Gujarat Maritime Board Through ... vs Usman Sulemanbhai
2021 Latest Caselaw 5083 Guj

        C/SCA/8286/2008                                 JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 8286 of 2008


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

================================================================

1    Whether Reporters of Local Papers may be allowed             No
     to see the judgment ?

2    To be referred to the Reporter or not ?                      No

3    Whether their Lordships wish to see the fair copy            No
     of the judgment ?

4    Whether this case involves a substantial question            No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
     GUJARAT MARITIME BOARD THROUGH EXECUTIVE ENGINEER
                            Versus
                     USMAN SULEMANBHAI
================================================================
Appearance:
MS NEHA KAYASTHA FOR MS SEJAL K MANDAVIA(436) for the Petitioner
RULE SERVED(64) for the Respondent(s) No. 1
================================================================

 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                          Date : 06/04/2021

                          ORAL JUDGMENT

1. The petitioner has filed the present petition under Articles 226 and 227 of the Constitution of India challenging the impugned award dated 17.03.2008 passed by the learned Presiding Officer, Labour Court, Junagadh in Reference (L.C.J.) No.30 of 1997, whereby the reference of the respondent is

C/SCA/8286/2008 JUDGMENT

partly allowed to the extent that the petitioner shall reinstate the respondent without back wages.

2. It is contended by the petitioner that the respondent - workman has filed the reference contending that he was serving with the petitioner - Board since 1983 and in the year 1994, he has been terminated from the services without following due procedure of law and he has prayed for reinstatement with all other consequential benefits. It is contended by the petitioner that the Board has filed detailed reply wherein it has been specifically raised the point that the workman has worked from 01.12.1983 to 21.07.1984 and he has not completed 240 days in service and the workman himself has stopped to come on the work and he was not terminated by the Board. It is also contended by the petitioner that the Board has already raised the point of limitation that the reference was made after almost 13 years and there is no explanation was offered by the workman for filing the reference after 13 years. It is also contended by the petitioner that though there was no evidence on record, the Labour Court has erroneously passed the impugned award in favour of the respondent. It is further contended by the petitioner that the impugned award needs to be interfered with by this Court and the same is not sustainable in the eyes of law and, therefore, the same may be quashed and set aside.

3. Heard Ms.Neha Kayastha, learned advocate for Ms.Sejal Mandavia, learned advocate for the petitioner - Board. Though served, none has appeared on behalf of the respondent.

4.   Ms.Neha        Kayastha,   learned       advocate    for     Ms.Sejal






          C/SCA/8286/2008                                     JUDGMENT

Mandavia, learned advocate for the petitioner - Board has submitted the same facts which are narrated in the memo of petition and has submitted that though there was no oral or documentary evidence produced by the workman to substantiate his plea and he has not completed 240 days in the year, the Labour Court has committed serious error of facts and law in granting the prayer of reinstatement. She has submitted that as per the version of the Board, the workman has worked for 215 days during the period from 01.12.1983 to 21.07.1984. She has submitted that the Board has not terminated the service of the workman, but the workman himself has stopped to come on work and, therefore, there was no question of any breach of the Rules of the Industrial Disputes Act. She has submitted that the Labour Court itself has observed in the impugned award that the workman has not produced any oral or documentary evidence and yet the Labour Court has erroneously passed the impugned award of reinstatement. She has submitted that the reference was made after 13 years is one of the factor and has prayed to quash and set aside the impugned award passed by the Labour Court.

5. Having considered the submissions of the learned advocate for the petitioner coupled with the facts which has been narrated in the impugned award passed by the Labour Court in Reference (L.C.J.) No.30 of 1997, it appears that as per the claim of demand by the workman, he has served as a Khalasi in the Board on daily wage of Rs.9.50 and his services came to be terminated w.e.f. 01.07.1994 without any notice or notice pay thereof. It is averred in the claim of statement that the conciliation proceedings was also carried out, but it has

C/SCA/8286/2008 JUDGMENT

failed and, therefore, the reference came to be filed before the Labour Court by the concerned authority. It also appears from the record that the Board has filed its reply contending that the workman has not completed 240 days in a year and he was not terminated by the Board, but the workman himself has stopped to come on work. It is also the stand of the Board that the reference has been filed after 13 years of delay and there is no explanation to that effect. One of the other point is that the workman has worked only 215 days during his carrier and, therefore, there is no ground for the workman to file such a reference. It is also the stand of the Board that there was no breach of any provisions of the Industrial Disputes Act. The claim of the workman is not tenable in the eyes of law.

6. Having considered the pleadings of the parties coupled with the impugned award, it appears that to substantiate his pleadings, the workman himself has not examined nor he has produced any evidence regarding his working for 240 days in calender year. At this juncture, it is pertinent to note that the Labour Court has specifically observed in para-9 of the impugned award that the workman has never appeared before the Labour Court though he was served with the notice. It is also observed by the Labour Court that no oral or documentary evidence has been produced on behalf of the workman before the Labour Court. Thus, the pleadings of the workman has not been substantiated by any oral or documentary evidence. Even though, the Labour Court has granted the prayer of the workman of reinstatement. It is well settled law that mere pleadings cannot be treated as an evidence in the eyes of law. But, the party has to substantiate his pleadings by leading the oral as well as documentary evidence. Admittedly, there is no

C/SCA/8286/2008 JUDGMENT

oral or documentary evidence produced by the workman to substantiate his plea that he has worked for 240 days in a calender year and his service came to be terminated by the Board without following due process of law. Since there is no iota of evidence on record produced by the workman, the Labour Court has committed serious error of facts and law in granting the prayer of the workman of reinstatement.

7. In view of the aforesaid, the impugned award passed by the Labour Court is not sustainable in the eyes of law and it is factually and legally erroneous, which requires interference by this Court.

8. In view of the above, the present petition is liable to be allowed. Accordingly, the present petition is allowed. The impugned award dated 17.03.2008 passed by the learned Presiding Officer, Labour Court, Junagadh in Reference (L.C.J.) No.30 of 1997 is hereby quashed and set aside. Rule is made absolute accordingly. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL