Bhupatsinh Harisinghbhai ... vs Commissioner
2021 Latest Caselaw 1174 Guj

        C/SCA/7190/2010                                     JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 7190 of 2010


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

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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 ?

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                 BHUPATSINH HARISINGHBHAI VIRSODIYA
                               Versus
                      COMMISSIONER & 1 other(s)
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Appearance:
VYOM H SHAH(9387) for the Petitioner(s) No. 1
MR KV GADHIA(319) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                           Date : 27/01/2021

                           ORAL JUDGMENT

1. This petition has been filed by the petitioner - workman under Article 226 of the Constitution of India challenging the impugned award dated 30.01.2010 passed by the Labour Court, Rajkot in Reference (LCR)

C/SCA/7190/2010 JUDGMENT

No.289/1994, whereby the claim of the petitioner - workman regarding breach of the provisions of the Industrial Disputes Act (hereinafter be referred to as the "I.D. Act.") has been rejected.

2. It is contended by the petitioner that he has rendered the services as a watchman since 01.06.1992 till 03.02.1993 and, thereafter, he has served as a clerk at the Sanatorium, Rajkot. It is further contended by the petitioner that the Labour Court has not considered the facts of earlier service made by the workman as watchman and has erroneously taken into consideration the documents submitted by the respondent. It is also contended by the petitioner that the Labour Court has erred in rejecting the claim of the petitioner. It is contended by the petitioner that the Labour Court ought to have considered the fact that the workman has worked for 240 days from his initial appointment i.e. from 01.06.1992 till his termination of service in June 1993. It is also contended by the petitioner that the Labour Court has erred in observing that there is no breach of Section 25(G) and (H) of the I.D. Act. It is further contended by the petitioner that the impugned award is contrary to law and perverse one which is required to be quashed and set aside. The petitioner has urged to allow the petition and appropriate order may be passed.

3. Heard Mr.Vyom Shah, learned advocate for the petitioner and Mr.K. V. Gadhia, learned advocate for the respondent at length through video conferencing.

4. Mr.Vyom Shah, learned advocate for the petitioner has

C/SCA/7190/2010 JUDGMENT

vehemently submitted that the workman was initially appointed as a watchman from 01.06.1992 till 03.06.1993 and, thereafter, he was appointed on compassionate ground as his father was died and the petitioner was posted on the post of clerk from 03.02.1993 till 30.06.1993. He has also submitted that had the Labour Court taken into consideration the services of the petitioner as a watchman from 01.6.1992 till 03.02.1993, the workman has served more than 240 days. He has submitted that the Labour Court has already observed in the award that the workman has completed 240 days during February 1992 till the end of June 1993. He has submitted that the petitioner has already produced the documentary evidence which consists of application for continuation of service filed before the concerned authority as well as presences sheet. He has submitted that this material document has not been considered by the Labour Court and erroneously rejected the claim of the petitioner. He has prayed to allow the present petition and appropriate relief may be granted to the workman.

5. Mr.K. V. Gadhia, learned advocate for the respondent has supported the award in question and has submitted that the Labour Court has not committed any error of facts and law. He has submitted that the reasoning given by the Labour Court below for rejecting the claim of the petitioner is proper in the eyes of law. He has prayed to dismiss the present petition.

6. Having considered the submissions canvassed on behalf of both the sides as well as materials placed on

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record, it appears that the workman has filed statement of claim wherein he has stated that he was working as a watchman on daily basis from 01.06.1992 and, thereafter, he was appointed as an administrator in Smt.Manuben Dhebarbhai, Sanatorium, Rajkot. He has also stated in his statement of claim that his service came to be terminated on 30.01.1993 without issuing any notice or paying any notice pay. He has also stated in his statement of claim that there is a breach of the provisions of the I.D. Act and in that view of the matter, he may be granted relief as claimed in the memo of petition.

7. It also appears from the materials placed by the employer that they have raised the points that the petitioner

- workman has not completed requisite service and the action on the part of the employer is proper in the eyes of law and the workman has not served as alleged by him as a watchman. Of course, it is submitted that at the relevant time, the workman was appointed as administrator, but, since, his service was not found satisfactory, he has been terminated by passing resolution.

8. On perusal of the impugned award, it clearly transpires that while deciding the Reference, the Labour Court has gone through the entire evidence available on record and has come to the conclusion that there is no breach of Section 25(F), (G) and (H) of the I.D. Act as no evidence has been produced by the workman to that effect and even he has not made any application calling the employer to file appropriate documentary evidence before the Labour Court.

C/SCA/7190/2010 JUDGMENT

9. It is decided by the catena of decisions that it is for the workman to prove that he has served for 240 days in preceding years at the time of his termination of service. Now, admittedly, in this case, except for filing the application for service and to presences sheet, no documentary evidence has been produced by the petitioner. At this stage, it is required to be mentioned that in the statement of claim, the petitioner has alleged regarding the breach of Section 25(G) and (H) of the I.D. Act. The workman has simply stated that the action of the employer in terminating his service is illegal. On perusal of the entire material on record, it clearly transpires that the Labour Court has reached to the conclusion to reject the Reference of the workman. This Court finds that there is no perversity or illegality or any error of facts and law in arriving at the conclusion by the Labour Court. The impugned award cannot be treated as an illegal or perverse one. This Court is fully agreed with the reasoning given by the Labour Court. The award under challenge is just and proper in the eyes of law and, therefore, no interference is called for. The petition deserves to be dismissed.

10. Resultantly, the petition stands dismissed. Rule is discharged. No order as to costs.

Sd/-

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