Gujarat State Electricity ... vs Iqbal Karimbhai
2023 Latest Caselaw 50 Guj

     C/SCA/3814/2008                                     JUDGMENT DATED: 03/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3814 of 2008


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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          GUJARAT STATE ELECTRICITY CORPORATION LIMITED
                              Versus
                    IQBAL KARIMBHAI & 1 other(s)
================================================================
Appearance:
MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1
MR TR MISHRA(483) for the Respondent(s) No. 1
M/S TRIVEDI & GUPTA(949) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 03/01/2023
                             ORAL JUDGMENT

The present Special Civil Application impugns the

judgment and award dated 20.11.2007 passed by the learned

Labour Court, Jamnagar in Reference (LCJ) No.1512 of 1990.

2. The brief facts of the present Special Civil Application are

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

as under:-

2.1 It is the case of the respondent workman that he was

working with the petitioner company since last 2½ years as

Khalasi and that on 15.9.1988, his services came to be

terminated abruptly without following any due procedure of law.

It is further the case of the workman that while his services

came to be terminated, his juniors were continued in service and

that thereafter also, the petitioner company had recruited new

people.

2.2 Aggrieved by the said termination, the respondent

workman raised a dispute before the Assistant Labour

Commissioner, Jamnagar, who by order dated 10.1.1989, made

a reference to the learned Labour Court, Jamnagar as to whether

the termination of the services of the workman were in

accordance with law.

2.3 The petitioner filed his statement of claim alleging that his

termination was illegal and prayed for reinstatement with

continuity of service.

2.4 The learned Labour Court was pleased to issue notice to

the petitioner who appeared and filed their written statement at

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

Exh.10. The petitioner herein also moved an application to join

the respondent No.2 herein as a respondent in the reference

before the learned Labour Court. The said application came to be

allowed and the respondent No.2 came to be added as a party

respondent in the reference proceedings. It was the case of the

petitioner that the respondent No.1 workman was not its

employee and that he was working for the respondent No.2

company who was given a contract for construction and erection

of the project of power plant.

2.5 That the respondent No.2 company appeared before the

learned Labour Court and filed its reply. In the said reply, it

denied that the workman was its employee. It was submitted

that the workman was not its employee and was the employee of

the petitioner herein and that the respondent No.2 company was

not concerned with the termination of the respondent No.1

workman.

2.6 All the parties led evidence in support of their case. After

perusing the evidence on record and hearing the learned

advocates for the parties, the learned Labour Court by award

dated 20.11.2007 allowed the reference and directed that the

respondent No.1 workman be reinstated in service along with

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

20% back wages. The learned Labour Court also further came to

the conclusion that the respondent No.2 company had been

wrongly joined by the petitioner herein in the proceedings and

therefore, imposed a cost of Rs.1,000/- to be paid to the

respondent No.2 company.

2.7 Aggrieved and dissatisfied with the impugned judgment

and award, the petitioner has preferred the present Special Civil

Application.

