State Of Gujarat Through District ... vs Mobin A Majidbhai Sheikh
2021 Latest Caselaw 15807 Guj

      C/SCA/12166/2018                                 ORDER DATED: 07/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12166 of 2018
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      STATE OF GUJARAT THROUGH DISTRICT LAND MEASUREMENT
                        OFFICER & 3 other(s)
                              Versus
                MOBIN A MAJIDBHAI SHEIKH & 1 other(s)
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Appearance:
MR ROHAN SHAH, AGP for the Petitioner(s) No. 1,2,3,4
MR VA MANSURI(2880) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 07/10/2021
                       ORAL ORDER

1. At the outset, learned advocate for the respondent no.1 has submitted that the issue is squarely covered by the judgment dated 26.02.2021 passed in Special Civil Application No.11291 of 2018 and allied matters. He has submitted that the present petition is identically situated to those petitions, whereby this Court dismissed the petitions filed by the State.

2. As the matter is identical to the aforesaid petitions, by consent of learned advocates for the respective parties, the matter is taken up for final hearing.

3. By way of this petition, the petitioners have challenged the award dated 03.10.2017 passed by Judge (SD), Labour Court, Nadiad in Reference (LCN) No.68 of 2007, whereby the Labour Court, Nadiad allowed the reference and awarded reinstatement to the workman on his original post with continuity of service but without back wages for the interregnum period. It was further directed to reinstate the workman within a period of thirty days of publication of the award.

4. Brief facts giving rise to this petition are narrated as under:

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4.1. The respondent-workman, who is respondent no.1, was working under petitioner no.1 as a peon and drawing monthly salary of Rs.1,350/-. The respondent-workman was working since 15.11.1993. It was the case of the workman that he was performing duty for eight hours every day and even during the holidays. He was continuously in service for many years and had worked for more than 240 days in each year. Since he completed 10 years of services, he demanded to extend the benefits flowing from the Government Resolution dated 17.10.1988 and claimed regularization. Though his request for extending the aforesaid benefits were pending, his service was orally terminated on 30.06.2006 and, hence, he raised industrial dispute, which later on culminated into Reference (LCN) No.68 of 2007.

4.2. Thereafter, he filed his statement of claim and claimed for reinstatement with continuity of service, back wages and prayed for Rs.5,000/- towards cost of the proceedings. Opponents-petitioners herein filed their written statement before the Labour Court, Nadiad and took defense that they could not be termed as industry as defined in the Industrial Disputes Act, 1947 and even the workman could not be termed as "workman" as per the Industrial Disputes Act, 1947. They also took defense that since the date of appointment of the workman was after 17.10.1988, he was not entitled to the benefits of Government Resolution dated 17.10.1988. It was further stated in the written statement that the respondent-workman was employed as a part time temporary basis without following due procedure of law and, therefore, his appointment was illegal and, hence, there was no question of regularization. In the written statement, a stand was taken that considering his illegal appointment, he is not entitled for any relief. Since the workman was called for work as per the requirement and he was not holding any regular post. Hence, the question of issuance of any notice or retrenchment compensation is not required to be given. The Judge, Labour Court,

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Nadiad, considering the material available on record by way of oral evidence, as none of the parties produced any documentary evidence, on the basis of evidence available, came to the conclusion that the termination of the service of the respondent-workman would amount to breach of provisions of Section 25F of the Industrial Disputes Act, 1947. For arriving at such conclusion, the Labour Court, Nadiad considered the cross-examination of the workman and also considered the fact that the documents related to the respondent-workman were in custody of the present petitioners, at no point of time since the documents were not produced, adverse inference was drawn in favour of the respondent- workman, and ultimately passed an order reinstating the respondent- workman with continuity of service but without back wages. The said awards are challenged by way of the present three separate petitions by the petitioners herein.

5. Learned AGP Mr.Shah has submitted that termination of the workman took place in the year 2006 and thereafter in the year 2007, references were preferred. He has the drawn attention of the Court to the observations made by the Labour Court, Nadiad in paragraph No.12 and submitted that though the industrial dispute was raised by the respondent- workman in the year 2007, because of his absence, the reference could not be proceeded and ultimately the same was dismissed for default and was restored in the year 2016, which shows negligence on the part of the respondent-workman. It also indicates that the respondent-workman was not seriously pursuing the reference and he might have been working somewhere else and on the strength of the aforesaid submission, hence he is not entitled to the relief of reinstatement. It is further submitted that considering the fact that the workman was not a regular employee and daily wager only and his appointment is illegal appointment, the award dated 03.10.2007 of reinstatement is bad in law and the same deserves to be quashed and set aside.

