Gujarat High Court
Banaskantha vs Dharsinhji on 13 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/3829/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3829 of 2010
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BANASKANTHA
DISTRICT PANCHAYAT - Petitioner(s)
Versus
DHARSINHJI
BIJOLJI KASETIA - 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
: 13/04/2010
ORAL
ORDER
Heard learned advocate Mr. H.S. Munshaw appearing on behalf of Petitioner Banaskantha District Panchayat.
The petitioner has challenged award passed by Labour Court, Palanpur in Reference No.773 of 1996 Ex.76 dated 24th August 2009. The Labour Court has granted relief of reinstatement with continuity of service and 20% back wages of interim period in favour of respondent.
Learned advocate Mr. Munshaw submitted that the Roads and Building Division of Banaskanth District Panchayat looks after the maintenance and repairs of roads as well as building within the territorial jurisdiction of Banaskanth District Panchayat and as and when necessary, daily wagers were being employed purely on temporary, ad-hoc and daily wage basis depending upon the availability of work and funds of the projects. He also submitted that respondent was also provided work by the petitioner at Deesa as a daily wager depending upon the availability of work and funds and the respondent was to work as per the administration instructions of the concerned officer at Deesa at different places. He further submitted that as per the record of the District Panchayat, the respondent has worked between 1st December 1990 to 18th March 1994 depending upon the availability of work and funds as a daily wager. Considering the non availability of work and funds, the respondent was not continued w.e.f. 18th March 1994 and being aggrieved and dissatisfied by said order, respondent preferred Reference (LCP) No.773 of 1996 in the Labour Court at Palanpur. He also submitted that the petitioner filed a detailed written statement taking all the factual and legal contentions. Necessary documents were produced and even an employees of Banaskantha District Panchayat was also examined as witness.
Learned advocate Mr. Munshaw further submitted that ignoring the fact that respondent was not at all employed on a permanent sanctioned post and even no recruitment procedure was followed and the respondent was only a daily wager, the Hon'ble Labour Court at Palanpur allowed the Reference, hence, interference of this Court is necessary.
I have considered submissions made by learned advocate Mr. Munshaw and I have also considered Annexure 'A' working days produced by petitioner in respect to respondent workman for the period from 1991 to 1994 Page 7 & 8. I have also considered statement of claim filed by respondent workman Annexure 'B' Page 9 produced along with petition and also written statement of present petitioner.
Before Labour Court, dispute has been referred for adjudication on 11th December 1995. Ex.6, statement of claim was filed by workman. According to him, he was working as a Watchman-cum-Peon in Deesa Rest House w.e.f. 17th October 1987 on monthly salary of Rs.900/- upto 22nd April 1995 when his service was terminated by petitioner. According to workman, District Panchayat has confirmed 20 daily wagers, but, respondent was not confirmed by petitioner.
According to workman, he was in service continuously from 17th October 1987 to 22nd April 1995 and completed more than 240 days continue service with petitioner and his service was terminated by violating Sec.25F of the Industrial Disputes Act, 1947. The averments made by workman in statement of claim has been denied by petitioner in written statement Ex.15 and according to petitioner, workman has not completed continue service of 240 days and he was not remained in continue service for a period of more than five years. The respondent workman has produced certain documents vide Ex.13 and he was examined vide Ex.16. On behalf of petitioner one Mujaffar Husain Solanki was examined vide Ex.28 and vide Ex.31, evidence of workman was closed and vide Ex.27 and 30, petitioner establishment has produced certain documents and one witness Shri Prabhatbhai Jethabhai was examined at Ex.36 and thereafter, vide Ex.49, evidence of petitioner has been closed. Thereafter, issues have been framed by Labour Court, Palanpur. The Labour Court has come to conclusion that service of respondent has been illegally terminated by petitioner and he was remained in service continuously with petitioner and entitled the reinstatement with 20% back wages.