3. Mr. Premal Joshi, learned advocate appearing for the

petitioner submits that the respondent No.1 workman was not

its employee. He submits that the erstwhile Board of the

petitioner company had given the contract of the Sikka Power

Plant to respondent No.2 and accordingly, the respondent No.1

workman was working with the petitioner as an employee of the

respondent No.2. He submits that in respect of the said

contention, the petitioner company had adduced cogent evidence

on record by way of oral as well as documentary evidence to

prove beyond doubt that the respondent No.1 workman was not

its employee. He submitted that the petitioner company had

examined its officers as well as 2 workmen to establish that the

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

respondent No.1 workman was an employee of the respondent

No.2 company. He submits that the witnesses for the petitioner

company - Mr. K.B.Pushpam and Mr. Sazid who are its

employees had deposed in their oral evidence that the

respondent No.1 workman was working with the respondent

No.2 company on the project site. They have further deposed

that earlier before joining the petitioner company, both these

witnesses were working with the respondent No.1 workman in

the respondent No.2 company. Both these witnesses have

deposed that after getting recruited through proper procedure,

they had joined the petitioner company. He submits that the

said oral evidence goes to show that the respondent No.1

workman was in the employment of the respondent No.2

company. He further submits that the oral evidence of the

officers states that the name of the respondent No.1 workman

was not in the list of the persons working for the petitioner

company as daily wagers as per the list annexed on record. He

further submits that even otherwise, the respondent No.1

workman has not proved his case that he was an employee of the

petitioner company. He further submits that the respondent

No.1 workman was required to adduce cogent evidence to prove

his case. In the present case, he submits that the respondent

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

workman had only stated orally that he had worked for 2½ years

with the petitioner company. Except the bare statement, the

respondent workman has not produced any other documentary

evidence to support his statement. He submits that the

respondent No.1 workman ought to have established the fact

that he had worked for more than 240 days with the petitioner

company so as to be entitled to the relief as prayed for before the

learned Labour Court. He submits that the law as laid down

stipulates that the respondent workman has to first prove that

he had worked continuously for 240 days in a year and if the

said factum is not proved, the respondent workman is not

entitled for any relief whatsoever with respect to the

reinstatement and back wages. In support of the said contention,

Mr. Premal Joshi, learned advocate for the petitioner, relied on

the judgments passed by the Hon'ble Supreme Court on the said

proposition as reported in (2008) 11 SCC 435 - State of Haryana

v. Ramesh Kumar, (2009) 11 SCC 522 - Krishna Bhagya Jala

Nigam Ltd. v. Mohammed Rafi and (2019) 6 SCC 448 -

Superintending Engineer, Twad Board & Anr. v. M. Natesan &

Ors.. He submits that in view of the ratio laid down in these

judgments, it was not proved that the respondent workman has

established the fact that he has worked continuously for 240

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

days in a year and therefore, was entitled to reinstatement and

continuity in service.

4. Per contra, Mr. Umesh T. Mishra, learned advocate

appearing for the respondent No.1 workman submits that the

respondent No.1 workman was recruited by the petitioner

company on the site and that he was appointed as a daily wager

on the post of Khalasi. He was given odd jobs during the period

of project which lasted for 2½ years. He submits that the

respondent No.1 workman has continuously worked for 2½

years till the project was completed. He submits that once the

power generation started at the power plant project, his services

came to be terminated orally in violation of Section 25F, 25G and

25H of the Industrial Disputes Act, 1947 ["ID Act" for short]. He

submits that no retrenchment compensation was granted and

services of the respondent No.1 workman came to be terminated

without any due notice. He submits that the respondent No.1

has categorically and unequivocally stated in his oral evidence

that he has worked for a period of 2½ years on the power plant

project of the petitioner company and that he was assisting the

employees of the petitioner company on the said project. He has

denied that he was working for the respondent No.2 company.

