Gujarat Water Supply And Sewerage ... vs Ramji Sava Mayatra
2021 Latest Caselaw 17080 Guj

     C/LPA/1777/2019                            CAV ORDER DATED: 29/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 1777 of 2019
                                    In
               R/SPECIAL CIVIL APPLICATION NO. 12539 of 2009
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                     In
                R/LETTERS PATENT APPEAL NO. 1777 of 2019
                                   With
                R/LETTERS PATENT APPEAL NO. 1778 of 2019
                                     In
                SPECIAL CIVIL APPLICATION NO. 12538 of 2009
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                     In
                R/LETTERS PATENT APPEAL NO. 1778 of 2019
                                     In
                SPECIAL CIVIL APPLICATION NO. 12538 of 2009

================================================================

GUJARAT WATER SUPPLY AND SEWERAGE BOARD Versus RAMJI SAVA MAYATRA ================================================================ Appearance:

RONAK D CHAUHAN(7709) for the Appellant(s) No. 1 MS MAMTA R VYAS(994) for the Respondent(s) No. 1 ================================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE DR. JUSTICE A. P. THAKER

Date : 29/10/2021 CAV ORDER (PER : HONOURABLE DR. JUSTICE A. P. THAKER)

1. These Letters Patent Appeals are filed by the appellant -

original petitioner against the impugned common judgment

dated 30.09.2019 passed by the learned Single Judge in Special

Civil Application No.12538 of 2009 with Special Civil Application

No.12539 of 2009, whereby the learned Single Judge has

C/LPA/1777/2019 CAV ORDER DATED: 29/10/2021

dismissed both the petitions which were filed against the

impugned judgment and award dated 18.02.2009 passed by the

Labour Court, Gandhidham, Kachchh at Bhuj in Reference (LCG)

Nos. 112 and 113 of 2005 whereby the respondents have been

granted reinstatement on their original post with continuity of

service with further direction to pay 50% back wages.

2. Heard Mr. D. G. Chauhan, learned counsel for the appellant

and Ms.Mamta Vyas, learned counsel for the respondents in both

the appeals.

3. Mr. D. G. Chauhan, learned counsel for the appellant has

assailed the impugned order and further relied on the grounds

set out in the memo of appeals. His arguments are, mainly, on

the following points:-

(1) The respondents - workmen are surplus labourers. The

services of similarly surplus labourers were terminated by

paying retrenchment allowance.

(2) Necessary retrenchment allowance has been paid to the

workmen. Thus, the appellant has followed the procedure

under Section 25-F of the I.D. Act.

C/LPA/1777/2019 CAV ORDER DATED: 29/10/2021

(3) There was no pleading and proof of the breach of Section

25-G and 25-H of the I.D. Act.

(4) In absence of pleadings by the workmen, no opportunity

has been made available to the appellant herein to rebut

the same.

(5) The documentary evidence showing payment of

retrenchment allowance in the shape of copy of the debit

entry from the bank account though produced has not

been considered by the learned Single Judge.

3.1 Harping upon the aforesaid points, Mr.D. G. Chauhan,

learned counsel for the appellant has vehemently submitted that

when there is documentary evidence regarding the payment of

retrenchment allowance produced in the case, the learned Single

Judge ought to have accepted the same and ought to have

allowed the petitions by quashing and setting aside the

impugned award of the Labour Court. Further, he has submitted

that the Labour Court as well as learned Single Judge have not

considered the pleadings as well as oral and documentary

evidence on record in their proper perspective and have

committed serious error of facts and law in passing the

C/LPA/1777/2019 CAV ORDER DATED: 29/10/2021

impugned award and the order. Mr.D. G. Chauhan, learned

counsel for the appellant has relied upon the following decision.

