Gujarat High Court
Kankarej vs Abhechand on 8 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/3671/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3671 of 2010
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KANKAREJ
TALUKA PANCHAYAT - Petitioner(s)
Versus
ABHECHAND
MOHANBHAI DESAI - Respondent(s)
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Appearance
:
MR
HS MUNSHAW for
Petitioner(s) : 1,
MRPCCHAUDHARI 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 petitioner and learned Advocate Mr. PC Chaudhari for respondent. Petitioner Kankrej Taluka Panchayat has challenged award passed by labour court, Palanpur in Reference NO. 460 of 1993 (Old Number) and 442/1996 (New Number) Exh. 60 dated 31st December, 2009. Labour Court has partly allowed reference with direction to petitioner to reinstate respondent workman with continuity of service with 25 per cent back wages for interim period. Labour court also awarded costs of Rs.500.00 in favour of respondent workman.
Learned Advocate Mr. Munshaw submitted that in absence of work, such direction of reinstatement cannot be issued by labour court after a period of about 20 years from date of alleged termination dated 1st December, 1992. He also submitted that there is a Government Policy not to recruit and continue such daily wager. He submitted that because of non availability of work, petitioner has rightly terminated service of workman and looking to interim period, now question of age of workman must become problem for petitioner. In short, his submission is that initially respondent had applied for work and he was engaged purely on temporary basis as daily wager for the period 1991-92. As per Government Policy, respondent was not provided with work after 1992 and thereafter, respondent has approached labour court in the year 1996 means after delay of about four years, an industrial dispute was raised. Initially, labour court has granted award of reinstatement in favour of workman with 100 per cent back wages for interim period on 12th February, 1999. Said award was challenged by petitioner before this court by filing special civil application no. 5162 of 1999 which petition was dismissed and petitioner was directed to file appropriate application before labour court concerned. Thereafter, labour court has passed fresh award which is under challenge in this petition. Annexure A page 6 is an application made by respondent to TDO Taluka Panchayat, Kankrej for giving appointment on the post of Daily Wage Clerk. Such application was made on 20.1.1991. Accordingly, respondent workman was appointed on different dates as mentioned in annexure B page 8. Respondent workman has completed continuous service of 139 days in the year 1991.In the year 1992, he worked for total 195 days as per annexure B. Learned Advocate Mr. Munshaw submitted that workman has not completed 240 days continuous service within 12 months preceding date of termination. Copy of statement of claim has been placed on record and according to that, on 1st December, 1992, service of workman was terminated. Written statement was filed and thereafter, award passed by labour court has been placed on record.
I have considered submissions made by learned Advocate Mr. Munshaw for petitioner. I have also perused award passed by labour court.
Before labour court, statement of claim was filed by workman at Exh. 6 and written statement was filed thereto at Exh. 25. Workman was examined at Exh.14. Petitioner establishment has produced documents by Exh. 33, 35, 39 and 54. One witness Babubhai J. Desai was examined on behalf of petitioner at Exh. 50 and thereafter, both parties closed their evidence and submissions were made before labour court and, thereafter, labour court framed issues in paragraph 4 and thereafter, reasons are given by labour court from para 5 onward. Respondent was appointed on the post of clerk on 20.6.1991 and he remained in service upto 1st December, 1992. This period has remained undisputed between the parties, therefore, preceding 12 months have to be considered from the date of termination 30th November, 1992 and accordingly workman has established 240 days continuous service as required under section 25F of ID Act, 1947. Undisputedly, Admittedly, petitioner has not complied with section 25F of ID Act, 1947. Demand was made by workman to pay salary of regular clerk and due to such demand, his service has been terminated with effect from 1st December, 1992 and immediately, new person Jagdishbhai was appointed and, therefore, in view of these undisputed facts, workman has established before labour court that he has completed 240 days continuous service if second Saturdays and holidays and other Public Holidays are included in actual service done by workman as per decision of this court in case of State of Gujarat versus Navinchandra Mandavia reported in 2000 (3) GLH page 322.
Labour court has also considered another decision of this court reported in 2005 (1) GLH 340 in case of State of Gujarat versus JM Raval wherein it has been held by this court that if the employer has not made production of any documentary evidence as against the oral evidence of workman about continuous service of 240 days, then, in case of non compliance of section 25F of ID Act, workman is entitled for being reinstated in service. Considering said decisions and facts of this case, labour court has held that termination has become illegal because of non compliance of section 25F of ID Act, 1947 and, therefore, workman is entitled for relief of reinstatement in service with continuity of service. Question of back wages has been considered by labour court on the basis of evidence of workman and looking to long period of pending litigation between the parties, labour court granted only 25 per cent back wages for interim period. Therefore, considering earlier challenge made by petitioner before this court in above referred special civil application and also considering total period which comes to about eighteen years, labour court has granted 25 per cent back wages for interim period. Apex court has examined such issue that because of delay in deciding reference, not to grant relief for which workman is entitled amounts to that workman would suffer double jeopardy, in 2009 AIR SCW page 2904. Therefore, labour court has rightly granted relief of reinstatement with continuity of service with 25% back wages for interim period because after termination of service, dispute has been immediately raised by workman and matter remained pending before labour court for about more than 17 years, therefore, contentions raised by learned advocate Mr. Munshaw for petitioner cannot be accepted. Hence, same are rejected. [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