by learned AGP Ms. Vandana Bhatt for petitioner cannot be accepted and decisions referred to and relied upon by learned AGP Ms. Bhatt cannot be made applicable because petitioner remained absent before labour court and no positive case has been made out by petitioner before labour court, Navsari, so, in absence of that, decisions relied upon by learned AGP Ms. Bhatt for petitioner are not helpful to petitioner. Therefore, according to my opinion, while passing award in favour of present respondent and against petitioner, labour court, Navsari has not committed any error because in such circumstances, after issuing various notices at all stages, labour court was not having any option but to pass ex parte award. Ample opportunities given by labour court, Navsari to petitioner by issuing notices to petitioner at different stages of matter were not availed by petitioner before labour court, Navsari. No care has been taken and intentionally remained absent that is willful absence without any justification and showing sufficient cause by petitioner, therefore, labour court was having no option but to pass ex parte award against petitioner on the basis of oral and documentary evidence led by respondent before it which was rightly passed by labour court Navsari against petitioner and in favour of workman and in doing so no error has been committed by labour court, Navsari requiring interference of this court under Article 227 of Constitution of India.
It is necessary to note that in this petition, rule has been issued by this court (Coram : Hon'ble Mr. Justice SM Soni,J.) and ad interim relief in terms of para 9(B) has been granted by this court on 27th April, 1994. Thereafter, matter remained pending before this court and notified for final hearing on various occasions but was not heard and decided. Workman respondent in this petition remained out of job though award of reinstatement was passed in his favour in 1993 as award remained under stay for about sixteen years and if it is considered from date of termination in the year 1987, it comes to more than 23 years. Therefore, in such situation, workman has not even got or able to receive benefit under sec. 17B of ID Act, 1947 though award of reinstatement has been stayed by this court. Therefore, this petition is an example of lethargic approach made by petitioner in not taking care immediately after receiving ex parte award passed by labour court, Navsari and not obtained proper legal advise from Legal Department for challenging ex parte award before appropriate forum means under rule 26A/26B for which labour court is having jurisdiction and power to set aside ex parte award but for that purpose, proceeding has not been initiated by petitioner and without approaching labour court, Navsari, straightway, present petition has been filed by petitioner and obtained stay against operation, execution and implementation of award and also not complied with mandatory provisions under sec. 17B of ID Act, 1947 and similarly no steps have been taken in that regard by advocate for respondent workman but fact remain that award passed by labour court on 24.2.1993 is not implemented till this date by petitioner and the sheet which has been produced with signature of Executive Engineer cannot be relied upon because that sheet was not produced by petitioner before labour court. As a matter of fact, no evidence worth name was produced by petitioner before labour court and, therefore, this being an example of lethargic approach by Government Department and other officers who remained silent and not took sufficient care and not remained vigilant with legal proceedings and permitted such lapse to remain continue for number of years and no officer of petitioner has taken any kind of care which is necessary to be taken in such circumstances, therefore, ultimate sufferer is respondent-workman and amount of public exchequer. For that, concerned officer of the petitioner is also responsible but nothing has been produced on record that what steps have been taken by petitioner against erring officer namely sectional officer Shri RP Koli. In view of this back ground, contentions raised by learned AGP Ms. Bhatt cannot be accepted. This is a case of sheer and gross negligence on the part of petitioner and its officers in not explaining and not pointing out sufficient cause and genuine reasons for not remaining present before labour court and no affidavit of sectional officer Shri RP Koli has been filed before this court, therefore, according to my opinion, labour court Navsari has rightly granted relief in favour of respondent workman and has rightly passed award in favour of workman and in doing so, no error has been committed by labour court, Navsari requiring interference of this court in exercise of powers under Article 227 of Constitution of India. Therefore, there is no substance in this petition and same is required to be dismissed. [See : Rameshkumar versus State of Haryana, 2010 (1) SCALE 432; Harjinder Singh versus Punjab State Warehousing Corporation, 2010 (1) SCALE page 613;
Krishnan, 2010 (2) SCALE page 848; State of Haryana v. Manoj Kumar reported in 2010 AIR SCW 1990 decided on 9th March 2010, relevant Para 22 to 29.
Accordingly, for reasons recorded above, this petition is dismissed. Rule is discharged. Interim relief granted earlier in this petition stands vacated. There shall be no order as to costs.
Petitioner is directed to implement award passed by Labour Court, Navsari Exh.21in Reference No. 78 of 1988 dated 25.2.1993 immediately and pay all wages and back wages of interim period and from date of award till date of actual reinstatement within period of two months from date of receiving copy of this order.
(H.K. Rathod,J.) Vyas Top