Gujarat High Court
Dhirubhai Mohanbhai vs Deputy Executive Engineer on 7 August, 2023
Bench: Rajendra M. Sareen
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3455 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHIRUBHAI MOHANBHAI & 1 other(s)
Versus
DEPUTY EXECUTIVE ENGINEER & 1 other(s)
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Appearance:
MR MUKESH H RATHOD(2432) for the Petitioner(s) No. 1,2
MR MANOHAR RAHEVAR AGP for the Respondent(s) No. 1
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 07/08/2023
ORAL JUDGMENT
1. By way of present petition under Articles 226 and 227
of the Constitution of India, the petitioners have challenged
the legality and validity of the judgement and award passed
by the Labour Court, Surendranagar in Reference (LCS)
No.123 of 2001 dated 15/5/2007, by which the Labour
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Court has rejected the reference so far as the petitioners
herein are concerned.
2. FACTS:
2.1. It is the case of the petitioners that they they were
working as a daily wager Labourer with the respondent No.1
since many years and they have worked continuously with
the respondent and had worked for more than 240 days in
each and every year and were getting wages as per
minimum wage. It is the case of the petitioners that their
services were orally terminated w.e.f. 1/10/1987 without
issuing notice, without paying notice pay or retrenchment.
It is the case of the petitioners that juniors of the petitioners
were retained by the respondent No.1 and after termination
of the petitioners, other employees were employed. Thus, it
is the case of the petitioners that the termination of the
petitioners is in violation of the mandatory provisions of
sections 25(F), 25(G) and 25(H) of the Industrial Disputes
Act. Therefore, the petitioners along with other employees
lodged common complaint before the conciliation officer,
Surendranagar, but the said complaint was not resolved
between the parties and it was referred to the Labour Court,
Surendranagar being Reference (LCS) No.123 of 2001.
2.2. The petitioners have filed an affidavit in support of
their claim on oath below Ex25 and 34, respectively.
However, no statement of claim was submitted by the
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petitioners herein. Thereafter respondent No.1 had filed
affidavit of witness in support of their claim below Ex.40
namely R.R. Kanthiriya was and he was cross examined.
2.3. The respondent No.1 opposed the reference by filing
written statement before the Labour Court and contended
that the petitioners were not working under the respondent
and therefore, there is no question of terminating their
services. It was submitted that the petitioners have not
worked for more than 240 days in any of the years. It was
submitted that no breach of provisions of sections 25(F),
25(G) and/or 25(H) of the Industrial Act has been
committed by the respondent No.1.
2.3. Thereafter, considering the material on record and
hearing the learned advocates for the respondent, the
Labour Court rejected the reference. Hence, the petitioners
have preferred the present petition.
3. Submissions of the petitioners :
3.1. Mr.Mukesh Rathod, learned advocate for the petitioner
has submitted that the services of the petitioners have
been terminated after more than eight years though the
petitioners have continuously worked and though the
petitioners have completed more than 240 days in each and
every year. It is submitted that before termination of the
services of the petitioner, no notice, notice pay or
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retrenchment allowance has been paid to the petitioners. It
is submitted that juniors to the petitioners were retained
while terminating the services of the petitioners. It is
submitted that after termination of the petitioners, new
employees were engaged. It is submitted that the impugned
termination of the petitioners is in violation of the provisions
of section 25(F), 25(G) and 25 (H) of the Industrial Act. It is
submitted that the reference of the similar situated
employees who had filed reference along with the
petitioners, has been allowed and relief of reinstatement
has been granted. However, in the similar facts, the
reference of the petitioners has been rejected on the ground
of non-filing of the statement of claim. It is submitted that
statement of claim of the petitioners could not be filed due
to mistake of the representative of the union, though
statement of claim of the petitioners were prepared and
signatures of the petitioners were obtained on the statement
of claim. It is submitted that the Labour Court has rejected
the reference on technical ground without considering the
merits of the matter.
