Gujarat High Court
Jagdishchandra Harshadbhai Dave vs Deputy Executive Engineer on 21 April, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/254/2020 JUDGMENT DATED: 21/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 254 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 3354 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
Approved for Reporting Yes No
√
==========================================================
JAGDISHCHANDRA HARSHADBHAI DAVE
Versus
DEPUTY EXECUTIVE ENGINEER & ANR.
==========================================================
Appearance:
MR YOGEN N PANDYA(5766) for the Appellant(s) No. 1
DELETED for the Respondent(s) No. 2
MR. HARDEEP L MAHIDA(7112) for the Respondent(s) No. 1
MR JWALIT SONEJI for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 21/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal is directed against the judgment dated 26.08.2019 passed by the learned Single Judge in the captioned Writ Petition, wherein and whereby the learned Single Judge is pleased to reject the Writ Petition challenging the order dated 19.12.2008 passed by the Labour Court, Surendranagar rejecting the reference proceedings under Reference (LCS) No.116 of 1996.
2. Learned advocate Mr. Pandya has submitted that the judgment and order passed by the learned Single Judge is required to be quashed and set aside since the learned Single Judge has failed to appreciate the fact that there was violation of the Page 1 of 8 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 21:54:02 IST 2025 NEUTRAL CITATION C/LPA/254/2020 JUDGMENT DATED: 21/04/2025 undefined provisions of Sections 25G and 25H of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") while terminating the services of the appellant-workman. While placing reliance on the judgment of the Supreme Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation, (2010) 3 SCC 192, it is submitted that in order to prove the violation of the provisions of Section 25G of the Act, which envisages 'first come last go', it is not required for the workman to prove that he worked for 240 days.
3. While placing reliance on Rule 82 of the Industrial Dispute [Gujarat] Rules, 1966 (hereinafter referred to as "the Rules") , it is submitted that the respondents are supposed to inform the retrenched workman before appointing any other daily-wagers. He has pointed out the document at Exh.36 dated 29.01.1996 which shows that six daily-wagers are appointed after holding the interview. It is submitted that as per the provisions of Rule 84 of the Rules, since the respondents have not issued any show cause notice or informed the appellant, the termination can be said to be illegal. He has also referred to the definition of "retrenchment" as provided under Section 2(oo)(bb) of the Act.
Learned advocate Mr. Pandya has also referred to the cross- examination of the respondents produced at Exh.25 in reference proceedings, in which, it is admitted that after termination of the appellant, he was not given any work and he was not also informed to resume the duties before appointing six daily-wagers. Thus, it is submitted that the impugned judgment and order passed by the learned Single Judge and the order passed by the Labour Court dated 19.12.2008 rejecting the reference proceedings may be quashed and set aside and the respondents may be directed to reinstate the appellant in service.
Page 2 of 8 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 21:54:02 IST 2025 NEUTRAL CITATION C/LPA/254/2020 JUDGMENT DATED: 21/04/2025 undefined
4. Opposing the present appeal, learned advocate Mr. Jwalit Soneji has submitted that the Labour Court has categorically recorded that the workman i.e. the appellant has not worked for 240 days continuously before his termination in one year and he was only engaged for a short period intermittently in the month of April, 1994 for 30 days, May, 1994 for 31 days, June, 1994 for 30 days and June, 1995 for 30 days. It is submitted that the respondents have never maintained the seniority of the workman and hence, there would not be any issue of violation of the provisions of Section 25G of the Act. So far as the alleged violation of the provisions of Section 25H of the Act is concerned, it is submitted that the respondents, in the year 1996, had undertaken the necessary exercise to fill up the post by regular employees and hence, the respondents cannot be compelled to inform the appellant for getting re-employed. Reliance is placed by learned advocate Mr. Jwalit Soneji on the decision of the Supreme Court in the case of Surendranagar District Panchayat v. Dahyabhai Amarsinh, (2005) 8 SCC 750. Thus, it is submitted that the present appeal may not be entertained.
