Gujarat High Court

Gujarat Water Supply & Sewerage ... vs Dilipbhai Laghubhai Tanetia on 18 August, 2022

Bench: Biren Vaishnav

    C/SCA/25812/2007                           JUDGMENT DATED: 18/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 25812 of 2007
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 25813 of 2007
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 2599 of 2008
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 2600 of 2008

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
               GUJARAT WATER SUPPLY & SEWERAGE BOARD
                                 Versus
                 DILIPBHAI LAGHUBHAI TANETIA & 1 other(s)
==========================================================
Appearance:
MR. BHARGAV V PANDYA(7103) for the Petitioner(s) in SCA NOS.25812
and 25813 of 2007
MS.NIYATI V VAISHNAV(6168) for the Petitioner(s) in SCA NOS.2599 and
2600 of 2008
MR. BHARGAV V PANDYA for the Respondent(s) No. 1 in SCA NOS.2599
and 2600 of 2008
MS.NIYATI V VAISHNAV for the Respondent(s) No. 1 in SCA NOS.25812
and 25813 of 2007
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV



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 C/SCA/25812/2007                           JUDGMENT DATED: 18/08/2022




                       Date : 18/08/2022

                   COMMON ORAL JUDGMENT

1. Heard Mr.Bhargav Pandya learned advocate

appearing for the employer - Gujarat Water

Supply & Sewerage Board (hereinafter to be

referred to as 'the Board' for short) in all the four

petitions.

2. Special Civil Application Nos.25812 and 25813 of

2007 are preferred by Board against the common

award passed in Reference (LCS) Nos.51 of 2006

and 58 of 2006. By the award dated 12.03.2007,

the Labour Court, Surendranagar, has directed

the Board to reinstate the workmen without

back-wages.

3. Aggrieved by the aforesaid awards, inasmuch as,

it denied back-wages, the respondent workmen

have also preferred Special Civil Application

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

Nos.2599 and 2600 of 2008.

4. All these petitions are heard together and

disposed of by this common judgment.

5. Facts in brief would indicate that it was the case

of the workmen before the Labour Court in the

respective references was that they were

working with the Board for the period from

07.12.1994 to 13.09.2005 and 14.02.1995 to

30.09.2005. It was their case that their

termination was in violation of the provisions of

Sections 25F, 25G and 25H of the Industrial

Disputes Act ('the Act' for short). The Labour

Court based on the evidence produced on record,

came to the conclusion that since the workmen

had in their deposition named four workmen

Maribhai, Bajaniyabhai, Lalbhai and one Darbar

and the other 9 to 10 workmen who were

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

continued in service even after retrenchment of

the workmen concerned in the present petitions,

there was violation of the provisions of Section

25G of the Industrial Disputes Act. The Labour

Court further held that from the cross-

examination of the employer, it had come on

record that the seniority list was not maintained

and the employer was not certain of the list

being maintained and also that the work was

being continued by engaging surplus staff. On

this count, the Labour Court also held that there

was violation of provisions of Section 25H of the

Act and therefore awarded reinstatement

without back-wages.

6. Mr.Bhargav Pandya learned counsel appearing

for the petitioners of Special Civil Application

Nos.25812 and 25813 of 2007 would submit that

admittedly the Labour Court found that there

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

was no violation of Section 25F of the Act as the

compensation was paid and was accepted by the

workmen concerned. He would draw the Court's

attention to the deposition of the workmen at

Exh.10. He would submit that it was their case

that they were part time workers. After their

termination they intermittently worked as

labourers and would get some amount. Relying

on the additional affidavit filed by them, he would

submit that it was their clear admission that they

had accepted the compensation, however, under

protest.

6.1 Mr.Pandya would further submit that in

their affidavit supporting their deposition though

they had said that about 9 to 10 workmen

including the names referred to in the earlier

part of this order were working, however, they

were not sure as to whether these 9 persons who

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

were retained were either senior or junior to the

workmen. The employer was examined at

Exh.27 viz. one Harshadkunj Vasantray

Machchhar. In his deposition it was admitted

that the workmen had accepted the amount of

retrenchment compensation. Though the

deposition indicated that new persons were

engaged, the surplus staff was used for

continuing the work.

6.2 Mr.Pandya would further submit that the

Labour Court failed to appreciate that vide the

affidavit filed at Exhs.10 and 27, the Board had

produced the documentary evidence which

stated that the labourers named by the workmen

and the others were senior to the workmen and

therefore there was no violation of the provisions

of Sections 25G and 25H of the Act. He would

submit that essentially the burden was on the

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

workmen which was not discharged to prove the

violation.

6.3 In support of his submission, Mr.Pandya

would rely on the decision of this Court in case of

Ranjit Natvarlal Chauhan v. Morbi Nagar

Palika reported in 2011 (2) GLR 1783. He

would rely on paras 12 and 13 of the decision.

7. Ms.Niyati Vaishnav learned counsel appearing

for the workmen in all four petitions would

support the award of the Labour Court holding

that there was violation of provisions of Sections

25G and 25H of the Act. She would submit that

a categorical positive statement was made that

nine to ten persons were continued in service

after the retrenchment of the present workmen.

