Gujarat High Court
State Of Gujarat vs Bikhubha Verubha Zala on 12 July, 2024
NEUTRAL CITATION
C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11092 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT & ANR.
Versus
BIKHUBHA VERUBHA ZALA & ANR.
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Appearance:
MS SURBHI BHATI, ASST. GOVERNMENT PLEADER for the Petitioner(s)
No. 1,2
MR VISHAL P THAKKER(7079) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 12/07/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 of the Page 1 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined Constitution of India and under the provisions of Industrial Disputes Act, 1947, the petitioner - State Authorities has prayed for the following reliefs :
"A. YOUR LORDSHIPS may be pleased to admit and allow this writ petition.
B. YOUR LORDSHIPS may be pleased to issue a writ, order or direction in the nature of certiorari and/or any other writ in the nature of certiorari to quash and set aside the common judgment and order dated 28.10.2016 passed in Reference (LCB) No.172 of 2005 passed by the learned Judge, Labour Court, Bhavnagar.
C. Pending admission, hearing and final disposal of the petition, YOUR LORDSHIPS may be pleased to stay, implementation, operation and execution of common judgment and order dated 28.10.2016 passed in Reference (LCB) No.172 of 2005 passed by the learned Judge, Labour Court, Bhavnagar.
D. YOUR LORDSHIPS may be pleased to grant such other and further relief as may be deemed fit and proper in the interest of justice."
2. The brief facts giving rise to the present petition are as under :
2.1 A reference was preferred by the Assistant Labour Commissioner, Bhavnagar vide his letter dated 26.07.2005, with the issue that whether the respondent-workman Bikhubha Verubha Zala is required to be reinstated at her original post with full wages or not. The Reference was registered (LCB) No.172 of 2005 before the Labour Court, Bhavnagar, in which it was stated by the respondent-workman that he was an Page 2 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined employee of the present petitioner and he had worked as a Ward Servant from 1984 to 01.05.1988 but he was terminated by the petitioner on 01.05.1988. It has also been stated by the respondent-workman that he had received ad hoc money of Rs.1000/- to Rs.1200/- monthly and no notice or notice pay, retrenchment compensation was given by the present petitioner, which is against the provisions of Industrial Disputes Act, 1947. It is also stated that the notice was issued by the present respondent-workman. That the conciliation proceedings failed and hence, reference was referred under Section 10 by the Assistant Labour Commissioner, Bhavnagar.
It was also stated that 240 days have been completed in every calendar year and therefore, he should be reinstated on his original post with leave encashment. That the Labour Court had directed the petitioner to pay Rs.2000/- for the expenditure of the reference.
2.2 It is the case of the petitioner that the claim of statement had been resisted by the petitioner by filing written statement, wherein, it had been stated that it is true that the respondent was working with the petitioner as a Ward Servant, but he had not produced any relevant documents to support this Page 3 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined connection. It was also stated that the respondent-workman was working as a Ward Servant and relieved on 01.05.1988 as per Government Resolution, and therefore, there is no any question of malpractice, more particularly, respondent- workman was released as per Government Resolution, so that legal notice or any kind of compensation was not to be paid to the respondent-workman. It was also stated that there was no appointment or termination order and that appointment of the respondent-workman was not as per the recruitment rules and post was not in the establishment of the Department, and therefore, there was no question of breach of Industrial disputes Act.
2.3 It is the case of the petitioner that after considering the statement of claim, depositions and other evidences which were on record, the Labour Court vide its judgment and award dated 28.10.2016 passed in Reference (LCB) No.172 of 2005 passed by the Presiding Judge, Labour court, Bhavnagar, had directed the petitioner to reinstate the respondent-workman on his original post with leave encashment and also directed to pay Rs.2000 for the expenditure of the reference. Page 4 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024
NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined 2.4 Being aggrieved and dissatisfied with the aforesaid award dated 28.10.2016 passed by the Labour Court, Bhavnagar, the petitioner - State of Gujarat has preferred this petition under Article 226 of the Constitution of India with the aforesaid prayers.
3. Heard learned Assistant Government Pleader Ms.Surbhi Bhati, appearing on behalf of the petitioner - State Authorities and learned advocate Mr.Vishal P. Thakker, appearing on behalf of the respondent Workman.
