Taluka Development Officer vs Ashwinbhai Dhanabhai Vaghela
2022 Latest Caselaw 9200 Guj

    C/SCA/13115/2018                                 JUDGMENT DATED: 18/10/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13115 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                              Sd/-

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1    Whether Reporters of Local Papers may be allowed to see              NO
     the judgment ?

2    To be referred to the Reporter or not ?                              NO

3    Whether their Lordships wish to see the fair copy of the             NO
     judgment ?

4    Whether this case involves a substantial question of law as          NO
     to the interpretation of the Constitution of India or any
     order made thereunder ?

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                        TALUKA DEVELOPMENT OFFICER
                                   Versus
                       ASHWINBHAI DHANABHAI VAGHELA
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR BHUNESH C RUPERA(3896) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 18/10/2022

                               ORAL JUDGMENT

1. RULE. Learned Advocate Mr. Bhunesh C. Rupera waives service of rule on behalf of the respondent.

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2. This petition under Article-226 of the Constitution of India is filed against the award dated 13-12-2017 passed by the Labour Court, Surendranagar in Reference (LCS) No.73 of 2005. By the impugned award, directions were issued to reinstate the respondent-workman on his original post and also to pay the salary by calculating 15 days per month from the year 2005 onward at the rate of Rs.675/- per month.

3. The Taluka Development Officer is the petitioner before the Court. From the record, it appears that Reference was made on the ground that though the respondent-workman was working continuously since 1986, in the year 2005, unceremoniously, the respondent-workman was removed from services and was not allowed to join the duty. Accepting the statement of claim of the respondent-workman, aforesaid impugned award was passed.

4. Learned Advocate appearing for the petitioner has challenged the award on the ground that the respondent-workman had himself abandoned the service and though notice under Registered Post-AD was served upon him, he has failed to resume his duty and therefore, there is no question of removal of the respondent-workman from the service.

5. Another contention was raised is with regard to breach of Section-25G. It is submitted that the Labour Court has erroneously come to conclusion that there is violation of Section-25G in view of appointment of another individual namely Dineshbhai Narsinhbhai from National Security as a Peon in place of respondent-workman. However, it was on the basis of evidence of witness of the petitioner brought on record of the Labour Court that such individual, though working as Peon, but was appointed from Security Contractor at the rate of Security Man and therefore, it cannot be said that the respondent-workman who was working as Peon, was substituted by said Dineshbhai Narsinhbhai from

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National Security.

6. Learned Advocate for the petitioner has submitted that in any case, award of the Labour Court is required to be interfered with as the respondent-workman was only part-timer and that he cannot claim any regularization. Moreover, the order directing the petitioner to pay the respondent-workman from the year 2005 onward by calculating Rs.675/- per month as if the respondent-workman has worked for 15 days in a month, is not supported by the principle of 'No pay, No work'.

7. Learned Advocate appearing for the respondent-workman has opposed the petition by submitting that the Labour Court has taken into consideration all the documentary evidence including the evidence of the petitioner-employer whose representative was examined at Exh- 199, who has accepted the status of the respondent-workman having worked with the petitioner as Peon for a long period. It is submitted that evidence also accepts the contention of the respondent-workman regarding continuity of service since 1986 and artificial break being given and in fact, the witness has admitted to the fact that by the end of 1988, the respondent-workman was rendering the service of six hours daily.

8. Having considered the rival submissions of the parties and having perused the documents on record, it appears that considering the documentary evidences with Exhibit-34 to Exhibit-194 produced as per the list with Exhibit-7 in this case, it appears that the the respondent- workman has been working for 29 days in a month from the beginning in the petitioner's organization. It means that, from 06/07/1986 to 30/09/1988, he was serving as a peon for 29 days in a month with artificial break. It is clear from the documentary evidences with Exhibit- 51 to 79 that, thereafter, the the respondent-workman was serving at

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the petitioner's place as a part time peon by working for four hours per day and the the respondent-workman was paid Rs.100 per hour by the petitioner at the end of the month. Thereafter, with respect to Exhibit- 91, the respondent-workman had served as a peon for six hours per day from the end of 1988 and he was performing his duty honestly. For this work, the the respondent-workman was paid Rs.1350/- per month by the petitioner at the end of the month. He was performing his duty honestly. Despite that, the petitioner has discharged the the respondent- workman from his job from 01/04/2005 without any notice, notice pay or payment of any compensation of rights and without providing any opportunity for explanation and without considering the seniority. As stated by the the respondent-workman, before he was discharged by the petitioner, the respondent-workman served for more than 240 days in the previous year i.e. in 2004-2005. However, the petitioner does not admit the said fact. The petitioner has also stated that, as the respondent-workman has never worked at the petitioner's place constantly and continuously for 240 days in a year, the facts stated by the respondent-workman cannot be believed.

