Gujarat High Court
State Of Gujarat vs Lala Uka on 15 September, 2022
Bench: A.Y. Kogje
C/SCA/12081/2018 JUDGMENT DATED: 15/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12081 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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STATE OF GUJARAT
Versus
LALA UKA & 1 other(s)
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Appearance:
MR DHAWAN JAYSWAL, AGP for the Petitioner(s) No. 1
RAVI B SHAH(5346) for the Respondent(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 15/09/2022
ORAL JUDGMENT
1. RULE. Learned Advocate Mr.Ravi B.Shah waives
service of Rule on behalf of the respondent.
2. This petition under Article 226 of the constitution of
India is filed with following prayers:-
"(B) YOUR LORDSHIP may be pleased to issue a writ,
order or direction in the nature of certiorari and/or any
other writ in the nature of certiorari to quash and set
C/SCA/12081/2018 JUDGMENT DATED: 15/09/2022
aside the judgment and award passed below Exh.33 in
Reference (LCB) No.320 of 2003 on 29/09/2017 by the
learned Presiding Officer, Labour Court No.2,
Bhavnagar."
3. By the impugned award, the respondent-workman was
directed to be reinstated with continuity of service along with 20%
back wages from the date of termination i.e. 30.04.2003 within 30
days of its publication of the award with cost of Rs.2,500/-.
4. Learned AGP for petitioner-State submitted respondent
workman was working with the petitioner-Department and nature
of work of the respondent workman was seasonal. As and when
requirement arose, his services was taken. It is submitted that the
respondent-workman was not recruited after due procedure or
taking any interview. It is further submitted that neither the
respondent-workman deliberately relieved from post nor junior to
him was continued in service.
4.1 It is submitted that impugned award of the Labour
Court is ex facie, illegal, arbitrary and without appreciating the
evidence on record and facts of the case. It is further submitted
that nature of work which the respondent-workman was
performing was seasonal and it was as per requirement. At that
time, respondent-workman was paid remuneration as per the rates
prevalent at that time for the period he had worked and therefore,
question does not arise of violation of any provision.
C/SCA/12081/2018 JUDGMENT DATED: 15/09/2022
4.2 Learned AGP for the petitioner relied upon decision of
Apex Court in of Range Forest Officer Vs. S.T. Hadimani,
reported in 2002 (3) SCC 25, by which it held that onus of proof
lies on the concerned workman to prove before the Labour Court,
by leading evidences that he had completed more than 240 days in
a calendar year. However, in the present case, respondent-
workman has failed to prove the same before the Labour Court.
Therefore, the impugned award required to be quashed and set
aside.
4.3 It is submitted that respondent-workman worked from
the year 1977 to 2000 as follows:-
Sr. No. Year Days
1. 1977-1978 148 Days
2. 1978-1979 151 Days
3. 1979-1980 107 Days
4. 1980-1981 154 Days
5. 1981-1982 149 Days
6. 1982-1983 134 Days
7. 1983-1984 218 Days
8. 1984-1985 83 Days
9. 1985-1986 Nil Days
10. 1986-1987 Nil Days
11. 1987-1988 103 Days
12. 1988-1989 203 Days
13. 1989-1990 64 Days
14. 1990-1991 168 Days
15. 1991-1992 86 Days
16. 1992-1993 189 Days
17. 1993-1994 120 Days
C/SCA/12081/2018 JUDGMENT DATED: 15/09/2022
18. 1994-1995 125 Days
19. 1995-1996 119 Days
20. 1996-1997 198 Days
21. 1997-1998 116 Days
22. 1998-1999 78 Days
23. 1999-2000 50 Days
4.4 In view of aforesaid details, the Labour Court ought to
have considered the fact that when the workman did not work for
240 days in the preceding year, of his alleged termination, the
question of his being illegally terminated from the service does not
arise.
4.5 It is submitted that the Labour Court has erroneously
held that there is a clear breach of 25-F of the Industrial Disputes
Act, 1947, when respondent workman has not worked for 240 days.
Therefore, question of violation of section 25-F would not arise.
4.6 It is submitted that the Labour Court ought to have
considered the fact that provision of Sections 25-G and 25-H of the
Act would be made applicable only in case of there is breach of
Section 25-F of the Act. It is further submitted that respondent-
workman has worked for the period between 1982 to 1999,
however not continuously for 240 days in any year. It is submitted
that the respondent-workman has failed to prove the basic
ingredients of satisfying the provision of section 25-B of the Act .
Therefore, award of the Labour Court is bad in law and need to be
C/SCA/12081/2018 JUDGMENT DATED: 15/09/2022
quashed.