4. Learned AGP Ms.Bhati has submitted that the learned Labour Court has not considered the fact that the appointment of the respondent workman was not regular and without completion of the recruitment process, but he was appointed on temporary basis and he had worked from 1984 to 1988 only for a period of 30 days. She has submitted that the service of the respondent workman came to be terminated on 01.05.1988, however, the learned Labour Court without considering this aspect has passed the impugned award directing the petitioner to reinstate the respondent workman without back wages, which is illegal, erroneous and unjust and Page 5 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined the same deserves to be quashed and set aside. She has further submitted that the learned Labour Court has committed an error while drawing adverse inference against the present petitioners and since the petitioners had not produced any documentary evidence with regard to the fact that the respondent workman had completed 240 days in each calendar year before his service came to be terminated. After referring the facts, while passing the impugned award, the learned Labour Court ought to have considered the fact that the initial burden lies upon the present respondent workman and therefore, the learned Labour Court has committed an error while passing the impugned award directing the petitioner to reinstate the respondent respondent workman without back-wages, which is erroneous, illegal and unjust. 4.1 Learned AGP Ms.Bhati has further submitted that the petitioner has raised contentions and also argued before the learned Labour Court but, the learned Labour Court after referring and relying upon the decisions of the Hon'ble Apex Court as well as this Court observed in paragraphs 10.1 to 10.9 and drawn adverse inference against the present petitioner without considering the fact that even initial burden was not Page 6 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined proved that the respondent workman has worked for 240 days in each calendar year and therefore, the award passed by the learned Labour Court with regard to breach of provisions of Section 25(F)(G) and (H) is erroneous, illegal and unjust and is even without there being any cogent material and therefore, the inference drawn by the learned Labour Court while passing the impugned award is illegal and unjust. During the course of arguments, learned AGP Ms.Bhati has urged that at that relevant point of time, the petitioner might not have found the muster-roll which is subsequently unearth and therefore, the petitioner wants to produce the copy of the muster-roll or alternatively, the matter may be remanded back to the learned Labour Court to produce all these documents before the learned Labour Court so that the learned Labour Court can consider all these documents and pass appropriate order afresh. At last, learned AGP Ms.Bhati has submitted that the impugned award passed by the learned Labour Court is also hit by delay and latches as the impugned action of termination of service of the respondent workman was in the year 1988 and after almost 17 years, the respondent workman had filed the reference before the Labour Court in the year 2005 and thereafter, the statement of claim was lodged after 5 years of Page 7 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined filing of reference before the learned Labour Court, therefore, at every stage, there was a delay on the part of the respondent workman in approaching the authority, which was observed by the learned Labour Court and therefore, she has urged that the present petition be allowed and the impugned award be quashed and set aside.
4.2 In support of her submissions, learned AGP Ms.Bhati has referred and relied upon the decision of the Hon'ble Apex Court in case of Prabhakar Vs. Joint Director, Sericulture Department and Another, reported in [2015] 15 SCC 1, wherein, it has been observed and held in paragraph 34 onwards as under :
"34. To understand the meaning of the word 'dispute', it would be appropriate to start with the grammatical or dictionary meaning of the term:
'Dispute': "to argue about, to contend for, to oppose by argument' to call in question - to argue or debate (with about or over), - a contest with words; an argument; a debate; a quarrel;
35. Blacks law dictionary, 5th Edition, page 424 defines 'dispute' as under:
"A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined."
36. Thus, a dispute or difference arises when demand is made by Page 8 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an 'industrial dispute' cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant but we are not concerned with this aspect in the instant case. Therefore, what would happen if no demand is made at all at the time when the cause of action arises? In other words, like in the instant case, what would be the consequence if after the termination of the services of petitioner on April 01, 1985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for number of years? Can it still be said that there is a dispute? Or can it be said that workmen can make such demand after lapse of several years and on making such demand dispute would come into existence at that time. It can always be pleaded by the employer in such a case that after the termination of the services when the workmen did not raise any protest and did not demand his reinstatement, the employer presumed that the workmen has accepted his termination and, therefore, he did not raise any dispute about his termination. It can be said that workmen, in such a case, acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. He cannot after a lapse of several years make a demand and then convert it into a 'dispute' what had otherwise become a buried issue.
37. Let us examine the matter from another aspect, viz. laches and delays and acquiescence.
38. It is now a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non- suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".
39. This principle is applied in those cases where discretionary orders of the Court are claimed, such as specific performance, permanent or temporary injunction, appointment of receiver etc. These principles are also applied in the writ petitions filed under Articles 32 and 226 of Constitution of India. In such cases, Courts can still refuse relief where the delay on the petitioner's part has Page 9 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined prejudiced the respondent even though the petitioner might have come to Court within the period prescribed by the Limitation Act.
40. Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This principle is based on the doctrine of acquiescence implying that in such a case party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.
41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party looses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-existent.
