Gujarat High Court
Executive Engineer, Public Health ... vs Rajendrasinh Gulabsinh Gohil on 21 April, 2025
NEUTRAL CITATION
C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9372 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9401 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9403 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9404 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9783 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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EXECUTIVE ENGINEER, PUBLIC HEALTH DEPARTMENT
Versus
RAJENDRASINH GULABSINH GOHIL
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Appearance:
MR. BHARGAV V PANDYA(7103) for the Petitioner(s) No. 1
MR DARSHIT D THAKKAR(12434) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 21/04/2025
ORAL JUDGMENT
1. The issue involved in all the petitions are common, therefore, the same is decided by a common judgment. The facts involved in Special Civil Application No.9372 Page 1 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined of 2022 is taken into consideration.
2. The present petitions are filed under Article 226 and 227 of the Constitution of India challenging the award passed by the learned labour court, Vadodara in Reference (LCV) No.302 of 2006 dated 28.09.2021 whereby the directions were issued upon the present petitioner to reinstate the respondent alongwith the benefit of lump sum compensation of Rs.65000/- in lieu of the back wages.
3. It is the case of the present petitioner that the dispute was raised before the learned labour court claiming that the respondent workman has worked since 1995 continuously, however, without following the due procedure under the Act has terminated the services of the respondent on 30.04.2006, therefore, claiming the benefit of reinstatement alongwith other consequential benefits the reference was filed which was registered being Reference No.302 of 2006. The petitioner appeared before the learned reference court and filed the statement of claim and the learned reference court after hearing the parties and the evidence adduced awarded the reference in favour of the respondent which Page 2 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined is a subject matter of challenge before this Court.
4. Heard learned advocate Mr.Bhargav Pandya for the petitioner and learned advocate Mr.Darshit Thakkar for the respondent.
5. Learned advocate Mr.Pandya submits that the appointment of the respondent was made without following the due procedure and dehorse the recruitment rules, therefore, the Board has taken the decision on 30.11.1984 to terminate all such employees who are illegally appointed and the present respondents were appointed after the decision taken on 30.11.1994. Learned advocate Mr.Pandya submits that learned reference court, by drawing adverse inference against the present petitioner has awarded the reference in favour of the respondent by ignoring the fact that before terminating the services, notices were issued to the workmen alongwith the payment of retrenchment compensation. Learned advocate Mr.Pandya submits that the said notice as well as the cheque was sent through Registered A.D. However, respondent has refused to accept the same, therefore, the envelopes alongwith the cheque has been produced before the Page 3 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined learned reference court which was marked as Mark 24/2. Learned advocate Mr.Pandya submits that challenging the termination, petition came to be filed before this Court, however, this Court did not enter into the merits of the case and subsequently it was withdrawn with a view to approach before the learned labour court by filing a reference. Learned advocate Mr.Pandya submits that as all the respondents were illegally appointed, after following due procedure under section 25(F) of the ID Act the services were put an end to. However, without considering the same, learned reference court has awarded reference in favour of the respondent, therefore, the same is required to be interfered with and the petitions are required to be allowed.
5.1. Learned advocate Mr.Pandya has relied on the decision rendered by the Apex Court in the case of Surendranagar District Panchayat vs Dahyabhai Amarsinh reported in 2005 8 SCC 750 and submitted that it is the duty of the workman to produce the cogent evidence to establish the claim of 240 days and in absence of any proof, the burden cannot be shifted on Page 4 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined the petitioner and therefore, it is prayed that adverse inference which was drawn by the learned labour court while awarding the reference in favour of the respondent is erroneous and on that ground also, these petitions are required to be allowed.
6. Per Contra, learned advocate Mr.Thakkar appearing for the respondent submits that all the respondents were given the cheque in lieu of the compensation which is to be paid while acquiring the land of the respondent. On being assured that they would be provided the service, the land owners had agreed to give the land for the acquisition purpose without receiving any amount towards the compensation. After taking the work for some time, when they became entitled for the benefits of 17.10.1988 G.R., their services were terminated in violation of the provisions of the ID Act. It is submitted by the learned advocate Mr.Thakkar that in all, 14 employees were terminated, out of that six workman filed the reference and five references were decided in favour of the respondent, one is still pending before the learned labour court, it is submitted by the learned advocate Mr.Thakkar that as per the evidence adduced Page 5 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined before the learned labour court in the nature of cross- examination of the witness of the respondent, it is admitted that after terminating the service, the tender was published by the petitioner, calling the people for the job of the identical nature which was performed by the respondent. Learned advocate Mr.Thakkar submits that after serving for more than 10 years continuously, the services were terminated by projecting illegal services.
6.1. Learned advocate Mr.Thakkar submits that the office order produced below Mark 10/2 suggests that respondents were granted fix pay on 08.07.2002. Learned advocate Mr.Thakkar submits that to prove the continuous service, the wage slip was produced below Mark 10/3 to 10/4 as well as the statement was produced below Mark 25/11 showing that the respondents have been taken on fix pay from 01.12.1994 to 31.12.2005. In addition to that, respondents have also produced the list of the workman who are Daily Wagers below Mark 25/2 and has also filed application below Exh.15 seeking production of the wage register, the muster roll, appointment order for the period where the Page 6 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined respondents have worked. In absence of the production of such documents, learned reference court has drawn the adverse inference in favour of the respondent as per the decision rendered by the Apex Court in the case of R.M. Yellatti vs The Asst. Executive Engineer, reported in (2006) 1 SCC 106, no error is committed by the learned reference court in granting the order of reinstatement alongwith lump sum compensation of Rs.65,000/- in lieu of back wages and therefore the petition deserves to be dismissed.
