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Learned advocate Mr. Japee submitted that it is a clear case wherein finding of fact given by Labour Court that Sec.25F is not violated and only Sec.25H is violated. In such circumstances, relief of reinstatement with continuity of service is contrary to provisions of Section 25H of ID Act. He also raised contention before this Court that witness of petitioner who was examined but his cross-examination is not completed and his right to cross-examine has been closed, because, witness was not remained present after some extent in cross-examination made by advocate of respondent. A specific application was made by advocate of respondent to close the evidence of petitioner because Ex.47 witness of petitioner Chief Officer was not remained present subsequent to some extent in cross-examination. Therefore, he submitted that Labour Court has committed gross error in granting relief in favour of respondent. Except that, no other submission is made by learned advocate Mr. Japee before this Court.

Learned advocate Mr. Gadhia appearing on behalf of respondent workman submitted that after award is published, respondent workman was reinstated in service as per order dated 26th March 2009 passed by Resolution from President of Prantij Nagar Palika with signature of Chief Officer. This Resolution has been passed in Special General Board Meeting and accepted the award passed by Labour Court and accordingly, respondent was appointed as Class-IV employee as Daily Wager in Sanitation Department. Accordingly, resume report submitted by respondent workman on 30th March 2009. But, subsequently, his service has been terminated by petitioner Nagar Palika, because, petitioner wants to challenge the award passed by Labour Court, Himatnagar. The relevant documents of order passed in Special General Board Meeting of Prantij Nagar Palika and order of reinstatement issued in favour of respondent dated 26th March 2009, Resume Report dated 27th March 2009 and letter from Chief Officer dated 30th March 2009 are produced on record. The respondent has also produced on record letter dated 2nd April 2009, where, his service was terminated w.e.f. 31st March 2009 only on the ground that petitioner wants to challenge award passed by Labour Court, Himatnagar. Therefore, learned advocate Mr. Gadhia submitted that Special General Board has accepted the award and accordingly, reinstatement order has been passed in favour of respondent and he was reinstated as a Class-IV employee daily wager in Sanitation Department. That resolution has been cancelled and directed the respondent workman not to remain present in service w.e.f. 31st March 2009 by petitioner. Against that, complaint has been made to Chief Officer by respondent on 2nd April 2009. He submitted that service of respondent was terminated by violating the provisions of Section 25F and Section 25H of ID Act. His service was terminated on 8th March 2000. Against which, dispute was raised and statement of claim was filed in support of his case by respondent vide Ex.7. Against which, written statement was filed by petitioner vide Ex.20. Thereafter, purshis was filed by respondent workman vide Ex.8 that without prejudice to his rights and contention, respondent is prepared to resume duty with petitioner. The respondent workman was examined vide Ex.11 and vide Ex.22, one application was made by respondent before Labour Court, Himatnagar calling certain documents from petitioner which has been referred in Para 6 by Labour Court. In support of Ex.22 application, affidavit vide Ex.23 has been also placed on record by respondent. Vide Ex.39, two documents have been produced by petitioner i.e. total working days of respondent has been produced on record by petitioner and details of monthwise presence of workman which comes to 225 days in a period from 1996 to 2000. Thereafter, vide Ex.47, one Mr. Dave, Chief Officer of petitioner was examined, but, his cross-examination is not completed and for that, documentary evidence is to be produced by witness. That cross-examination has been adjourned or postponed and accordingly, note has been made by Labour Court, Himatnagar to that effect. Vide Ex.48, application has been given by respondent to consider the evidence of witness Ex.47 is not completed, because, witness was not remained present subsequently and therefore, the stage of witness of petitioner has been closed by Labour Court vide Ex.52. That application Ex.52 is submitted by advocate of respondent. Vide Ex.53, written arguments have been produced on record along with certain decisions by petitioner. The Labour Court has considered undisputed facts between both parties that workman is appointed in October, 1996 as a Sweeper Daily Wager and his service was terminated on 8th March 2000. The question has been considered by Labour Court whether workman has completed continuous service of 240 days or not. For that, Labour Court, in terms, has come to conclusion that workman has failed to establish 240 days continuous service within 12 preceding months from date of termination. Such finding has been given by Labour Court based on facts at Page 39, internal page 17 of the award. But, he submitted that Labour Court has examined another question whether provisions of Section 25H of ID Act has been complied by petitioner or not ? After evidence of witness of petitioner Ex.47, documents demanded by respondent's advocate from witness of petitioner to produce the details of employees - daily wagers those who have been recruited or appointed subsequent to termination of respondent workman and their date of joining as per Mark 22/5, but, these documents have not been produced by witness of petitioner Ex.37. The respondent workman has produced a list of 36 daily wagers those who have been recruited or appointed subsequent to termination of respondent workman. Therefore, why the said list of 36 workmen have not been produced on record by witness of petitioner ? For that, no affidavit to that effect is filed by responsible officer from petitioner. Considering the evidence of workman Ex.11, after his termination as a Sweeper Daily Wager, new 10 to 15 persons have been recruited or appointed and they are still continue in service with petitioner and they were recruited in the same manner as recruited the respondent workman by petitioner. The witness of petitioner has admitted in his cross-examination as discussed at Page 44, internal page 22 of the award that he will produce details of 36 employees whose who have been recruited/appointed subsequent to termination of respondent workman as per Mark 22/5. These documents, though admitted by witness Ex.47 of petitioner that he will produce it before Labour Court, have not been produced by witness of petitioner as per Mark 22/5 and because of cross-examination which is remained incomplete and thereafter, witness has not entered into the witness box, therefore, learned advocate Mr. Gadhia submitted that Labour Court has rightly drawn adverse inference in light of the facts that documents have not been produced on record by petitioner. Even no affidavit is filed that why such documents have not been produced on record. Therefore, learned advocate Mr. Gadhia submitted that order of termination has been held to be violated the provisions of Sec.25H of ID Act which is mandatory in nature and not complied with by petitioner. Therefore, Labour Court has rightly granted reinstatement in favour of workman. He submitted that when reinstatement order has been passed in favour of respondent, it includes continuity of service, otherwise, Labour Court can pass an award of re-employment. He submitted that under Sec.25H of ID Act; after retrenchment of respondent workman, if any employee is recruited or appointed in the same manner in a same category, then, it is a legal obligation upon employer to recall the services of respondent workman, which was not recalled by petitioner. Therefore, he submitted that Labour Court has rightly granted relief of reinstatement with continuity of service to original post of daily wager.