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

He submits that the petitioner company has not denied the fact

that he has worked for 2½ years. He submits that in the written

statement, the petitioner company has categorically stated that

the respondent No.1 workman was working as a Nominal Muster

Roll (NMR) employee and that thereafter, the petitioner has

changed its stand by contending before the learned Labour

Court that the respondent No.1 workman was a contractual

employee of the respondent No.2 company. In support of the said

contention, they have also arrayed the respondent No.2

company. He submits that the respondent No.2 company has

categorically denied that the respondent No.1 workman was their

employee. The respondent No.2 company has stated that the

respondent No.1 workman was working as an employee of the

petitioner company and was not employee of the respondent

No.2 company. Mr. Mishra, learned advocate, further submits

that the evidence of the 2 witnesses who have been examined on

behalf of the petitioner company are its own employees, however,

the oral evidence given by them is vague and does not specify as

to during what period the respondent No.1 workman had worked

along with them in the respondent No.2 company. Even

otherwise, the said oral statement of the witnesses is falsified by

the written statement filed by the respondent No.2 company

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

which categorically states that the respondent No.1 workman

was never its employee and he was working at the site as an

employee of the petitioner company. He submits that the officers

who had deposed on behalf of the petitioner company in the

present case have not categorically stated anything with respect

to the employment of the respondent No.1 workman. He,

therefore, submits that there is no cogent evidence on record

except the bare statement to show that the respondent No.1

workman was a contractual employee of the respondent No.2

company. He further submits that the list of the workmen

produced by the petitioner company is with respect to those

persons who have lost their land to the power plant project and

were employed accordingly. He submits that the said list has

nothing to do with the respondent No.1 workman since he was

not a land loser in the said project and was not granted the

employment on the said basis. Mr. Mishra, learned advocate,

further submits that once the respondent No.1 workman has

stepped in the witness box and deposed that he has worked

continuously for a period of 2½ years, the onus is on the

petitioner company to prove that it was not so by producing

cogent evidence on record. He submits that for the reasons best

known to the petitioner company, while accepting the fact that

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

he was a muster roll employee, they have not produced the said

nominal muster roll and have instead, arrayed the respondent

No.2 company to show that the respondent No.1 workman was

the employee of its contractor i.e. the respondent No.2. He

submits that the learned Labour Court has correctly appreciated

the evidence on record and the stand taken by the petitioner

company before the learned Labour Court while allowing the said

reference. He submits that the impugned order is just and

proper and is required to be upheld and the present Special Civil

Application be dismissed.

To substantiate his case, Mr. U.T.Mishra, learned

advocate has relied on the judgment reported in 2010 (1) SCC 47

- Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai

Chavda.

5. Ms. Nancy Soni, learned advocate appearing for M/s.

Trivedi & Gupta for the respondent No.2 company, has

submitted that the respondent No.2 has categorically averred

before the learned Labour Court as well as this Court that the

respondent No.1 workman was never its employee and he was

working as an employee of the petitioner company. She has

further stated that the evidence in this regard has been rightly

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

appreciated by the learned Labour Court and the impugned

judgment and award is just and proper. She submits that the

respondent No.2 company came to be wrongly arrayed as a party

respondent at the behest of the petitioner company in the

proceedings before the learned Labour Court and the learned

Labour Court has rightly award costs for the said action of the

petitioner company. She submits that the impugned judgment

and order need not be interfered with.

6. Heard learned advocates for the parties and perused the

documents and evidence on record.

7. A perusal of the record reveals that in the written

statement filed before the learned Labour Court, the petitioner

company had taken a categorical stand that the respondent No.1

workman was engaged as a Rojamdar on an NMR basis. When

the power plant was in the project stage, the petitioner was

engaging such daily wagers for the purpose of the said project. It

was further stated that accordingly, the respondent No.1

workman and other similarly placed daily wagers were being

paid wages. It was further stated that the original record with

respect to the engagement of the respondent No.1 workman as

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

well as similarly placed daily wagers thereafter sent to the

Jamnagar office. It was stated that the work engagement of the

respondent No.1 workman was purely casual in nature. It was,

thus, contended that being an NMR daily wager, the respondent

No.1 workman did not have any right for reinstatement.

7.1 However, on 15.10.1999, the petitioner company moved an

application in the learned Labour Court, Jamnagar stating that

the respondent No.1 workman was working with its contractor -

ABB Limited, which was given the project of the power plant. It

was stated that at the relevant time, ABB Limited was the

contractor for the project and looking at the old record, it has

come to the notice that Mr. K.B.Pushpam and Mr. Sazid, the

witnesses examined on behalf of the petitioner company, were

also working with the respondent No.1 workman with the

contractor - ABB Limited. It was further stated in the application

that the respondent No.1 workman's name was not in the list

which came to be annexed with the said application and by the

said application, the petitioner company prayed that the

contractor - ABB Limited, respondent No.2 herein, should be

arrayed as a party respondent to the proceedings before the

learned Labour Court. The said application came to be allowed

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

and the respondent No.2 came to be arrayed as a party

respondent before the learned Labour Court. It is further

revealed that the respondent No.2 herein has categorically

denied in its written statement before the learned Labour Court

as well as in this Court by its affidavit-in-reply that the

respondent No.1 workman was never on its rolls and was never

engaged as worker in its company for the said project. The

respondent No.2 company has further stated that the

respondent No.1 workman was engaged by the petitioner

company only for its casual work in aid of the officers / workmen

who were coordinating with the contractor on the said project.

