State Of Gujarat vs Kanubhai Bhagubhai Rabari
2021 Latest Caselaw 1578 Guj

          C/SCA/1981/2021                                           ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 1981 of 2021

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                            STATE OF GUJARAT
                                  Versus
                        KANUBHAI BHAGUBHAI RABARI
==========================================================
Appearance:
MS ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER(1) for the
Petitioner(s) No. 1
for the Respondent(s) No. 1,2
==========================================================

 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                               Date : 03/02/2021

                                  ORAL ORDER

1. Heard Ms.Asmita Patel, learned Assistant

Government Pleader for the petitioner -

State.

2. By way of filing of this petition, the

petitioner has challenged the award dated

17.02.2020 passed in Reference (T) No.1276 of

2009 by the learned Judge, Labour Court No.4,

Ahmedabad below Exhibit 35, whereby the

learned Judge, Labour Court No.4, Ahmedabad

directed the present petitioner to pay a sum

of Rs.3,00,000/- to the respondent no.1 in

lieu of reinstatement towards full and final

C/SCA/1981/2021 ORDER

settlement within a period 90 days and in

case of default, the petitioner is directed

to pay simple interest @ 9% per annum and

also imposed cost of Rs.1,000/- to be paid to

the present respondent no.1 towards cost. The

order dated 17.02.2020 is under challenge by

way of this petition.

3. It is the case of the respondent - workman

that he was working under the petitioner as a st Watchman from 1 November, 1997 and st continued to work upto 1 May, 2007. The

petitioner terminated the services without

following due procedure of law and without

issuing any notice or notice pay or

retrenchment compensation and thereby, the

petitioner violated Section 25 (f) of the

Industrial Disputes Act, 1947. It was further

alleged by the respondent workman that even

after terminating the services of the

respondent - workman, the persons junior to

the respondent - workman were recruited and

thereby, violated Section 25 (g) of the

C/SCA/1981/2021 ORDER

Industrial Disputes Act, 1947. Though the

petitioner was required to maintain seniority

list and also required to publish the same on

the notice board of the petitioner

organization, the same was not done and

thereby, the petitioner organization also

violated Rule - 77 of the I.D. Act Central

Rules. Before terminating the services of the

respondent - workman, no departmental inquiry

was initiated and without giving any

opportunity to defend, he was terminated and

thereby, the petitioner - organization

violated the principles of natural justice.

4. It was the case of the respondent - workman

that by not calling the respondent - workman

for work, the petitioner violated the

provision of Section 25 (h) of the I.D.Act.

The petitioner - organization has not taken

any approval from the competent authority and

thereby, violated Section 25 (n) of the

I.D.Act. Though the services of the

respondent - workman were terminated as

C/SCA/1981/2021 ORDER

st alleged by him on 1 May, 2007, the

reference was preferred in the year 2009 and

in the reference along with aforesaid

allegations, the respondent - workman also

alleged that the respondent - workman has

served continuously for all these years under

the petitioner and the documents in respect

of his services were in possession of the

petitioner and therefore, in case if it is

the contention in respect of number of days,

he has worked or tenure of his services or

continuity of service is taken by the

petitioner, in that case, those documents are

required to be produced by the petitioner. In

his application raising industrial dispute by

way of reference, the respondent workman

prayed for reinstatement along with back-

wages and all consequential and ancillary

benefits.

5. The petitioner herein who was the respondent

before the labour Court filed the reply to

the claim statement of the respondent -

C/SCA/1981/2021 ORDER

workman vide Exhibit 8 and took a stand that

the present petitioner would not fall within

the definition of industry as defined under

the Industrial Disputes Act. The appointment

of the respondent is illegal and there is no

vacancy on the post of Watchman. The

respondent has never worked as a Watchman and

his appointment was not made by an order in

writing. The respondent workman was actually

a Sweeper under the petitioner and he used to

work only for a period of 2 (two) hours in a

day and the petitioner used to pay fixed

remuneration to the respondent - workman.

According to the petitioner, since the

respondent - workman used to work only for

two hours in a day as a Sweeper and he was

paid fixed remuneration and also considering

the fact that the post of Watchman is already

filled up, a question of giving any

appointment in writing to the respondent -

workman does not arise and therefore, since

his appointment was not regular appointment,

C/SCA/1981/2021 ORDER

there is no service record maintained by the

petitioner and that is the reason, his name

does not figure in the muster roll and no

salary slips were given to the respondent

workman. Since the respondent - workman was

not permanent employee, identity card or

service card was not given to him and as

regards casual labour, no such records are

maintained by the petitioner organization.

6. The learned Judge of the labour Court No.4,

Ahmedabad, after considering all the

materials available on record and also the

oral as well as documentary evidences

produced by the respective parties, came to

conclusion that since no documents are

produced by the petitioner, adverse inference

can be drawn against the present petitioner

and accordingly, it was held that the

respondent - workman has worked for more than

240 days as claimed by him in each year and

in absence of their being any documents which

can help the Court to take contrary view, it

C/SCA/1981/2021 ORDER

was held by the Court that the action of the

petitioner to terminate the services orally st on 21 May, 2002 amounts to violation of

Section 25 (f) of the Act. On appreciation of

the evidences, the learned labour Judge came

to conclusion that there is a clear breach of

Section 25 (g) and (h) and also as no

seniority list was maintained by the

petitioner and the same was not produced on

record, an inference was drawn and also on

the basis of cross examination of the witness

of the petitioner, whereby, the witness had

admitted that the nature of work, which the

respondent workman used to perform, is now

performed by the contract labours and

therefore, the learned labour Judge held that

there is a clear breach of provisions of

Section (g) and (h) of the Act. The learned

labour Court also on the basis of whatever

evidence was produced before it, came to

conclusion that the respondent - workman had

actually worked from 1997 to 2007. The

C/SCA/1981/2021 ORDER

learned labour Court also considered the fact

that merely because the respondent workman

has worked for 10 years as a daily wager, his

services cannot be made permanent or

regularized. The learned Judge also observed

that it is true that the appointment of the

respondent - workman is not done by following

any due process of law and through proper

recruitment process and therefore,

considering the totality of facts and

circumstances, the learned Judge of the

labour Court considering the fact that the

respondent - workman has worked for more than

10 years under the petitioner, passed the

order directing the petitioner to pay a sum

of Rs.3,00,000/- towards full and final

settlement in lieu of reinstatement.

