Gujarat High Court
Ismail Hasanbhai Aamda vs Gujarat Maritime Board on 11 October, 2023
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/13870/2010 JUDGMENT DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13870 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ISMAIL HASANBHAI AAMDA
Versus
GUJARAT MARITIME BOARD
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 11/10/2023
ORAL JUDGMENT
1. Heard learned advocate Mr. U.T. Mishra
for the petitioner and learned advocate
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C/SCA/13870/2010 JUDGMENT DATED: 11/10/2023
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Ms. Neha Kayastha for learned advocate Ms.
Sejal K. Mandavia for the respondent.
2. By this petition under Articles 226
and 227 of the Constitution of India, the
petitioner has prayed for the following
reliefs:
"(A) That Your Lordships be pleased
to issue an order, direction and/or
writ in the nature of certiorari
and/or any other appropriate writ,
order or direction, quashing and
setting aside the impugned Award
marked Ann.A to this petition, being
illegal, perverse and contrary to
record.
(B) Direct the respondent to
reinstate the petitioner with full
backwages and continuity of service.
(C) To grant such other and
further relief as may be deemed fit
in the interest of justice."
3. It is the case of the petitioner that
the petitioner was working as a Sea-man
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with respondent Gujarat Maritime Board
since last one year and was earning
Rs.1240/- per month and his services were
terminated on 30.11.1989 illegally without
following the due procedure of law. The
workman preferred Reference (LCJ) No.
526/1991 before the Labour Court,
Jamnagar. The Presiding Officer, Labour
Court No.2, Jamnagar vide order dated
31.07.2009 rejected such reference. Being
aggrieved by the impugned Award, the
petitioner has approached this Court
challenging the impugned Award.
4. Learned advocate Mr. Mishra for the
petitioner candidly submitted that though
the petitioner has worked only for 10
months as per his admission in the cross
examination at Exh.12, there is a breach
of provision of section 25G and 25H of
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the Industrial Disputes Act, 1947 (For
short "the ID Act") as according to the
petitioner, juniors to the petitioner are
continued in service. He referred to and
relied upon the deposition of the witness
of the respondent wherein it is stated
that name of the petitioner appears at
Serial No.53 and names of Karim Jusab and
Dinesh Maganlal Vyas appears at Serial No.
54 and 55 respectively in the Muster Roll
and therefore, the petitioner is senior
and without issuing any notice to the
petitioner to rejoin the service, his
services are terminated with effect from
30.11.1989. It was therefore, submitted
that there is a clear breach of provisions
of section 25G and 25H of the ID Act and
the Labour Court has committed an error by
rejecting the reference of the petitioner.
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5. Learned advocate Ms. Neha Kayastha
for learned advocate Ms. Sejal K. Mandavia
for the respondent supporting the order
passed by the Labour Court submitted that
Labour Court on appreciation of evidence
on record, has rightly rejected the
reference preferred by the petitioner and
therefore, no interference may be made in
the impugned Award.
6. Considering the submissions made by
the learned advocates for both the sides,
it appears that the petitioner has worked
only for 10 months for 197 days from
October 1988 to July 1989. The petitioner
has therefore, admittedly not worked for
240 days as per section 25B of the ID
Act.
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7. With reference to the contention
raised on behalf of the petitioner that
there is breach of provisions of section
25G and 25H of the ID Act, it is not
coming out from the record available on
file that the juniors of the petitioner
are continued in service. Merely because
names of employees are appearing at Serial
Nos.54 and 55 in Muster Roll, it cannot be
said that they were juniors to the
petitioner as there is nothing on record
to show that how Muster Roll is prepared
by the authority. In such circumstances,
contention raised on behalf of the
petitioner that juniors to the petitioner
are retained in service is without any
basis.
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8. Labour Court has therefore, rightly
come to the conclusion that as the
petitioner did not work for the months of
August 1989 and September 1989, it is
presumed that the petitioner has abandoned
the services with effect from August 1989
and thereafter filed reference by stating
that he has been orally terminated with
effect from 30.11.1989. Thus, the
petitioner without disclosing why he has
not attended work from August 1989 has
stated that he has been terminated from
30.11.1989 without any justification.
Labour Court has therefore, rightly
considered such facts and dismissed the
Reference. No interference is called for
in the impugned order passed by the Labour
Court.
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9. Petition is therefore, ordered to be
dismissed. Rule is discharged.
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