7. Having considered the arguments advanced by learned advocates for respective parties and on referring the evidence which is produced alongwith the memo of the petition as well as with the reply, it emerges that the appointment of the respondent was made from the year 1995 onwards. They had served up to 30.04.2006 and on referring the order of termination, it emerges that alongwith the termination order, the petitioner has sent the retrenchment compensation of Rs.47,096.50/-. The notice which is part of the record suggests that respondent entered with the petitioner Board on 27.12.1996 and served up to 30.04.2006. The chart Page 7 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined showing the date of joining as well as the date of termination of each respondent is reproduced herein below:-
Sr. Date of Date of
Name of the Employee
No. Joining Termination
1 Rajendrasinh Gulabsinh Gohil 27.12.1996 30.04.2006
2 Uoendrasinh Chatrasinh Vaghela 12.02.1995 30.04.2006
3 Dilipsinh Sundersinh Padhiyar 11.04.1998 30.04.2006
4 Ravjibhai Gulabbhai Gohil 07.02.1995 30.04.2006
5 Dilipsinh Bhagwansinh Gohil 11.04.1998 30.04.2006
7.1. It emerges that the said notice alongwith the cheque has not been accepted by the petitioner, therefore, same returned with an endorsement of refused. On referring the cross-examination of the workman below Exh.18, it emerges that there are 14 other workmen who were engaged alongwith the respondent by the petitioner Board. It is admitted by the workman that notice produced below Mark 15/1 is refused to be accepted. It is also admitted by the workman that after termination, no other employees were engaged on regular or daily basis. As against the same, if one would refer the evidence of the witness of the petitioner who was examined below Exh.29, then he admits the identity card issued to the respondent produced below Mark 9/1, the Page 8 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined circular produced below Mark 9/2 to 9/3 and the Provident Fund slip produced below Mark 9/4. It is also admitted by the witness of the petitioner that the workman who completed five or ten years has been given the benefit of circular of Daulatbhai Parmar. It is also admitted by the witness that in the termination order the reason is stated to save the funds to meet with the expenditure. However, subsequently the tenders were issued which is produced below Mark 21/1 calling other workman for work which is of identical in nature of the present workman, it also emerges from the record that the respondents were engaged against the compensation which is to be paid in the acquisition proceedings and the land owners were agreed for the same. The said fact is reflected from the representations which are made by the Mandal to the petitioner. 7.2. On referring the circular which is produced before the learned reference court granting the benefit of fix pay of Rs.2550/-, it transpires that the date of completion of 10 years mentioned in the said circular is 07.02.2000. It also emerges that initially the reference was dismissed in absence of any evidence produced by the workman in Page 9 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined the year 2006, thereafter it was restored in the year 2013 and on being restored, the statement of claim was produced on 28.11.2013. The learned reference court has referred the evidence below Mark 25/1 which is the list of employees, where in seniority, number of the petitioner was mentioned at Sr.No.84. The pay scale in the said statement is mentioned of Rs.2550 to 3200/-. The said seniority list is a part of the reply at page No.137 suggesting the name of the present petitioners which was not controverted by the petitioner either before learned labour court or before this Court. The said list also suggests the educational qualification, the date of joining and date of completion of five years as per the circular dated 17.10.1988. In addition to that, the annual statement of contributory provident fund was produced below Mark 10/5 for the period of 2003-2004, 2004-2005 and 2005-2006, which suggests that the appointment of the respondent was nor irregular appointment, neither illegal, however, only to deprive the benefits of GR dated 17.10.1988, order of termination is passed.
7.3. So far as the contention with regard to the violation of Page 10 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined section 25(g) and 25(h) of the ID Act is concerned, the learned labour court has relied on the Exh.29 which is cross-examination of the witness of the employer. As per the said cross-examination, it is admitted that the work being carried out by the contractual employee and the tender was published inviting the employees to do the work under contract. On referring the said cross- examination the learned reference court held that there is a breach of Rule 81 and 82 alongwith section 25(g) of the ID Act.
7.4. From the above cross-examination it emerges that on one hand, the employer has retrenched the workman and on the other hand had engaged the contractors for supplying man power, it is undisputed fact that as on date also, the work which was carried out by the employee is available.
8. In that background, this Court is of the view that learned labour court is justifying in holding that there is a breach of section 25(g) and 25(h) of the ID Act and has awarded the reference in favour of the respondent. Therefore, these petitions deserves to be dismissed.
9. It is needless to clarify that the lump sum compensation, Page 11 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025 NEUTRAL CITATION C/SCA/9372/2022 JUDGMENT DATED: 21/04/2025 undefined as awarded by the learned labour court has been received by the respondent pursuant to the order passed by this Court dated 09.12.2024.
10. Resultantly, these petitions are dismissed.
(M. K. THAKKER,J) NIVYA A. NAIR Page 12 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:43:05 IST 2025