Gujarat High Court
Ganeshbhai Palabhai vs Deputy Executive Engineer on 7 July, 2023
Bench: Rajendra M. Sareen
C/SCA/18859/2007 JUDGMENT DATED: 07/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18859 of 2007
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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GANESHBHAI PALABHAI
Versus
DEPUTY EXECUTIVE ENGINEER
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1.1,1.2
MR SANJAY UDHWANI AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 07/07/2023
ORAL JUDGMENT
1. Present petition has been preferred by the petitioner
under Articles 226 and 227 of the Constitution of India
challenging the Judgement and Award passed by the
learned Presiding Officer, Labour Court, Surendranagar in
Reference (LCS) No.139 of 1993 dated 05.02.2004 by which
C/SCA/18859/2007 JUDGMENT DATED: 07/07/2023
the learned Reference rejected the reference preferred by the
petitioner for reinstatement with full backwages and with
continuity of service in his original posts.
2. FACTS :
2.1. As per the case on behalf of the workman , the
workman was engaged as a permanent worker under the
respondent department since last 18 years and he was paid
daily wage of Rs.32/-, however, thereafter, the services of
the workman was terminated and he was not allowed to
work from 1/3/1990. It is the case of the workman that he
has worked for more than 240 days in every years.
Therefore, the workman raised reference praying for
reinstatement in service on his original post with continuity
of service and back wages and the same was registered as
Reference (LCS) No.139 of 1993. Considering the material
on record and considering the submissions of both the
sides, the Labour Court, Surendranagar rejected the
reference preferred by the workman. Hence, the workman -
original petitioner has filed this petition challenging the
aforesaid Judgement and Award of the Labour Court.
During the pendency of the present petition, the
original petitioner workman died and hence, his heirs are
brought on record as per the order passed in Civil
Application No.9694 of 2010 dated 17.01.2017.
C/SCA/18859/2007 JUDGMENT DATED: 07/07/2023
3. Submissions of the on behalf of the workman :
3.1. Ms.Mamta Vyas, learned advocate for the original
workman has vehemently submitted that the workman was
working as a permanent worker under the respondent
department and has worked continuously for 18 years
and his presence was marked in the muster rolls and he
was paid daily wage of Rs.32/-. It is submitted that,
however, thereafter, the services of the workman was
terminated and he was not allowed to work from 1/3/1990.
It is submitted that the services of the workman was
terminated by the respondent without issuing any notice,
notice pay and/or retrenchment compensation and without
following the procedure laid down under the Industrial
Dispute Act. It is submitted that juniors to the workman
were retained in the employment. It is submitted that,
therefore, there is breach of Section 25(F), (G) and (H) of the
Industrial Disputes Act.
3.2. Ms.Mamta Vyas, learned advocate for the petitioner
has submitted that the respondent had not produced the
documents sought for by the workman and hence the
workman could not prove his case.
3.3. Ms.Mamta Vyas, learned advocate for the petitioner
has submitted that the impugned order is illegal, perverse,
against the provision of the Industrial Disputes Act and
C/SCA/18859/2007 JUDGMENT DATED: 07/07/2023
against the settled legal position.
4. Submission of the respondent AGP:
4.1. Mr.Sanjay Udhwani, learned AGP for the respondent -
State has vehemently submitted that the workman has
failed to prove that he has worked for 240 days in the last
preceding year. It is submitted that the workman was not
employed by the respondent and from the muster roll placed
on record of the Labour Court, it is clear tht the workman
has not worked from 1985 to 1990 and hence there is no
question of terminating his services. It is submitted that the
muster rolls were produced before the Labour Court and
therefore, it cannot be said that the respondent had not
produced the documents demanded by the workman. It is
submitted that the Labour Court on appreciation of
evidence on record has rightly come to the conclusion that
the workman has not worked at all with the respondent
and therefore, the Labour Court had rightly rejected the
reference.
5. Heard Ms.Mamta Vyas, learned advocate for the
original workman and Mr.Sanjay Udhwani, learned AGP for
the respondent - State.
6. FINDINGS:
On perusal of the record, it appears that it is the case
of the workman that he has worked since last 18 years
C/SCA/18859/2007 JUDGMENT DATED: 07/07/2023
continuously as a labourer and his presence was marked in
the muster rolls and his services came to be terminated on
and from 1.3.1990 without issuing any notice, notice pay or
retrenchment allowance and juniors to the workman were
retained in the employment and therefore, there is breach of
provisions of Section 25(F), 25(G) and 25(H) of the I.D. Act.
However, the workman in his cross examination has
admitted that his presence is not there from the year 1986
to 1990. The respondent employer had produced muster
rolls for the year 1986 to 1990 and the same were exhibited
and on the basis of the same, the Labour Court has come to
the specific finding that there is no presence of the
workman for any day for the period from the year 1986 to
1990. The Labour Court has come to the specific conclusion
that the workman has failed to prove that he was
terminated on 1.3.1990. The Labour Court on the basis of
the evidence on record, has come to the conclusion that the
workman has failed to prove that he has working with the
respondent and he has worked for 240 days in any of the
years. On the basis of the evidence on record, the Labour
Court has come to the conclusion that the workman has
failed to prove his case and ultimately the Labour Court
rightly rejected the reference. I have also perused the record
and on perusal of the record, I am in quite agreement with
the view taken by the learned Labour Court. No error or
illegality has been committed by the Labour Court in
rejecting the reference and hence no interference at the
C/SCA/18859/2007 JUDGMENT DATED: 07/07/2023
hands of this Court is called for.
7. In the result, present petition is dismissed. Rule is
discharged. In the facts and circumstances of the case,
there shall be no order as to costs.
Sd/-
(RAJENDRA M. SAREEN,J)
R.H. PARMAR
