Gujarat High Court
Deputy Executive Engineer vs Sonalben Vipulbhai Parmar on 24 February, 2021
Bench: Nirzar S. Desai
C/SCA/14174/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14174 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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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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DEPUTY EXECUTIVE ENGINEER
Versus
SONALBEN VIPULBHAI PARMAR
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
DIPESH D CHHAYA(8075) for the Respondent(s) No. 1
KHUSHBU D CHHAYA(8093) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 24/02/2021
ORAL JUDGMENT
1. Heard Mr. H. S. Munshaw, learned advocate for the
petitioner and Ms. Khushbu D. Chhaya, learned advocate for
the respondent.
2. Rule. Ms. Khushbu D. Chhaya, learned advocate waives
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service of notice of Rule for the respondent.
3. By consent of learned advocates appearing for both the
sides, present petition is taken up for final hearing today and
the matter is heard finally.
4. By way of this petition under Article 226 and 227 of the
Constitution of India, the petitioner has prayed for quashing
and setting aside the award dated 27/05/2019 passed by the
learned Judge (SD), Labour Court No.2, Rajkot in Reference
(LCR) Case No.129 of 2015.
5. Facts giving rise to the present petition can be
summarized in nutshell as under:
5.1. It is the case of the respondent workman that the
respondent workman joined the services under the petitioner
in the year 2006 on a monthly salary of Rs.300/- and she was
performing duty of sweeper as well as water man and was
entrusted some miscellaneous work.
5.2. According to the workman, the nature of work was of
permanent nature and she was in continuous service. Inspite
of the said fact, suddenly from 01/01/2013, by way of oral
order, her services were terminated. At the time of
termination of services of the workman, the petitioner had
neither issued any notice or given any notice pay nor followed
due procedure of law. Persons who were juniors to the
workman were retained in the job at the time of terminating
services of the workman and though job of respondent
workman was of permanent nature and the respondent
workman was terminated, the petitioner continued to entrust
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the same work to other newly recruited persons. It was also
case of the respondent workman that at no point of time, she
was given any pay slip, identity card or attendance card. Her
attendance was marked everyday and she used to get salary
by signing the register regularly. After her termination, she
sent a demand notice to the petitioner on 23/06/2015 through
RPAD and though the same was received by the petitioner, no
reply was given by the petitioner and, hence, the respondent
workman was constrain to raise industrial dispute which
ultimately culminated into Reference (LCR) Case No.129 of
2015 and by way raising said industrial dispute, the
respondent workman prayed for her reinstatement with
continuity of service and 100% back wages from the date of
her termination.
5.3. Once the claim statement was filed, the petitioner filed
reply by way of filing a written statement and denied the fact
that the respondent workman was terminated with effect from
01/01/2013 by way of an oral order. The petitioner also
denied the fact that the respondent workman was paid a sum
of Rs.300/- for performing the miscellaneous work and for
performing work as a sweeper. It was the case of the
petitioner that the respondent workman was never employed
and, therefore, there is no question of termination of her
services. Since there was no employment, question of
recruiting new persons or maintaining any record with
respect to the respondent workman is out of question. Stand
was taken by the petitioner that the respondent has not
performed any work after August 2012 and, therefore, the
reference is not maintainable since the date of termination is
01/01/2013. The petitioner further contended that
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miscellaneous work as well as work of sweeper etc. were
taken by the petitioner from various persons and no separate
person was employed for that. For that, respective persons
were paid through vouchers. The post on which the
respondent workman was claiming her right to be reinstated
is not a sanctioned post nor the petitioner has any power or
authority to employ any person. In view of the fact that the
petitioner was not authorized to recruit any one, question of
terminating the services of the respondent workman is
irrelevant.
5.4. Ultimately, learned Judge (SD), Labour Court No.2,
Rajkot, after considering the documentary evidence as well as
oral evidence observed that the petitioner (original
respondent) has not led any evidence before the labour Court
to the effect that the respondent workman would not fall
within the definition of workman and also considered the fact
that the voucher through which the payments were made to
the respondent workman were produced on record held that
the respondent workman could be said to be the employee of
the petitioner. The learned Judge, Labour Court also
considered the fact based upon the cross examination of the
workman that the respondent workman had worked from
January 2006 to August 2012. Therefore, act of the petitioner
to terminate services of the respondent workman amounts to
violation of Section 25(F) of the Industrial Disputes Act, 1947.
