State Of Gujarat vs Fatabhai Lakhabhai Bamaniya
2021 Latest Caselaw 7925 Guj

   C/SCA/4546/2021                                    ORDER DATED: 07/07/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CIVIL APPLICATION NO.                    4546 of 2021

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                   STATE OF GUJARAT
                        Versus
             FATABHAI LAKHABHAI BAMANIYA
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Appearance:
MS. ASMITA PATEL, AGP (1) for the Petitioner(s) No.
1,2
 for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                           Date : 07/07/2021

                              ORAL ORDER

[1.0.] By way of this petition, the petitioners challenge the judgment and award dated 06.07.2020 passed by the Presiding Officer, Labour Court No.2, Godhra, rendered in Reference (T) No.13 of 2017, awarding lump sum compensation of Rs.3,00,000/- in lieu of reinstatement and continuity of service as also awarding a cost of Rs.5,000/- to be paid to the respondent - workman.

[2.0.] The brief facts of the present case are as under:

[2.1.] It was the case of the respondent - workman that he has worked at different places under the petitioners as daily wager Labour cum Chokidar such as Shanbar, Janvad, Gadiya, Shir etc. It was the case of the workman that at the relevant

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time, no appointment order, I-card, presence card or pay-slip was ever issued to him. However, he was working more than 8 hours all throughout the month on a daily wage of Rs.288.70, he has worked for nearly 18 years. It is further pleaded that despite getting work for whole month, his presence was marked for only 18 days and when he raised the objection, he was threatened of terminating his service. By adopting unfair Labour practice, he came to be terminated on 03.12.2015 to accommodate some other person. While terminating his service, no notice, notice pay, retrenchment compensation or any other benefits was ever paid to him. In short, it is asserted that there was breach of Section 25F or 25H of the Industrial Disputes Act, 1947 (for short 'the Act').

[2.2.] It was further case of the workman that on his oral termination, he approached the Office of Assistant Labour Commissioner, Godhra, and lodged a complaint. Pursuant to the said complaint, Range Forest Officer, Shri Damor, on 11.01.2016, offered the work to the workman through outsourcing. Therefore, on next day i.e. 12.01.2016 he reported for work. However, he was pressurized to withdraw the complaint registered with Assistant Labour Commissioner and on refusal, he was not provided with the work. It is the case of the petitioner that the workman has performed his duties since joining the same continuously without any break and in each year he has completed 240 days.

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[2.3.] On notice issued in the reference, the petitioners appeared and submitted written reply vide Exhibit-7. It is stated in the reply that the respondent - workman was not a permanent Rojamdar but he was Rojamdar employed and paid on availability of work. It is further the case that he has worked from 2009 to 2015 as such Rojamdar. It is asserted in the reply that he was provided work as Rojamdar for the work based on availability of grant. On wiping out of grant, his work was automatically over. It is asserted in the reply that the respondent - workman has not completed 240 days in a year. The statement of his month-wise presence is prepared based on cash book and voucher register. It is further asserted that the respondent - workman is not entitled for the benefits of Government Resolution dated 17.10.1988. It is further asserted that since he has not completed 240 days in a year, he is not entitled for any relief, as claimed in the reference.

[2.4.] After recording evidence of both the sides and production and proof of documents, after appreciating the same, the Labour Court passed the impugned order, as aforesaid, which is under challenge.

[3.0.] Ms. Asmita Patel, learned Asst. Government Pleader for the petitioners, submitted that a statement was prepared based on the work performed by the respondent - workman and the payment made to

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him for the year 2009-10 to 2014-15 with the signature of the concerned Officer under list Exhibit-8. Over and above that certain other documents were also produced pertaining to grant in the year 2014-15, 2015-16, 2016-17 etc. Even Resolution dated 15.09.2014 of Forest and Environment Department was also produced.

[3.1.] It is further submitted that since the respondent - workman has failed to prove that he has worked continuously for a period of 18 years, the workman should not have been awarded any compensation in lieu of reinstatement and continuity of service. It is further submitted that though for the date of termination, there may not be any dispute but for the period he worked with the petitioners, as claimed by the workman to be 18 years, is disputed and according to the evidence produced by the petitioners, he has worked since 2009 to 2015 i.e. approximately 6 years, whereas he has claimed to be serving with the Department for 18 years prior to his termination.

