Bhavnagar Municipal Corporation vs Rajubhai Popatbhai Jograna
2022 Latest Caselaw 1478 Guj

     C/LPA/170/2022                                     ORDER DATED: 09/02/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 170 of 2022
         In R/SPECIAL CIVIL APPLICATION NO. 26731 of 2007
                               With
       CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2018
            In R/LETTERS PATENT APPEAL NO. 170 of 2022
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                  BHAVNAGAR MUNICIPAL CORPORATION.
                                Versus
                     RAJUBHAI POPATBHAI JOGRANA
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MR YV SHAH(813) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                         Date : 09/02/2022
                          ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and order dated 7.3.2017 passed by the learned Single Judge in Special Civil Application no.26713 of 2007, the appellant- Municipal Corporation has preferred this intra-Court appeal under Clause 15 of the Letters Patent.

2. Suffice it to note that the Writ Petition was filed by the appellant challenging the award dated 5.9.2006 rendered by the Labour Court, Bhavnagar in Reference (LCB) no.283/2000, whereby the Labour Court was pleased to direct reinstatement of the respondent in service

C/LPA/170/2022 ORDER DATED: 09/02/2022

with continuity of service and 15% backwages with effect from 16.11.2000. The learned Single Judge, after considering the evidence on record, threadbare considered the issue and relying upon the judgment of the Hon'ble Apex Court, has confirmed the findings of the Labour Court. However, considering the aspect of delay as well as the age of the respondent, the learned Single Judge has directed the appellant to give lumpsum compensation of Rs.1,00,000/-. The learned Single Judge has observed thus:-

"7. When such an issue had arisen before the Apex Court in case of R.M.Yellatti vs. Asst. Executive Engineer reported in 2006 (1) SCC 106 whether the daily wager whose termination was made worked for 240 days continuously in preceding year, the answer was given in affirmation by the Apex Court directed the reinstatement of workman with 50% back wages on the ground that once the workman steps in to the witness box and the management is called upon to produce the nominal muster roll for periodical question and if the relevant documents are not produced by the management without any explanation unless the State Government take steps to maintain the proper record of services rendered by the daily wagers, that per se cannot be the ground to deny him the benefit.

8. The Court on referring to the decision of the Apex Court rendered in

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case of Municipal Corporation, Faridabad vs. Shri Niwas reported in (2004) 8 SCC 195 has held that court of law even in a case where provisions of the Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional required to be and one taken of into the factors consideration which is the background of facts involved in the lis.

8.1 In the matter before the Apex Court, the workman had stepped into the witness box and he also had called upon the management to produce the nominal muster roll for the period commencing from the day he claimed to have worked. The muster roll produced by the management did not relate to the concerned period, it was not explained from the side of the management as to why the nominal muster roll was not produced. There was already a certificate issued by a former Executive Engineer in relation to the said period. Therefore, the Apex Court held that this was not a case where averments of workman were found merely on affidavit. The Court also directed the Government Department to maintain necessary documents for daily waged earner who are not a regular employee in the following manner:

"14. For the said purpose it is necessary to notice the definition of 'Continuous Service' as contained in

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Section 25-B of the Act. In terms of sub-section (2) of Section 25-B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on 17.5.1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5.8.1994 to 16.5.1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the Award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case."

9. This court does not find any need

C/LPA/170/2022 ORDER DATED: 09/02/2022

for interfering with the findings arrived at by the Labour Court on the basis of the discussion held herein above.

10. However, so far as the prayer of reinstatement with the continuity of service and 15% back wages is concerned, it is not in dispute that in the statement of defence, issue of limitation was raised by the petitioner although, it has not been much emphasized thereafter before the Labour Court. Nonetheless, this being the issue of law the petitioner can raise at any stage. Delay of six years can be easily construed, his services came to be terminated in the year 1999, now it is almost the period of eighteen (18) years which has passed, going by the period from 1984 to 1995 during which he worked. The respondent workman has reached to the age of superannuation by now and hence, instead of granting any reinstatement with continuity of service, it would be into fitness of the things to direct the workman to be given the compensation in lumpsum. The Apex Court in case of Uttaranchal Forest Development (2007) 2 Corporation LLJ P.390 vs. (SC) M.C.Joshi, held that reported in relief of reinstatement with full back wages were not be granted only because it was lawful to so do it and several other factors are to be considered. The Court granted compensation instead of reinstatement although there was violation of Section 6 N of the U.P.Industrial Dispute Act, 1947. In wake of the above discussion, in the instant case, this Court deems it fit to grant lumpsum compensation. Accordingly, the petitioner is directed to pay the total amount of

C/LPA/170/2022 ORDER DATED: 09/02/2022

Rs.1,00,000/- (Rupees One Lakh Only) to the respondent the same shall be paid within a period of six months from the date of receipt of a copy of this order."

3. Upon hearing, Mr. H.S. Munshaw, learned advocate for the appellant, we find that the Labour Court as well as the learned Single Judge has rightly appreciated the evidence on record and in fact, the learned Single Judge has, on the contrary, balanced the equities between the parties. Even considering the evidence which was adduced by the appellant, we do not find that the findings arrived at by the learned Single Judge requires interference only because another view is possible. What has been decided is decided in facts of the case on hand and the same shall not be treated as precedent.

4. With these observations, the petition is not entertained and the same is disposed of. As the appeal is disposed of, connected Civil Application also stands disposed of. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Maulik