4. Submission of the AGP :
4.1. Mr.Manohar Rahevar, learned AGP has supported the
judgement and award passed by the Labour Court. It is
submitted that the impugned judgement and award is just,
legal and proper and no illegality has been committed by the
Labour Court while rejecting the reference. It is submitted
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that the petitioners had not filed statement of claim before
the Labour Court and therefore, the Labour Court has
rightly rejected the reference of the petitioners which is not
required to be interfered by this Court.
5. Heard Mr.Mukesh Rathod, learned advocate for the
petitioner - employee and Mr.Manohar Rahevar, learned
AGP for the respondent No.1 - employer and considered the
judgement and award passed by the Labour Court and
other material placed on record.
6. FINDING
6.1. Having heard the learned advocates for the respective
parties and considering the material on record, it is the case
of the petitioners that they were working since last more
than eight years and their services came to be terminated
orally without issuing notice, notice pay or retrenchment
allowance. It is the case of the petitioners that the
respondent No.1 had retained juniors to the petitioners
while terminating the petitioners and even after termination
of the petitioners, new employees were employed by the
respondent No.1.
6.2. On perusal of the record, it is clear that the petitioners
have filed an affidavit in support of their claim on oath
below Ex25 and 34, respectively. However, no statement of
claim was submitted by the petitioners herein. Thereafter
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respondent No.1 had filed affidavit of witness in support of
their claim below Ex.40 namely R.R. Kanthiriya was and he
was cross examined. It also appears that the respondent
No.1 opposed the reference by filing written statement
before the Labour Court.
6.3. It is relevant to note that the reference was filed by in
all 11 employees through representative of the union. The
Labour Court while passing common judgement and award,
granted relief of reinstatement without back wages to other
similarly situated employees, however, the reference so far
as the present petitioners is concerned, has been rejected
on the ground that no Statement of Claim has been filed by
the petitioners.
6.4. It is the case of the petitioners that statement of claim
of the petitioners could not be filed due to mistake of the
representative of the union. It is further case of the
petitioners that statement of claim of the petitioners were
prepared and signatures of the petitioners were obtained on
the statement of claim, however, due to mistake on the part
of the representative of the union, statement of claim of the
petitioners could not be filed.
6.5. Considering the award and facts and circumstances of
the case, it appears that reference of other similarly
situated employees have been partly allowed and relief of
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reinstatement without back wages is granted in favour of
other similarly situated employees. However, the reference
so far as the petitioners of the petitioners is concerned, has
been rejected on the ground that Statement of Claim has
not been filed by the petitioners. In the opinion of this
Court, the Labour Court ought not to have adopted the
technical approach and could not have rejected the
reference on the technical ground of non-filing statement of
claim. The Labour Court ought to have given opportunity to
the petitioners to submit statement of claim. In the facts
and circumstances of the case, this Court is of the opinion
that the matter is required to be remanded to the Labour
Court, Surendranagar to decide the reference of the
petitioner afresh after.
7. In the result, without going into the merits of the
matter, the impugned judgement and award passed by the
Labour Court, Surendranagar in Reference (LCS) No.123 of
2001 dated 15/5/2007 is hereby quashed and set aside so
far as the petitioners herein are concerned and the matter is
remanded to the Labour Court, Surendranagar to decide
the reference of the petitioners afresh, after giving an
opportunity to the petitioners submit their Statement of
Claim and evidence in support of their claim and thereafter,
after affording opportunity to the respondent No.1 herein to
file statement of claim and produce their evidence. The
Labour Court shall permit both the parties to lead evidence
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and thereafter shall pass appropriate order hearing both the
sides and considering the evidence that may be produced on
record, in accordance with law, within a period of three
months from the date of receipt of the present order.
Present petition is accordingly allowed. Rule is made
absolute to the aforesaid extent. No order as to costs.
Sd/-
(RAJENDRA M. SAREEN,J)
R.H. PARMAR
