Mohammad Rafique Mohammad Yasin ... vs Gujarat Jal Sampati Vikas Nigam ...
2021 Latest Caselaw 1241 Guj

       C/SCA/18683/2007                                   JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 18683 of 2007


FOR APPROVAL AND SIGNATURE:


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 ?                       Yes

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 ?

================================================================
          MOHAMMAD RAFIQUE MOHAMMAD YASIN SHAIKH
                             Versus
         GUJARAT JAL SAMPATI VIKAS NIGAM LTD. & 1 other(s)
================================================================
Appearance:
MR DS VASAVADA(973) for the Petitioner(s) No. 1
MR DG CHAUHAN(218) for the Respondent(s) No. 1
================================================================

 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                           Date : 28/01/2021

                           ORAL JUDGMENT

1. The present petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing and setting aside the impugned award dated 28.06.2007 passed by the Labour Court, Palanpur in Reference (LCP) No.259/1996, whereby the claim put up by

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the petitioner has been rejected.

2. For the sake of brevity and convenience, the parties are referred to as the "workman" and "employer" respectively.

3. It is the case of the workman that he was appointed as driver for 29 days on 16.08.1988 and he has continuously worked for more than 240 days till his service is terminated by oral order. It is further the case of the workman that on 17.07.1990, he was got transferred order to Deesa. That he reported for work at Deesa on 18.07.1990, however, he was told by the employer that they have to inquire from their head office and they did not permit the workman to report. It is also contended by the workman that during the period from 22.07.1990 to 17.02.1991, he met with a minor accident and also fell sick and, therefore, could not report for work. According to him, on 18.02.1991, he reported for work along with the certificate of the Doctor, but, he was not allowed to do so and the same reply was given to him. It is also contended by the workman that his service has been illegally terminated and, therefore, he moved an application on 30.04.1991 to the Commissioner of Labour which made a reference in 1991. It is further contended by the workman that initially, the reference was made to the Labour Court, Ahmedabad where it was registered as Reference (LCA) No.2294/1991 and after establishment of Labour Court at Palanpur, it was renumbered as Reference (LCP) No.259/1996. It is

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contended by the workman that after hearing both the sides, the Labour Court has passed the impugned award and has ignored all relevant and material documents and did not appreciate oral as well as documentary evidence and ultimately, rejected the reference. According to the workman, he has proved the fact that he has worked for more than 240 days prior to his termination of service. He has also referred to that from 16.07.1989 to 16.07.1990, he has worked for 348 days as he has completed 240 days without artificial break. It is contended by the workman that though the employer has also issued certificate to that effect, the same has not been considered by the Labour Court. It is further contended by the workman that the employer has also appointed other driver, who was junior to him namely Pinakin and others and, therefore, there is clear breach of Section 25(F) and (G) of the Industrial Disputes Act, 1947 (hereinafter be referred to as the "I.D. Act"). According to him, all these facts have not been controverted by the employer and the Labour Court has erroneously rejected the claim.

4. The affidavit-in-reply has been filed on behalf of the employer wherein it is categorically stated that the workman has failed to prove the fact that he has worked for 240 days during the period of 12 calendar months preceding the date of his alleged termination. It is further stated in the affidavit-in-reply that the workman was not terminated by the employer, but the workman abandoned the service and did not report for duty at the transfer place at Deesa. It is

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further stated that the medical certificate produced by the workman is not genuine. It is also stated that there is no breach of any of the provisions of the I.D. Act as alleged. It is stated that there was no pleadings before the Labour Court regarding resorting to unfair labour practice. It is stated that the workman has accepted the fixed term of 29 days appointment order. It is further stated that the appointment of Pinakin was on regular post and he was appointed in accordance with law after following due process of selection. It is further stated in the affidavit-in- reply that the Labour Court has not committed any serious error of facts and law in rejecting the reference.

5. Heard Mr.D. S. Vasavada, learned advocate for the petitioner - workman and Mr.D. G. Chauhan, learned advocate for the respondent - employer at length through video conferencing.

6. Mr.D. S. Vasavada, learned advocate for the petitioner

- workman has vehemently submitted the same facts which are narrated in the memo of petition and has submitted that the action of the employer in terminating the service of the workman is violative of Section 25(G) and (H) of the I.D. Act. According to him, the workman was working as driver since 1989 and later on, he was transferred to Deesa where he was reported for duty, however, he was not permitted to join the service. He has submitted that the junior to the workman, namely Pinakin was appointed as driver, whereas, the service of the workman was not regularized.

