State Of Gujarat vs Chaganbhai Bhemabhai Damor
2022 Latest Caselaw 8184 Guj

    C/SCA/4120/2020                            JUDGMENT DATED: 20/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4120 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 10203 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 10206 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 10198 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 10199 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 10196 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 10017 of 2021
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13773 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13655 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13967 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13657 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13605 of 2022


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 ?

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       C/SCA/4120/2020                                 JUDGMENT DATED: 20/09/2022




                              STATE OF GUJARAT
                                    Versus
                         CHAGANBHAI BHEMABHAI DAMOR
==========================================================
Appearance:
MR SOAHAM JOSHI, ASST GOVERNMENT PLEADER for the Petitioner(s)
No. 1
MR PARESH J BRAHMBHATT(9788) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================

     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 20/09/2022

                                ORAL JUDGMENT

1. Heard learned advocates for the respective parties.

2. Petitions have been filed by the State challenging

the award of the Labour Court dated 20.04.2019 by which

the Labour Court has granted reinstatement without

backwages. The workmen too have filed petitions by

which the award dated 20.04.2019 denying backwages is

challenged.

3. For the sake of convenience and brevity, facts of

Special Civil Application No. 4120 of 2020 are

considered.

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

3.1 Before the Labour Court, it was the case of the

workmen that they were engaged under the respondents

for a period from 11.09.1989 as Watchmen on monthly

salary of Rs.1,750/-. That they continued to work upto

31.12.1991. It was their case that their services were

terminated without following the provisions of Sections

25F, G and H of the Industrial Disputes Act, 1947 (for

short 'the Act'). A specific ground was raised that they

were not given an appointment orders, identity cards,

payslips etc. Their pay was being paid on voucher basis.

The case of the workmen therefore was that having

continued in service continuously for over a period of two

years and having completed 240 days in service, they

were entitled to reinstatement as a daily wager.

3.2 The employer filed a reply at Ex. 23. It was the case

of the employer before the Labour Court that the

workmen were paid Rs.24/- on a daily wage basis. That

from June 1991 since the work was complete and there

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

was stoppage of grant, work was no longer in existence.

It was their case that the workman had worked only for

six months from 01.01.1991 to 30.06.1991 for a period of

179 days.

4. Mr. Soaham Joshi, learned AGP appearing for the

employer in some of the petitions would submit that

having worked for a period of six months, and that too for

a period of 179 days, the workmen were not entitled to be

reinstated in service and therefore the award of the

Labour Court was bad. He would submit that there was

no violation of the provisions of Section 25 of the Act

inasmuch as even as per the record from the muster rolls

produced for a period of six months it was evident that

the workmen had worked only for 179 days. The

provisions of Section 25B of the Act therefore was not

violated. He would also submit that for the termination of

the year 1991, the dispute was raised two years

thereafter. He submitted that at best in light of the

decision in the case of Assistant Engineer,Rajasthan

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

Development Corporation and Another versus Gitam

Singh [(2013) 5 SCC 136], the award of the Labour Court

for reinstatement was erroneous on the ground of not

only awarding reinstatement but even if the delay was

accepted, at best for having worked for a period of six

months or two years whichever the case may be, the

workmen were entitled to only compensation.

5. Mr. Paresh Brahmbhatt, learned advocate appearing

for the workmen would support the award of the Labour

Court granting reinstatement. He would submit that the

Labour Court had rightly come to the conclusion that in

accordance with the provisions of Section 25 of the Act,

the workmen had completed two years of service and the

muster rolls which were required to be produced for over

three years were not produced and therefore adverse

inference was drawn in light of the decision of the Apex

Court in the case of Director, Fisheries Terminal

Division v. Bhikubhai Meghajibhai Chavda [AIR

2010 SC 1236]. The Labour Court also has referred to

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

the decision of the Apex Court in the case of R.M.

Yellati vs. Asst. Executive Engineer reported in

(2006) 1 SCC 106.

6. Considering the submissions made by the learned

counsel for the respective parties, what is evident is that

it was the case of the workmen that they had worked

from 01.09.1989 to 31.12.1991 continuously for a period

of 240 days and therefore having worked for two years

their services could not have been terminated without

following the provisions of Section 25F of the Act. The

perusal of the award of the Labour Court would indicate

that an application at Ex. 31 was filed by the workmen for

production of several documents at the hands of the

employer at Ex. 32 which were responded by the

employer. An order was passed on 31.12.1991 by the

Labour Court directing the employer to produce muster

rolls for a period of over 3 years. The Labour Court found

that despite this direction the employer had produced

muster rolls at Mark 13/1 to 13/6 only for a period of six

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

months in light of the decision in the case of Bhikubhai

Meghajibhai Chavda (supra). Therefore the Labour

Court drew adverse inference holding that the case of the

workmen was true of having worked for 240 days in each

year of service for over a period of two years.

