Gujarat High Court
Deputy vs Nanjibhai on 28 March, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/16102/2007 20/ 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16102 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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DEPUTY
EXECUTIVE ENGINEER - Petitioner(s)
Versus
NANJIBHAI
DAHYABHAI - Respondent(s)
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Appearance
:
MR
AL SHARMA AGP for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1,
MS MEGHA
JANI for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 28/03/2011
ORAL
JUDGMENT
1. Heard learned AGP Mr.A.L.Sharma appearing on behalf of petitioner and learned advocate Ms.Megha Jani appearing on behalf of respondent - employee.
2. In this matter, petitioner - Executive Engineer has challenged award passed by Labour Court, Surendranagar in Reference No.231 of 1994 dated 16.11.2006. The Labour Court has granted relief in favour of workman to reinstate him in original post with continuity of service without back wages of interim period.
2.1 Affidavit-in-reply is filed by respondent - workman which is at page-34. In Para.10 of said affidavit, following averments are made :
"10. I further state that services of three other labourers working in the same department as the petitioner herein, being (1) Hirabhai Thakarshibhai (2) Narsinhbhai Vitthalbhai and (3) Bhikhabhai Pethabhai were terminated alongwith the present petitioner and they had also preferred Reference proceedings before the Labour Court wherein awards were passed directing their reinstatement. These persons have been reinstated and the present petitioner is discriminated against and is not reinstated till date. Hirabhai Thakarshibhai and Narsinhbhai Vitthalbhai have been reinstated pursuant to the order dated 10.7.2008 passed by Hon'ble Supreme Court in SLP (Civil) Nos.8480 and 8481 of 2008, whereby the petition of the petitioner department herein were dismissed. A copy of the order of Hon'ble Supreme Court is annexed and marked Annexure R-3. I further state that Bhikhabhai Pethabhai has been reinstated pursuant to internal letter no.labour/court/case/549, copy whereof of annexed and marked Annexure R-4."
3. Learned AGP Mr.Sharma has raised contentions before this Court that Labour Court has committed gross error in granting relief in favour of respondent. He also submitted that workman has not completed 240 days continuous service and workman has not produced any reliable documents before Labour Court to prove 240 days continuous service. He further submitted that workman was not appointed by petitioner on regular basis and workman was working as daily wagers with petitioner but, have not completed 240 days continuous service. For that, no sufficient material and evidence was produced on record by workman. He further submitted that burden is upon the employee to prove 240 days continuous service by leading proper evidence before Labour Court but, Labour Court has committed gross error which requires interference by this Court. He also raised contention that muster roll was produced by petitioner but, same has not been properly considered by Labour Court. Therefore, according to his submissions, interference by this Court is required in the award.
4. Learned advocate Ms.Megha Jani appearing on behalf of respondent submitted that respondent - workman has filed Civil Application No.11040 of 2009 wherein this Court has passed following order, on 4.11.2009 :
"1. The present application has been preferred by the applicant for directing the opponent to pay the regular wages as per the judgement dated 16.11.2006 passed by the Labour Court in LCS No.231 of 1994.
2. Upon hearing the learned Counsel for the applicant workman and Mr.Soni, learned AGP for the State - original petitioner, it appears that the award of the Labour Court is subject matter of Special Civil Application No.16102 of 2007. However, at the time when this Court admitted the petition there is no observations made for interim relief either to grant or to refuse the interim relief.
3. I would have further considered the matter. However, the learned AGP, under the instructions, states that without prejudice to the rights and contentions of the petitioner in the main Special Civil Application, the workman shall be reinstated in service, but the payment of backwages may be stayed.
4. The learned Counsel for the applicant submitted that if the award is not stayed, the workman would be entitled for the backwages.
5. It appears to the Court that considering the facts and circumstances, payment of backwages deserves to be stayed. However, if the workman is reinstated pending the petition and without prejudice to the rights and contentions in the petition, he will start earning his livelihood. Hence, it is ordered that the award of the Labour Court, which is challenged in the Special Civil Application No.16102 of 2007 shall remain stayed qua backwages and the reinstatement shall be permitted of the workman by the concerned authority, without prejudice to the rights and contentions of both the sides in the main Special Civil Application. Such reinstatement shall be effected within one month from the date of receipt of the order of this Court.