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While referring to the deposition of the workman, he has submitted that the facts narrated on oath by the workman is not controverted by the employer by cross-examining him. He has further submitted that no show-cause notice was issued to the workman for remaining absent. He has submitted that when the workman has categorically deposed that he has worked for more than 240 days and the certificate was also issued by the employer, then, it was incumbent on the part of the employer to place on record the documentary evidence, however, no any documentary evidence has been produced by the employer and, therefore, the adverse inference ought to have been drawn by the Labour Court and the Labour Court could have granted the reference and ought to have passed order of reinstatement of the workman with full back wages.

6.1 Mr.Vasavada, learned advocate for the petitioner has submitted that almost 29 years has gone during the period from filing of the reference till today and, therefore, necessary amount of gratuity may be paid to the workman along with the arrears of salary.

6.2 While relying upon the following decisions, Mr.Vasavada, learned advocate has prayed to allow the present petition by setting aside the impugned award and to grant requisite reliefs to the petitioner.

1. Karsanbhai Ramjibhai Jaladiya Vs. District Development Officer and another, 2016 (4) GLR

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2937;

2. Jashwantbhai Maganlal Mohanlal Chauhan Vs. Ahmedabad Municipal Corporation, dated 23.01.2020 rendered in Special Civil Application No.4464/2019 with Special Civil Application No.21135/2018;

7. Mr.D. G. Chauhan, learned advocate for the respondent - employer has vehemently opposed the arguments canvassed by the learned advocate for the petitioner - workman and has submitted that the workman was appointed on fixed term basis of 29 days and the service of the workman was not regular. He has submitted that the workman has not produced any documentary evidence regarding his alleged service of 240 days in the preceding calender year. He has also submitted that the workman was not terminated and he himself has reported not to join the service and abandoned the service. He has further submitted that there is no pleading as to the breach of Section 25(G) and (H) of the I.D. Act before the Labour Court. In support of his submissions, he has referred to the written statement filed before the Labour Court especially para-9 thereof. He has submitted that the workman has never worked for 240 days in his entire career. He has submitted that after completion of 29 days of the month, the service of the petitioner is automatically come to an end. He has submitted that considering his past service, the employer has given him service and transferred to Deesa, but he did not remain present before the employer. He has

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submitted that on 30.04.1991, the workman has demanded salary of work-charge driver and stopped to come on duty. He has submitted that the workman himself has written a letter to the employer that he did not want to report and this fact has properly been considered by the Labour Court. While referring to the deposition of workman Shaikh Mohammad Rafique at page No.28 of the paper-book, wherein in his cross-examination, he has admitted that he has not produced any documentary evidence regarding his service for 240 days in a year. He has also drawn the attention of the Court to the medical certificate at Annexure

- C and has submitted that the said certificate was issued on 22.07.1991 showing that the workman was under treatment of the Doctor from 22.07.1990 to 17.02.1991. He has also submitted that it is averred by the Doctor in the said certificate that the workman is fit for resume his normal duty from 18.02.1991. He has further submitted that the certificate is got up one. He has also submitted that this is a case of no evidence.

7.1 Mr. Chauhan, learned advocate for the respondent has referred to the award and has submitted that the observation made by the Labour Court is just and proper and there is no erroneous finding of facts and law. He has submitted that there is no violation of the provisions of the I.D. Act and in absence of proof of breach of the provisions of the I.D. Act, no award could be passed against the employer. Regarding the decisions relied upon by the learned advocate for the petitioner, he has submitted that

C/SCA/18683/2007 JUDGMENT

those decisions are based on the particular facts of those cases. He has submitted that it is incumbent duty of the workman to prove his own case regarding the continuous service of 240 days. For this preposition, he has relied upon the decisions of the Apex Court in the case of R. M. Yellatti Vs. Asstt. Executive Engineer, (2006) 1 SCC 106 and in the case of Ranip Nagar Palika Vs. Babuji Gabhaji Thakore and others, (2007) 13 SCC 343.

7.2 Mr. Chauhan, learned advocate for the respondent has further submitted that this Court may not exercise power under Article 226 of the Constitution of India as award is based on the factual aspects and there is no any illegality committed by the Labour Court in passing the impugned award.

8. In rejoinder, Mr.Vasavada, learned advocate for the petitioner has invited the attention of this Court regarding the statement of demand especially para-6 at page no.18 that there is specific averments regarding the breach of the mandatory provisions of Section 25 of the I.D. Act as junior to the workman has been appointed and he has been continued as driver. He has submitted that for oral and documentary evidence of the workman, the employer has not come into witness box and, therefore, the averments made by the workman in the petition as well as in his deposition ought to have been accepted by the Labour Court.