6.1 Reading the award of the Labour Court also

indicates that the Labour Court found that though it was

the case of the employer that the work was stopped, it

was the stand of the employer in its response to the

statement of claim that the work was now carried on by

alternative method of contractual employees. That

obviously was the case where violation of provisions of

Section 25G of the Act was proved.

6.2 This court in Special Civil Application No. 2668 of

2020 on 13.06.2022 while considering the decision of the

Apex Court in the case of Bhikubhai Meghajibhai

Chavda (supra) and Gauri Shanker vs. State of

Rajasthan, reported in 2015 (5) SCALE 275 held as

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

under:

"7 Considering the submissions made by the learned counsels for the respective parties, Mr.Dipak Dave, and learned AGPs for the State, while deciding the legality and validity of the stand of the respondents on the question of termination, perusal of the award of the Labour Court would indicate in no uncertain terms that the Labour Court has come to the conclusion that there was violation of Sec.25(F), (G) & (H) of the Industrial Disputes Act. That finding was arrived at after considering the evidence on record, inasmuch as, also drawing adverse inference against the respondents in light of the decision in the case of Fisheries Terminal (supra). The findings of the Labour Court have attained finality, inasmuch as, no challenge to the awards has been made by the respondent - employer. The question then arises is that whether the Labour Court should have fallen short of awarding reinstatement with or without backwages.

7.1 Mr.Dipak Dave, learned counsel for the petitioners, would rely on a decision of the Hon'ble Supreme Court in the case of Gauri Shanker vs. State of Rajasthan., reported in 2015 (12) SCC Before the Hon'ble Supreme Court, the facts would indicate that the workmen were engaged with the Forest Department in Rajasthan. The tenure of service was for over a period of five years and it was their case that they had rendered 240 days of service in each calendar year and their termination was in violation of the provisions of Sec.25 (F), (G) & (H) of the Industrial Disputes Act. A reference was raised. The dispute was referred to the Labour Court. On evidence, it was found that the workman had worked for a

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

particular tenure. The Labour Court, after answering in favour of the workman, passed an award directing compensation in lieu of reinstatement. That award was challenged before the Hon'ble Supreme Court. The submission of the learned counsel appearing for the workman their was that once the Labour Court, which is a fact finding Court, recorded the finding of fact on the basis of pleadings and evidence on record and held that the termination order was in violation of Secs.25(F), (G) & (H) of the Industrial Disputes Act, the Labour Court ought to have awarded reinstatement rather than compensation. It was, therefore, for the Hon'ble Supreme Court to answer the issue whether the Labour Court was justified in not awarding reinstatement and backwages. It would be frutiful to reproduce paras 20 to 24 of the judgement of the Hon'ble Supreme Court in the case of Gauri Shankar (supra), which read as under:

"20. It is not in dispute that the workman was employed with the respondent-

Department in the year 1987 and on the basis of material evidence adduced by both the parties and in the absence of the non-production of muster rolls on the ground that they are not available, which contention of the respondent-Department is rightly not accepted by the Labour Court and it has recorded the finding of fact holding that the workman has worked from 1.1.1987 to 1.4.1992. The Labour Court has drawn adverse inference with regard to non-production of muster rolls maintained by them, in this regard, it would be useful to refer to the judgment of this Court in the case of Gopal Krishnaji Ketkar v. Mohd. Haji Latif & Ors.[6]

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

wherein it was held thus:

"5. .........Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v.

Gnana Sambandha Pandara Sannadhi, Lord Shaw observed as follows:

"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

This passage was cited with approval by this Court in a recent decision--

Biltu Ram & Ors. v. Jainandan Prasad & Ors. In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh :-

"But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents."

21. The said finding of the Labour Court is re-affirmed by the learned single Judge which also affirmed the finding that the action of the respondent- Department in terminating the services of the workman w.e.f. 1.4.1992 is a case of retrenchment as defined under Section 2(oo) of the Act as the termination of the services of the workman is otherwise for misconduct by the respondentDepartment.

Further, undisputedly the non-

                  compliance     of   the   mandatory





 C/SCA/4120/2020                        JUDGMENT DATED: 20/09/2022

requirements as provided under the provisions of Sections 25F clauses (a) and (b), 25G and 25H of the Act read with Rules 77 and 78 of the relevant Rajasthan Industrial Dispute Rules, 1958 has rendered the order of termination passed against the workman void ab initio in law. The Labour Court in the absence of any material evidence on record in justification of the case of the respondent-Department has rightly recorded the finding of fact and held that the order of termination passed against the workman is bad in law, the same being void ab initio in law it has passed an award for reinstatement of the workman in his post in exercise of its original jurisdiction under provision of Section 11 of the Act.

