Savitaben Jerambhai Patel vs State Of Gujarat
2021 Latest Caselaw 14789 Guj

     C/LPA/626/2021                                  ORDER DATED: 22/09/2021


           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 626 of 2021
          In R/SPECIAL CIVIL APPLICATION NO. 4742 of 2012
                               With
       CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
            In R/LETTERS PATENT APPEAL NO. 626 of 2021
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                      SAVITABEN JERAMBHAI PATEL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR KRUNAL D PANDYA(3283) for the Appellant(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE DR. JUSTICE A. P. THAKER

                            Date : 22/09/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.Krunal D. Pandya for the appellant and learned Assistant Government Pleader Mr.Manan Mehta for the respondent - State.

2. The challenge in the present Letters Patent Appeal is addressed to judgment dated 11th June, 2019 delivered by learned Single Judge, whereby he allowed the Special Civil Application, in turn, set aside the judgment and award of the Labour Court.

3. In the Special Civil Application filed by the Forest Department of the State, what was called in question was judgment and award dated 28th September, 2010 of Labour Court, Valsad passed in Reference (LCV) No.183 of 2002. Thereby the Labour Court allowed the Reference of the appellant-workman, held the action on part of the first party employer

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to terminate the services of the workman from 01 st January, 2000 to be illegal. It was directed to reinstate the workman on the original post with continuity of service and with 50% back wages, and further to pay cost of Rs.03,000/-.

3.1 The case of the workman before the Labour Court submitted through the statement of claim (Exh.4) was inter alia that he had been working as Gardner since 12th May, 1981 and discharge duties in different lead areas during 9 a.m. to 6 p.m. everyday. It was the case that he was not allowed weekly off or Sunday leave and was paid Rs.60/- per day and his signature was used to be taken in the muster roll. The nature of the work consisted of sowing the seeds, nurturing the saplings, and looking after the plantations and fertilizing them. It was the case that though the work was available and was of permanent nature, services of the appellant was abruptly terminated and thereafter the work was got performed by engaging other persons.

3.2 Despite notice of the Labour Court, the employer did not file any reply. The Labour Court closed the right to file reply as per Exh.6. Exh.11 was the affidavit, however in respect thereof, nobody turned up on behalf of the employer for cross- examination. The right to cross-examine had also therefore to be closed for the employer. Labour Court concluded that in absence of rebuttal by the employer, the case of the workman was liable to be accepted and further it was found that the workman

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was not paid any retrenchment compensation etc. before effecting termination of his services.

3.3 As regards the aspect of back wages, the Labour Court observed that the Reference was of the year 2002 and looking to the span of time, it was not possible to infer that the workman would have been entirely without work or that he did not earn at all. The Labour Court exercised the discretion, noticing further that the workman was responsible for partial delay in approaching the Labour Court, granted 50% back wages.

4. When learned Single Judge dealt with the challenge to the said judgment and award in the writ petition of the State, he took the view that workman had failed to discharge initial burden that he served under the first party employer continuously. According to learned Single Judge there was no evidence to show that the workman had put in the requisite specified number of days in service.

4.1 The reasons supplied by learned Single Judge are reproduced by extracting from paragraph No.5 of the judgment.

"5. The Court below seems to be under misconception of the legal position that the workman would be absolved from proving its case where the employer does not appear or plead his case. Such is not the legal position. Settled law is that initial burden of establishing the fact the workman served the employer continuously within the meaning of section 25B of the Act would be on the workman and

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by mere statement in the affidavit, such a burden could not be discharged. No relevant facts evidencing the specified number of days, months or years, the workman might have served with the petitioner are noticed in the impugned judgment and award. At the cost of repetition, even the justification in relation to the quantification of back- wages to an extent of 50% is not given by the Labour Court in its impugned judgment and award. Such an award in the opinion of this Court cannot be sustained."

5. Now, it is true that the workman will have to discharge the initial burden in respect of the case he may have pleaded about having served for particular number of days to make it continuous service. What was submitted on behalf of the appellant in this regard is that there was a categorical assertion in the statement of claim about the factum of continuous service and in the affidavit in support, which was not rebutted or demolished by the employer who failed to filed the reply.

5.1 Not only that, learned advocate for the appellant could show to the Court communication dated 18th January, 2019 from the office of Deputy Conservator of Forests. Therein reference was made in respect of services of two workmen, the present appellant as well as one Jeram (petitioner of Special Civil Application No.4740 of 2012 and appellant in Letters Patent Appeal No.610 of 2021). The said communication dated 18th January, 2019 (Annexure-D, Page 48 in the compilation of petition) mentions that in view of the Resolution dated 15 th September, 2014

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of the Forest Department, the evidence with regard to the services of the two workmen named Jerambhai and Savitaben were examined and the Committee constituted for the purpose had submitted a report. As per the said report, both the workmen had served for more than 240 days continuously during more than six years. The said communication dated 18th January, 2019, recorded that therefore the two workmen would be entitled to the benefits flowing from Resolution dated 15th September, 2014.

5.2 There would be no gainsaying that the facts stated in the aforementioned communication dated 18th January, 2019 about the services of the appellant stand in substantiation of the case pleaded by the workman in the statement of claim. Learned Single Judge has plainly overlooked the contents of the said communication dated 18th January, 2019 and the facts stated therein. In the least, these facts emanating from the correspondence between the authorities could shift the onus of proof on the employer to prove otherwise.

5.3 The finding recorded by learned Single Judge that no relevant facts evidencing the specified number of days of service of the appellant are available, cannot be said to be accurate. Learned Single Judge has failed to examine the principles of burden of proof and the shifting of burden to become onus, in light of the above facts and record.

6. As a result, it is considered expedient by us to remand the Special Civil Application to learned

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Single Judge for deciding afresh keeping in view of the above aspect and giving due regard thereto by examining the legal effect thereof. In order that the learned Single Judge is enable to decide afresh and render fresh judgment, impugned judgment dated 11th June, 2019 allowing the Special Civil Application No.4742 of 2012 is hereby set aside. Learned Single Judge is directed to reconsider and redecide the Special Civil Application involving the challenge to judgment and award of the Labour Court. For fixing the schedule of hearing of Special Civil Application, it is open for the appellant to request the learned Single Judge.

6.1 It is clarified that this order shall not be construed as final opinion on the merits of the case as it is for learned Single Judge to apply his mind afresh to answer the challenge to the judgment and award of the Labour Court in accordance with law.

7. The present Letters Patent Appeal is allowed in part to the aforesaid extent and in above terms.

ORDER IN CIVIL APPLICATION

In view of dismissal of the main Letters Patent Appeal, no order is required to be passed in the present Civil Application and it stands disposed of accordingly.

(N.V.ANJARIA, J)

(DR. A. P. THAKER, J) ANUP