Gujarat High Court
State Of Gujarat vs Pratapbhai Virabhai Vaghela on 26 February, 2021
Bench: Nirzar S. Desai
C/SCA/11291/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11291 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 12163 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 11324 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
==========================================================
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 ?
==========================================================
STATE OF GUJARAT & 3 other(s)
Versus
PRATAPBHAI VIRABHAI VAGHELA & 1 other(s)
==========================================================
Appearance:
MS ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER(1) for the
Petitioner(s) No. 1,2,3,4 IN SCA 11291 OF 2018 AND SCA 11324 OF 2018
MR AKASH CHHAYA, ASSISTANT GOVERNMENT PLEADER(1) for the
Petitioner(s) No. 1,2,3,4 IN SCA 12163 OF 2018
NOTICE SERVED(4) for the Respondent(s) No. 2
VINAY D BAIRAGAR(8360) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 26/02/2021
ORAL JUDGMENT
C/SCA/11291/2018 JUDGMENT
1. Heard Ms. Asmita Patel, learned AGP and Mr. Akash
Chhaya, learned AGP for the petitioners in the respective
petitions and Mr. Vinay D. Bairagar, learned advocate for
respondent no.1.
2. Rule. Mr. Vinay D. Bairagar, learned advocate waives
service of notice of Rule.
3. As the matters are identical, by consent of learned
advocates for the respective parties, the matters are taken up
for final hearing.
4. By way of these petitions, the petitioners have
challenged the award dated 03/10/2017 passed by the learned
Judge (SD), Labour Court, Nadiad in Reference (LCN) No.62
to 64 of 2007 whereby the learned Labour Court, Nadiad was
pleased to allow the references and awarded reinstatement to
the workmen on original post with continuity of service but
without back wages for the interregnum period. It was
further directed to reinstate the workmen within a period of
thirty days of publication of the award.
5. Brief facts giving rise to these petitions are narrated as
under:
5.1. All the three workmen who are respondent no.1 herein
these petitions were working under petitioner no.1 as a peon
and drawing monthly salary of Rs.1,350/-. Respondent no.1
Pratapbhai Virabhai Vaghela of Special Civil Application
No.11291 of 2018 was working since 01/01/1999. Respondent
C/SCA/11291/2018 JUDGMENT
no.1 Prabhatsinh Shankarbhai Vaghela of Special Civil
Application No.11324 of 2018 was working since November
1998 and respondent no.1 Girishbhai Narsinh Mahida of
Special Civil Application No.12163 of 2018 was working since
01/06/1979. It was the case of the workmen that each of them
were performing duty for eight hours every day and even
during the holidays. They were continuously in service for
many years and had worked for more than 240 days in each
year. Since they completed 10 years of services, they
demanded to extend the benefits flowing from the
Government Resolution dated 17/10/1988 and claimed
regularization. Though their request for extending aforesaid
benefits were pending, their services were orally terminated
on 28/02/2006 and, hence, they raised industrial dispute
which later on culminated into Reference (LCN) No.62 to 64
of 2007.
5.2. Thereafter, they filed their statement of claim and
claimed for reinstatement with continuity of service, back
wages and prayed for Rs.5,000/- towards cost of the
proceedings. Opponents-petitioners herein filed their written
statement before the Labour Court, Nadiad and took defense
that they could not be termed as industry as defined in the
Industrial Disputes Act, 1947 and even the workmen could not
be termed as workmen as per the Industrial Disputes Act,
1947. They also took defense that since the date of
appointment of all workmen was after 17/10/1988, they were
not entitled to the benefits of Government Resolution dated
17/10/1988. It was further stated in written statement that
respondents workmen were employed as part time temporary
basis without following due procedure of law and, therefore,
C/SCA/11291/2018 JUDGMENT
their appointment was illegal and, hence, there was no
question of regularization. In written statement, stand was
taken that considering the illegal appointment, they were not
entitled for any right or relief. The workmen were called for
work as per the requirement and as per the provisions of
expenses since they were not holding any regular post. The
question of issuance of any notice or notice for retrenchment
compensation is not required to be given. The learned Judge,
Labour Court, Nadiad considering the material available on
record by way of oral evidence, as none of the parties
produced any documentary evidence, on the basis of evidence
available, came to the conclusion that the termination of the
services of the respondent workmen would amount to breach
of provisions of Section 25(F) of the Industrial Disputes Act,
1947. For arriving at such conclusion, the learned Labour
Court, Nadiad considered the cross examination of the
workmen and also considered the fact that documents related
to the respondent workmen were in custody of the present
petitioners, at no point of time since the documents were not
produced, adverse inference was drawn in favour of the
respondent workmen and ultimately passed an order
reinstating the respondent workmen with continuity of service
but without back wages. The said awards are challenged by
way of present three separate petitions by the petitioners
herein.
6. Both the learned AGP submitted that termination of the
workmen took place in the year 2006 and thereafter in the
year 2007, references were preferred. Learned AGP drawn
attention of the Court to the observations made by the learned
Labour Court, Nadiad in para-12 and submitted that though
C/SCA/11291/2018 JUDGMENT
the industrial dispute was raised by the respondent workmen
in the year 2007, because of their absence, the references
could not be proceeded and ultimately the same were
dismissed for default. The same were restored in the year
2016 which shows negligence on the part of the respondent
workmen. It also indicates that th respondent workmen were
not seriously pursuing the references and they might have
been working somewhere else and on the strength of
aforesaid submission, both the learned AGP submitted that it
can be presumed that the respondent workmen have chosen
not to remain present at the time when the references were
going on they are not entitled to relief of reinstatement. Both
the AGP further submitted that considering the fact that the
workmen were not regular employees and daily wagers only
and considering the fact that their appointment is illegal
appointment, the award dated 03/10/2007 of reinstatement is
bad in law and the same deserves to be quashed and set
aside.