9. It appears that considering the facts of the respondent-workman and the statement of defence produced by the petitioner and the deposition given on oath by the respondent-workman and his cross-examination and the affidavit and cross-examination of Pankajkumar examined by the petitioner and the documentary evidence, it transpires that the respondent-workman has been performing duty of a peon in petitioner's organization from 1986 till he was discharged and during this period, artificial break has been given for many times. The said fact has not been challenged by the respondent clearly. It means, it has been admitted that the respondent-workman was performing duty as a peon in petitioner's organization. But it has not been accepted that the

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respondent-workman has worked for more than 240 days in one year. Now, on reading the documentary evidences with Exh.-165 to 194 produced on behalf of the petitioner, it becomes clear that the respondent-workman was paid salary of Rs.1350/-per month from April-2002 and this salary has been paid till March-2005. Therefore, Considering the period of one calendar year immediately previous to the discharge of the respondent-workman i.e. March-2004 till March- 2005, it is proved that the respondent-workman has worked for more than 240 days in that year. However, it has been established that the respondent-workman has worked for more than 240 days in many years prior to that. But as per the provision of the law, the situation of one year immediately preceding when the respondent-workman was discharged is to be considered. Therefore, the continuous service has to be considered on the basis of the days of work carried out during the period of one year prior to the date on which the respondent-workman was discharged. Therefore, considering the type of the respondent- workman's service, as it falls under the definition of continuous service u/s.25(b) of the Industrial Dispute Act, it has been established that there is relationship of employer and workman between the petitioner and the respondent-workman. Thus, as the respondent-workman is covered under section-2-S of the Industrial Dispute Act, the petitioner should take action under section-25(f)(g) and (h) of the Industrial Dispute Act before discharging the respondent-workman from continuous service, and if it fails to do accordingly, it results into violation of the imperative provisions of the Industrial Dispute Act. In the said case, the respondent-workman has been discharged by the petitioner of the said case without any Notice or Notice Pay as per the imperative provisions of Industrial Disputes Act, hence it has been cleared from the evidence on record that the imperative provisions are not followed. So, as provisions of Labour Act is applicable to the facts of

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the said case, it could not be agreed with the representations submitted by the petitioner. Hence, on considering the entire evidence on record, it is proved that, the petitioner has discharged the respondent-workman from service since 01/04/2005 without giving any type of Notice, Notice Pay or any type of right or share as well as without giving an opportunity to give clarification and without considering the seniority.

10. With regard to the contention of the petitioner of the respondent-

workman having abandoned the work with effect from 2005, the same is not born out, as discussed from the evidence of the petitioner's representative himself examined at Exh-199. In fact, deposition at Exh- 199 makes it clear that the respondent-workman has been continuously in service since 1986, which is also supported by evidence vide Exh-34 to Exh.194. It is also coming on record that from 1988, the respondent- workman was working as Peon, however, for the period of six hours in a day. The contention with regard to violation of Section-25G, the Court is of the view that though engagement of Dineshbhai Narsinhbhai was from the Contract Laborer of Security Agency and at the rate of Security agent, none the less, his engagement was as a Peon in the very Department and therefore, violation of Section-25G is established and has been held as such by the Labour Court, which cannot be interfered with. With regard to the directions given by the Labour Court for payment of amount of Rs.675/-, which is salary of 15 days in a month from 2005 onward, the same being against the principles of 'No pay, No work', the Court is inclined to interfere with the award and the order to that extent.

11. In view of the aforesaid, the petition stands partly allowed. The order for reinstatement to the original post of the respondent-workman is not required to be interfered. However, the order with regard to the payment of salary at the rate of Rs.675/- per month from 2005 is

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hereby ordered to be quash and set aside.

12. It is now reported that the respondent-workman has crossed the age of 60 years considering the date of birth i.e. 14-11-1962. In view of the aforesaid, it is directed that in lieu of reinstatement, lump-sum of Rs.1,00,000/- be paid to the respondent-workman toward full and final payment in compliance with the impugned award. The amount to be paid as early as possible, preferably before 25-11-2022.

13. Rule is made absolute to the aforesaid extent with no order as to costs.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA