Gujarat High Court
State Of Gujarat vs Shabir Husen Abdul Sattar Kakkal on 11 January, 2021
Bench: Sonia Gokani, Sangeeta K. Vishen
C/LPA/1715/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1715 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 1089 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1715 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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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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STATE OF GUJARAT
Versus
SHABIR HUSEN ABDUL SATTAR KAKKAL
==========================================================
Appearance:
GOVERNMENT PLEADER(1) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR ANVESH V VYAS(5654) for the Respondent(s) No. 1
CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
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C/LPA/1715/2019 JUDGMENT
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 11/01/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1 This appeal is preferred by the State of Gujarat
challenging the judgement and order of this Court
dated 15.02.2018 passed by this Court (Coram:
A.J. Shastri, J.), wherein challenge was to the
award dated 24.02.2016 passed in Reference(LCJ)
No.23 of 2020, whereby the learned Presiding
Officer reinstated the workman's services without
any backwages.
1.1 When the same was challenged before this Court
by way of Special Civil Application No. 1089 of
2017, the Court confirmed the judgement and
award passed by the learned Presiding Officer.
2 Facts in nutshell are as follows:-
2.1 The opponent is the original claimant-opponent
C/LPA/1715/2019 JUDGMENT
herein, who was serving in the Forest Department
since last 12 years as a Khalasi in a boat and,
according to him, he was drawing monthly wages
of Rs.2000/-. He alleged that on 01.01.2008
without any intimation or process of law, he was
orally terminated from service.
2.2 It was his case that he had completed 240 days in
each year, and therefore, on 11.01.2010, he made
a request to the department to reinstate him in
service. As such a request was not accepted, he
urged the authority concerned by raising his
claim and the same had culminated into the
reference. It was a stand taken by the
Department that in none of the years, the
opponent had completed 240 days of service and
his services were availed as and when required.
As no fruitful outcome of such conciliation had
come, the matter was referred to the labour Court
by way of a Reference. The same was adjudicated
C/LPA/1715/2019 JUDGMENT
being Reference(T) No.23 of 2010 on 24.02.2016.
It was partly allowed, where reinstatement
without backwages was directed.
3 When challenged before this Court, the Court
relied heavily on the decision of the Apex Court in
the case of Sameer Suresh Gupta through PA
Holder vs. Rahul Kumar Agarwal , (2013) 9
SCC 374, wherein it was held and observed that
in exercise of the jurisdiction under Article 226 of
the Constitution of India, the High Court does not
sit in appeal over the decision and findings of the
statutory authorities, it is not open to substitute
its own finding by revising or re-appreciating the
evidence. The Court, accordingly, had confirmed
the judgement and award having not found any
perversity.
4 This has aggrieved the appellant, who has
approached by way of this appeal by urging that
the judgement passed is arbitrary and contrary to
C/LPA/1715/2019 JUDGMENT
the facts and material on the record. It is the say
of the appellant that the Court ought to have
considered that the original claimant opponent
had not completed 240 days in each year and no
muster roll was maintained for such daily-wagers.
He was called as and when required for the work
and the details, which were available as per the
vouchers, were furnished to the original claimant
under the Right to Information Act. As per the
details of vouchers, the workman has only worked
from the year 20000-2005 and in none of the
years, 240 days has been completed. It is again
the stand of the Department that the original
claimant opponent herein has on his own stopped
coming to work from the year 2005 itself and the
institution of proceedings in the post 2010 year
period is an afterthought. The trial Court had
recorded the findings on the strength of the
evidence, which were improper and illegal and the
Court ought to have regarded the same.
C/LPA/1715/2019 JUDGMENT
4.1 It is further the say of the appellant that the
original claimant had preferred Miscellaneous
Civil Application No.1128 of 2018 before this
Court for contempt, while procedure for filing an
appeal against Special Civil Application No. 1089
of 2019 was under the process. Noticing the
proceedings initiated under the Contempt of
Courts Act, the original claimant has been
reinstated in service with continuity on
20.12.2018. Nevertheless, that would not, in any
manner, defeat the cause of the claimant
opponent.
5 We have heard extensively Mr.Jayneel Parikh,
learned Assistant Public Prosecutor for the
respondent-State, who, after adducing the
evidence, has requested for early date. He has
taken us through the evidence, which had been
led before the labour Court. He also extensively
argued along the line of the appeal memo and had
C/LPA/1715/2019 JUDGMENT
urged that only on the strength of the law point,
learned Judge has dismissed the petition, when,
in fact, the averments of completion of 240 days
in a particular year preceding the date of
termination or his not having joined himself, were
not appreciated.
