Range Forest Officer vs Jorawarkha Jivankha Baloach
2021 Latest Caselaw 10048 Guj

     C/SCA/3455/2012                             JUDGMENT DATED: 30/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3455 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                Sd/-

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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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                    RANGE FOREST OFFICER & 1 other(s)
                                Versus
                JORAWARKHA JIVANKHA BALOACH & 1 other(s)
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Appearance:
MR SOHAM JOSHI, AGP (1) for the Petitioner(s) No. 1,2
AKHIL A PATEL(9128) for the Respondent(s) No. 1
EMIK K PARMAR(8953) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 2
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 30/07/2021

                            ORAL JUDGMENT

1. Present petition has been filed under Articles 14, 19 and 226 of the Constitution of India by the petitioners-original opponents, being aggrieved by judgment and award dated 26 th May 2011 passed by the Labour Court, Bhavnagar, in Reference (LCB) No.381 of 2001.

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2. Heard Mr.Soham Joshi, learned AGP for the petitioner and Mr.Emik Parmar, learned advocate for the respondent through video conferencing.

3. The brief facts of the case are as under:-

3.1 The respondents have filed aforesaid reference before the Labour Court, Bhavnagar, on the ground that the workman- respondent no.1 was working as a Chokidar since 1993 as daily rated casual muster roll worker and was being paid Rs.100/- per month. It is also the case that inspite of his continuous service, he was orally terminated on 01.11.1999 and 25.2.2000 without any notice, notice pay or retrenchment allowance in lieu of notice. It was the case of the respondent workman that juniors to him were continued in service. According to the workman, there was breach of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, as his service was illegally terminated. According to him, though he has served demand notice, he was not reinstated.

3.2 The petitioner herein filed the written statement at Exh.15 before the Labour Court and raised the dispute that the workman has not completed 240 days in any year of service. It was also contended that the workman has stopped coming for work at his own volition and he was not appointed through regular recruitment procedure under relevant Rules. It was also contended that the workman was given work as and when required depending upon the requirement of the petitioner herein. The other point raised by the petitioner was that the workman was working under a project/scheme and since that

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work was concluded, the workman being on fixed term employment, his services came to an end automatically. The petitioner herein has submitted that since the respondent- workman was on fixed term, his termination cannot be treated as "retrenchment" as per the provisions of the Industrial Disputes Act. According to the petitioner herein, the Forest Department is not an "industry" and there was no relationship of employer-employee between the parties.

3.3 On the basis of the pleadings of the parties and evidence led before it, the Labour Court ultimately granted relief in favour of the workman by directing the petitioner herein to reinstate the workman with continuity of service and 10% backwages.

4. The contention of the petitioner is that the Labour Court has not considered the evidence on record appropriately and has also not considered the legal aspect that the petitioner is not an "industry" and since the workman was working on fixed term and the scheme has come to an end, the termination of service of the workman was automatic and, therefore, there is no retrenchment as per the provisions of the Industrial Disputes Act. The another contention raised that there is no need to follow the provisions of the Industrial Disputes Act as the petitioner is not an "industry" and, therefore, there is no retrenchment.

4.1 It is also contended that it is incumbent on the part of the workman to prove that he has worked for 240 days in a calendar year but in the present case, there is no iota of evidence and the workman has failed to do so. It is also

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contended that there is no evidence on record to suggest that junior to the workman was retained in service. It is also contended that various decisions relied upon by the petitioner were not properly considered by the Labour Court. On these grounds, it is prayed to set aside the impugned award and allow present petition.

4.2 Mr.Soham Joshi, learned AGP for the petitioner has submitted that same facts, which are narrated in the memo of petition, and submitted that in view of the award of the Labour Court, the workman has already been reinstated. He has also submitted that the order of the Labour Court granting backwages is not in consonance with the well-settled principles of law. He has also submitted that when the workman did not come for job, the employer cannot be saddled with the burden of reinstatement and continuity of service and backwages. While relying upon the decision in the case of Novartis India Limited v. State of West Bengal and Others reported in (2009) 3 SCC 124, learned AGP has prayed to allow present petition by setting aside the impugned award of the Labour Court.