22. The Labour Court has rightly followed the normal rule of reinstatement of the workman in his original post as it has found that the order of termination is void ab-initio in law for non compliance with the mandatory provisions of the Act referred to supra. However, the Labour Court is not correct in denying backwages without assigning any proper and valid reasons though the employer did not prove either its stringent financial conditions for denial of back wages or that workman has been gainfully employed during the period from the date of order of termination till the award was passed in favour of the

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

workman except granting Rs.2,500/- as compensation for the suffering caused to the workman. The same is erroneously modified by the learned single Judge who recorded the finding of fact for the first time by holding that the workman is a casual employee intermittently working in the respondent-Department.

23. The learned single Judge of the High Court has exceeded his jurisdiction under Articles 226 and 227 of the Constitution of India as per the legal principles laid down by this Court in the case of Harjinder Singh (supra) wherein this Court has held thus:-

"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to

(e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State"

- State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."

The said principle has been reiterated by this Court in Jasmer Singh v. State Of Haryana & Anr.

(Civil Appeal NO. 346 of 2015 decided on 13.1.2015).

24. Therefore, in view of the above said case, the learned single Judge in exercise of its powers under Articles 226 and 227 of the Constitution of India erroneously interfered with the award of reinstatement and future salary from the date of award till date of reinstatement as rightly passed by the Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workman has worked from 1.1.1987 to 1.4.1992 and that non-compliance of the mandatory requirements under Sections 25F, 25G and 25H of the Act by the respondent-Department

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

rendered its action of termination of the services of the workman as void ab initio in law and instead the High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement. The learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down in catena of cases by this Court."

7.2 The Hon'ble Supreme Court held that once the Labour Court had come to the conclusion of violation of Sec.25(F), (G) & (H) of the Industrial Disputes Act, reinstatement ought to have followed.

8 Considering the law laid down by the Hon'ble Supreme Court in the case of Gauri Shanker (supra), which was considered by the Coordinate Bench of this Court in Special Civil Application No. 10316 of 2020. This Court in para 7 of the decision held as under:

"7. In this writ petition, the petitioner has challenged the award dated 09.04.2019 granting compensation against the reinstatement. The petitioner has also claimed the benefits of Government Resolution date 17.10.1988. It is the case of the petitioner that the petitioner -

workman is also entitled to benefits of Government Resolution dated 17.10.1988 with continuity of service. However, the learned advocate appearing for the petitioner, on instructions, has submitted that the workman will not claim the back

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

wages. The court has also perused the impugned award passed by the Labour Court. The workman has completed almost more than six years of service before he was terminated in the year 1997. The muster roll, which was examined by the Labour Court, reveals that the petitioner was appointed in the year 1991 and he was terminated in the year 1997. After relying upon the judgment of the Labour Court as well as this Court, the labour Court has concluded that the termination is in violation of Section 25F of the I.D.Act. The continuity of service of the workman is also proved under Section 25B of the I.D.Act. Thus, the only issue remains whether the compensation of Rs.70,000/- awarded by the Labour Court to the petitioner workman is just and proper."

9 For the aforesaid reasons as held by the Co- ordinate Bench of this Court, compensation in lieu of reinstatement will be detrimental to the petitioners who have worked for over a period of 20 years.

10 Accordingly, as held by this Court in the judgement of Chhatrasing Marutising Bariya vs. Dy. Executive Engineer & Ors., the petitions are allowed. Under the circumstances, the impugned award passed by the Labour Court is erroneous to the extent of granting compensation. The respondents are directed to reinstate the workmen in service with continuity of service. However, it is clarified that they will not be entitled to any backwages as they have given up their claims. After their reinstatement, it will be open for the petitioners

- workmen to file a representation claiming the benefits of Government Resolution dated

C/SCA/4120/2020 JUDGMENT DATED: 20/09/2022

17.10.1988. The order reinstating the petitioner workmen shall be passed within a period of three months from the date of receipt of this order. The amount of compensation, if already paid to the workmen, the same shall be adjusted while fixing their pay."

7. Accordingly, the petitions of the State by which the

order of reinstatement is challenged are dismissed.

8. As far as the stand of the employees workmen that

they must get backwages for the period, admittedly the

reference was beyond time by a period of two years. At

best, the workmen had only worked for two years and

therefore even on the ground of delay the award of the

Labour Court disentitling the workmen for backwages is

just and proper. The petitions filed by the employees are

also therefore dismissed.

(BIREN VAISHNAV, J) DIVYA