Gujarat High Court
Chief Officer vs Dineshbhai Govindbhai Harijan on 8 October, 2021
Bench: A.S. Supehia
C/SCA/19912/2016 JUDGMENT DATED: 08/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19912 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 4611 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4331 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4754 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4703 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4914 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 105 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 106 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 107 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 18446 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18448 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18450 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 19908 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 19909 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 19910 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 19911 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 20006 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 20007 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 20008 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 20009 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 16263 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17862 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 16247 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 16248 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 16429 of 2018
Page 1 of 9
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C/SCA/19912/2016 JUDGMENT DATED: 08/10/2021
With
R/SPECIAL CIVIL APPLICATION NO. 16249 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 16250 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
================================================================
CHIEF OFFICER
Versus
DINESHBHAI GOVINDBHAI HARIJAN & 1 other(s)
================================================================
Appearance:
MR MEHULSHARAD SHAH(773) for the Petitioner(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 08/10/2021
COMMON ORAL JUDGMENT
1. Since the common issue and facts are involved in the present writ
petitions, the same are heard and decided analogously.
2. In the captioned writ petitions, the respondents-workmen have
challenged the awards passed by Labour Court, Nadiad, wherein and
whereby, the petitioner-Nagarpalika is directed to reinstate the
respondent-daily wagers with continuity of service without back wages.
C/SCA/19912/2016 JUDGMENT DATED: 08/10/2021
3. Learned advocate Mr.Mehulsharad Shah appearing for the
petitioner-Nagarpalika has submitted that the award of the Labour Court
suffers from non-application of mind as no evidence - either documentary
or oral was produced before the Labour Court and the award is passed in
favour of the respondents-employees only on conjunctures and surmises.
It is submitted that the petitioner-Nagarpalika had initially passed a
Resolution No.510 dated 22.10.1999 to convert the part time daily wagers
to full time daily wagers, but vide order dated 16.12.1999, the Health
Officer directed the Nagarpalika to postpone the implementation of the
said order since there were instructions issued by the Election
Commission due to election and by the order dated 21.12.1999, the
Resolution was suspended. Ultimately, the Collector, while exercising the
powers under Section 258 (1) of the Gujarat Municipalities Act, 1963
vide order dated 08.06.2001 had suspended those resolutions. It is
submitted that because of the said resolutions, the respondents-workmen
raised an industrial dispute alleging that they were terminated by the
Nagarpalika and the same has culminated into the references.
4. It is submitted by the learned advocate Mr.Shah that by the order
dated 21.06.2011, the reference was dismissed for want of evidence and
thereafter, on an application filed by the respondents-employee, the case
was restored vide order dated 17.03.2012. It is submitted that thereafter
C/SCA/19912/2016 JUDGMENT DATED: 08/10/2021
vide impugned award, the references were allowed. It is submitted that
the respondents-employees did not produce any evidence before the
Labour Court showing that they had actually worked for 240 days or were
in fact the employees of Nagarpalika and the Labour Court without
calling for necessary evidence or examining any evidence in this regard
has passed the impugned award and hence, the same is required to be
quashed and set aside. In support of his submissions, he has placed
reliance on the judgment of the Coordinate Bench dated 23.07.2019
passed in Special Civil Application No.2685 of 2012 and has submitted
that the employer is not obliged to maintain the seniority list of daily
wages and burden lies upon the party who asserts violation of provisions
of Sections 25G and 25H of the Industrial Disputes Act, 1947 (for short
"the ID Act"). It is submitted that in the present case also it was for the
respondents-employees to establish the dates of their appointment and
their termination is in violation of Section 25G of the ID Act. Thus, it is
submitted that since in absence of any evidence before the Labour Court,
no award should have been passed directing the Nagarpalika to reinstate
the respondents-employees in service.
5. In response to the aforesaid submissions, learned advocate
Mr.U.T.Mishra appearing for the respondents has submitted that the
Labour Court has precisely passed the award directing the Nagarpalika to
C/SCA/19912/2016 JUDGMENT DATED: 08/10/2021
reinstate the workmen in service since the Nagarpalika had passed a
Resolution dated 22.10.1999, whereby it was decided to convert the part
time daily wagers to full time daily wagers and hence, in view of the said
resolution, the Labour Court has held that the employees were in fact
working under the petitioner-Nagarpalika. It is submitted that the
petitioner-Nagarpalika could have produced the evidence - either orally
or documentary to show that they were being engaged by the Nagarpalika
for undertaking necessary work, but since the same was not produced, the
Labour Court has precisely relied upon the statement of the respondents-
employees that they were engaged by the Nagarpalika. Thus, he has
submitted that the impugned award may not be interfered.
6. I have heard the learned advocates appearing for the respective
parties and the impugned awards are also perused.
7. The facts, which are not in dispute are that on 22.10.1999
Resolution No.510 was passed by the petitioner-Nagarpalika deciding to
convert the part time daily wagers to full time daily wagers, but the same
was subsequently suspended and ultimately, by order dated 08.06.2001,
the Collector, while exercising the powers under Section 258(1) of the
Gujarat Municipalities Act, 1963, has suspended the said resolution and
such resolution has not been challenged by the respondents-employees.
C/SCA/19912/2016 JUDGMENT DATED: 08/10/2021
8. It appears that thereafter the respondents-employees raised the
industrial dispute, which culminated into the reference. The reference was
dismissed for want of evidence by the Labour Court by order dated
21.06.2011, however the same was restored vide order dated 17.03.2012
on the application made by the respondents-employees.