          1.     Regional Manager, SBI Vs.          Rakesh           Kumar
                 Tewari, (2006) 1 SCC 530;

2. Union of India Vs. Ibrahim Uddin and another, (2012) 8 SCC 148;

4. Per contra, Ms.Mamta Vyas, learned counsel for the

respondents has supported the impugned award of the Labour

Court as well as the order passed by the learned Single Judge in

both the Special Civil Applications. While relying upon the

decision of the Hon'ble Supreme Court in the case of Harjinder

Singh Vs. Punjab State Warehousing Corporation, 2010

(1) Scale 613, she has submitted that the appellant herein has

not followed the rule of "last come first go" without any tangible

reasons. She has submitted that the award passed by the Labour

Court is reasoned one and the impugned common order passed

by the learned Single Judge is also reasoned one and the learned

Single Judge has taken into consideration all the aspects of the

matter and has rightly dismissed both the petitions. She has

prayed to dismiss both the Letters Patent Appeals.

C/LPA/1777/2019 CAV ORDER DATED: 29/10/2021

5. In the case of Ibrahim Uddin (supra), the Apex Court has

observed in para-77 as under:-

"77. This Court while dealing with an issue in Kalyan Sing Chouhan v. C. P. Joshi, (2011) 11 SCC 786, after placing reliance on a very large number of its earlier judgments including Trojan & Co. v. Nagappa Chettiar, AIR 1953 SC 235, Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256, Ishwar Dutt v. Collector (LA), (2005) 7 SCC 190 and State of Maharashtra v. Hindustan Construction Co. Ltd., (2010) 4 SCC 518 held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in the absence of the pleadings in that respect. No party can be permitted to travel beyond its pleadings and that all necessary and materials facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon."

6. Having considered the submissions made on behalf of both

the sides and considering the materials placed on record and the

impugned common oral order of the learned Single Judge and

award of the Labour Court, it transpires that there is no dispute

regarding the fact that the respondents herein were serving with

the appellant and their services came to be terminated. It also

transpires from the impugned common oral order rendered by

the learned Single Judge in both the Special Civil Applications

that similar submissions were made by the learned counsel for

the appellant before the learned Single Judge. The learned Single

C/LPA/1777/2019 CAV ORDER DATED: 29/10/2021

Judge has considered all these submissions in detailed coupled

with the facts averred in the Statement of Claim, the written

statement, the oral as well as documentary evidence produced

by both the sides. It has been specifically observed and held by

the learned Single Judge that the respondents have deposed on

oath confirming the averments set out in their respective

Statement of Claims and they have categorically stated that their

services came to be terminated with effect from 02.09.2005

without any reasons and without payment of any notice pay.

Even during the cross-examination, they have stated that no

retrenchment compensation has been paid to them. It also

transpires that the witness of the present appellant has shown

his willingness to produce the statement containing particulars of

workmen working in the institution. However, he has denied to

have any information about the reasons for retrenchment of the

respondents herein.

7. In respect to the submissions of Mr.Chauhan, learned

counsel for the appellant as to the issues relating to Section 25-G

of the I.D. Act), it is pertinent to note that the appellant in it's

written statement before the Labour Court, has specifically

averred that "management has not appointed any workers after

C/LPA/1777/2019 CAV ORDER DATED: 29/10/2021

termination of the respondents". This fact itself suggests that

there was pleadings regarding the breach of Section 25-G of the

I.D. Act. Further, it is pertinent to note that even the Labour

Court has directed the appellant to produce various documents

which includes muster roll, payment of vouchers, books of

accounts etc., which were being maintained by the appellant

herein. However, the same had not been produced. This aspect

has been considered by the learned Single Judge in para-9.1 and

9.2 which reads as under:-

"9.1 It is worthwhile to take note of the fact that the Labour Court had directed the petitioner to produce various documents, which included the Muster roll, payment of vouchers, books of accounts etc., these are the documents, which, in the normal course, are maintained by the statutory bodies. However, the same had not been produced, which also does not give indication of the proof of people engaged, after termination of the services of the respondents-workmen. In the said matter, while examining the matter of proving 240 days, the Apex Court observed and held as under:

"Now coming to the question of burden of proof as to the completion of 240 days of continuous work in a year, the law is well settled. In the case of Manager, Reserve Bank of India, Bangalore v. S. Mani reported in (2005) 5 SCC 100, the workmen raised a contention of rendering continuous service between April, 1980 to December, 1982 in their pleadings and in their representations. They merely contended in their affidavits that they had worked for 240 days. The tribunal based its decision on the management not producing attendance register. In view of the affidavits filed by the workmen, the tribunal held that the burden on the workmen to prove 240 days service stood discharged. In that matter, a three-judge bench of this court held that pleadings did not constitute a substitute for proof and that the affidavits contained

