Gujarat High Court
Rajkot District Panchayat vs Jayaben Mavjibhai on 13 August, 2003
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT
1. Heard learned advocate Mr.H.S.Munshaw on behalf of the petitioner - Panchayat and learned advocate Mrs.D.T.Shah for respondent workman.
2. Both these petitions filed by the very Panchayat Rajkot District Panchayat challenging the common award passed by the Labour Court, Rajkot in Reference No.90 / 1985 and 1118 / 1986 dated 13th August, 1993 and therefore, both these petitions are being disposed of by this common judgment. In the impugned award passed by the labour court, the labour court has set aside the termination order and directed the petitioner to reinstate the workman in service on original post within one month from the date of publication of the award and to pay 50 % backwages of the interim period from January, 1985 till the date of reinstatement of the workman in service.
3. The first petition - Special Civil Application No.12569 / 1993 is admitted by this Court while issuing Rule and also granted ad-interim relief in terms of para-8[C] to the extent of backwages only vide order dated 19.1.1994 and similarly in second petition also S.C.A. No.12570 / 1993, the same is also admitted by this Court while issuing Rule and granted ad-interim relief in terms of para-8[C] to the extent of backwages only. The learned advocates for both the parties, have fairly admitted before this Court that there is no stay against reinstatement and in pursuance thereof, the workman has been reinstated in service by the petitioner Panchayat. Learned advocate Mrs.D.T.Shah has submitted that the present respondent workman is still working with the petitioner Panchayat from the date of reinstatement by the District Panchayat i.e. from the year 1994 and continuously remained in service upto 2003, meaning thereby, for more than nine years. Therefore, this is relevant consideration and factor while deciding the controversy raised in both these petitions filed by the petitioner Panchayat.
4. Learned advocate Mr.H.S.Munshaw for the petitioner Panchayat has submitted that the respondent workman was appointed as daily wager for the work as and when the work required. That the respondent workman initially engaged as daily wager in the year 1980 and thereafter, she remained in service upto 1985 and had never completed 240 days continues service in a calender year and working days of the respondent workman was produced before the labour court vide Exh.13/1 and 13/3 wherein it was shown the working days of the respondent workman by preparing the statement from the original record and according to him, even the said statement has also not reflected the continuity of service of workman for 240 days in twelve calender month. Therefore, learned advocate Mr.Munshaw submitted that the labour court has committed gross error in coming to the conclusion that Section 25-F of the I.D.Act has been violated by the Panchayat. He also contended that the documents were exhibited with the consent of the respondent workman but the same has been ignored by the labour court and therefore, finding given by the labour court is contrary to the record which requires to be interfered by this Court. However, he submitted that once the termination is not illegal or contrary to Section 25-F of the I.D.Act, 1947, then, there was no need to pass any orders granting backwages in favour of the respondent workman. He has also objection the direction of the labour court granting 50 % backwages of the interim period.