       C/SCA/18683/2007                                   JUDGMENT



9.   In the case of       Karsanbhai Ramjibhai Jaladiya

(supra), the Division Bench of this Court has observed in paras-10 and 11 as under:-

"10. While allowing the petitions challenging the Award, learned Single Judge has observed that in cases of daily wagers, there is nothing like regular reinstatement, because, a daily wager is not a regular workman or employee. It is further observed that if a daily wager does not get wages for the whole month, then, the full back wages cannot be awarded in favour of such workman. Though the observation made by learned Single Judge qua regularisation cannot be faulted with, in our considered opinion, the view expressed by the learned Single Judge qua payment of wages cannot be endorsed. The employer cannot be allowed to resort to unfair labour practise by not paying wages and thereafter denial of full back wages to the workman on account of such practise adopted by the employer will be against the scheme and object of the Industrial Disputes Act, 1947 ("the I.D. Act" for short). As observed by the Supreme Court in the case of General Manager, Haryana Roadways v. Rundhan Singh, reported in AIR 2005 SC 3966, a host of factors like the manner and method of selection and appointment, i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. The facts of each case are to be examined and analysed for denying or granting the full back wages to the workman. It is the nature of work and mode of termination which determines the back wages and continuity of service of the workman. Section 25B of the I.D. Act defines continuous service. The Apex Court in the case of Gangadhar Pillai v. Siemens Ltd., 2007 (1) SCC 533 has observed as under:

"It is not the law that on completion of 240 days of continuous service in a year, the concerned employee becomes entitled to for regularisation of his services and/or permanent status. The concept of 240 days in a

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year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten a statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. In the event a violation of the said provision takes place, termination of services of the employee may be found to be illegal, but only on that account, his services cannot be directed to be regularized. Direction to reinstate the workman would mean that he gets back the same status".

11. We may with profit further observe that the fact of retaining the juniors to the appellants itself suggests that the work was available. As observed by the Apex Court in the case of Harjinder Singh (supra), it is settled law that for attracting applicability of Section 25G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months, preceding the termination of service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of "last come first go" without tangible reason. It is undisputed fact that the persons junior to the appellants were retained in service. Hence, the termination of services of the workmen is in violation of Section 25G of the I.D. Act. Mr. H.S. Munshaw, learned advocate, has also suggested that appropriate compensation may be paid to workmen instead of reinstatement.

10. In the aforesaid decision, the compensation was awarded to the tune of Rs.1,85,000/- to the workmen by the Division Bench of this Court and it was observed that this amount is in addition to whatsoever paid to them.

11. In the case of Jashwantbhai Maganlal Mohanlal Chauhan (supra), the Coordinate Bench of this Court has observed in paras-11 and 12 as under:-

"11. The authority is always required to be fair and produce all relevant documents before the Trial Court which had availed the fullest opportunity to the parties. Undoubtedly, in the instant case, the petitioner has

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failed to adduce necessary evidence. It also emerges that it has not given any oral nor documentary evidence to reflect the true picture.

12. The respondent, of course, has not been able to establish the permanent nature of the job nor the continuity of any of those eight persons who had been appointed at the time of flood situation. The non- production of the documents and also not having led any evidence before the Trial Court and to produce everything in a petition under Article 227 of the Constitution of India, shall require this Court to remand the matter for the parties to adduce the evidence and for the other side to meet with the said challenge."

In this case also, the amount of compensation is awarded.

12. In the case of R. M. Yellatti (supra), after referring to the decisions in the case of State of U. P Vs. Jai Bir Singh, (2005) 5 SCC 1; Range Forest Officer Vs. S.T. Hadimani, (2002) 3 SCC 25; Rajasthan State Ganganagar S. Mills Ltd Vs. State of Rajasthan, (2004) 8 SCC 161; M. P. Electricity Board Vs. Hariram, (2004) 8 SCC 246; Manager, Reserve Bank of India Vs. S. Mani, (2005) 5 SCC 100; Municipal Corporation, Faridabad Vs. Siri Niwas, (2004) 8 SCC 195; the Apex Court has observed in paras-17, 18 and 19 as under:-

"17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily

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waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.

18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box.........

19. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of

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termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government." (emphasis supplied)

13. In the case of Ranip Nagar Palika (supra), the above decision in the case of R. M. Yellatti Vs. Asstt. Executive Engineer has been referred to as follows and in para-8, the Apex Court has observed as under:-

"8. It was held in all these cases that the burden of proof lies on the workman to show that he had worked continuously for 24o days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer."

14. Having considered the submissions made on behalf of both the sides coupled with the facts of the aforesaid decisions and the facts of the present case, it is an admitted fact that the workman was given duty as driver for 29 days in each month and he has worked from 16.08.1988. It is also an admitted fact that the workman has preferred the statement of demand in reference case on the ground that he has been retrenched without following the legal provisions contained in Section 25 of the I.D. Act and his junior has been retained, whereas, his service has been terminated. The prayer of the workman was to declare that the oral direction issued by the employer of terminating his service w.e.f. 30.04.1991 be treated as an illegal and keeping the junior from him in service be treated as breach of the provisions of the I.D. Act and reinstate him with full

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back wages in service. Against this, the written statement has been filed by the employer wherein they raised contention that the workman has not worked for about 240 days in preceding 12 months and he himself abandoned the service. It is also the stand of the employer that the employer has not terminated the service of the workman. It is contended that the other driver namely Pinakin has been appointed after due procedure of law, whereas, the workman was working 29 days only in a month. According to the employer, the workman himself has abandoned the service.