6. The application is disposed of accordingly."
4.1 Learned advocate Ms.Megha Jani submitted that in pursuance to aforesaid order, workman was reinstated in service after 4.11.2009 and at present also, workman is working with petitioner.
5. Learned advocate Ms.Megha Jani submitted that in identical matters of other daily wagers which has been decided by Labour Court, Surendranagar in favour of Hirabhai Thakarsinhbhai, Narsinhbhai Vitthalbhai where also Labour Court has granted relief of reinstatement with continuity of service without back wages of interim period. That both SCAs filed by present petitioner - Executive Engineer being SCA No.19619/2007 with SCA No.19620/2007 decided by this Court on 13.12.2009 wherein this Court has dismissed the petition filed by petitioner while confirming award of reinstatement with continuity of service without back wages of interim period. She also submitted that aforesaid order was challenged by petitioner before Apex Court in respect to Hirabhai Thakarsinhbhai, Narsinhbhai Vitthalbhai and Bhikhabhai Pethabhai and Apex Court has dismissed SLP which order is also annexed with affidavit-in-reply (Annexure- R-III,Page-46). The petitioner has challenged order passed by this Court in SCA NO.19619/2007 with SCA No.19620/2007 dated 13.12.2007 wherein Apex Court has dismissed SLP preferred by petitioner. She submitted that this being a similar matter and present respondent was co-employee, terminated along with aforesaid two workmen - Hirabhai Thakarsinhbhai, Narsinhbhai Vitthalbhai and therefore, both these petitions were accordingly dismissed which order of this Court is confirmed by Apex Court (page-46).
6. I have considered submissions made by both learned advocates and also perused award passed by Labour Court. The statement of claim was filed by workman before labour Court. According to statement of claim, respondent was working since last more than six years with petitioner as an employee and was receiving Rs.32/- daily wage and without giving any notice and following due process of law and comply provisions of Section 25(F) of the I.D.Act,1947, his service was terminated on 10.4.1992 and thereafter immediately, industrial dispute was raised which was referred for adjudication on 28.9.1994. The written statement was filed by petitioner before Labour Court denying averments made in statement of claim by workman. Vide Exh.5 certain documents have been demanded by workman from petitioner establishment. The record of muster roll, presence register, pay register, pay slip for a period of 8 years and seniority list and date of joining is required to be produced by petitioner. Upon application Exh.5, Labour Court has passed an order directing petitioner to produce the documents or to file affidavit. Before Labour Court, Shri Nanjibhai Dahyabhai - workman was examined vide Exh.17, who was cross-examined by petitioner's advocate. Thereafter, vide Exh.19, certain documents were produced by petitioner being a xerox copy of muster roll for the period from 21.12.1985 to 30.9.1991. Against which, vide Exh.23 list has been produced by workman and in that list, one work-charge mazdoor Shri Bhalabhai Trikambhai's identity card at Exh.25 and pay slip at Exh.26 was produced. In support of case of respondent one Bhalabhai Trikambhai was examined vide Exh.24 before Labour Court and he was working with petitioner for more than 22 years being a permanent employee and known to the respondent - workman. According to evidence of Shri Bhalabhai Trikambhai, present respondent was working with him from 1970 and upto 1992 he was remained in continuous service and his presence was marked in muster roll and after obtaining signature on muster, he was receiving salary from petitioner.
7. It is necessary to note that this witness Bhalabhai Trikambhai was not cross-examined by advocate of petitioner. The petitioner - establishment has also produced on record seniority list vide Exh.32 and one witness Shri Sanjay Chauhan, Dy. Executive Engineer was examined vide Exh.36, who has supported the facts narrated in written statement. Said witness Shri Chauhan was examined by advocate of respondent. In his evidence, Shri Chauhan made clear statement that prior to 1985 there are muster roll available in the office of petitioner and vide Exh.19 only, musters for the period from 1985 to 1990 has been produced on record and in between period, certain muster roll are not produced by petitioner. According to evidence to Shri Chauhan, witness of petitioner, in between period in muster, name of workman was not there. However, name of Marghaben Vitthalbhai, Jivuben Amrabhai, Gauriben Laghrabhai and Jivuben Govind, Shantuben Narsibhai and Danabhai Chhaganbhai are working with petitioner establishment as a daily wagers. But these workmen are not junior to present respondent. According to evidence of Shri Chauhan, in all 125 daily wagers are working with petitioner establishment and service of present respondent was terminated without issuing notice / notice pay and compensation. The muster has been produced upto 30.11.1990 and subsequent period also, musters are available in the office. Thereafter, vide Exh.39 written submissions is placed on record by respondent and oral submissions also made by advocate Mr.Jani relying upon decision of Apex Court in case of R.M.Yellati v. Assistant Engineer, Irrigation, reported in 2005 (9) Scale 139. Thereafter, written submissions was produced by petitioner establishment vide Exh.40 and then, Labour Court has framed the issues and examined matter on merits. The Labour Court has considered that complete record was not produced by petitioner - establishment and evidence of workman Exh.17 and considering evidence of Shri Bhalabhai Trikambhai Exh.24 and also order passed by Labour Court on Exh.5 to produce entire record which has been demanded by workman, the Labour Court has come to conclusion that total muster roll for period during which respondent was remained in service has not been produced by petitioner - establishment and considering decision of Apex Court in case of R.M.Yellatti v. v. Assistant Engineer, Irrigation, reported in 2005 (9) Scale 139, evidence of workman has been relied by Labour Court and also appreciating evidence of Dy. Executive Engineer Exh.36 before Labour Court and come to conclusion that workman has completed 240 days continuous service at the time when his service was terminated and therefore, petitioner - establishment has violated provisions of Section 25(F), (G) and (H) of the I.D.Act,1947. Therefore, order of termination held to be ab initio void and considering various decisions of Apex Court, whether to grant back wages or not, the Labour Court has thought it fit not to grant any amount of back wages by award dated 16.11.2006. Therefore, in view of reasoning given by Labour Court, Surendranagar, contentions raised by learned AGP Mr.Sharma cannot be accepted because one fact is very clear that during course of employment of respondent - workman, petitioner
- establishment has not supplied any documents such as identity card, pay slip, muster card and other relevant documents from which workman can prove 240 days continuous service before Labour Court. In absence of such documents, evidence of workman at Exh.17 has been rightly relied by Labour Court, Surendranagar. For that, Labour Court, Surendranagar has not committed any error which requires interference by this Court. This aspect in detail has been examined by this Court in SCA No.19619/2007 with SCA 19620/2007, decided on 13.12.2007. Relevant observations of aforesaid case are in Para.12 to 17, which are quoted as under:
"12. The application was given by respondents vide exh 6 calling certain documents from petitioner, but not produced by petitioner. Vide exh 11, respondent workmen Shri Hirabhai Thakkarsinhbhai and Shri Narshihbhai Vithhalbhai and vide exh 27, one witness Batukbhai Kesavlal Pandya was examined before Labour Court, which was cross examined by petitioner. The petitioner has produced muster role for the period of 20/1/1987 to 30/9/1991. The seniority list was also produced vide exh 34, and one witness Shri Kalidas Uzamdas Solanki was examined on behalf of petitioner vide exh 37. He was aware about this two workmen Shri Hirabhai Thakkarsinhbhai and Shri Narshihbhai Vithhalbhai and he admitted that both were working on road and they were doing repairing work and their presence was marked in the muster role and accordingly, payment was made to respondent.
13. Thereafter, Labour Court has considered evidence of workmen and relevant record which was produced by petitioner and also considering the evidence of Shri Ajay Chauhan vide exh 39 - petitioner witness and thereafter, appreciating seniority list and drawing adverse inference against petitioner and come to conclusion that petitioner has violated Section 25F, G and H.