According to workman, he was Watchman-cum-Peon working in Deesa Rest House for more than ten years. But, during the course of employment, no documents have been supplied by petitioner about muster card, presence card, pay slip, though it was demanded by workman. The service of workman was terminated on 22nd April 1995 without giving opportunity and without complying Sec.25F of the Industrial Disputes Act, 1947. The Labour Court has considered evidence of workman Ex.16 and also considered evidence of witnesses of petitioner i.e. Mujaffar Husain Solanki and Prabhatbhai Jethahai Ex.36. The contention raised by petitioner that workman has not completed 240 days continue service, but, according to petitioner, workman has completed 24 days service in 1990 and in 1991, 181 days. But, in cross-examination, witness Prabhatbhai Jethabhai admitted at Ex.36 that presence of respondent was marked by Work Assistant in a Kachcha Note and in Kachcha Note, it must have to be recorded that for how many days workman has worked with petitioner and on that basis, salary was paid to workman accordingly. From 1988 to 1995, COP of respondent workman has been produced, but, intentionally, petitioner has not produced kachcha Note, which was prepared and maintained by Work Assistant in respect to workman for a period from 1988 to 1995. It is also admitted by witness Shri Prabhatbhai Jethabhai that salary was paid to workman after obtaining signed of workman in Pay Register. This Pay Register was also not produced by petitioner for the period from 1988 to 1995 though it was admitted by him that he will produce original pay slip of workman. The Labour Court vide Ex.11 passed an order to produce it, even though, that document though in custody and possession of petitioner was not produced before Labour Court intentionally by petitioner and therefore, Labour Court has rightly drawn adverse inference against present petitioner. It is also necessary to note that petitioner establishment has produced Ex.27 a copy of muster roll for the period from 1st December 1990 to 18th March 1994 and considering this record, workman has worked with petitioner from 1991, 1992 and 1993. Against that, considering evidence of petitioner establishment, the workman has completed 24 days service in the year of 1990 and 1991 only 181 days, looking to record Ex.27 which is found to be contrary to oral evidence of witness of petitioner, therefore, Labour Court has come to conclusion that though witness has admitted in cross-examination that he will produce Kachcha Note maintained by Work Assistant for the relevant period wherein workman was remained in service and also he will produce pay slip of workman for entire period, but, that has not been produced by witness and ultimately, Labour Court has come to conclusion that petitioner is trying to hide certain documents from Labour Court and looking to deposition of workman that no documents have been supplied by petitioner, then, oral evidence of workman is to be accepted and Labour Court has considered decision of this Court reported in 2005 (1) GLH 340 in case of State of Gujarat v. J.M. Raval and also considered decision of Apex Court reported in 2005(4) SCALE 139 that relevant documents must have to be produced by employer and in absence of that, adverse inference has been drawn by Labour Court which has been rightly drawn by Labour Court and accordingly, Labour Court has rightly come to conclusion considering decision of this Court reported in 2006(3) GLR 2432 in case of Shihor Nagarpalika v. Maganlal Trivedi and 2008 (3) LLJ 1084 in case of Principal, S.V. Doshi Girls Highschool v. Lilaben Somabhai and come to conclusion that 240 days continuous service has been established by workman and Sec.25F has been violated by petitioner, therefore, workman is entitled right of reinstatement with continuity of service. The Labour Court has considered the question of back wages looking to evidence of workman dated 27th April 2004 though reference is of 1996 and also considered the fact that petitioner being a public body, granted only 20% back wages in favour of workman. For that, Labour Court has not committed any error which requires interference by this Court.
It is also necessary to note important fact that according to petitioner, for the period from 17th October 1987 to 22nd April 1995, present respondent workman was not working in Deesa Rest House as a Peon-cum-Watchman, then, who was working in place of respondent workman ? That details have not been supplied by petitioner, meaning there, in Deesa Rest House, one person must be there who had worked as a Peon-cum-Watchman in place of respondent workman. In absence of that details, it is very difficult to maintain and manage the work of Deesa Rest House. Therefore, it is not the case of petitioner before Labour Court that respondent workman was not working but somebody else was working, therefore, Labour Court has rightly drawn adverse inference because relevant records though admitted by witness of petitioner not produced before Labour Court intentionally, therefore, Labour Court has granted relief of reinstatement with continuity of service and with 20% back wages. For that, Labour Court has not committed any error which requires interference by this Court.
The contentions raised by learned advocate Mr. Munshaw in light of above discussion, cannot be accepted, hence, rejected. [See : (i) Ramesh Kumar v. State of Haryana 2010 (1) Scale 432 (ii) Director, Fisheries Terminal Division v. Bhikubhai Meghjibhai Chavda 2010 AIR SCW 542 (iii) Krishan Singh v. Executive Engineer, Haryana State Agriculture Marketting Board, Rohtak (Haryana) - 2010 (2) Scale 848].
There is no substance in present petition, accordingly, present petition is dismissed.
[H.K. RATHOD, J.] #Dave Top