5. As against this, learned Advocate for the respondent -
workman submitted that respondent-workman was working as
chowkidar for last 21 years and discharging his services
continuously. It is submitted that he had not been given any
documents, i.e. pay slip, etc. The respondent-workman had
continuously made his demand for legitimate right and without
issuing any notice as well as without giving any opportunity of
being heard, on 30.04.2004, he had been relieved illegally from the
services and petitioner breached the Section 25-F of the ID Act.
5.1 It is submitted that by illegally terminating the services
of the respondent, the petitioner committed breach of Sections 25-
F, 25-G, 25-H and 25-S of Act. Its is submitted that petitioner
failed to produce the record of salary and other relevant document
and hence, the Labour Court was justified in passing the impugned
award of reinstatement with 20% back wages.
6. Having considered the rival submission of the parties
and having perused the documents on the record, it appears that
the respondent-workman was working with the petitioner-
department as a chokidar and he had been relieved from the
service on 30.04.2003, against which the respondent-workman
raised dispute by filing Reference (LCB) No.320 of 2003, which was
C/SCA/12081/2018 JUDGMENT DATED: 15/09/2022
allowed by award dated 29.09.2017 directing reinstatement of the
respondent-workman with 20% back wages. Being aggrieved by
the impugned award, the petitioner-State filed the present petition.
7. From the record, it appears that the Labour Court
observed that there is no violation of Section 25-G and 25-H of the
Industrial Disputes Act. However, the Labour Court considered
that the respondent-workman was in continuous service in
pursuance of section 25-B of the Industrial Dispute Act, 1947.
Therefore, the petitioner has violated the section 25-F of the
Industrial Dispute Act, 1947, as per which notice in writing
indicating the reasons for relieving must be addressed to
respondent.
8. The grievance raised by the petitioner is that the
respondent-workman has not proved the continuous service of 240
days in a calendar year and hence, there is no violation of
section25-B is made out before this Court.
9. Moreover, it is the burden of the workman to prove that
he worked for more than 240 days in a calendar year, but if the
facts are taken into consideration, it appears that the respondent-
workman failed to prove that he worked for more than 240 days in
a calendar year.
10. The Apex Court in case of State of Uttrakahnd Vs.
C/SCA/12081/2018 JUDGMENT DATED: 15/09/2022
Sureshwati, reported in 2021 (3) SCC 108, has observed in para-
25 as under:-
"25. On the basis of the evidence led before the
Labour Court, we hold that the School has established
that the Respondent had abandoned her service in
1997, and had never reported back for work. The
Respondent has failed to discharge the onus to prove
that she had worked for 240 days' in the preceding 12
months prior to her alleged termination on 8.3.2006.
The onus was entirely upon the employee to prove that
she had worked continuously for 240 days' in the
twelve months preceding the date of her alleged
termination on 8.3.2006, which she failed to
discharge."
11. The court has taken into consideration the cross
examination of petitioner's witness, wherein it is stated that
respondent was only called upon to the work whenever there was a
need to release the water from the canal and this situation
occurred only when the dam is filled with water and same had been
used for irrigation purposes. Moreover, whenever services were
rendered by the respondent workman, his name was entered in the
muster roll. The respondent-workman was not paid gratuity as he
was not in regular pay.
12. In View of the aforesaid reasoning, the Court is of the
view that the Labour Court has committed an error in ordering
reinstatement of the respondent workman with 20% back wages,
when there was no conclusive ground that respondent workman
had worked for more than 240 days. Moreover, at present, the
C/SCA/12081/2018 JUDGMENT DATED: 15/09/2022
respondent-workman is aged 58 years and therefore, it would not
be appropriate to direct reinstatement. However, the petitioner
employer has violated the section25-F, by not providing the notice
to the respondent workman. Moreover, irrigation work from the
water dam can only be carried out in the irrigation season.
13. In view of the above this petition is partly allowed, The
impugned award of the Labour Court dated 29.09.2017 in
Reference (LCB) No.320 of 2003 is hereby ordered to be set aside.
However, this Court is of opinion that in the facts of the case, the
respondent-workman is entitled for a lump sum compensation in
lieu of reinstatement. The Court is of the therefore opinion that
compensation of Rs.2,50,000/- would be adequate compensation in
lieu of order of reinstatement. The petitioner-State is directed to
pay this compensation to the respondent workman.
14. Rule is made absolute to the aforesaid extent. No order
as to costs.
Sd/-
(A.Y. KOGJE, J)
SHITOLE