14. The Labour Court has properly appreciated the evidence on record and arrived the correct conclusion and considering the decision of Apex Court. In case of R. M. Yellatty Vs. Assistant Executive Engineer reported in (2006) 1 SCC 106 = 2005 (9) SCALE 139.
15. It is not the case of petitioner that Section 25 G and H complied by petitioner while terminating the service of respondent.
16. Recently, similar question is decided by this Court in SCA no. 29146/2007 with SCA no. 29147/2007 dated 29/11/2007, all these aspects have been examined by this Court wherein Labour Court has passed identical award in case of Executive Engineer & Ors. v. Shantuben Chhaganbhai Makwana reported in 2007 Lab IC 3661 as well as Executive Engineer (Stores) and another and Harsha M. Jani, reported in 2007 III LLJ page 703. In Executive Engineer & Ors. v. Shantuben Chhaganbhai Makwana reported in 2007 Lab IC 3661, this Court has considered the decision of the apex court in case of RM Yellatty (supra) as well as the decision of the apex court in case of M/s.
Sriram Industrial Enterprises Ltd. Versus Mahak Singh & Ors. reported in 2007 (3) Supreme Today page 553 and observed that In the said decision, the apex court has considered the decision in case of Range Forest Officer v. ST Hadimani reported in (2002) 3 SCC 25 and other all relevant decisions including the decision in case of Surendranagar District Panchayat versus Dahyabhai Amarsinh (2005) 8 SCC 750. In the said decision, the apex court has also considered the earlier three Judges decision of the apex court in case of RM Yellatty v. Assistant Executive Engineer (2006) 1 SCC 106 and held that the earlier decision of the apex court inRange Forest Officer v. ST Hadimani reported in (2002) 3 SCC 25 has been watered down. Relevant observations made by this court after considering the aforesaid decisions, in case of Executive Engineer & Ors. v. Shantuben Chhaganbhai Makwana reported in 2007 Lab IC 3661 from para 10 to 14 are reproduced as under:
"10. Law on this subject has recently been examined by the Apex Court and decided that in such circumstances when the workman is not having any evidence to prove completion of 240 days continuous service within one year, then, in such circumstances, employer shall have to produce documentary evidence which are in possession of the employer and if the evidence of the workman has not been challenged in cross examining the workman concerned, then labour court has right to believe the oral evidence of workman. In RM Yellatti versus Asstt.Executive Engineer, reported in 2005 (9)SCALE 139 = 2006 (1) SCC 106, this aspect has been examined by the apex court. It has been observed by the apex court in paras 17, 18 and 19 as under:
"17.
Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workmen stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non production of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down basic principle, namely, that the High Court under Art. 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.
18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22/11/1988 to 20/6/1994. This period is the period borne out the certificate (Ex. W1) issued by the former Asstt. Executive Engineer the evidence in rebuttal from the side of the management produce five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex. M4 and Ex. M5, which indicated that the workmen had worked for 43 days during the period 21/1/1994 to 20/2/1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour Court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstance, we are of the view that the Division Bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the Labour Court and confirmed by the learned Single Judge vide order dated 7/6/2000 in writ petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workmen are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workmen was working in SD 1, Athani and Ex. W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani-591304. In the present case, the defence of the management was that although Ex. W1 refers to the period 22/11/1988 to 20/6/1994, the workmen had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the Labour Court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workmen had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the Division Bench of the High Court had erred in interfering with the concurrent findings of fact.
19. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earner, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of terminations. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper record of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government."