42. On the basis of aforesaid discussion, we summarise the legal position as under:
42.1 An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that 'any industrial dispute exists or is apprehended'. The words 'industrial dispute exists' are of paramount importance unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the Page 10 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute.
42.2 Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre-condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist.
42.3 Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non-existent dispute which cannot be referred.
42.4 Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as Page 11 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection.
42.5 Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.
42.6 In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an 'existing dispute'. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.
43. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement.
We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters.
44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the 'appropriate Government' to consider whether it is expedient or not to make the reference. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial Page 12 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry.
45. On the application of the aforesaid principle to the facts of the present case, we are of the view that High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had not jurisdiction or power to make reference of a non-existing dispute.
46. This special leave petition is, therefore, dismissed." 4.3 Learned AGP Ms.Bhati has also referred and relied upon the decision of the Hon'ble Apex Court in case of Krishi Utpadan Mandi Samiti, Manglor Vs. Pahal Singh, reported in [2007] 12 SCC 193, wherein, it has been observed and held in paragraphs 11 and 12 as under :
"11. The Labour Court was also under an obligation to consider as to whether any relief, if at all could be granted in favour of the workman in view of the fact that the industrial dispute had been raised after 18 years. It was obligatory on the part of the Labour Court to consider that the respondent was in employment for very short period. It had also not arrived at a finding that the respondent was in continuous service within the meaning of Section 2(g) of the U.P. Industrial Disputes Act or for that matter in terminating the services of the respondent, the appellant did not comply with the requirements of law particularly Section 6-N thereof. In absence of such a finding, the High Court in our opinion should have interfered with the Award.
12. It is now well-settled principle of law that "delay defeats equity".Page 13 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024
NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined 4.4 Learned AGP Ms.Bhati has also referred and relied upon the decision of the Hon'ble Apex Court in case of Asstt. Engineer, CAD, Kota Vs. Dhan Kunwar, reported in [2006] 5 SCC 481, wherein, it has been observed and held in paragraphs 5, 6 and 7 as under :
"5. Per contra, learned counsel for the respondent-workman submitted that even if it is held that the claim was after long lapse of time, that cannot disentitle the workman from his legitimate entitlements. The right view has been taken by the Labour Court by awarding only 30%.
6. It may be noted that so far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case.
7. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. (2000 (2) SCC 455) it was noted at paragraph 6 as follows:
"6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since heel) settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were Page 14 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex-facie bad and incompetent."
4.5 So far as the inference drawn by the learned Labour Court against the present petitioner is concerned, learned AGP Ms.Bhati has referred and relied upon the decision of this Court rendered in case of Surendranahar District Panchayat Vs. Kesabhai Mavjibhai, reported in [2007] LawSuit Guj, 1986, in Special Civil Application No.9998 of 1999,wherein, it has been observed and held in paragraphs 4, 5, and 6 as under:
"4. True it is, that in a petition under Article 227 of the Constitution of India, the High Court is not required to reassess the evidence or re-record the finding or substitute its finding in place of the reasonable finding recorded by the subordinate Court or Tribunal, but, that does not mean that the perverse findings recorded by the Court cannot be corrected or set aside by the High Court under Article 227 of the Constitution of India.
5. In the present case, from the material available on the records, it clearly appears that neither of the workmen had worked for 240 days in twelve calendar months preceding the date of removal. Even assuming that the defences raised by the petitioner were false or absolutely untrue, then, too, the weakness in the case of the present petitioner would not be used as a weapon against the petitioner. The first requirement is that a party, who comes to the Court with an allegation, must prove his case and if the other party fails in disproving the case or does not raise a reasonable defence, then only, the Court would be entitled to grant the relief to the workman/applicant before the said Court.Page 15 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024
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6. In the present case, the respondents have miserably failed in proving that they had worked for 240 days. If that is so, they cannot be deemed to be in continuous service under Section 25 and consequently, would not be entitled to any protection under Section 25-F of the Act."