6 Per contra, Mr. Anvesh Vyas, learned advocate for
the opponent has strongly urged this Court that
the appeal is filed without any substance and
being devoid of merits, the same deserves to be
dismissed. He has urged that not only the Labour
Court has extensively discussed the evidence,
which has been adduced, more or less
documentary, it has also applied the law on the
facts and circumstances of the case and has
rightly reinstated the opponent. The Court has
also struck balance by not giving the backwages
and that fact had been accepted by the opponent,
who had not challenged separately this aspect of
C/LPA/1715/2019 JUDGMENT
backwages. Learned Judge has appreciated all
aspects in accordance with law and, therefore,
there is no requirement for the Court to intervene.
He drew the attention of the Court that onus of
proof which lied on the workman had been duly
fulfilled and, therefore, the onus had shifted on
the State. When it could not dislodge the proof,
which had been adduced, the Court held it to
have been established by the opponent. He also
further urged that in various matters, the Courts
have held that the Government department,
particularly, the Forest Department is an
industry, which does not need to be reiterated in
every matter.
7 Having thus heard both the sides and also having
noticed the material on the record as well as both
the judgements of the labour Court as well as of
the learned Single Judge, this Court notices that
on the issue of completion of 240 days of the
C/LPA/1715/2019 JUDGMENT
opponent, when the opponent was relived from
work in the year 2008, all along, emphasis on the
part of the Department is that the workman
opponent had not completed 240 days and,
therefore, any direction issued by the Labour
Court is without any evidence and is contrary to
law.
8 We have gone through the judgement of the
labour Court, which not only considers
extensively the oral as well as the documentary
evidence, it has mindfully looked into the
evidence adduced by both the sides. It has also
taken care of the fact that the onus firstly is on
the petitioner, who approaches the Court, as held
by the Apex Court in the case of, Range Forest
Officer vs. S.T,. Hadimani , 2002(3) SCC 25,
but, once that initial onus is discharged, then the
same would shift upon the State. The opponent has
given the oral evidence and also simultaneously, it
has produced the evidence of the department itself,
C/LPA/1715/2019 JUDGMENT
which indicated that pursuant to the Government
Resolution dated 15.09.2004 and 29.10.2014, all
benefits which are made available by the Court to
the daily rated employees, the list of beneficiaries
needed to be prepared by the Forest Officers,
Marine National Park, Jamnagar. It has prepared
the list of those employees, who according to this
office, were entitled to the benefits of the said
resolution dated 15.09.2014 and that of
29.10.2014. A specific reference is made of proved
communication (Ex.33), which had been
forwarded to his superior, where the name of the
present opponent is at No.3. Although, it is not
treated as a list for the purpose of seniority, the
fact remains that this was the list prepared by the
Department itself and therefore, to contend
contrary to its own documents, merit no
acceptance. The stand of the Department,
therefore, that he has not completed 240 days
and worked intermittently as and when there
C/LPA/1715/2019 JUDGMENT
was requirement for less than 240 days, rightly
was not accepted by the Labour Court. The
learned Single Judge has examined all these
aspects and he has also thoroughly considered as
to how the department itself was in favour of the
opponent getting the benefits of the said
resolutions. He rightly had relied on the decision
of Sameer Suresh Gupta (supra) to enlist the
principles, which have been culled out as to how
the presiding officer's jurisdiction needs to be
exercised by the Court. The Court, rightly,
therefore, held and observed that the parameters
for exercising the jurisdiction to issue a writ of
certiorari or other writs was missing, as all
parameters, when are looked at for interference
by the High Court, were absent. This being a
discretionary power to be exercised on equitable
principle and at a time when the matter would fit
into those details, parameters culled out in the
said matter as well as in the case of State of
C/LPA/1715/2019 JUDGMENT
Uttar Pradesh vs. Lakshmi Sugar and Oil
Mills Ltd. & Anr , (2013) 10 SCC 509, it chose
not to substitute its own findings by revising and
re-appreciating the evidence.
9 We see no reason to interfere with the findings
and observations of the learned Single Judge,
who has committed no error, on the contrary, has
rightly appreciated the factual matrix and applied
the law to the same. There does not appear to be
any reason for this Court to also show its
indulgence in the appellate jurisdiction. If any
thing is left out even by way of benefits, let the
same be given to the opponent without any
further loss of time.
10 Appeal, being devoid of any merits, stands
rejected.
(MS. SONIA GOKANI, J. )
(SANGEETA K. VISHEN,J)
C/LPA/1715/2019 JUDGMENT
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1715 of 2019
In view of the order passed in the Letters Patent Appeal
No. 1715 of 2019, no order is required to be passed in the
present Civil Application. Application stands disposed of
accordingly.
(MS. SONIA GOKANI, J. )
(SANGEETA K. VISHEN,J)
SUDHIR