11. Recently, on 8th March, 2007, Apex Court has considered same issue in case of M/s. Sriram Industrial Enterprises Ltd. Versus Mahak Singh & Ors. reported in 2007 (3) Supreme Today page 553. In the said decision, the apex court has considered the decision in case of Range Forest Officer v. ST Hadimani reported in (2002) 3 SCC 25 and other all relevant decisions including the decision in case of Surendranagar District Panchayat versus Dahyabhai Amarsinh (2005) 8 SCC 750. In the said decision, the apex court has also considered the earlier three Judges decision of the apex court in case of RM Yellatty v. Assistant Executive Engineer (2006) 1 SCC
106. Ultimately, after considering all relevant decisions in respect of onus of proof, whom to prove 240 days continuous service and how to discharge such burden by the workman and presumption of non production of documents by the employer. Relevant observations made by the Apex Court in paras 23 and 34 of the said decision are reproduced as under:
"23. Regarding Mr. Desai's submission that this Court had consistently laid down that it is for the workmen to prove that they had worked for 240 days in a calendar year, Mr. Viswanathan submitted that this Court had in the case of R.M.Yellatty vs Assistant Executive Engineer, reported in (2006) 1 SCC 106, observed as under:
Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the afore stated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workmen stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non production of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground for the tribunal to draw an adverse inference against the management.
Lastly, the above judgments lay down basic principle, namely, that the High Court under Art. 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.'
34. Having correctly interpreted the provisions of Section 6N of the UP Act, the High Court rightly drew an adverse presumption for non-production of the Attendance Registers and the Muster Rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in case of range Forest Officer's case (supra) were watered down by the subsequent decision in R.M. Yellatty's case (supra)and in our view the workman had discharged their initial onus by production of the documents in their possession."
12. Second question is Section 25-G and 25-H, whether applicable in case when section 25F has not been violated or when workman has not completed 240 days continuous service, then whether section 25G and 25H would apply or not. Of course, this question is not relevant in view of the facts of the present case on hand because in this case, Labour Court has given clear finding that there has been violation of section 25F of the ID Act and Labour Court has also held that the workmen concerned have completed 240 days continuous service. However, this case has been examined by this court that section 25G and 25H of the ID Act, 1947 are independent and distinct sections and for claiming benefit thereof, it is not necessary for the workman to contend and prove that there has been breach of section 25F of the ID Act, 1947. Moment, termination of workman is covered by the definition of 'retrenchment' under section 2(oo), then, irrespective of the fact whether she/he has been completing 240 days continuous service or not, court can independently examine as to whether Section 25G and 25H are followed by the employer or not as decided by this court (Coram: Hon'ble Mr.Justice M.R.Shah,J.) in SCA No. 6262 of 2005 with SCA No. 12616 of 2005 dated 25th July, 2005. In said matter, this court has observed as under in para 12, 13, 14 and 15:
"12.
The Labour Court on appreciation of the evidence and considering the fact that the workman has worked only for 3 days in the year 1983 and for 69 days in all in the year 1984-85 as Daily Wager, has held that as the workman has not completed 240 days in the preceding year of retrenchment, there is no breach of Section-25-F of the Industrial Disputes Act. However, considering the fact that new employees came to be appointed on 19.12.1995, the Labour Court has on appreciation of evidence held that there is breach of Section-25-G of the I.D.Act by not calling upon the workman for reemployment. This is finding of fact arrived at by the Labour Court on appreciation of evidence which is not required to be interfered by this Court in exercise of the powers under Articles 226 and 227 of the Constitution of India. Under the circumstances, finding given by the Labour Court that there is breach of Section-25-G of the I.D.Act, in my opinion, is not required to be disturbed and the same is not disturbed and is accordingly confirmed.
13. The next question is with regard to the contention raised on behalf of the management relying upon the judgment of the Division Bench of this Court in case of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD, 2003 (3) GLR 2590 that for attracting and applicability of Section-25-G and 25-H of the I.D.Act, retrenchment covered by Section-25-F is must, is required to be considered by this Court. Firstly, it is required to be noted that in the said case, the said controversy was not directly involved and on facts, it was found that there was no retrenchment by the employer at all and the Division Bench was considering the same and has made the passing observations which reads as under :
"Apart from that, the attractability or the applicability of Sections-25-G and 25-H would be dependent on the emergence and existence of the condition precedent of retrenchment."