5. Learned advocate Mrs.D.T.Shah for the respondent workman has submitted that the respondent workman has been engaged by the petitioner in the year 1980 and who remained in service upto 1985. In between, the first termination effected in January, 1985 and thereafter, again in the conciliation proceedings, she came to be reinstated but subsequently, on 1st January, 1986 again termination order was passed against the respondent workman by the Panchayat petitioner herein and that is how, two separate References were made by the concerned authority to the labour court for adjudication. She also submitted that in respect of termination made in January, 1985, Reference was made in the year 1985 by the concerned authority and in respect of second termination on 1st January, 1986, Reference was made in the year 1986 which also came to be referred for adjudication in the year 1986. Thereafter, she submitted that statement of claim was filed by the workman and the workman was examined before the labour court and in her evidence, she had specifically made clear that she remained in service for the period from 1980-85 continuously and had completed 240 days continues service with the petitioner Panchayat. She also submitted that the petitioner Panchayat has produced statement at Exh.12/1 & 13/2 wherein merely working days have been shown but it is not reflected the entire working days for the whole period from 1980-85 but the petitioner had produced the working days in respect of a particular number of months in each year and therefore, it is not the correct data produced by the petitioner Panchayat before the labour court but it was the duty of the petitioner Panchayat to produce the original attendance register pertaining to the respondent workman which was not in fact not produced by the petitioner for the period from 1980-85. Therefore, the labour court has rightly drawn adverse inference against the petitioner and relied upon the evidence of the respondent workman, for that, the labour court has not committed any error in granting the relief of reinstatement in favour of the respondent workman. However, the issue and quantum of the backwages, is left to the discretion of this Court by the learned advocate Mrs.D.T.Shah and requests that this Court can pass appropriate orders on the issue of backwages part. Lastly she also submitted that there was nothing with the respondent workman to prove her case of completion of 240 days continues service as at the relevant time, the respondent workman was not given any appointment order, nor any termination order or any extract of attendance register or pay slip or not given any pay slip or any other document which could have justified the working days of the workman. Therefore, the workman was not having any document with her since it was not provided to the workman and therefore, the workman was helpless and except her deposition, there was no other evidence available with the workman to prove her case. Therefore, to ask the workman to prove 240 days continues service in absence of such documentary evidence, it was very difficult except to consider the case of the respondent workman only on the basis of the deposition of the workman. She also submitted that when other side petitioner Panchayat having documents and the same were not disclosed before the labour court entirely and therefore, the labour court has rightly drawn adverse inference against the petitioner Panchayat. She also submitted that considering the fact that the respondent workman has been working with the petitioner Panchayat for more than nine years and even for this long tenure period of service, there is no complaint against the respondent workman, the order of reinstatement passed by the labour court should not be disturbed by this Court while exercising the powers under Article 227 of the Constitution of India.
6. I have considered submissions made by the learned advocates for the respective parties. This Court has also perused the impugned award passed by that labour court. In both the References, it is true that the petitioner Panchayat has produced statements vide Exh.13/1 and 13/2 and the same is also produced before this Court also. However, as per the statement produced by the Panchayat, it gives impression as to working days of the respondent workman as disclosed therein and except that the workman had not worked for the rest of the months and year. If that is so, then it was the duty of the petitioner Panchayat to produce entire record before the labour court. Because when the petitioner Panchayat having original record and attendance register pertaining to the respondent workman showing the days attended by the respondent workman, in such case, this Court fails to understand what was the difficulty with the petitioner Panchayat in not producing the entire original record before the labour court. Not to give entire particulars as to rest of the period, certainly gives rise to doubt and suspicious attitude in respect of the conduct of the petitioner Panchayat that something has been concealed by the Panchayat from the Court. To avoid such adverse inference by the Court, the petitioner Panchayat ought to have produced entire original record before the labour court. Therefore, according to my opinion, as per the discussion and observations made by the labour court, the labour court is right in drawing adverse inference against the petitioner Panchayat in respect of the conclusion of completion of 240 days continues service by the workman with the respondents and the labour court has rightly relied upon oral evidence of the workman to the effect that she had remained in continues service with the petitioner Panchayat for the period from 1980-85 and during the period, she had completed continues service of 240 days and at the time of termination, provisions of Section 25-F of the I.D.Act, 1947 has not been followed by the petitioner Panchayat, in other words, no notice, nor any notice pay or any retrenchment compensation was paid to the workman by the petitioner Panchayat and therefore, in such circumstances, the view taken by the labour court cannot be considered to faulty or contrary to the record. It may also be appreciated that when the employer is not giving any document to the workman while engaging or retaining the workman in service and not even at the time of termination from service, or even during the tenure of service, how the employee will be able to produce any documentary evidence to prove the case of the employee. But in the instant case, it has come on record that for the reasons best known to the petitioner Panchayat, the employer has not given any documents to the respondent workman and on the contrary, when it was asked to the workman to prove her case for completion of 240 days continues service, obviously, it was not possible for the workman to prove her case in absence of such documentary evidence admittedly when it was not with her. Therefore, it is nothing but to cause injustice to ask the workman to prove her case of completion of 240 days continuously by leading any documentary evidence. In such circumstances, it was the duty of the employer to rebut such evidence of the workman by producing necessary original records before the labour court, failing which, the employer has to suffer. This aspect has been examined by the Apex Court in case of M/S TANNERY AND FOOTWEAR CORPORATION OF INDIA LTD. v. RAJ KUMAR AND ANOTHER reported in AIR 2002 Supreme Court 508. The relevant observations made by the Apex Court in aforesaid case, are reproduced as under:
"It is clear that neither the respondent produced any material in support of his case, nor to rebut the claim made by him any material was produced by the appellant. It is in these circumstances that the Labour Court came to the conclusion that on appreciation of the material on record such as Exhibit E-1 [ Appointment letter ] and Exhibit E-4 [ the order of termination that the services of the respondent are not required from 20.7.1976 ] that the respondent had worked with the appellant for 240 days in a year. If that was the material on which the labour court placed reliance as no other material was placed by the appellant in rebuttal of the same, we think that the view taken by the Labour Court is in order. Therefore, the High Court was justified in not interfering with the award made by the Labour Court."