5. We have heard the learned advocates appearing for the respective parties at length.
6. It is the case of the appellant-workman before us and also before the learned Single Judge and the labour court that he was orally terminated by the respondents. He has asserted in his statement of claim, Exh.3, that he was working under the respondent-Board for last one year, and was terminated on 30.06.1994 orally by violating seniority. It is alleged by the Page 3 of 8 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 21:54:02 IST 2025 NEUTRAL CITATION C/LPA/254/2020 JUDGMENT DATED: 21/04/2025 undefined appellant that his termination was in violation of the provisions of Sections 25F, 25G and 25H of the Act.
7. The dispute culminated in Reference (LCS) No.116 of 1996,, and the Labour Court, vide order dated 19.12.2008, has rejected the same, which was assailed by the appellant by filing the captioned Writ Petition, which has also been dismissed by the learned Single Judge.
8. The appellant-workman did not produce any documentary evidence proving his employment before the Labour Court, but the respondent-Board produced the muster roll at Exh.27 and 33 showing that the appellant had only worked for total 152 days. The following are the details of working days emerging from muster rolls at Exh.27 to 33:
April, 1994 --- 30 days May, 1994--- 31 days June, 1994---30 days May, 1995--- 31 days June, 1995--30 days.
These muster rolls are not disputed by the appellant. In light of the aforesaid muster roll, and looking to the working days of the appellant-workman, the Labour court has held that since he has not worked for 240 days prior to his termination, the provision of section 25F of the I.D.Act does not get attracted. Thus, in wake of the aforesaid fact and in light of the demand statement of the appellant-workman, we do not find that there is any violation of provisions of Section 25F of the Act, as he was only employed for Page 4 of 8 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 21:54:02 IST 2025 NEUTRAL CITATION C/LPA/254/2020 JUDGMENT DATED: 21/04/2025 undefined 152 days intermittently, before his termination and unquestionably, he has not completed 240 days in order to attract the provisions of Section 25F of the Act.
9. So far as the violation of Sections 25G and 25H of the Act is concerned, we may, refer to the affidavit filed by the respondent- Board at Exh.25. In the affidavit it is specifically mentioned that the appellant was engaged primarily for providing water to villagers in draught. In his oral evidence before the Labour Court, on a question put on behalf of the appellant about his employment during drought, the witness of the Board has specifically deposed that the appellant was only engaged during draught as per the requirement of work orally, and after 30.06.1994, he has not been engaged on work. Thus, the appellant was employed for a specific purpose intermittently for supply water during draught. The muster roll proves that he has been engaged during summer. There is almost one year gap between his employment in June , 1994 to May , 1995. Thus, his engagement was for supplying water during draught only, for a particular project of supplying water. At this stage, refer to the decision of the Supreme Court in the case of Dahyabhai Amarsinh (supra). The Supreme Court, while examining the provisions of Sections 25G and 25H of the Act read with Section 2(oo) of the Act, has observed thus:-
"...............As regards non- compliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non- compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved."Page 5 of 8 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 21:54:02 IST 2025
NEUTRAL CITATION C/LPA/254/2020 JUDGMENT DATED: 21/04/2025 undefined
10. The Supreme Court has, thus, held that in absence of regular employment, the employer is not expected to maintain seniority list of the daily-wagers and in absence of proof of seniority list, no relief can be given to a daily-wager for non-compliance of the provisions of Sections 25G and 25H of the Act. The workman has placed reliance on Rules 81 and 82 of the Rules, which read as under:-
"81. Maintenance of seniority list of Workmen. The employer shall, prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be posted on a Notice Board in conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment.
82. Re-employment of retrenched workmen.
(1) Where any workmen are retrenched and the employer proposes to take into his employ any person, he shall give an opportunity to the retrenched workmen to offer themselves for re-employment in the following manner, that is to say-
(a) if the number of vacancies to be filled is not less than fifty, he shall publish in a Gujarati newspaper circulating in, the locality in which the industrial establishment is situated, a notice giving the details of the vacancies to be filled:
(b) in any other case he shall send by registered post to the last known address of each of such retrenched workmen eligible for appointment to any such vacancies, a notice giving the details of the vacancies to be filled;
and seven days shall have elapsed from the date of publication of such notice, or from the date of the despatch of the last of notices, as the case may be :
Provided that where there are provisions in any standing orders of an industrial establishment in regard to the notifying of vacancies, notice in respect of such vacancies shall be published or given in accordance with such standing orders:
Provided further that if a retrenched workman, without sufficient cause being shown in writing to the employer, does not offer himself for re-employment on the date or dates specified in the public notice given or the individual notice sent to him by the employer under this sub-rule, the employer may not intimate to him the vacancies that may be filled on any subsequent occasion. (2) A copy of the notice referred to in sub-rule (1) shall also be displayed in the time-keeper's office, at the main entrance of the industrial establishment and in the case of a department thereof, also in the department concerned. (3) Whenever a notice has been given under sub-rule (1), the employer shall also simultaneously inform the trade union or unions of workmen connected with the industrial establishment, of the vacancies to be filled giving the details thereof.