15. It also appears from the record that the workman has stepped in the witness box and submitted the same facts. The workman has been cross-examined by the employer wherein he has admitted that he has got service for 29 days and he has worked from 16.08.1988 to 30.04.1991 as per the order of 29 days service. He has admitted that he has not produced any documentary evidence regarding his service for 240 days of each calender years. The workman has also stated in his deposition that he has not written any letter to the employer for his removal from the service, He has relied on the documentary evidence produced at Exhibit 21 and 38, which are relating to his service for 29 days in a month. On perusal of the evidence on record, it appears that the averments made in the examination-in-chief of the workman that after his removal from the service, one person namely Pinakin has been appointed as a driver, is not controverted or challenged by the employer. But, the specific

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stand of the workman in his deposition is that a person namely Pinakin was appointed as driver after his service being came to an end. This very fact suggests that when the workman was in service, Pinakin was not in service. It also appears from the record that by way of cross-examination of the workman, the employer has placed on record the defence that from 16.08.1988 to 30.04.1991 the workman was working on the order of 29 days.

16. It is pertinent to note that the employer has not examined any witnesses to substantiate their written statement filed before the Labour Court. However, the employer has produced certain documents which reflects that the workman was appointed on 29 days from 16.08.1988 to 30.04.1991. It also appears that the employer has placed on record the document vide Exhibit 37 to the effect that the workman was working from 18.02.1991 to 30.04.1991. The other document regarding service of 29 days of each month was not produced by the employer. Of course as referred to hereinabove, by way of cross- examination of the workman, the stand has been put up by the employer is that from 16.08.1988 to 30.04.1991, the workman was working on the order of 29 days of each month. At this stage, it is worthwhile to refer to the schedule V of the I.D. Act which refers to the unfair labour practice. Clause 10 thereof reads as under:-

"10. To employ workmen as "badlis", casuals or temporaries and to continue them as such for years,

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with the object of depriving them of the status and privileges of permanent workmen."

17. Now, considering the factual aspects of this case, it is an admitted position that the workman has worked from 16.08.1988 to 30.04.1991 on the basis of the order of 29 days in a month. It appears that the employer has given artificial break to the workman by passing the order of 29 days only, then, this amounts to unfair labour practice on the part of the employer. The employer has relied upon one letter addressed by the workman regarding claiming the work-charge employment and leaving the job at his own volition is not proved by the employer by examining any witness. Therefore, the contention raised by the employer that the workman himself has abandoned the work is not substantiated by any legal documents. Rather, the employer has admitted that the workman was working from 16.08.1988 to 30.04.1991 for 29 days in a month. In this peculiar facts of the case, it is evident that during this period, the workman has worked for more than 240 days in a preceding years. In that view of the matter, it is incumbent on the part of the employer to follow the provisions of the I.D. Act before removing the present workman from his service. Non-observation of the mandatory provisions of the I.D. Act entitles the workman to get requisite relief.

18. Now, admittedly, neither notice nor notice pay has been issued by the employer to the workman. However, though there is breach of the mandatory provisions of

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Section 25 of the I.D. Act, the regularization of service of the workman cannot be ipso facto. It is also pertinent to note that much time has already been passed and almost 20 years has passed. In that view of the matter and considering the age of the workman at the time of relevant time, the possibility of his reaching superannuation cannot be ruled out. Therefore, considering the peculiar facts of this case, the order for reinstatement cannot be passed. However, the workman can be awarded lump sum amount of compensation for non-observation of the mandatory provisions by the employer.

19. Considering the judgment of the Apex Court in the case of Tapash Paul Vs. BSNL and another reported in 2016 (1) Scale 92 and BSNL Vs. Bhurumal reported in 2014 (7) SCC 177, this Court is of the view that in the facts of this case granting of relief of reinstatement after a gap of almost 20 years, no useful purpose will be served and, therefore, this Court deems fit to order grant of compensation of Rs.1,50,000/- in lieu of the reinstatement. Such amount be paid to the workman by the employer after proper verification of the identify by an account payee cheque / pay order within a period of three months from the date of receipt of this order, failing which the workman shall be entitled to claim interest at the rate of 9% from today till the date of actual realization. It is observed that the aforesaid amount is in addition to whatsoever paid to him.

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20. With the aforesaid conclusion, the petition stands disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.

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