State Of Gujarat vs Mahendrasinh Ranubha Gohil
2023 Latest Caselaw 1567 Guj

     C/SCA/11670/2014                                   ORDER DATED: 15/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11670 of 2014
==========================================================
                     STATE OF GUJARAT & 1 other(s)
                               Versus
                MAHENDRASINH RANUBHA GOHIL & 1 other(s)
==========================================================
Appearance:
MR.AKASH GUPTA, AGP for the petitioners(s) No. 1,2
MR. VISHAL P THAKKER(7079) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                               Date : 15/02/2023
                                ORAL ORDER

1. The present special civil application is filed for the following reliefs:-

"A. Your Lordships may be pleased to admit and allow this petition;

B. Your Lordships may be pleased to issue a writ of certiorari and/or any other appropriate writ, direction in the nature of certiorari and/or any other writ in the nature of certiorari to quash and set aside the award and order passed in Reference (LCB) No.91 of 2008 on 11.04.2014 by the learned Presiding Officer, Labour Court, Bhavnagar.

C. Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay implementation,

C/SCA/11670/2014 ORDER DATED: 15/02/2023

operation and execution of the award and order passed in Reference (LCB) 91 of 2008 on 11.04.2014 by the learned Presiding Officer, Labour Court, Bhavnagar. D. Such other and further relief as may be just, expedient and proper in the interest of justice."

2. The factual matrix in the present case is as follows:-

2.1 It is the case of the respondent-workman that he was working as a driver with the petitioners from the year 1998. It is further stated that he was continuously working during the said period on fixed pay of Rs.2,500/- per month. The respondent-workman therefore filed Reference (Demand Case No.12 of 2003) seeking regularisation of his service. However, the said Reference came to be withdrawn on the assurance given to him with respect to regularisation of his services. It is the case of the respondent- workman that thereafter, he has been orally terminated from service on 17.08.2004. Aggrieved the petitioners raised the dispute. By letter dated 10.10.2008, the Assistant Labour Commissioner made a reference to the learned Labour Court being Reference (LCB) No.91 of 2008. The Labour Court issued summons. The petitioners appeared and contested the claim of the

C/SCA/11670/2014 ORDER DATED: 15/02/2023

respondent-workman. The parties led evidence in support of their contentions. By the impugned judgment and award dated 11.04.2014, the learned Labour Court, Bhavnagar, was pleased to partly allow the reference. The retrenchment of respondent-workman was set aside and the respondent came to be reinstated in service along with continuity of service and 30% of the back wages till the date of the award. Aggrieved the petitioners have preferred present Special Civil Application.

3. Learned AGP Mr.Akash Gupta appearing for the petitioners submits that the respondent- workman was not a permanent worker and was being called upon as and when the need of driver arose. He further submits that the respondent-workman was paid as per the work done by him. He submits that it is claimed by the respondent-workman that he was terminated in the year 2004 but in the present case, the Reference came to be preferred in the year 2008. He submits that there is unexplained delay of 4 years in preferring the reference. He submits that the respondent-workman has failed to discharge the burden to show that he had continuously worked for 240 days in preceding 12 months from the date of his termination. He submits that the Labour Court has erroneously held that the petitioners have committed breach of the provisions of Section

C/SCA/11670/2014 ORDER DATED: 15/02/2023

25(F), 25(G) and 25(H) of the I.D.Act. He submits that the respondent-workman has not given any details with respect of work done by him and in which office of the petitioners and for how many days. It is submitted that in absence of such details, it cannot be held that the respondent- workman has worked in the office of petitioners. He submits that the learned Labour Court has not properly appreciated the evidence brought on record and therefore also the impugned judgment and award cannot be sustained. He submits that the impugned judgment and award is liable to be set aside.

4. Per contra, learned advocate Mr.Vishal Thakkar for the respondent-workman submits that the impugned judgment and award is well reasoned and based on appreciation of cogent evidence produced on record. He submits that the learned Labour Court has rightly arrived at the conclusion that the respondent-workman was illegally terminated from service in violation of Section 25(F), 25(G) and 25(H). He submits that it has been duly proved by the respondent-workman that he was working as driver from 1998 to 2004. The petitioners have also produced logbook to show that the respondent-workman was in their service. He submits that despite working for around 5 years, the respondent-workman was not being regularised by the petitioners and

C/SCA/11670/2014 ORDER DATED: 15/02/2023

therefore, he had to file Reference No.12 of 2003 for regularisation, which was withdrawn on assurance that he will be absorbed in the service by the petitioners. He submits that thereafter instead of regularising his service, the respondent-workman came to be orally terminated by the petitioners. He submits that it is an apparent and clear cut case of unfair labour practice on the part of petitioners.