(4) If the employer seeks the assistance of the Decasualisation Scheme or the Employment Exchange of the area in filling, the vacancies, he shall inform the manager of the Scheme or the Exchange, as the case may be, that the names of such of his retrenched employees, as may be, registered with the Scheme Page 6 of 8 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 21:54:02 IST 2025 NEUTRAL CITATION C/LPA/254/2020 JUDGMENT DATED: 21/04/2025 undefined or the exchange, may be submitted to him along with the names of any other suitable candidates.
(5) Information regarding the workmen re-employed in accordance with this rule shall be sent in Form XXIV-A by the employer to The Commissioner of Labour, Ahmedabad, and the Deputy Commissioner of Labour, Ahmedabad, within fifteen days from the date of such re-employment."
11. The aforesaid Rule 81 refers to preparation of a list of all workmen in a "particular category" from which retrenchment is contemplated arranged according to the seniority of their service in that category. In the present case, the respondents have asserted that there was no seniority list maintained by them of the daily- wagers of a particular category to that of the appellant-workman, who was engaged intermittently for supplying water during draught and hence, in our opinion, there is no violation of Rule 81 of the Rules. Hence, as a sequel, the provision of section 25G of the I.D.Act will not get attracted.
12. So far as the alleged violation of section 25H read with Rule 82 of the Rules is concerned, we do not find merit in the submissions of the appellant. The opportunity to the retrenched workmen to offer themselves for re-employment, is embedded in Clause (a) of sub-rule (1) of Rule 82 of the Rules. It is categorically mentioned in Clause (a) that if the number of 'vacancies' to be filled in is not less than 50, the employer has to publish in a newspaper of the concerned locality in which industrial establishment is situated, a notice giving the details of the "vacancies" to be filled, and in any other case, the employer has to send register post to the last known address of each of the retrenched workmen eligible for appointment to any such vacancies. Thus, the language used in Rule 82 is for filling up the "vacancies" by giving preference to the workmen, who are retrenched. In the present case, it is alleged that after, the appellant was retrenched 6 new workmen were appointed Page 7 of 8 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 21:54:02 IST 2025 NEUTRAL CITATION C/LPA/254/2020 JUDGMENT DATED: 21/04/2025 undefined in the year 1996 vide order at Exh.36, hence the respondent-Board was mandated by the aforesaid provision to inform him before appointing new workmen. The appointment order at Exh.36 reveals that the respondent-Board had appointed the daily wagers after issuance of advertisement, and holding the interview. Hence, the burden lies on the workman to prove that such persons were appointed in his place/vacancy for doing the same work of supplying water during draught in order to attract the provision of Rule 82. The manner in which these 6 dailywagers are appointed would indicate that they are appointed after undergoing regular process, and their appointment cannot be considered similar to that of appellant, who was engaged as a daily wager for doing particular work during draught. Hence, the provision of section 25H will not get attracted. Thus, we do not find the any violation in the provision of section 25H of the ID Act read with Rule 82 of the Rules.
13. Though, we do not agree with the findings recorded by the labour court as confirmed by the learned single judge to the extent that the provision of section 25G and H of the I.D Act will not get attracted since the appellant has not worked for 240 days;however, in view of the foregoing analysis, we are not inclined to remand the matter, more particularly, in wake of passage of 30 years.
14. Thus, the present appeal fails and the same is dismissed.
(A. S. SUPEHIA, J) (GITA GOPI,J) Maulik/17 Page 8 of 8 Uploaded by MAULIK R. PANDYA(HC00205) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 21:54:02 IST 2025