I have considered submissions made by both learned advocates appearing on behalf of respective parties. The Labour Court has rightly come to conclusion that workman is failed to prove 240 days continuous service in 12 preceding months, therefore, Section 25F of ID Act is not violated, but, Labour Court has also rightly discussed the evidence which are on record and evidence of witness of petitioner Ex.47. The documents/details have been demanded as per Mark 22/5 by advocate of respondent in respect to 36 employees, those have been recruited or appointed in the same manner subsequent to the date of termination of respondent workman, have not been given or produced on record by the petitioner. Not only that, no affidavit has been produced on record in support of facts that why such documents as demanded by workman vide Mark 22/5 have not been produced by petitioner. The case of respondent workman was as per Ex.11 in his evidence, certain new persons have been recruited or appointed in same manner as he was appointed in the post of Sweeper subsequent to termination of workman. Therefore, at that occasion, as per Sec.25H of ID Act, it was a legal obligation upon petitioner to recall the service of respondent workman, but, in fact, it was not recalled by petitioner. Therefore, breach of mandatory provision has been committed by petitioner. Sec.25H being an independent Section, which applies even in case where workman has not completed 240 days continuous service. Section 25H is made applicable in case of retrenchment. Whether workman has completed 240 days continuous service or not, that facts are totally irrelevant while question of compliance of Sec.25H is considered by Labour Court. [See : 2010 (1) SCALE 613 Harjinder Singh v. Punjab State Warehousing Corporation] In light of these facts, Labour Court has rightly come to conclusion that petitioner establishment has violated Sec.25H, because, no details have been produced on record in spite of demand made by workman as per Mark 22/5. No affidavit to that effect is filed by officer of petitioner as to why such documents have not been produced. Therefore, adverse inference has been rightly drawn by Labour Court that after termination of services of respondent workman in the same post as a daily wager, new persons have been recruited/appointed in the same manner as respondent was appointed, therefore, Sec.25H has been violated.

Therefore, considering the reasoning given by Labour Court and also keeping in mind that details though admitted by witness of petitioner Ex.47 that he will produce details as demanded by respondent as per Mark 22/5 in cross-examination, but, that has not been produced, even though, incomplete cross-examination has been closed and right to lead further evidence of petitioner has been closed. No affidavit in support of that as to why documents have not been produced by petitioner, is filed. Therefore, considering the facts, Labour Court has rightly come to conclusion that petitioner establishment has violated mandatory provisions of Sec.25H of ID Act, therefore, respondent workman is entitled right of reinstatement in service. Accordingly, direction order has been set aside and ordinary relief of reinstatement has been granted. The Labour Court has rightly not granted relief of re-employment, therefore, the relief of reinstatement has been granted which includes continuity of service and accordingly, Labour Court has rightly granted benefits of continuity of service in favour of respondent workman. Therefore, contentions raised by learned advocate Mr. Japee cannot be accepted, because, there is no error committed by Labour Court in granting relief in favour of respondent workman. The Labour Court has rightly not awarded any amount of back wages in favour of respondent workman, because, only Sec.25H of ID Act has been violated by petitioner establishment.