The Executive Engineer vs Jayeshbhai Dhanjibhai Ahir
2022 Latest Caselaw 5797 Guj

    C/SCA/10109/2019                               CAV JUDGMENT DATED: 30/06/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 10109 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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 ?

========================================================== THE EXECUTIVE ENGINEER Versus JAYESHBHAI DHANJIBHAI AHIR ========================================================== Appearance:

MS SEJAL K MANDAVIA(436) for the Petitioner(s) No. 1 MR DIPAK R DAVE(1232) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 30/06/2022

CAV JUDGMENT

1 This petition under Article 226 / 227 of the Constitution of

India is filed by the employer, Executive Engineer, District

Panchayat, Irrigation Department, Surat, challenging the award of

the Labour Court, dated 15.02.2019. By the award in question, the

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Labour Court has directed that the respondent workman be reinstated

in service with 30% backwages.

2 Facts in brief would indicate that the respondent who was

working as a Driver with the petitioner employer, approached the

Labour Court filing a Statement of Claim at exh.6. It was his case

that he was working as a Driver with the petitioner since 01.03.1996

and on and from 30.04.2012 after office hours, he was told that he

should not report for duty from 01.05.2012. According to the

respondent workman, he was told that from 01.05.2012, the services

of Driver were being outsourced and therefore he was not required to

report for duty. It was his case that he was earning a daily wage of

Rs.135/-. The employer petitioner filed a response by way of exh.8

denying the claim of the workman that he was working since

01.03.1996. It was the case of the department that the Driver had

worked only from 01.05.2011 to 30.04.2012 on a daily wage basis.

Based on a rate card, he was paid Rs.135/- as daily wage. That there

was no sanctioned post of a Driver and having decided to outsource

the services of a Driver, the services of the petitioner were put to an

end. Evidence was led by both parties. The workman was examined

C/SCA/10109/2019 CAV JUDGMENT DATED: 30/06/2022

at exh.13. He had produced Salary Bills at marks 12/1 to 12/12

showing the number of days that he had worked and the salary

wages paid for that day. The employer also examined one

Dhanjibhai Chimtabhai Gamit at exh. 23. Also was produced at

exh.7 the details of the wages paid on the basis of the dates on which

the workman had worked at marks 25/1 to 25/4. The employer had

produced the actual number of days that the workman had worked

and the allotment of a new Car from 12.01.2017. Based on

appreciation of evidence, the Labour Court came to the conclusion

that there was violation of provisions of Sec. 25(F) and 25(G) of the

Industrial Disputes Act, 1947, and therefore, the respondent

workman was reinstated with 30 % backwages.

3 Ms.Sejal Mandaviya, learned counsel for the petitioner -

employer submitted that the findings of the Labour Court, more or

less, were in favour of the petitioner inasmuch as, the workman was

not in a position to prove that he had worked from 01.03.1996,

despite which the Labour Court granted the benefit of reinstatement

with 30% backwages. In fact, for the period from 01.05.2011 to

30.04.2012, the workman had not worked for 240 days but for a

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period of 92 days as was the evidence produced on record by way of

documents at exhs.25/2 and 25/3.

3.1 Ms.Mandaviya, learned counsel for the petitioner, would

submit that once it was found by the Labour Court that there was no

need for the services of a driver and the services were being

outsourced, the Labour Court could not have awarded reinstatement

particularly also with backwages.

3.2 Ms. Mandaviya, learned counsel for the petitioner, would also

submit that except for the statements which the workman had given

in terms of details of Salary Slips, nothing was produced on record

and therefore no adverse inference could have been drawn against

the petitioner to show that the employee workman had completed

240 days in service.

4 Mr.Dipak Dave, learned counsel for the respondent workman

would submit that the award of the Labour Court is just and proper.

A specific and a positive finding had been arrived at by the Labour

Court that the workman had for the period from 01.05.2011 to

30.04.2012 had worked for 272 days. That itself showed that in

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compliance with the provisions of Sec.25(D) the workman had

worked for 240 days in the preceding year prior to his termination.

The Labour Court, therefore, had rightly held that there was

violation of Sec.25(F) of the Act.