[3.2.] It is further submitted that the respondent - workman has failed to prove with corroborative evidence that he has completed 240 days in a calendar year, therefore, there is no question of fulfilling terms of Section 25B and / or Section 25F of 'the Act'. Thus, reference should have been rejected by the Labour Court. It is further submitted that the payment of Rs.3,00,000/-

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as compensation in lieu of reinstatement to a Rojamdar, who has, though not continuously, worked for 6 years, is on a higher side and, therefore, the impugned judgment and award passed by the Labour Court is required to be interfered with.

[4.0.] Having heard Ms. Asmita Patel, learned AGP for the petitioners and going through the judgment and award as also the material produced along with the petition, there is no dispute that the respondent - workman has worked with the petitioners, may be for a 6 years, as Rojamdar. Though the respondent - workman claimed to have worked for 18 years as Rojamdar with the petitioners, he has failed to state even the year of joining as Rojamdar with the petitioners. From the impugned judgment and award, only the date of his alleged termination is reflected. However, when the petitioners have admitted that the respondent - workman had worked with them since 2009 to 2015, at least the respondent - workman can be said to have worked for 6 years as Rojamdar is undisputed.

[5.0.] Though the petitioners have produced a statement showing the number of days for which respondent - workman has worked month-wise along with the payment made, they have failed to produce copy of muster roll or vouchers or voucher register based on which the said statement is prepared. Despite such muster roll and register are available with the petitioners, they have not been produced.

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It is not even the case of the petitioners that no such muster roll or register is maintained. Not only that, in the cross examination of the witness examined on behalf of the petitioners, it is admitted that no appointment letter, presence card or even pay-slip was ever issued. It is further admitted in the cross examination that person who reports for duty as Rojamdar, his presence is marked in muster roll. It is further admitted that the said muster roll is in the custody of the petitioners. It has been admitted that no muster roll is produced based on which a statement at mark

- 8/1 was prepared. Though vide order below Exhibit-9 on an application filed by the respondent

- workman seeking production of muster roll and the documents pertaining to payment of wages, the petitioners were directed to produce the same but it has not been produced. The said order for production was passed for a period of 3 years prior to the termination of the respondent - workman. Thus, adverse inference is required to be drawn and which has been drawn based on a decision of the Supreme Court, which is referred to by the Labour Court, and it has been rightly done so.

[6.0.] It is further concluded by the Labour Court, on appreciation of depositions as also the materials available on record, that the petitioners have failed to convince the Court that the respondent - workman was employed as a Rojamdar for a season or for a work to be performed based on

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grant or for a particular period. Since the petitioners have failed to produce such material before the Court, the Labour Court has rightly believed that the respondent - workman has worked for 240 days in a calendar year preceding his termination and therefore, concluded that he has worked continuously, as prescribed under Section 25B of 'the Act'.

[7.0.] Though the Labour Court concluded that the termination of the respondent - workman is in breach of Section 25F of 'the Act' as also he has performed continuous service, as prescribed under Section 25B of 'the Act', relying on decision of this Court in the case of Gujarat State Civil Supply Corporation Limited Versus Abdulkadar Ibrahim Bakali rendered in Special Civil Application No.4643 of 2010 as also decision of the Supreme Court in the case of Rashtrasant Tukdoji Maharaj Technical Education Sanstha Nagpur Versus Prashant Manikrao Kubitkar reported in (2018) 12 SCC 294, Hari Nandan Prasad and Anr. Versus Employers I/R to Management of Food Corporation of India and Anr. reported in (2014) 7 SCC 190 as also another decision of the Supreme Court in the case of State of Uttrakhand Versus Rajkumar reported in (2019) Supreme 14, instead of ordering reinstatement despite termination is in breach of the provisions of 'the Act', the Labour Court thought it fit to award the lump sum compensation of Rs.3,00,000/- in lieu thereof.

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[8.0.] For arriving at such amount also the Labour Court has assigned good reasons, considering his length of service, wages he was drawing on the date of termination and considering at least 10% of his 5 years wages, the Labour Court has thought it fit to award Rs.3,00,000/- as lump sum compensation in lieu of reinstatement of the respondent - workman.

[9.0.] The learned Asst. Government Pleader has failed to show how the conclusion reached by the Labour Court in respect of breach of the provisions of 'the Act' and / or awarding of the compensation in lieu of reinstatement is against the said principles of law. The Labour Court has assigned good, cogent and sound reasons for reaching such conclusion as also for awarding lump sum compensation, it requires no interference, that too, at the instance of the petitioners. Hence, I see no reason to interfere in the findings and conclusion arrived at by the Labour Court and therefore, this petition is rejected.

(UMESH A. TRIVEDI, J) Lalji Desai