5. As against that, learned advocate Mr.Vishal P. Thakker, appearing on behalf of the respondent workman has submitted that the petitioners failed to prove the fact that the respondent workman has not completed 240 days and therefore, the learned Labour Court has rightly drawn the presumption and adverse inference against the present petitioners as there was no material produced on record before the learned Labour Court and no muster-roll or any other documentary evidence was produced with regard to prove the fact that the respondent workman had not completed 240 days in each calendar year and therefore, the impugned award passed by the learned Labour Court be confirmed and the same be implemented in its true spirit. Learned advocate Mr.Thakker has emphasized upon the findings recorded by the learned Labour Court in paragraphs 10.1 to 10.9 of the impugned award, wherein the learned Labour Court has referred and relied upon the number judgments and the ratio laid down in the said judgments with regard to the fact that in absence of Page 16 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined the cogent and material evidence or without any documentary evidence, the contention raised by the employer that the workman has not completed 240 days is required to be negative and appropriate inference can be drawn against the employer and here, in the present case, the learned Labour Court has rightly observed the said in favour of the present respondent workman and drawn the inference against the present petitioner and therefore, the impugned award passed by the learned Labour Court is in consonance with the settled principles of law and the ratio laid down by the Hon'ble Apex Court referred by the learned Labour Court in paragraphs 10.1 to 10.9 of the impugned award and therefore, the present petition be dismissed as the respondent workman was rightly ordered to be reinstated without back-wages and therefore, no interference is required to be called for in the impugned award. 5.1 In support of his submissions, learned advocate Mr.Thakker has referred and relied upon the decision of this Court rendered in Special Civil Application No.17953 of 2005 decided on 12.11.2014, which was subsequently confirmed by the Division Bench of this Court in Letters Patent Appeal No.37 of 2015 and urged that in view of the above referred Page 17 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined judgments, the learned Labour Court has not committed any error while passing the impugned award. So far as the contention with regard to delay and latches is concerned, learned advocate Mr.Thakker has urged that in view of the facts of the present case and in view of the fact that one of the colleague who has deposed before the learned Labour Court that he has worked with the respondent workman and whose deposition was referred and relied upon by the learned Labour Court, from his deposition the fact is very much established that the respondent workman has worked from 1984 to 1988 with the petitioner and therefore also, the learned Labour Court has not committed any error while passing the impugned award.
5.2 Learned advocate Mr.Thakker has strongly referred and relied upon the decision of the Hon'ble Apex Court in case of R.M. Yellatti Vs. Assistant Executive Engineer, reported in [2006] 1 SCC 106. Lastly, learned advocate Mr.Thakker has submitted that in alternative, atleast the order of lump- sum compensation may be passed in light of the judgment of the Division Bench of this Court in Letters Patent Appeal No.908 of 2023 referring and relying upon the observations Page 18 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined made in paragraph 6.
6. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. The issue involved in the present petition is that, whether the respondent workman has completed 240 days in each calendar year or not and for that whether there is any cogent and relevant documentary evidence produced on record or not and if at all, the issue of 240 days is to be considered in light of the facts of the present case or not. It appears from the record that the respondent was appointed as a daily wager as a Ward Servant in the year 1984 and on 01.05.1988 he was terminated from the service. As there was no documentary evidence produced before the Labour Court, the learned Labour Court was right in drawing the inference against the present petitioner and referred and relied upon the decisions of the Hon'ble Apex Court as well as this Court which are referred in paragraphs 10.1 to 10.9 of the impugned award, this court is of the opinion that the Labour Court has not committed any error but, at the same time, the Labour Court has completely overlooked the facts that this action of termination of service is in the year 1988 and thereafter, after Page 19 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined almost 17 years, the respondent workman had raised the reference in the year 2003 and the same was referred to the Labour Court in the year 2005 and even thereafter, after almost 5 years, the respondent workman had filed his statement of claim before the Labour Court, therefore, at all stages, there was a delay on the part of the respondent workman in approaching the authority. The said aspect merely by cursorily the Labour Court has decided while discussing in paragraph 12.2 of the impugned award, which is in my humble opinion, is absolutely illegal and unjust and therefore, only on that count, the impugned award is required to be quashed and set aside.
