State Of Gujarat vs Tamijullakhan Ahmadkhan Pathan
2022 Latest Caselaw 8711 Guj

     C/LPA/954/2022                                ORDER DATED: 03/10/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/LETTERS PATENT APPEAL NO. 954 of 2022
        In R/SPECIAL CIVIL APPLICATION NO. 9450 of 2017
                              With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
           In R/LETTERS PATENT APPEAL NO. 954 of 2022
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                        STATE OF GUJARAT
                             Versus
               TAMIJULLAKHAN AHMADKHAN PATHAN
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Appearance:
MR TIRTHRAJ PANDYA, ASSTT. GOVERNMENT PLEADER for the Appellant(s) No. 1
MR DARSHIT R BRAHMBHATT(8011) for the Respondent(s) No. 1
MR P C CHAUDHARI(5770) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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  CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
        and
        HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                          Date : 03/10/2022
                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

[1.0] By way of present appeal under Clause 15 of the Letters Patent, the appellant - State of Gujarat has challenged an oral order dated 14.02.2018 passed by the learned Single Judge in Special Civil Application No.9450/2017 upholding the judgment and award dated 27.06.2016 passed by the learned Presiding Officer, Labour Court, Nadiad in Reference (LCN) No.75 of 2009 by which the respondent No.1 herein is ordered to be reinstated with 50% of backwages.

[2.0] We have heard learned AGP Mr. Tirthraj Pandya appearing for the appellant - State of Gujarat and learned advocate Mr. P.C. Chaudhari, who has filed caveat in this matter on behalf of respondent No.1.

C/LPA/954/2022 ORDER DATED: 03/10/2022

[3.0] The case of the appellant - original petitioner is that reference was referred to the Assistant Commissioner of Labour on 17.03.2009 with an issue whether the respondent - workman is required to be reinstated at his original post with full back wages or not. Said reference was then registered as Reference (LCN) No.75 of 2009 before the Labour Court, Nadiad. The case of the workman was that the respondent - workman was discharging his duties as part-time labourer at a monthly wage as prescribed by the Government norms. The claim statement was submitted on the premise that though the respondent - workman had completed 240 days and serving from 2008-09, he was discontinued orally and while discontinuing the services, there is a non-compliance of the mandatory provisions contained under Section 25F, G and H of the Industrial Disputes Act, 1947 (hereinafter referred to as "ID Act").

[3.1] The learned Labour Court after considering the facts brought on record has held that the action on the part of the appellant was contrary to the provisions of ID Act and therefore, the respondent - workman was ordered to be reinstated with 50% of backwages. The said decision was challenged by the appellant - State by way of filing the captioned writ petition which came to be dismissed vide the impugned order.

Hence, the present Letters Patent Appeal.

[4.0] Learned AGP Mr. Tirthraj Pandya appearing on behalf of the appellant would submit that the learned Labour Court as well as the learned Single Judge have committed error in holding that the present appellant - employer has not produced any document to demonstrate that the respondent No.1 - employee has not worked continuously for 240 days in each calendar year. By taking us

C/LPA/954/2022 ORDER DATED: 03/10/2022

through a table which was signed by the Range Forest Officer, Matar and which was produced before the learned Labour Court, he would submit that the said table suggests that the respondent No.1 has not worked for 240 days in a calendar year. He would submit that this aspect has not been taken into consideration by the learned Single Judge. He would submit that those documents were produced alongwith an affidavit filed by the officer of the appellant at Exh.21 and therefore, the learned Labour Court ought to have considered this aspect and should have rejected the reference. He, therefore, would submit that the appeal be admitted and the award passed by the learned Labour Court as also the impugned order passed by the learned Single Judge confirming the judgment and award passed by the learned Labour Court be quashed and set aside.

[5.0] On the other hand, learned advocate Mr. P.C. Chaudhari appearing on caveat for the respondent No.1 would submit that the respondent No.1 was working as Daily Wage Watchman and had continued to work as such upto the year 2008. He would submit that the present appellant - State of Gujarat has produced an affidavit of one Milan Manibhai Rajyaguru, however the appellant did not examine any witness to support the case putforth by the department that the respondent No.1 herein has worked for less than 240 days in a year. He would submit that except the table, no other document was produced by the State like attendance register maintained by the department and in such circumstances, there was no occasion for the employee to cross-examine any witness of the State authorities. He would submit that all these aspects have been dealt with by the learned Labour Court in detail and has ultimately directed to reinstate the respondent No.1 employee with 50% of

C/LPA/954/2022 ORDER DATED: 03/10/2022

backwages. He would submit that the decision of the Reference Court was challenged after a long period and that even the impugned oral order passed by the learned Single Judge is also challenged before this Court after more than four years. In support of his submissions, he has relied upon a recent decision dated 23.09.2022 of Hon'ble Apex Court in the case of Jeetubha Khansangji Jadeja vs. Kutchh District Panchayat rendered in Civil Appeal No.6890 of 2022 [@ Special Leave Petition (Civil) No.8393 of 2022]. By taking us through the said decision of Hon'ble Apex Court, he would submit that the case of respondent No.1 herein is similar to that of employee in the case before the Hon'ble Apex Court in the case of Jeetubha Khansangji Jadeja (Supra). Making above submissions, he would submit that the appeal be dismissed.

[6.0] We have heard learned advocates appearing for the respective parties at length. We have perused the judgment and award dated 27.06.2016 passed by the learned Presiding Officer, Labour Court, Nadiad in Reference (LCN) No.75 of 2009. It is amply clear from the said judgment dated 27.06.2016 that the present appellant has filed only an affidavit of Milan Manibhai Rajyaguru (Exh.21), however to prove other documents like the table, which is sought to be relied upon by the appellant, was not proved at all. Neither the said witness Milan Manibhai Rajyaguru (Exh.21) was examined nor any witness was examined by the State Authority to prove their case. In absence of any witness as well as any other documentary evidence, there was no alternative with the learned Labour Court but to allow the reference however, has rightly granted only 50% of backwages considering the time consumed for deciding the reference.

C/LPA/954/2022 ORDER DATED: 03/10/2022

[6.1] We have also gone through the decision of Hon'ble Apex Court in the case of Jeetubha Khansangji Jadeja (Supra) and we are in complete agreement with the submission made by learned advocate Mr. Chaudhari that the facts of the case before the Hon'ble Apex Court are applicable to the case of respondent No.1 herein.

[7.0] In view of above discussion, present Letters Patent Appeal is dismissed.

It is unfortunate that though no stay was granted by the learned Single Judge against the implementation of the judgment and award passed by the learned Labour Court and even subsequent thereto the order impugned herein has been passed way back on 14.02.2018, same have not yet been complied with by the appellant and therefore, we think it fit and proper to direct the appellant to comply with the judgment and award dated 27.06.2016 passed by the learned Labour Court, if yet not complied, as early as possible but not later than 20.10.2022.

Copy of the operative part of the present order be supplied to the learned AGP for further and necessary action.

[8.0] In view of dismissal of Letters Patent Appeal, Civil Application (For Stay) also stands dismissed.

Direct service is permitted.

(A.J. DESAI, J.)

(MAUNA M. BHATT, J.)

Ajay