9. The Court has perused the award threadbare and a bare perusal of
the award reveals that the same is passed without examining any
documentary evidence establishing that the respondents-employees were
engaged or working under the petitioner-Nagarpalika or they were
engaged for any work. No muster roll or any seniority list or other
documents or wage register anything is produced by the workmen. The
only evidence, on which the award is premised, is Exh.11 i.e. the affidavit
of the chief-examination of the applicant i.e. the Chief Officer.
10. At this stage, it would be apposite to refer to the decision of the
Supreme Court in the case of State of Uttarakhand & Ors. vs. Sureshwati,
(2021) 3 SCC 108, wherein the Supreme Court has reiterated the
observations made in the case of Bhavnagar Municipal Corporation and
Others vs. Jadeja Govubha Chhanubha and Another, (2014) 16 SCC 130,
which read as under:-
"26. A division bench of this Court in Bhavnagar Municipal Corpn. v. Jadeja
Govubha Chhanubha11 held that :
"7. It is fairly well-settled that for an order of termination of the services of a
workman to be held illegal on account of non-payment of retrenchment
C/SCA/19912/2016 JUDGMENT DATED: 08/10/2021
compensation, it is essential for the workman to establish that he was in
continuous service of the employer within the meaning of Section 25-B of the
Industrial Disputes Act, 1947. For the respondent to succeed in that attempt he
was required to show that he was in service for 240 days in terms of Section 25-
B(2)(a)(ii). The burden to prove that he was in actual and continuous service of
the employer for the said period lay squarely on the workman. The decisions of
this Court in Range Forest Officer v. S.T.Hadimani 12, Municipal Corpn.,
Faridabad v. Siri Niwas 13, M.P. Electricity Board v. Hariram,Rajasthan State
Ganganagar S. Mills Ltd. v. State of Rajasthan 15,: 2004 SCC (L&S) 1055] ,
Surendranagar District 11 (2014) 16 SCC 130. Panchayat v. Jethabhai
Pitamberbhai16,and R.M. Yellatti v. Executive Engineer unequivocally
recognise the principle that the burden to prove that the workman had worked
for 240 days is entirely upon him. So also the question whether an adverse
inference could be drawn against the employer in case he did not produce the
best evidence available with it, has been the subject-matter of pronouncements
of this Court in Municipal Corpn., Faridabad v. Siri Niwas and M.P. Electricity
Board v. Hariram [M.P. Electricity Board v. Hariram, , reiterated in RBI v. S.
Mani18. This Court has held that only because some documents have not been
produced by the management, an adverse inference cannot be drawn against
it."
The Supreme Court has reiterated proposition of law that it is well-
settled that for an order of termination of the services of a workman to be
held illegal on account of non-payment of retrenchment compensation, it
is essential for the workman to establish that he was in continuous service
of the employer within the meaning of Section 25B of the Industrial
Disputes Act, 1947. Unequivocally the burden lies on the workman to
prove that he has worked for 240 days, which in the present case is
absolutely missing. The Coordinate Bench in the judgment dated
23.07.2019 passed in Special Civil Application No.2685 of 2012, while
examining the similar issue has held that in order to give findings with
regard to breach of Section 25G of the ID Act, the workman has to
establish the specific date of his appointment and he has to prove that the
persons named in the seniority list are retained in service. The Court has
also held that the employer is not obliged to maintain the seniority list of
C/SCA/19912/2016 JUDGMENT DATED: 08/10/2021
the daily wagers and the burden lies upon the party.
11. In the present case, as noticed from the award, it is apparent that
neither the respondents-workmen have produced any documents to show
that they were engaged by the present petitioner-Nagarpalika and they
had worked continuously for 240 days nor any seniority list etc. was also
produced. The industrial dispute has been raised by the respondents-
employees by placing reliance on the resolution dated 22.10.1999 passed
by the Nagarpalika to convert the part-timers into full time employees.
Indisputably, the said Resolution has been suspended by the Collector,
while exercising the powers under Section 258(1) of the Gujarat
Municipalities Act, 1963 vide order dated 08.06.2001. Such orders are
also not challenged before any forum. The resolution dated 22.10.1999 is
neither examined nor it is called for. It is also not produced before this
Court. In order to arrive at the findings in favour of the employees, it was
necessary for the Labour Court to examine the true nature and import of
the Resolution as to whether the said resolution was in force or any right
flows from it in favour of the employees. The subsequent order passed by
the Collector suspending the Resolution was also required to be
examined.
12. Under the circumstances, since the award suffers from
aforementioned irregularities, the matters are remanded to the Labour
C/SCA/19912/2016 JUDGMENT DATED: 08/10/2021
Court, Nadiad to decide the issue afresh. During the pendency of these
petitions, it is informed that the respondents-employees are engaged by
the Nagarpalika subject to the outcome of the present petitions, as it
appears that due to the interim orders passed by this Court, the
respondents-employees are reinstated and are being engaged in work
subject to the outcome of these petitions.
13. In this view of the matter, the petitioner is directed to continue such
respondents-employees in service, who are engaged if the work is
available till the references are decided by the Labour Court. The Labour
Court is directed to decide the reference, preferably within a period of six
months from the date of receipt of the writ of this judgment.
14. Accordingly, the petitions are allowed. Rule is made absolute.
15. In view of the order passed in the writ petitions preferred by the
Nagarpalika, the petitions filed by the respondents-employees being
Special Civil Application Nos.4611, 4331, 4754, 4703 and 4914 of 2018
are hereby rejected.
Sd/-
(A. S. SUPEHIA, J)
ABHISHEK