The respondent No.2 company has, therefore, flatly denied the

claim of the petitioner company that the respondent No.1

workman was their employee and engaged by them for the power

plant project.

7.2 The petitioner company has examined 2 witnesses being its

employees - Mr. K.B.Pushpam and Mr. Sazid. It is alleged that

both this witnesses were earlier working with the contractor -

ABB Limited i.e the respondent No.2 before joining the petitioner

company. In their oral evidence, what has been stated is that

when they were working with the respondent No.2 company, the

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

respondent No.1 workman was also working and they were all

employees of the respondent No.2 company. Beyond this,

nothing more has been elicited in the oral evidence. However, the

said evidence will be taken at its face value only due to the fact

that the contractor - respondent No.2 company has been arrayed

as a party and has not supported the case of the petitioner

company or the oral evidence of its employee. Further, the oral

evidence does not state that for what duration the respondent

No.1 workman had worked with the contractor. The said

contention with respect to working with the contractor also

needs to be rejected for the reasons that in the written

statement, it is categorical statement of the petitioner company

that the respondent No.1 workman was engaged as a daily wager

on NMR basis.

8. Mr. Premal Joshi, learned advocate for the petitioner, also

contended that the respondent No.1 workman had failed to prove

that he had worked for 240 days during the year. He has further

submitted that it was necessary to first prove that the

respondent No.1 workman had worked for 240 days in a year

with the petitioner company. The said contention deserves to be

rejected. It is seen from the record that the petitioner company

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

has not denied that the respondent No.1 was working with them

in spite of the categorical statement made by the respondent

No.1 workman that he was in employment with the petitioner

company for a period of 2½ years. In absence of any denial and

further contention in the written statement that he was engaged

as a casual daily wager on NMR basis, there was no further need

to prove that the respondent No.1 workman had worked for 2½

years as claimed. No where on record it is reflected that the said

factum of working for 2½ years is disputed by any of the parties.

8.1 The judgments relied upon by Mr. Premal Joshi, learned

advocate for the petitioner, and the ratio laid down therein will

not be applicable in the facts of the present case in view of the

aforesaid observation that it was never disputed that the

respondent No.1 workman had worked for 2½ years and

therefore, there was no further necessity to prove that he had

worked continuously for 240 days in a year.

9. In support of his case, Mr. U.T.Mishra, learned advocate

for the respondent No.1 workman, has relied on the judgment

reported in 2010 (1) SCC 47 - Director, Fisheries Terminal

Division v. Bhikubhai Meghajibhai Chavda wherein it has been

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

held that if the period of engagement of the work is disputed,

then, the employer has to produce the complete record and

muster roll during the relevant period in order to prove that the

respondent workman has not worked for 240 days. However, in

the present case, the said issue has not arisen since the claim of

the respondent No.1 workman has not been categorically

disputed by the petitioner company or the respondent No.2

contractor. In the result, it is held that the learned Labour Court

has properly appreciated the evidence on record and has come to

appropriate conclusions.

10. Learned advocate Mr. Premal Joshi for the petitioner

company has submitted that the learned Labour Court has

wrongly imposed cost of Rs.1,000/- for arraying the respondent

No.2 as party respondent to the proceedings. He submits that

once the application for arraying the respondent No.2 as a party

respondent was heard, decided and allowed on merits by the

learned Labour Court, it was not justified in imposing costs

while allowing the reference. Learned advocates for the

respondent Nos.1 and 2 do not oppose the said prayer of the

learned advocate for the petitioner for setting aside the

imposition of such cost awarded to the respondent No.2.

C/SCA/3814/2008 JUDGMENT DATED: 03/01/2023

10.1 In view thereof, the impugned judgment and order to the

extent it imposes costs of Rs.1,000/- to be paid by the petitioner

to the respondent No.2 company herein is quashed and set

aside. Rest of the impugned judgment and order stand confirmed

on merits. The impugned judgment and order is modified

accordingly to the said extent.

In view of the aforesaid observations, the present Special

Civil Application is disposed of accordingly. No order as to costs.

Rule is made absolute to the aforesaid extent.

Sd/-

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