6.1 On one hand, the Labour Court has come to the conclusion that this reference is almost after 15 years of termination, even thereafter, after almost 2 years the reference was referred to the Labour Court and thereafter, after almost 5 years the respondent workman had filed his statement of claim. Without considering all these aspects in its true and proper spirit, the Labour Court has merely discussed these facts in paragraph 12.2 only and while discussing the issue of adverse inference, the Court has consumed 9 Page 20 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined paragraphs and referred all the judgments but, so far as the aspect of delay and latches is concerned, the Labour Court has chosen not to pass any discussion referring and relying upon these judgments and therefore, the impugned award passed by the Labour court is erroneous and unjust. Even in number of matters, this Court has considered that even 6 years of delay which is proved to be fatal and after referring and relying upon the judgment of the Hon'ble Apex Court, this Court has held that the reference filed by the concerned workman deserves to be disallowed only on the ground of delay in approaching the reference Court. In the present case, from the bare perusal of the record, prima facie, it appears that the impugned action of termination was in the year 1988 and admittedly, the respondent workman approached by way of issuing notice in the year 2003, thereafter, the matter was referred to the Labour Court in the year 2005 and thereafter also, upto 2010 the respondent workman had not filed his statement of claim before the Labour Court, therefore, considering all these aspects, the petition is required to be allowed only on the count of delay. It is also to be noted herein that the issue is with regard to termination of service in the year 1988, thereafter, now it is coming up for final hearing in the year Page 21 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined 2023, almost 36 years have been passed after the impugned action of termination and therefore, the order passed by the Labour Court with regard to reinstatement is absolutely unjust to implement and hence, on that count also, the petition deserves to be allowed. So far as the submission made by learned advocate Mr.Thakker with regard to lump-sum compensation is concerned, infact as per the discussion of the Division Bench in paragraphs 6, 7 and 8, this Court is of the opinion that the respondent workman is not entitled to get any lump-sum compensation as it is the method of calculation of lump-sum compensation provided in paragraphs 6, 7 and 8. Therefore also, the respondent workman is not entitled for any relief considering the method of calculation applied by the Division Bench in the Letters Patent Appeal No.908 of 2023. 6.2 Learned AGP Ms.Bhati has alternatively urged that the matter may be remanded back to the concerned Labour Court for reconsideration as now they have found the copy of muster roll, however, considering the fact that the issue is very stale and also 36 years have passed after the order of termination passed on 01.05.1988 and without there being any proper application for the additional evidence, this Court cannot look Page 22 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined into those evidence and therefore, this Court is of the opinion that instead of remanding the matter back, this Court has considered the submissions made on the basis of the impugned award and decided the same.
6.3 So far as the judgment referred and relied upon by the learned advocate Mr.Thakker in case of R.M. Yellatti (Supra) is concerned, this Court has no hesitation to accept the ratio laid down by the Hon'ble Apex Court in the aforesaid judgment and this Court is in full agreement to the decision rendered in the aforesaid case and there is no second opinion with the ratio laid down by the Hon'ble Apex Court as well as this Court, which is referred and relied by the Labour Court in its award. However, it is relevant to note herein that, in the present case, the respondent workman has not filed any application for production of the documents and therefore, the judgments which are discussed by the Labour Court in the cases of daily wagers, can only call upon the employer to produce nominal muster roll for the given period and other documents if any exists. It is in the facts of each case to be determined. Here, in the present case, neither the respondent workman has called for such document by way of filing an application for Page 23 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined production of the documents nor any order was passed by the Labour court to produce such documents and in absence of such order or direction, the observations made by the Hon'ble Apex Court in case of R.M. Yellatti (Supra) applicable to the facts of the present case to prove that whether the respondent workman has completed 240 days or not. Even the observations made by the Hon'ble Apex Court in the said judgment in paragraphs 17 and 19 is relevant for the purpose of determining the contention raised by the learned advocate Mr.Thakker and in light of the discussion in above referred paragraphs, this Court is of the view that the facts of the present case are completely different and even this Court is in complete agreement with the ratio in above referred citations referred by the Labour Court in its award as well as by the Hon'ble Apex Court but the same is not helpful to the respondent workman in the facts of the present case. 6.4 It is also required to be noted herein that, at Exh.-20, the deposition of one of the witness namely, Kishorbhai Gunvantbhai Oza who was appointed as a regular employee in the petitioner Hospital who had deposed before the Labour Court that from 1984 to 1988, the respondent workman had Page 24 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024 NEUTRAL CITATION C/SCA/11092/2017 JUDGMENT DATED: 12/07/2024 undefined also worked continuously and he was paid salary, however, neither the salary slip nor any other document was produced by the respondent workman before the Labour Court to prove that he had worked for the period from 1984 to 1988 continuously and only orally has had stated that he had worked for 240 days in each calendar year. It is also relevant to note herein that the said witness was appointed on regular basis, whereas, the present respondent workman was appointed purely on temporary basis and there was no any appointment order issued in his favour and therefore, in absence of any evidence, the observations made by the Hon'ble Apex Court in R.M. Yellatti (Supra) is not applicable to the fact of the present case as discussed hereinabove.
7. Considering all these aspects, the present petition is hereby allowed. The impugned award dated 28.10.2016 passed by the Labour Court, Bhavnagar in Reference (LCB) No.172 of 2005 is quashed and set aside. Rule is made absolute.
(HEMANT M. PRACHCHHAK,J) Dolly Page 25 of 25 Downloaded on : Fri Jul 26 21:59:35 IST 2024