4.1 Mr.Dave, learned advocate, would further submit that the

Labour Court found that after having terminated the services of the

workman, the services were procured by outsourcing and therefore

though there was work, the services of driver were requisitioned

through outsourcing and the Labour Court therefore rightly believed

that there was violation of Sec.25(G) of the Act. Having proved that

he had worked continuously, the award of reinstatement of the

workman with backwages was sustainable. He also would rely on an

affidavit in reply filed to the petition and rely on the Certificate

dated 26.07.2006 wherein it was shown that the services of the

workman from 02.01.2002 to 26.07.2006 were good. The certificate

was issued by the Executive Engineer. A letter dated 08.04.2008 was

also produced together with the affidavit to sustain the finding that

the workman had worked for a period from 01.03.2006 onwards.

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5 Perusal of the award and considering the submissions of the

learned counsels for the respective parties would indicate that the

workman examined himself at exh.13. He also produced on record

bills and covering letters for the period from May 2011 to April

2012 at marks 12/1 to 12/12. Examining these exhibits, the Labour

Court found that the workman had worked for 272 days for the

period from 01.05.2011 to 30.04.2012. In the deposition of the

employer rendered by one Dhanjibhai Chimtabhai Gamit at exh.23,

referring to that deposition, the Labour Court found that the

employer too had admitted in his deposition that the workman had

worked for 272 days as a driver and that he was paid Rs.135/- per

day was evident from the signatures of one Shri J.K.Shah in the

Salary Slips.

6 Having considered these set of evidences, despite a finding

that the workman had not been able to show that he had been

working continuously from the year 1996, the Labour Court found

that if the provisions of Sec.25(F) of the Act are appreciated, it had

come on record that the workman had worked for 272 days

preceding his retrenchment. The Labour Court, therefore, found that

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there was violation of the provisions of Sec.25(F) of the Act. This

finding of the Labour Court was based on the set of evidences

produced by the employee workman at exhs. 12/1 to 12/12 showing

that he had worked for a period of 272 days supported by the

evidence of the employer that these salary slips were signed by one

Shri J.K.Shah from the establishment.

6.1 Having said that, the findings of the Labour Court cannot be

faulted. Based on this evidence, therefore, the Labour Court in the

opinion of this Court rightly observed that no adverse inference can

be drawn against the workman for not having proved his continuity

of service from 01.03.1996. The Labour Court has discussed the

number of days that the workman worked based on the evidence

produced at marks 12/1 to 12/11 and the deposition of the workman

at exh.13.

6.2 After discussing the evidence of the workman, on the

appreciation of the documents produced by the employer, the Labour

Court found that the employer had produced a log book, exh.25/1 for

the period from 01.04.2011 to 31.03.2012. They are produced at

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mark 25/2 a statement showing that the workman had worked for 92

days. Also was produced on record an order dated 12.01.2017 at

mark 25/4 showing procurement of a new vehicle.

7 Appreciating this evidence in light of the Statement of Claim,

the Written Statement, the testimony of the workman and that of the

employer made by one Shri Dhanjibhai, the Labour Court found that

the stand of the employer by producing a statement exh.25/3

showing that the workman had worked only for 92 days was an

afterthought. In the opinion of this Court, this finding of the Labour

Court cannot be faulted. A positive finding was therefore recorded

that for the period from 01.05.2011 to 30.04.2012, the workman had

worked for 272 days in the preceding 12 months and therefore,

violation of Sec.25(F) was writ large in the termination.

8 As far as the stand of the employer that the services of the

respondent workman were terminated because of outsourcing, the

Labour Court found that there was work, it was available and the

stand therefore that there was no Car available for which the services

of the employee workman could be engaged and even the stand of

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the employer by producing the order that a new car was available

from 01.12.2017 was not believed. When the stand of the employer

workman was that the services of the respondent were terminated

because they had outsourced the services of the driver, engaging the

services of another employee through outsourcing by terminating the

services of the workman was found to be in violation of provisions

of Sec.25(G) of the Act. No fault can be found with this finding of

the Labour Court.

9 As far as backwages are concerned, what is observed by the

Labour Court is that nothing has come on record to show that the

employee workman was gainfully employed. No basis seems to have

come on record as to why the Labour Court had awarded 30% of

backwages. The Labour Court has specifically observed the fact that

the employee workman was a driver and looking to the present status

of inflation, it cannot be believed that the workman would have

remained unemployed. A presumption was drawn that he did and

was gainfully employed. In the face of that finding, the award of the

Labour Court awarding 30% backwages cannot be sustained.

10 Accordingly, the award of the Labour Court dated 15.02.2019

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is modified. The award of reinstatement is confirmed and that of

awarding 30% backwages is set aside. Petition is accordingly, partly

allowed.

(BIREN VAISHNAV, J) Bimal