7. Ms.Asmita Patel, learned Assistant Government

Pleader submits that the learned judge of the

labour Court has committed an error by not

appreciating the fact that the respondent

workman has not completed 240 days in any

C/SCA/1981/2021 ORDER

year, she also submitted that considering the

nature of work of the respondent - workman,

which was of a sweeper and considering the

fact that he used to work only for two hours

everyday, the learned labour Judge ought not

to have passed any order directing the

petitioner to pay lumpsum compensation of

Rs.3,00,000/-. According to Ms. Asmita Patel,

learned Assistant Government Pleader, the

compensation awarded to the respondent

workman is exorbitant compensation

considering the length of services of the

respondent - workman and considering the

nature of duty of the workman as he used to

work only for two hours everyday and that too

as a sweeper and not as a watchman. Except

these two contentions, Ms. Asmita Patel,

learned Assistant Government Pleader has not

raised any other contentions.

8. So far as the contention of Ms. Asmita Patel,

learned Assistant Government Pleader is

concerned that the nature of work of the

C/SCA/1981/2021 ORDER

respondent was of a Sweeper and he used to

work only for two hours everyday, this Court

is of the view that though it is true that as

stated in para 9.3 of the judgment, in the

examination in chief of the witness of the

petitioner - Pradeep Laxmi Shukla submitted

that the respondent workman was serving as a

Sweeper in the petitioner organization and he

used to work two hours everyday on fixed

remuneration and he served from the year 1997

to 2007. In his cross examination, he has

admitted the fact that the respondent workman

has not worked under him. In the cross

examination, he also admitted the fact that

muster roll was not maintained in the

petitioner organization. He also admitted

that even at present also, the petitioner

organization has sweepers in his office

through contract system. He admitted the fact

that the respondent workman worked under the

petitioner only from November, 1997 to April,

2007. He also admitted the fact that at the

C/SCA/1981/2021 ORDER

time of terminating the services of the

respondent workman, neither notice nor notice

pay nor compensation was paid to the

respondent workman. In his cross examination,

the witness of the petitioner also admitted

the fact that no seniority list was

maintained and no attendance sheet, salary

slip or muster roll was produced by the

petitioner. He also admitted the fact that

the office under which the respondent was

working, is still functional and the

respondent workman was paid remuneration

every month. In his cross examination, he has

also admitted that in the slip showing daily

wage of the respondet - workman, it is not

stated as to at what rate per hour, he was

paid remuneration and only the facts, which

are stated in the salary slip, are in respect

of the number of days the respondent -

workman has worked and the amount paid to

him. He also admitted the fact that once the

temporary employees are engaged, thereafter

C/SCA/1981/2021 ORDER

the petitioner - organization used to extend

benefits to them as per various circulars

from time to time.

9. In view of the above discussion in para 9.3

and 9.4 of the order dated 17.10.2020 coupled

with the fact that the respondent workman had

produced attendance sheet of September, 1999

to February, 2000 and a copy of muster roll

and considering the fact that those documents

were not disputed by the petitioner and also

considering the fact that as stated in para

10 of the award that from the record, it

transpires that the petitioner also used to

take work as a watchman from the respondent -

workman at night in the office of the

petitioner as well as in the nursery. The

learned Judge of the labour Court No.4,

Ahmedabad has rightly held that there is a

clear breach of Section - 25 (f) (g) and (h)

of the Industrial Disputes Act, 1947 and has

rightly come to conclusion that the services

of respondent - workman can be said to be

C/SCA/1981/2021 ORDER

continuous service. The learned Judge of the

labour Court No.4, Ahmedabad The learned

Judge of the labour Court No.4, Ahmedabad has

also considered the fact that in his

application for production of documents,

though the respondent workman had prayed for

production of certain documents, the said

documents were never made available to the

respondent - workman. The learned Judge of

the labour Court No.4, Ahmedabad has also

considered the fact that the respondent -

workman's appointment was illegal as it was

made without following recruitment process

and the respondent - workman worked for 10

years, the learned Judge of the labour Court

No.4, Ahmedabad has rightly awarded

compensation of Rs.3,00,000/- towards full

and final settlement in lieu of

reinstatement.

10. In view of the above facts and circumstances,

I am of the opinion that since the learned

Judge of the labour Court No.4, Ahmedabad

C/SCA/1981/2021 ORDER

considered all the aspects and the materials

available on record and rightly conclusion

that though the action of the petitioner to

terminate the services of the respondent

workman is illegal, the respondent workman is

entitled to compensation of Rs.3,00,000/-

towards full and final settlement in lieu of

reinstatement.

11. Hence, I am in complete agreement with the

view taken by the learned Presiding Officer,

Labour Court No.4, Ahmedabad in Reference (T)

No.1276 of 2009, dtd.17.02.2020 and

therefore, I do not propose to interfere with

the findings recorded by him. Accordingly,

the present petition deserves to be dismissed

and is dismissed accordingly. No order as to

costs.

(NIRZAR S. DESAI,J) MOHMMEDSHAHID