The aforesaid observation seems to be concerning the facts of that case where it was found that there was no retrenchment at all by the employer. Therefore, contention of Shri Clerk, learned advocate for the management corporation that for applicability and attractability of Sections-25-G and 25-H, retrenchment covered by Section-25-F is must, is not correct and cannot be accepted. Even otherwise, as held by the Hon'ble Supreme Court of India in case of CENTRAL BANK OF INDIA (Supra), benefit of Section-25-H would not be confined to the category of the retrenched workmen covered by Section-25-F alone who have been in continuous service for not less than one year. It appears from the judgment and order passed by the Division Bench of this Court relied upon by Shri A.K.Clerk, learned advocate appearing on behalf of the management corporation, attention of the Division Bench was not drawn to the decision of the Hon'ble Supreme Court in case of CENTRAL BANK OF INDIA (Supra) and the Division Bench has not considered the said binding decision.
14. At this stage, the judgment of the Hon'ble Supreme Court in the case of GOVT OF A.P. V. B. SATYANARAYANA RAO, reported in (2000) 4 SCC 262 is required to be considered. While considering the rule of per incurim, the Hon'ble Supreme Court in the said decision in para-8 has held as under :
"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."
15. There is one another decision of this Court also in case of BHARAT INDUSTRIES V. KHEMIBEN VALJIBHAI AND OTHERS, 1995(1) GLH (UJ) 6 where also, similar view is taken with regard to applicability of Section-25-G and 25-H to those employees irrespective of completion of 240 days and / or retrenchment as envisaged under Section-25-F of the I.D.Act. Considering the fact that the Division Bench of this Court in cited decision of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD, 2003 (3) GLR 2590 has not considered the decision of the Hon'ble Supreme Court in case of CENTRAL BANK OF INDIA (Supra) which is a superior court judgment, assuming that the same meaning is to be given to the judgment of the Division Bench in case of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD as suggested on behalf of the management, in that case also, considering the judgment of the Hon'ble Supreme Court, the same is not required to be considered treating it as per incuriam."
17. See decisions in case of (i) Rameshwar Dayal and Presiding Oficer, Labour Court No. VI, Delhi and another reported in 2007 (III) LLJ page 729; (ii) Executive Engineer versus Harisingh Modhbhai Gadhvi reported in 2007 (3) GLH 220; (iii)Dhrangadhra Municipality versus Ganpatbhai Jethabhai Makwana reported in 2007 (3) GLH 197; (iv) Gujarat Pollution Control Board versus Jagdish N. Chavda reported in 2007 (3) GLH page 356; (5) Management, Malaysian Airlines Chennai versus Presiding Officer, Principal Labour Court, Chennai and another (2007) 5 MLJ 1300."
(See : Rameshkumar v. State of Haryana, 2010 (1) Scale 432; Harjinder Singh v. Punjab State Warehousing Corporation, 2010 (1) Scale 613; Krishnan Singh v. Executive Engineer, Haryana State Agriculture Marketing Board, Rohtak (Haryana), 2010 (2) Scale 848 and Anoop Sharma v. Executive Engineer, Public Health Division No.1, Panipat (Haryana), 2010 II CLR 1.)
8. It is necessary to note that aforesaid decision of this Court has been confirmed by Apex Court which was challenged by petitioner - establishment (Page-46) in SLP No.8480 & 8481 of 2008, decided on 10.7.2008 where SLP filed by petitioner has been dismissed.
9. Therefore, considering aforesaid view in identical matter of co-workman taken by this Court which is confirmed by Apex Court and looking to evidence on record and documents which have been demanded by workman has not been produced on record completely by petitioner, therefore, Labour Court has rightly relied upon decision of Apex Court in case of R.M.Yellatti (supra). Therefore, Labour Court, Surendranagar has rightly examined reference and adjudicated properly on the basis of evidence and Labour Court has given detailed reasoning in support of its conclusion and rightly appreciated evidence which has been produced on record before Labour Court by respective parties. For that, Labour Court has not committed any error which requires interference by this Court while exercising powers under Article 227 of the Constitution of India. Therefore, there is no substance in present petition. Accordingly, present petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.
10. It is directed to petitioner to implement award in question and extend all benefits including wages from date of award till date of actual reinstatement with continuity of service within a period of three months from date of receiving copy of present order.
[ H.K.RATHOD, J. ] (vipul) Top