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6. Mr. V.A.Mansuri, learned advocate for respondent no.1 opposed the petition and submitted that the award under challenge passed by the Labour Court, Nadiad is passed after considering the entire material which was available on record and on the basis of the oral evidence led by the respective parties. He has submitted that it cannot be presumed that the respondent-workman might have got job elsewhere. Merely due to absence of the workman, the reference was dismissed for default and subsequently was restored in the year 2016. Mr.Mansuri, learned advocate further submitted that without there being any material on record to show that the respondent-workman is actually serving elsewhere, merely on the basis of presumption, an award cannot be said to be bad. Mr.Mansuri, learned advocate further submits that even if it is presumed that during the interregnum period, the workman had worked elsewhere then in that case also, Judge, Labour Court, Nadiad had considered the aforesaid aspect by holding that the respondent-workman would not be entitled for any back wages for the interpretation period. Learned advocate Mr.Mansuri further submitted that though submission was made on behalf of the learned AGP that once the reference was dismissed for default and after a long time, the same was restored, the order of restoration was never challenged by the petitioners and in fact after restoration also, the petitioners had participated in the proceedings before the Labour Court, Nadiad and, therefore, once the final order in form of the award is passed, it is not open for the petitioners to contend that reference was dismissed for default and the same was restored after a long time. Mr.Mansuri, learned advocate further submitted that the Labour Court, Nadiad has rightly drawn adverse inference in favour of the workman and the award passed by the Labour Court is absolutely just, legal and proper and, therefore, this Court in exercise of powers under Article 226 of the Constitution of India, may not interfere with the same and prayed for dismissal of this petition.

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7. Having heard the learned advocates appearing for both the sides and on perusal of the award under challenge as well as the affidavit in reply filed by the respondent-workman and other documents available on record, it is an undisputed facts that none of the parties had produced any documentary evidence in support of their respective submissions and the entire award is passed on the basis of oral evidence. In fact in examination-in-chief of one Mr. Harshan Ambalal Bhrambhatt, from DILR, he has admitted the fact that the respondent-workman was employed as a daily wager and the nature of duty was of temporary nature and he was not given any appointment letter and even his presence also was not marked. It was also an admitted position as per the examination-in-chief of said Mr. Harshad Ambalal Bhrambhatt that lastly the workman was drawing salary of Rs.1,350/- and even during the holidays the work related to measurement was undertaken. In his examination-in-chief he has stated that the record of the measurement work done is available in the office and in case if he gets the record from the years 1999 to 2007, he will produce it on record. However, in spite of the specific statement made by the officer of the petitioner, at no point of time, the record related to work has been produced before the Labour Court, Nadiad. Though the examination-in-chief of Mr. Harshad Ambalal Bhrambhatt is not produced by the petitioners along with the petition, the same is produced by the respondent-workman along with the affidavit-in- reply and, therefore, considering the same, this Court, without any doubt, can hold that considering the evidence of officer of petitioner no.1, the Labour Court, Nadiad has precisely drawn adverse inference in favour of the petitioner.

8. As far as the contention of the learned AGP in respect of dismissal of reference for default and subsequent restoration after delay of few years is concerned, I am in complete agreement with the statement of Mr.Mansuri, learned advocate that at the relevant point of time the order

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of restoration was not challenged by the State Government and in fact the State Government participated in the proceedings before the Labour Court, Nadiad and, therefore, at this stage, such stand even if taken by the State Government, the same cannot be accepted. While passing the award under challenge, the Labour Court, Nadiad was conscious about the fact that the respondent-workman was terminated in the year 2006 and thereafter reference was preferred in the year 2007 and thereafter the reference was dismissed for default and subsequently was restored and, therefore, the Labour Court, Nadiad has rightly considered that the respondent-workman remained negligent for almost 10 years and, therefore, negligence of the respondent-workman cannot be boon to him. The petitioner cannot be burdened by granting back wages to the respondent-workman for his remissness and, therefore, the Labour Court, Nadiad has precisely denied the back wages to the respondent-workman.

9. Furthermore, vide judgment dated 26.02.2021 passed in Special Civil Application No.11291 of 2018 and allied matters, the coordinate bench has rejected the writ petitions challenging similar awards in favour of other workmen.

10. Hence, in view of the foregoing discussion, the writ petition fails. The award dated 03.10.2017 passed in Reference (LCN) No.68 of 2007 by the Labour Court, Nadiad cannot be said to perverse or illegal, and hence no interfere is called for.

11. No order as to costs. Notice is discharged.

(A. S. SUPEHIA, J) ABHISHEK