NEUTRAL CITATION
C/SCA/13870/2010 JUDGMENT DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13870 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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 or any order made thereunder ?
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ISMAIL HASANBHAI AAMDA
Versus
GUJARAT MARITIME BOARD
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 11/10/2023
ORAL JUDGMENT
1. Heard learned advocate Mr. U.T. Mishra for the petitioner and learned advocate Page 1 of 8 Downloaded on : Mon Oct 16 20:34:31 IST 2023 NEUTRAL CITATION C/SCA/13870/2010 JUDGMENT DATED: 11/10/2023 undefined Ms. Neha Kayastha for learned advocate Ms. Sejal K. Mandavia for the respondent.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:
"(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned Award marked Ann.A to this petition, being illegal, perverse and contrary to record.
(B) Direct the respondent to reinstate the petitioner with full backwages and continuity of service.
(C) To grant such other and further relief as may be deemed fit in the interest of justice."
3. It is the case of the petitioner that the petitioner was working as a Sea-man Page 2 of 8 Downloaded on : Mon Oct 16 20:34:31 IST 2023 NEUTRAL CITATION C/SCA/13870/2010 JUDGMENT DATED: 11/10/2023 undefined with respondent Gujarat Maritime Board since last one year and was earning Rs.1240/- per month and his services were terminated on 30.11.1989 illegally without following the due procedure of law. The workman preferred Reference (LCJ) No. 526/1991 before the Labour Court, Jamnagar. The Presiding Officer, Labour Court No.2, Jamnagar vide order dated 31.07.2009 rejected such reference. Being aggrieved by the impugned Award, the petitioner has approached this Court challenging the impugned Award.
4. Learned advocate Mr. Mishra for the petitioner candidly submitted that though the petitioner has worked only for 10 months as per his admission in the cross examination at Exh.12, there is a breach of provision of section 25G and 25H of Page 3 of 8 Downloaded on : Mon Oct 16 20:34:31 IST 2023 NEUTRAL CITATION C/SCA/13870/2010 JUDGMENT DATED: 11/10/2023 undefined the Industrial Disputes Act, 1947 (For short "the ID Act") as according to the petitioner, juniors to the petitioner are continued in service. He referred to and relied upon the deposition of the witness of the respondent wherein it is stated that name of the petitioner appears at Serial No.53 and names of Karim Jusab and Dinesh Maganlal Vyas appears at Serial No. 54 and 55 respectively in the Muster Roll and therefore, the petitioner is senior and without issuing any notice to the petitioner to rejoin the service, his services are terminated with effect from 30.11.1989. It was therefore, submitted that there is a clear breach of provisions of section 25G and 25H of the ID Act and the Labour Court has committed an error by rejecting the reference of the petitioner. Page 4 of 8 Downloaded on : Mon Oct 16 20:34:31 IST 2023
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5. Learned advocate Ms. Neha Kayastha for learned advocate Ms. Sejal K. Mandavia for the respondent supporting the order passed by the Labour Court submitted that Labour Court on appreciation of evidence on record, has rightly rejected the reference preferred by the petitioner and therefore, no interference may be made in the impugned Award.
6. Considering the submissions made by the learned advocates for both the sides, it appears that the petitioner has worked only for 10 months for 197 days from October 1988 to July 1989. The petitioner has therefore, admittedly not worked for 240 days as per section 25B of the ID Act.
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7. With reference to the contention raised on behalf of the petitioner that there is breach of provisions of section 25G and 25H of the ID Act, it is not coming out from the record available on file that the juniors of the petitioner are continued in service. Merely because names of employees are appearing at Serial Nos.54 and 55 in Muster Roll, it cannot be said that they were juniors to the petitioner as there is nothing on record to show that how Muster Roll is prepared by the authority. In such circumstances, contention raised on behalf of the petitioner that juniors to the petitioner are retained in service is without any basis.
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8. Labour Court has therefore, rightly come to the conclusion that as the petitioner did not work for the months of August 1989 and September 1989, it is presumed that the petitioner has abandoned the services with effect from August 1989 and thereafter filed reference by stating that he has been orally terminated with effect from 30.11.1989. Thus, the petitioner without disclosing why he has not attended work from August 1989 has stated that he has been terminated from 30.11.1989 without any justification. Labour Court has therefore, rightly considered such facts and dismissed the Reference. No interference is called for in the impugned order passed by the Labour Court.
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9. Petition is therefore, ordered to be dismissed. Rule is discharged.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 8 of 8 Downloaded on : Mon Oct 16 20:34:31 IST 2023