7. Mr. Vinay Bairagar, learned advocate for respondent
no.1 opposed the petition and submitted that the award under
challenge passed by the learned Labour Court, Nadiad is
passed after considering the entire material which was
available on record and on the basis of oral evidence led by
the respective parties. He submitted that it cannot be
presumed that the respondent workmen might have got job
elsewhere. Merely due to absence of the workmen, the
references were dismissed for default and subsequently were
restored in the year 2016. Mr. Bairagar, learned advocate
further submitted that without there being any material on
record to show that the respondent workmen are actually
C/SCA/11291/2018 JUDGMENT
serving elsewhere, merely on the basis of presumption, an
award cannot be said to be bad. Mr. Bairagar, learned
advocate further submits that even if it is presumed that
during the interregnum period, the workmen had worked
elsewhere then in that case also, the learned Judge, Labour
Court, Nadiad had considered the aforesaid aspect by holding
that the respondent workmen would not be entitled for any
back wages for the interpretation period. Learned advocate
Mr. Bairagar further submitted that though submission was
made on behalf of learned AGP that once the references were
dismissed for default and after a long time, the same were
restored, the order of restoration was never challenged by the
petitioners and in fact after restoration also, the petitioners
had participated in the proceedings before the Labour Court,
Nadiad and, therefore, once the final order in form of awards
are passed, it is not open for the petitioners to contend that
references were dismissed for default and the same were
restored after a long time. Mr. Bairagar, learned advocate
further submitted that the Labour Court, Nadiad has rightly
drawn adverse inference in favour of the workmen and the
award passed by the Labour court is absolutely just, legal and
proper and, therefore, this Court in exercise of powers under
Article 226 of the Constitution of India, may not interfere with
the same and prayed for dismissal of this petitions.
8. Having heard learned advocates appearing for both the
sides and on perusal of award under challenge as well as
affidavit in reply filed by the respondent workmen and other
documents available on record, it is an undisputed facts that
none of the parties produced any documentary evidence in
support of their respective submissions and the entire award
C/SCA/11291/2018 JUDGMENT
was passed on the basis of oral evidence. In fact in
examination in chief of one Mr. Harshan Ambalal Bhrambhatt,
from DILR, he has admitted the fact that the respondent
workmen were employed as daily wagers and the nature of
duty was of temporary nature and they were not given any
appointment letter and even their presence also were not
marked. It was also an admitted position as per the
examination in chief of said Mr. Harshad Ambalal Bhrambhatt
that lastly workmen were drawing salary of Rs.1,350/- and
even during the holidays the work related to measurement
was carried out. In his examination in chief he has stated that
the record of the measurement work done is available in the
office and in case if he gets the record from the year 1999 to
2007, he will produce it on record. However, inspite of that,
at no point of time, the record related to work done was
produced before the Labour Court, Nadiad and, therefore, in
absence of there being any evidence to show that the
respondent workmen have not worked for 240 days or they
have not served continuously with the petitioner, only oral
evidence was considered by the Labour Court, Nadiad.
Though the examination in chief of Mr. Harshad Ambalal
Bhrambhatt is not produced by the petitioner along with the
petition, the same is produced by the respondent workmen
along with the affidavit in reply and, therefore, considering
the same, this Court, without any doubt, can say that
considering attempt on part of officer of petitioner no.1, the
Labour Court, Nadiad has rightly drawn adverse inference in
favour of respondent workmen.
9. As far as the contention of the learned AGP in respect of
dismissal of references for default and subsequent restoration
C/SCA/11291/2018 JUDGMENT
of the same after delay of few years is concerned, I am in
complete agreement with the statement of Mr. Bairagar,
learned advocate that at the relevant point of time the order
of restoration was not challenged by the State Government
and in fact the State Government participated in the
proceedings of references before the Labour Court, Nadiad
and, therefore, at this stage, such stand even if taken by the
State Government, the same cannot be accepted. Somewhere
the contention of learned AGP in respect of the fact that
considering the date of termination in the year 2006 and
considering the fact that all these years the respondent
workmen have not been reinstated and due to their absence,
their references were dismissed and subsequently restored
after delay of few years, a presumption be so for the
respondent workmen that they might have got job elsewhere
and, therefore, that will render the impugned award a nullity
cannot be also accepted for the reason that while passing the
award under challenge the Labour Court, Nadiad was
conscious about the fact that the respondent workmen were
terminated in the year 2006 and thereafter references were
preferred in the year 2007 and thereafter the industrial
dispute was raised in the year 2007 and thereafter the
references were dismissed for default and subsequently were
restored and, therefore, the Labour Court, Nadiad has rightly
considered that the respondent workmen remained negligent
for almost 10 years and, therefore, negligence of respondent
workmen cannot be burden upon present petitioners by
granting back wages to the respondent workmen and,
therefore, the Labour Court, Nadiad has rightly denied the
back wages to the respondent workmen.
C/SCA/11291/2018 JUDGMENT
10. Hence, in view of the above discussion, I am in complete
agreement with the award dated 03/10/2017 passed in
Reference (LCN) No.62 to 64 of 2007 by the learned Judge
(SD), Labour Court, Nadiad as the same are absolutely just,
legal and proper and I do not find any reason to interfere with
the findings of the learned Judge, Labour Court, Nadiad in
aforesaid references. Therefore, all these three petitions are
devoid of any merits and the same are required to be
dismissed and, hence, the same are dismissed. No order as to
costs. Rule is discharged.
(NIRZAR S. DESAI,J)
ila