The learned Judge also considered the fact that even after
termination of the respondent workman, the same duty that
the respondent workman used to perform was continued to be
performed by some other persons. The petitioner could not
produce any contrary evidence to that and, therefore, there
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was clear violation of Rule 81 of the Gujarat Industrial
Disputes Rules, 1966 also. Ultimately, the learned Judge held
that there was a breach of Section 25(F) and 25(H) of the
Industrial Dispute Act, 1947. Based upon the cross
examination of respondent workman herself whereby she
admitted the fact that by doing some household work, she was
earning an amount of Rs.900/- per month, the Labour Court,
Rajkot while passing an order granting reinstatement of the
workman qua continuity of service directed the petitioner to
pay 50% of back wages along with cost of Rs.5,000/-.
6. Mr. H. S. Munshaw, learned advocate for the petitioner
submitted that learned Judge has failed to appreciate the fact
that the reference is preferred after almost three years. He
also contended that considering the nature of work of the
respondent workman even if it is believed that she is
employee of the petitioner then also she can be said to be part
time contract worker and therefore, considering nature of
work, the learned Judge, Labour Court, Rajkot ought not to
have passed an order of reinstatement. Mr. H. S. Munshaw,
learned advocate further submitted that there is an admission
on the part of the respondent workman that she used to earn
Rs.900/- per month by performing household work and,
therefore, the respondent workman is not entitle to any back
wages. Her salary of Rs.300/- per month as stated by herself
in her claim statement. On the strength of aforesaid
arguments, Mr. H. S. Munshaw, learned advocate prayed for
quashing and setting aside the impugned award passed by the
Labour Court, Rajkot in Reference (LCR) Case No.129 of
2015.
C/SCA/14174/2019 JUDGMENT
7. As against that, Ms. Chhaya, learned advocate for the
respondent workman submitted that this petition being a
petition under Article 226 and 227 of the Constitution of
India, unless some material is produced on record contrary to
the findings of the Labour Court, the findings of facts
observed by the learned Judge, Labour Court No.2, Rajkot
cannot be said to be perverse.
8. Ms. Chhaya, learned advocate has also drawn attention
of the Court that the learned Judge, Labour Court has
considered everything that was placed on record and after
considering the totality of facts and circumstances of the case,
impugned order is passed. For the issue of back wages,
learned advocate Ms. Chhaya submitted that by the passage
of time, if the respondent workman has started earning a sum
of Rs.900/- per month and if there is an admission of
respondent workman about the same, that admission can be
taken into consideration for denying 100% back wages.
Ms.Chhaya, learned advocate further submitted that
considering the fact that respondent workman is earning
Rs.900/- per month, the learned Judge, Rajkot has passed an
order for only 50% back wages and, therefore, impugned
order is just and legal and proper and she prayed for dismissal
of the petition.
9. After considering the rival submissions and after
perusing the impugned award dated 27/05/2019 passed by the
learned Judge, Labour Court No.2, Rajkot in Reference (LCR)
Case No.129 of 2015, I am firmly of the view that the learned
Judge (SD), Labour, Rajkot Court has not committed any error
either in appreciating the evidence on record and or in
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arriving at a conclusion that the respondent workman cannot
be termed as workman.
10. As far as the contention of Mr.Munshaw, learned
advocate with regard to employment of the workman under
the petitioner is concerned, on perusal of the award, it clearly
reveals that no such contention was raised before the Labour
Court and for the first time this contention is taken before this
Court.
11. As far as contention of delay is concerned, present
reference was filed in the year 2015 whereas the respondent
was terminated in the year 2013 and, therefore, if reference is
preferred after two years, such delay cannot be said to be
inordinate delay and contention in respect of delay cannot be
accepted.
12. In view of whatever discussed herein above and on
perusal of the award impugned in this petition also, this Court
is of the view that the learned Judge (SD), Labour Court No.2,
Rajkot has not committed any error in appreciating the
evidence or in arriving at the conclusion that the respondent
is required to be given reinstatement with continuity of
services and 50% back wages and the same is not required to
be interfered with and, hence, the present petition is required
to be dismissed.
13. Accordingly, present petition stands dismissed. Rule is
discharged. No order as to costs.
(NIRZAR S. DESAI,J)
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