4.1 Learned counsel for the respondent- workman further submits that the respondent- workman has duly discharged his burden by substantiating his claim by the documentary evidence. Thereafter, burden has been shifted to disprove the same which the petitioners could not do so. Therefore, learned Labour Court rightly allowed the reference and granted appropriate relief to the respondent-workman. He, therefore, submits that the present Special Civil Application be dismissed with costs.

5. Heard learned advocates for the parties and perused the documents on record.

6. In the present case after appreciation of evidence, the learned Labour Court has come to the conclusion that the respondent-workman was working with the petitioners from 1998 to 2004 as a driver. It is further revealed that the

C/SCA/11670/2014 ORDER DATED: 15/02/2023

respondent-workman in his oral evidence has deposed that his attendance used to be marked when he used to come on duty and he was being paid wages and his signature was duly obtained in the register. He further stated that despite this procedure, he has never been given I-card or any attendance card. In cross-examination, the respondent-workman has denied that he has used to work as and when the work was available.

6.1 The witness deposing for the petitioners before the learned Labour Court has stated that the respondent-workman was being called for work as and when he was available and he was accordingly paid the wages. The witness has further stated that the payment was made by way of voucher from contingency fund for the particular days that the respondent-workman had worked. However, the said witness could not name any driver who was working on the setup from the year 1998 till 2004. The witness for the petitioners was also unaware whether the driver is recruited on the permanent establishment. The said witness had stated that information with respect of respondent-workman was compiled on the basis of logbook maintained by the department. However no logbook or relevant documents in respect of the work done by the respondent- workman has been produced on record before the Labour Court.

C/SCA/11670/2014 ORDER DATED: 15/02/2023

6.2 On perusal of the documents produced on record, the learned Tribunal while taking into consideration the documents produced has found that the name of the respondent-workman was shown as daily-wager in the records maintained by the petitioners. It has been further observed by the learned Tribunal that though the witness of the petitioners has stated that information submitted with regard to the respondent-workman was compiled on the basis of logbook, no logbook was produced on record to substantiate the claim of the petitioners.

7. From the documentary as well as oral evidence, it is undisputed that the respondent was working as daily-wager with the petitioners. It is also admitted that he was orally terminated. In the present case, while controverting the claim of the respondent- workman, the petitioners have not produced any documentary evidence. Despite possession of logbook, the same has not been produced before the Labour Court. In view thereof the learned Tribunal has rightly held that the respondent- workman was working with the petitioners since 1998 till 17.08.2004 when he was orally terminated. It is an admitted position that no notice, notice pay or retrenchment compensation was given to the respondent-workman while terminating his service. Further, the learned

C/SCA/11670/2014 ORDER DATED: 15/02/2023

Tribunal has come to the conclusion that that is violation by the petitioners in respect of Section 25(F), 25(G) and 25(H) and therefore, the respondent-workman was entitled for reinstatement.

8. Though, learned AGP has disputed the findings in the judgment and award, he has not been able to dislodge the findings by relying upon any documents or other relevant material on record and the same are not substantiated.

9. Learned AGP submitted that the learned Tribunal did not properly appreciate that the Reference was filed after a delay of 4 years from the oral termination. Learned counsel for the respondent submitted that it was duly observed in the impugned judgment and award that after his oral termination, the respondent-workman was being called intermittently for work by the petitioners and therefore, there was no delay in filing reference. He further submits that in any case it is benevolent piece of legislation and therefore, the workman is entitled for reliefs in the present case. This Court is of the opinion that there is no any delay in the present case in view of the averments of the respondent-workman. He was being called for work intermittently till the filing of the Reference.

C/SCA/11670/2014 ORDER DATED: 15/02/2023

10. In view of the aforesaid observations and in the facts of the present case, this Court is of the opinion that the impugned judgment and award passed by the learned Labour Court, Bhavnagar, is just and proper. No interference is called for. The present Special Civil Application is devoid of merits and is dismissed with no order as to costs. Notice discharged.

ANIRUDDHA P. MAYEE, J.) NABILA