That even the employer had admitted that no

seniority list was produced, 32 workmen were

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

carrying out the work which was being rendered

through surplus staff and therefore no fault can

be found with the award inasmuch as, provisions

of Sections 25G and 25H was followed.

7.1 As far as her petitions challenging denial of

back-wages is concerned, she would submit that

it was only intermittently that only one workman

in his deposition viz. Dilipbhai Tevatiya had

stated that he was earning Rs.250/- to Rs.300/-.

The other workmen were not earning anything

and otherwise in the additional affidavit they had

clearly stated that they were in search of work

but they were not getting any work. In the teeth

of these submissions, outright denial of back-

wages by the Labour Court was unjust.

7.2 She would rely on the decision of the

Supreme Court in case of Deepali Gundu

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

Surwase v. Kranti Junior Adhyapak

Mahavidyalaya (D.Ed.) and others rendered in

Civil Appeal No.6767 of 2013. The relevant

paragraphs of the said judgment read as under:

"33. The propositions which can be culled out from the aforementioned judgments are:

i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/ or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."

8. Having considered the submissions made by the

learned advocates for the respective parties, few

things need to be noted.

8.1 Admittedly, the case of the workmen that

there was violation of provisions of Sections 25F

of the Industrial Disputes Act has not been

accepted by the Labour Court in view of the

evidence which has come on record that the

workmen had accepted the compensation albeit

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

under protest.

8.2 Considering the violation of the provisions of

Section 25G and 25H of the Industrial Disputes

Act, the adjudication of the Labour Court on its

violation appears to be based on half baked

evidence.

8.3 The deposition of the workmen and the

additional affidavit also indicates that though the

workmen had said that about 9 to 10 employees

were engaged by the Board, however, in the next

breath, they have stated that they were not sure

whether they were junior or senior. Considering

the evidence produced by the employer though

there is a whisper of defense on the ground of

maintaining seniority list and the same has not

been produced and also giving a truncated

response by stating that 32 people were

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

continued by engaging them from the surplus

staff, on record, what is produced by the learned

counsel for the petitioner-Board is a statement of

the nine people who are engaged by the Board

and who, according to the workmen were junior

to the workmen, the Labour Court appears to

have picked up only those names who according

to the Labour Court were engaged post the

workmen and therefore arrived at a finding of

violation of Sections 25G and 25H. As stated by

Mr.Pandya, the Labour Court did not in its

entirety appreciate the documentary evidence

and the table produced (at page 33 of this

petition), particularly in light of the principles

laid down by this Court in case of Ranjit

Natvarlal Chauhan (supra). Paragraphs 12 and

13 of this decision read as under:

"12. As regards the alleged breach of sections 25G and 25H of the Act is

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

concerned, it appears that the view taken by the learned Single Judge in the impugned order that if the person has not completed 240 days of service, there will not be any question of following the procedure under section 25G and 25H of the Act is not supported by the recent decision of the Apex Court in the case of Harjinder Singh Versus Punjab State Warehousing Corporation reported at 2010(3) SCC 192 (equivalent AIR 2010 SC 1116), but the matter does not end there. Even if the contention of the learned counsel is considered for the sake of examination on the aspect of alleged breach of sections 25G and 25H of the Act, it appears that the Labour Court has not accepted the contention of the appellant for the alleged breach of section 25G of the Act and therefore, such finding not being in favour of the appellant, it would not be open to the appellant to take the benefit of the alleged breach of section 25G of the Act. Even otherwise also, the award shows that as per the Labour Court, the workman did not discharge the burden of giving details satisfactorily of the juniors who were retained in service to claim the benefit of section 25G of the Act.

13.Concerning to the finding recorded by the Labour Court for the alleged breach of section 25H of the Act, we find that the approach of the Labour Court cannot be countenanced. The examination of the facts of the present case further shows that there was no evidence on record before the Labour Court by giving the names of the

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

person who were offered employment after termination of the workman in question. Mere allegation that the employer had made new recruitment, in our view cannot be said to be a sufficient discharge of burden by the workman. It is required for the workman to state on oath with the details of the persons who have been offered employment by way of fresh recruitment or juniors to him. It is only after that burden is discharged by the workman, the burden would shift to the employer to disprove the said fact. There was no evidence before the Labour Court except the bare statement of the workman that after his termination new recruitment was made. Under these circumstances, we find that when the workman had not discharged the burden, which was required to be proved by him for taking benefit of section 25H of the Act, the finding recorded by the Labour Court could be said as perverse to the record of the case. Under the circumstances, the said part of the award cannot be sustained in the eye of law."

8.4 Be it noted that the awards of the Labour

Court are in a reference of the year 2006 which

were decided by the Labour Court in the year

2007. For want of proper appreciation of

evidence in light of what is stated herein above,

the Labour Court needs to have a fresh look at

C/SCA/25812/2007 JUDGMENT DATED: 18/08/2022

the evidence produced on record, especially the

statement connecting the nine people produced

as documentary evidence before the Labour

Court.

9. For the aforesaid reasons, the award dated