Gujarat High Court
The Chief Officer, Anand ... vs Jagdishbhai Chandubhai Harijan on 30 March, 2021
Bench: A.G.Uraizee
C/SCA/10624/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10624 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3708 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11313 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 11317 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16306 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 11315 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 11311 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3682 of 2021
================================================================
THE CHIEF OFFICER, ANAND NAGARPALIKA & 1 other(s)
Versus
JAGDISHBHAI CHANDUBHAI HARIJAN & 1 other(s)
==============================================================================
Appearance:
MR YOGI K GADHIA(5913) for the Petitioner(s) No. 1,2
MR UT MISHRA(3605) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 30/03/2021
COOMON ORAL ORDER
1. Heard Mr. Yogi K. Gadhia, learned advocate
for the petitioners and Mr. U.T. Mishra, learned
advocate for respondent No.1workmen.
2. Learned advocates for the contesting parties
jointly submit that this bunch of petitions may
be taken up for final disposal as the issue
involved move in a narrow compass.
3. The petitioners have preferred these
petitions to assail the judgment and order passed
by the Labour Court, Anand whereunder, the
C/SCA/10624/2020 ORDER
respondents are directed to be reinstated with
20% backwages.
4. The facts as could be gathered from the
impugned judgment and award and the connected
material can be set out as under:
4.1 The respondentsworkmen since 12 years
prior to their termination in the month of May,
2005 without any notice or paying in lieu of
notices. The workmen, therefore, raised an
industrial dispute in the year 2015.
4.2 The petitioner appeared before the
Labour Court and resisted the reference interalia
contending that the workmen were employed on
temporary basis on daily wages and that the
appointment was purely temporary and were
terminated upon conclusion of the period. It was,
therefore, urged that the reference may be
dismissed.
4.3 The Labour Court, after considering the
evidence adduced by the parties held that the
services of the workmen were illegally terminated
in violation of provisions of Section 25 (F)(G) &
(H) of the Industrial Dispute Act ("I.D. Act" for
short) and as consequence directed that reinstate
with 20% backwages. Being aggrieved, the
petitioners have preferred the present petitions.
C/SCA/10624/2020 ORDER
5. Mr. Gadhia, learned advocate for the
petitioners vehemently submitted that the Labour
Court ought to have rejected the reference solely
on the ground of delay and latches as the
services were terminated in the month of May,
2005 whereas the references preferred after 10
years in the year 2015. He further submits that
the workmen did not produce any documentary
evidence worth the name to show that they had
worked for 240 days in the year preceding their
termination and that there was a violation of
Section 25 (F)(G)&(H). He further submits that 15
years have elapsed since the alleged termination,
however, without there being any evidence to
indicate that during this period the workmen
would not be gainfully employed, the Labour Court
ought not to have granted reinstatement with 20%
backwages. He, therefore, urges that the
judgment and award of Labour Court may be set
aside.
6. Mr. Mishra, learned advocate for the
respondentworkmen has resisted the petitions. He
submits that in case of breach of Section 25 (H)
delay is of no consequence. He submits that right
of the workmen is violated by the employer at
every stage when they have recruited new daily
wager for the same post of sweeper. He further
submits that one witness named Vibhakar Rao was
C/SCA/10624/2020 ORDER
examined by the petitioner who has admitted in
his crossexamination that new daily wager are
recruited after termination of the workmen in the
year 2005 without paying notice pay. He,
therefore, submits that the admission of this
witness clearly demonstrates violation of Section
25 (F)(G)&(H) of I.D. Act. He, therefore, submits
that the Labour Court has not committed any error
in directing reinstatement of the workmen with
20% backwages. He submits that the judgment and
award of the Labour Court does not call for
interference in these petitions under Article 227
of the Constitution of India.
7. I have given my thoughtful consideration to
the rival submissions.
8. The main thrust of the arguments of Mr. Yogi,
learned advocate for the petitioners is that the
industrial dispute was raised 10 year after the
alleged termination which is not explained by the
workmen. However, the crossexamination of
Vibhakar Rao examined on behalf of the petitioner
clearly demonstrates that the services of the
workmen were terminated in the year 2005 without
paying the notice pay. It further emerges from
the crossexamination that the work was of
perennial nature and new daily wagers were
recruited for doing the same work of sweeper
C/SCA/10624/2020 ORDER
after the services of the workmen were
terminated. It is thus vividly clear that the
petitioner has committed violation of provision
of Section 25(F)(G)&(H) of the I.D. Act.
9. The perusal of the impugned judgment and
award of the Labour Court reveals that all
relevant factors and evidence which was brought
on record is considered by the Labour Court for
recording conclusion that the workmen had worked
for 240 days in the preceding year before the
termination in the violation of Section 25(F)
(G)&(H) of the I.D. Act. In my considered view
the findings recorded by the Labour Court do not
suffer from vice of perversity or illegality
which warrants interference so far as the
direction to reinstatement is concerned.
10. It is an undisputed fact that the services of
the workmen were terminated in the year 2005 and
Industrial Dispute in respect of the same was
raised 10 years later in the year 2015.
11. So far as the direction to award 20% back
wages is concerned, it appears that the workmen
have not demonstrated on record during all these
years, they were not gainfully employed. In fact,
the Labour Court itself has observed that after
the termination of services of the workmen would
have remain unemployed is not believable. In the
C/SCA/10624/2020 ORDER
face of such findings, I am of the view that
direction to pay 20% backwages cannot be
sustained and the impugned award deserves to e
modified to that extent.
12. In view of the above, the petitions partly
succeed. The impugned award of the Labour Court
is hereby modified and the workmen are ordered to
be reinstated without backwages.
13. Petitions are disposed of accordingly.
(A.G.URAIZEE, J)
Manoj