C/LPA/1777/2019 CAV ORDER DATED: 29/10/2021

self-serving statements; that no workman took an oath to state that they had worked for 240 days; that no document in support of the said plea was ever produced and, therefore, this court took the view that the workmen had failed to discharge the burden on them of proving that they had worked for 240 days. According to the said judgment, only by reason of non- response to the complaints filed by the workmen, it cannot be said that the workmen had proved that they had worked for 240 days. In that case, the workmen had not called upon the management to produce relevant documents. The court observed that the initial burden of establishing the factum of continuous work for 240 days in a year was on the workmen. In the circumstances, this court set aside the award of the industrial tribunal ordering reinstatement."

9.2 In the instant case, the management had been called upon to produce relevant documents being the service record of workman and also the proof of engaging 94 persons after having retrenched respondents. Such record would be available only with the management. The Apex Court also has held in case of 'DIRECTOR, FISHERIES TERMINAL DIVISION VS. BHIKHUBHAI MEGHAJIBHAI CHAVDA', (2010) 1 SCC 47, it would be the responsibility of the Management to produce these materials and in absence of such production, presumption has to be drawn in favour of workman and against the Management."

Thus, the opportunity was available to the appellant to

rebut the grievance of the respondents as to the breach of

Section 25-G of the I.D. Act.

8. Now, it is well settled that so far as the proceedings under

the I.D. Act is concerned, no strict rules of procedure and/or

Evidence Act are applicable. The decisions relied upon by the

learned counsel for the appellant in the case of Ibrahim Uddin

(supra) is concerned, it was a suit seeking declaration of title of

ownership of property etc. However, in the present case, the

C/LPA/1777/2019 CAV ORDER DATED: 29/10/2021

appellant herein has specifically taken a stand in it's written

statement especially in para-2 ascertaining that the

management has not engaged any other workmen after

termination of the present workmen.

9. Further, so far as the issue as to payment of retrenchment

allowance is concerned, it appears that except producing the

debit entry in Bank Account, which is not certified, no other

document such as issuance of the notice and receipt of payment

thereof are produced by the appellant. In absence of such

reliable documentary evidence, the factum of non-payment of

retrenchment allowance is believed by the Labour Court and the

learned Single Judge.

10. On perusal of the impugned judgment of the learned Single

Judge, it clearly transpires that the decisions relied upon by the

appellant are also dealt with in detailed by the learned Single

Judge. Not only that but the learned Single Judge has also

referred to the decisions of the Hon'ble Supreme Court in the

case of Union of India and others Vs. Jagdish Pandey and other,

(2010) 7 SCC 689, Reetu Marbles Vs. Prabhakant Shukla, (2010)

2 SCC 70, General Manager, Haryana Roadways Vs. Rudhan

C/LPA/1777/2019 CAV ORDER DATED: 29/10/2021

Singh, (2005) 5 SCC 591, R. M. Yellatti Vs. Asst. Executive

Engineer, AIR 2006 SC 355 and Director, Fisheries Terminal

Division Vs. Bhikhubhai Meghajibhai Chavda, (2010) 1 SCC 47

and has ultimately dismissed the petitions of the present

appellant - original petitioner and has confirmed the award

passed by the Labour Court Gandhidham, Kachchh at Bhuj in

Reference (LCG) Nos. 112 and 113 of 2005 dated 18.02.2009.

We are in complete agreement with the reasoning and

observations made by the learned Single Judge while dismissing

Special Civil Application No.12538 of 2009 with Special Civil

Application No.12539 of 2009.

11. In view of the above discussion, the present appeals are

meritless and they are dismissed summarily. No order as to

costs.

ORDER IN CIVIL APPLICATIONS

12. In view of above order in appeals, both Civil Applications do

not survive for any order. Accordingly, both Civil Applications are

also disposed of.

(N.V.ANJARIA, J)

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