7. In view of observations made by the Apex Cout, when petitioner Panchayat, though, having materials to rebut the evidence of the workman but since the same was not produced and only produced statement prepared by the petitioner which was not in fact sufficient and complete evidence to rebut the oral evidence of the workman, therefore, according to my opinion, the oral evidence of the workman relied upon by the labour court, is just and proper and the labour court is right in believing the case of the respondent workman that she had completed 240 days continues service with the petitioner. Therefore, this is finding of fact after appreciation of oral and documentary evidence and this Court having limited jurisdiction while exercising the powers under Article 227 of the Constitution of India while interfering with such finding of fact. Therefore, the labour court has rightly set aside the termination order and granted relief of reinstatement in favour of respondent workman with continuity of service and for that, the labour court has not committed any error.
8. However, so far as the relief of granting 50 % backwages of the interim period in favour of the respondent workman, in my opinion, the labour court has committed error. It is noted that the labor court has come to the conclusion that gainful employment of the workman is not proved by the petitioner Panchayat and the workman had proved her unemployment for the interim period. But it is also observations of the labour court that it is not believable that the workman would have remained ideal during the interim period and the workman would not have remained unemployed for total period but simultaneously, the labour court has granted 50 % backwages of the interim period. However, in my view, the labour court ought to have considered the nature of work as daily wager and the petitioner being public body, should not suffer heavy financial loss and the fact that the matter remained pending before the labour court for more than seven years, while granting the backwages. Therefore, considering the entirety of the facts and circumstances of the case and the fact that the respondent workman was working as the daily wager at the relevant time for a period of five years from 1980-85 and the total period of seven years for disposal of the Reference and the petitioner being the State Authority, according to my opinion, the rate of backwages granted by the labour court at 50 % of the interim period, is reduced to 25 %, will meet the ends of justice between the parties. Therefore, considering over all aspects of the matter, the backwages awarded by the labour court at the rate of 50 % of the interim period is reduced and ordered to be awarded at the rate of 25 % of the interim period.
9. In the result, both these petitions are partly allowed. The directions issued by the labour court granting reinstatement with continuity of service is not disturbed by this Court and the same is confirmed. However, the backwages awarded by the labour court at the rate of 50 % of the interim period is reduced and ordered to be awarded at the rate of 25 % of the interim period. The common award impugned in both these petitions, passed by the Labour Court, Rajkot in Reference No.90 / 1985 and 1118 / 1986 dated 13th August, 1993 stands modified accordingly. However, the petitioner Panchayat is also directed to implement the award as modified by this Court so far relates to the backwages at the rate of 25 % for the interim period, within two months from the date of receiving the copy of this order and shall also pay the full wages to the respondent workman from the date of award till the date of actual reinstatement.
Rule, in both these petitions, made absolute to the extent indicated above, with no order as to costs.