5. Per contra, learned advocate Mr.Parmar for the workman has vehemently submitted that the Labour Court has not committed any serious error of facts and law in passing the impugned award. According to him, the award needs to be confirmed and the present petition needs to be rejected. He has relied upon the decision of this Court dated 28.2.2019 delivered in Letters Patent Appeal No.467 of 2019 in Special Civil Application No.1995 of 2016 in the case of State of Gujarat through Range Forest Officer and Others v. Mukesh

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Pragjibhai Baraiya. It is submitted that in that case the workman was reinstated. He has submitted that in the present case also, the workman has already been reinstated and, therefore, there is no question of granting any prayer in this petition. He has prayed to dismiss the present petition.

6. Having considered the submissions made on behalf of the parties, coupled with the decision relied upon by both the sides and considering the impugned award and the material placed on record, it appears that the workman has filed reference making allegations that he was working since January 1993 and, ultimately his services came to be terminated orally on 1.11.1999 and 25.2.2000 and he was not paid any notice pay or retrenchment allowance. It also appears that there is no dispute that the reference filed by the workman was resisted by the petitioner herein and the petitioner herein has placed on record the written statement wherein it is alleged that the workman was working as a daily wager and was appointed only for a particular Scheme, work of which has concluded. Another point raised is that since he was appointed for a particular work, termination of his service cannot be treated as "retrenchment". It is also stated that the workman has never worked for 240 days in a calendar year.

7. It is pertinent to note that the stand of the petitioner that it is not an "industry" cannot be accepted as it is well settled that the petitioner is an "industry". Further, when there is a relationship of employer-employee, within the meaning of the Industrial Disputes Act, then the petitioner herein has to follow all the provisions of the Industrial Disputes Act.

C/SCA/3455/2012 JUDGMENT DATED: 30/07/2021

8. On perusal of the impugned award, it appears that the workman has produced his affidavit in lieu of chief-examination at Exh.20, wherein he has stated the same facts and he was cross-examined, wherein he has reiterated the same facts, whereas the defendant side has examined Shri Pragneshbhai Dave at Exh.24. On perusal of the impugned award, it appears that the Labour Court has taken into consideration oral evidence on record minutely. It also appears that vide Exh.16, some particular has been submitted by the petitioner herein regarding the period of service of the workman. It also appears that the workman has also produced material, which has been procured under the Right to Information Act. The same has been referred in paragraph 11 by the Labour Court. From those particulars, it appears that the version of the workman that he was serving since 1993 is duly proved. At the same time, it also appears that other persons appointed on daily wage basis were appointed after termination of service of the respondent- workman. All these facts clearly establish that there is clear breach of Section 25-G and 25-H of the Industrial Disputes Act. Further no notice pay was given to the workman and there is breach of Section 25-F of the Industrial Disputes Act.

9. Therefore, the observations made by the Labour Court and ultimately passing award in favour of the workman for reinstatement and continuity of service is factually and legally sustainable. However, so far as 10% backwages is concerned, there is no iota of evidence on record to show that the workman was unemployed or had no income during the interregnum period. Therefore, in view of the decision relied upon by learned AGP in the case of Novartis India Limited v. State of West Bengal and others (supra), backwages cannot be

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claimed as a matter of right and considering the factual aspect of this case, award granting 10% backwages is required to be interfered with.

10. Accordingly, this petition is partly allowed. The impugned judgment and award dated 26th May 2011 passed by the Labour Court, Bhavnagar, in Reference (LCB) No.381 of 2001 is hereby modified to the extent that the workman is not entitled to get 10% backwages. Rest of the award is confirmed. Rule is made absolute to the aforesaid extent. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK