Rajula Nagarpalika vs Bhagubhai Aapabhai Dhandhal
2023 Latest Caselaw 355 Guj

     C/SCA/6450/2009                            JUDGMENT DATED: 12/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6450 of 2009
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 6451 of 2009


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                           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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                         RAJULA NAGARPALIKA
                                Versus
                 BHAGUBHAI AAPABHAI DHANDHAL & 1 other(s)
================================================================
Appearance:
MR VIVEK M HIRPARA(10418) for the Petitioner(s) No. 1
SIDDHANT R SHAH(8722) for the Petitioner(s) No. 1
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                            Date : 12/01/2023
                        COMMON ORAL JUDGMENT

Both the present Special Civil Applications raise common

questions of law and facts and therefore, both of them are being

disposed of by the present common judgment.

C/SCA/6450/2009 JUDGMENT DATED: 12/01/2023

2. In both the Special Civil Applications, the petitioner -

Rajula Nagarpalika has prayed to quash and set aside the

awards of the learned Labour Court, Amreli passed in Reference

(LCA) Nos.65 of 2000 dated 9.3.2009 and 41 of 2001 dated

20.4.2009.

3. It is the case of the petitioner Nagarpalika that the

respondent workmen were engaged as Rojmadar Ward Peon

w.e.f. 3.2.1998. The respondent workmen left their services on

their own accord and thereafter, references i.e. Reference (LCA)

Nos.65 of 2000 and 41 of 2001 came to be filed by the

respondent workmen in the learned Labour Court, Amreli. That

the said references came to be decided ex-parte against the

petitioner Nagarpalika. The petitioner Nagarpalika, thereafter,

preferred Misc. Civil Application Nos.3 of 2005 and 2 of 2005 for

setting aside the ex-parte awards which came to be dismissed by

the learned Labour Court, Amreli. Thereafter, the petitioner

Nagarpalika preferred Special Civil Application Nos.10255 of

2007 and 8198 of 2007 in this Court which came to be allowed

and the ex-parte awards came to be quashed and set aside

remanding the case back to the learned Labour Court, Amreli to

C/SCA/6450/2009 JUDGMENT DATED: 12/01/2023

dispose of the references on merits at the earliest after hearing

both the parties. It was also directed by this Court, pending the

adjudication of the references, the petitioner Nagarpalika shall

pay Rs.51,051/- and Rs.52,055/- to the concerned workmen

towards wages under Section 17(B) of the Industrial Disputes

Act ["ID Act" short].

3.1 Thereafter, the petitioner Nagarpalika filed its written

statement before the learned Labour Court, Amreli. The parties

led oral as well as documentary evidence in support of their

case. After the closure of the evidence, the learned Labour Court

after hearing both the parties was pleased to allow the references

of the respondent workmen holding that there was violation of

provisions of Sections 33, 25F, 25G and 25H of the ID Act and

that the respondent workmen were entitled to reinstatement with

10% back wages and Rs.1,500/- as costs.

Aggrieved by the said impugned orders, the petitioner

Nagarpalika has preferred the present Special Civil Applications.

4. Mr. Sidhant Shah, learned advocate appearing for the

petitioner Nagarpalika submitted that the appointment of the

respondent workmen as Ad-hoc Rojmadar was not in accordance

C/SCA/6450/2009 JUDGMENT DATED: 12/01/2023

with law and as a matter of fact, the respondent workmen have

left the services on their own accord w.e.f. 3.2.1998. He

submitted that the appointment of the respondent workmen was

as such in violation of Section 260 of the Gujarat Municipalities

Act as prior permission of the office of the Director of

Municipality was required for the appointment of the respondent

workmen. He submitted that the impugned orders were in

violation of the law as laid down by this Court wherein it has

been held that the learned Labour Court is not empowered to

direct the Nagarpalika to reinstate the workman if the

sanctioned posts are exhausted. He submitted that the

impugned judgment and awards are also against the settled

principles of law because as far as Rojamdars are concerned,

their appointment comes to an end on completion of the working

day and allotted hours of duty. He further submitted that the

respondent workmen have left on their own accord and

therefore, there is no statutory compulsion to serve show cause

notice asking for any explanation. He has also submitted that

the provisions of Section 33 of the ID Act are not applicable in

the case of respondent workmen. He submitted that, therefore,

the impugned awards deserve to be quashed and set aside and

the present Special Civil Applications be allowed.

C/SCA/6450/2009 JUDGMENT DATED: 12/01/2023

5. Per contra, Mr. Yogen Pandya, learned advocate appearing

for the respondent workmen, submitted that the impugned

judgment and awards are just and proper. He has submitted

that the learned Labour Court has given cogent reasons based

on the evidence which has come on record to grant relief to the

respondent workmen. He submitted that it could not be

controverted that the respondent workmen were removed from

service pending the report from the Conciliation Officer with

respect to the dispute about the regularization of the Rojamdar.

He, therefore, submits that in view of the law laid down, there

was violation of provisions of Section 33 of the ID Act as rightly

held by the learned Labour Court. He further submits that there

is nothing on record to show that the respondent workmen had

left the job on their own volition and therefore also, the learned

Labour Court has rightly held that there is a violation of Section

25F of the ID Act in the present case. He submits that evidence

has been brought on record and also in the oral evidence of the

witness for the petitioner Nagarpalika it has come on record that

there were 15 Rojamdars who were working on the

establishment of the petitioner Nagarpalika and therefore, there

was violation of provisions of Section 25G and 25H of the ID Act

C/SCA/6450/2009 JUDGMENT DATED: 12/01/2023

as the petitioner Nagarpalika could not establish that they were

senior to the respondent workmen. He, therefore, submits that

the impugned judgment and awards of the learned Labour Court

are based on cogent evidence and require no interference. He,

therefore, submitted that the present Special Civil Applications

be dismissed.

6. Heard learned advocates for the parties and perused the

evidence on record.

7. A perusal of the evidence shows that the witness of the

petitioner Nagarpalika has stated in his oral evidence that there

are no rules for engaging the Rojamdar / workers. In view

thereof, the contention that the respondent workmen was not

engaged in terms of the rules and regulations cannot be

sustained and the same has been rightly rejected by the learned

Labour Court. It has further come on record by way of the

attendance card produced by the petitioner Nagarpalika that the

respondent workmen have worked on the establishment of the

petitioner Nagarpalika for more than 240 days in the preceeding

year. In view thereof, since the respondent workmen have

worked continuously for more than 240 days, it was incumbent

C/SCA/6450/2009 JUDGMENT DATED: 12/01/2023

upon the petitioner Nagarpalika to follow the procedure of

Section 25F of the ID Act to retrench the respondent workmen.

In the present case, the same has not been done and therefore,

the retrenchment of the respondent workmen is in violation of

Section 25F of the ID Act.

7.1 It has further come on record that 13 Rojamdars were still

working on the establishment of the petitioner Nagarpalika. The

said fact could not be disputed by the petitioner Nagarpalika.

However, nothing has been brought on record by the petitioner

Nagarpalika to establish that all these Rojamdars were senior to

the respondent workmen. As record was being maintained by the

petitioner Nagarpalika, it was the onus on them to produce such

evidence to show that the Rojamdars who were working on the

establishment were senior to the respondent workmen.

7.2 Therefore, looking at the evidence on record, the findings

arrived at by the learned Labour Court with respect to violation

of provisions of Sections 33, 25G, 25H and 25F are not required

to be interfered with. In the facts and circumstances of the

present case, the impugned judgment and awards are in

accordance with law and cogent reasons have been recorded by

the learned Labour Court.

C/SCA/6450/2009 JUDGMENT DATED: 12/01/2023

In view of the above observations and findings, the present

Special Civil Applications are devoid of merits and the same are

dismissed. No order as to costs. Rule is discharged. Interim relief

stands vacated forthwith.

Sd/-

(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN