Gujarat High Court
The Executive Engineer vs Jayeshbhai Dhanjibhai Ahir on 15 February, 2023
Bench: Niral R. Mehta
C/LPA/45/2023 ORDER DATED: 15/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 45 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 10109 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 45 of 2023
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THE EXECUTIVE ENGINEER
Versus
JAYESHBHAI DHANJIBHAI AHIR
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Appearance:
MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 15/02/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Ms.Sejal Mandavia for the
appellant - Executive Engineer, District Panchayat, Surat and
learned advocate Mr.Dipak Dave for the respondent
workman.
2. The Labour Court, Surat partially allowed the Reference
(T) No.151 of 2012 holding that the action of oral termination
with effect from 30.4.2012 on part of first party employer -
appellant herein was bad in law. The employer was directed
to reinstate the workman with 30% back wages.
C/LPA/45/2023 ORDER DATED: 15/02/2023
2.1 The Executive Engineer filed Special Civil Application
calling in question the said judgment and award of the Labour
Court. Learned Single Judge by judgment and order dated
30.6.2022 partially allowed the petition. While confirming the
directions as regards the reinstatement, learned Single Judge
set aside the grant of 30% back wages.
2.2 The appellant - Executive Engineer is aggrieved as the
learned Single Judge did not set aside the entire judgment and
award of the Labour Court. This Letters Patent Appeal under
Clause 15 of the Letters Patent is therefore preferred.
3. From the facts on record, it appears that the case of the
workman before the Labour Court was inter alia that he was
working as driver in the Irrigation Department from 1.3.1996
and was paid Rs.145/- as daily wages. It was the case that first
party employer resorted to the method of outsourcing,
consequently the services of the workman were dispensed
with. The workman filed statement of claim at Exh.6 before
the Labour Court and sought relief of reinstatement. The
employer contested the reference.
4. The main plank of contest on part of the employer that
the workman had not worked since 1996 as claimed by him,
was not believed by the Labour Court. A submission was
raised that there was a dearth of evidence to suggest about
actual length of the service of the workman as claimed. The
Labour Court relied on evidence including the evidence of the
workman himself to accept the case.
C/LPA/45/2023 ORDER DATED: 15/02/2023
5. In any view, it was recorded by the Labour Court as
finding of fact that the workman had worked for 272 days as
driver between the period from May, 2011 to April, 2012. On
the basis of this fact having been proved, the Labour Court
arrived at a finding that there was a breach of Section 25 of
the Industrial Disputes Act, 1947, since the workman could
establish that during the 12 months preceding to the date of
termination, he has continuously worked for 240 days.
5.1 The facts on record and the findings arrived at by the
Labour Court were revisited with by learned Single Judge. The
learned Single Judge highlighted in Paragraph 5 of the
judgment that the workman had completed 272 days during
the preceding 12 months and was paid Rs.135/- as was
recorded from the salary slip.
5.1.1 It was observed thus,
"5. Perusal of the award and considering the submissions
of the learned counsels for the respective parties would indicate
that the workman examined himself at exh.13. He also produced
on record bills and covering letters for the period from May 2011
to April 2012 at marks 12/1 to 12/12. Examining these exhibits,
the Labour Court found that the workman had worked for 272
days for the period from 01.05.2011 to 30.04.2012. In the
deposition of the employer rendered by one Dhanjibhai
Chimtabhai Gamit at exh.23, referring to that deposition, the
Labour Court found that the employer too had admitted in his
deposition that the workman had worked for 272 days as a driver
and that he was paid Rs.135/- per day was evident from the
signatures of one Shri J.K.Shah in the Salary Slips."
5.1.2 Thereafter, learned Single Judge confirmed the finding
of the Labour Court that there was a breach of Section 25-F of
the Act.
C/LPA/45/2023 ORDER DATED: 15/02/2023
"6. Having considered these set of evidences, despite a
finding that the workman had not been able to show that he had
been working continuously from the year 1996, the Labour Court
found that if the provisions of Sec.25(F) of the Act are
appreciated, it had come on record that the workman had
worked for 272 days preceding his retrenchment. The Labour
Court, therefore, found that there was violation of the provisions
of Sec.25(F) of the Act. This finding of the Labour Court was
based on the set of evidences produced by the employee
workman at exhs. 12/1 to 12/12 showing that he had worked for
a period of 272 days supported by the evidence of the employer
that these salary slips were signed by one Shri J.K.Shah from the
establishment."
5.2 It is trite principle of law that once the breach of
mandatory provision of Section 25-F of the Act of 1947 is
established, the reinstatement is a necessary consequence.
Learned Single Judge, therefore, was justified in confirming
the reinstatement awarded by the Labour Court. The evidence
was also discussed while confirming the finding of breach of
Section 25-F of the Act by learned Single Judge.
"6.2After discussing the evidence of the workman, on the
appreciation of the documents produced by the employer, the
Labour Court found that the employer had produced a log book,
exh.25/1 for the period from 01.04.2011 to 31.03.2012. They are
produced at mark 25/2 a statement showing that the workman
had worked for 92 days. Also was produced on record an order
dated 12.01.2017 at mark 25/4 showing procurement of a new
vehicle."
6. As far as 30% back wages is concerned, it was recorded
that there was no basis for the Labour Court to award 30%
back wages. The workman was driver and as rightly discussed
by learned Single Judge, looking to the present status of
inflation, it was not possible to believe that the workman had
remained unemployed during all this period. In that view,
presumption was required to be drawn that the workman
C/LPA/45/2023 ORDER DATED: 15/02/2023
earned during the period. Resultantly, the award of back
wages was not sustained by learned Single Judge.
6.1 The judgment and order of learned Single Judge is
eminently just, proper and legal and it evinces a balanced
approach in accordance with law.
6.2 No case is made out to interfere with the said judgment
and order of learned Single Judge in exercise of Letters Patent
jurisdiction.
7. This Letters Patent Appeal is summarily dismissed.
Notice is discharged.
Civil Application does not survive in view of the
dismissal of Letters Patent Appeal. It is accordingly disposed
of.
(N.V.ANJARIA, J)
(NIRAL R. MEHTA,J)
V.J. SATWARA
