Executive Engineer ... vs Kishorbhai Jayantilal Trivedi
2023 Latest Caselaw 7598 Guj

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    C/SCA/12395/2009                                CAV JUDGMENT DATED: 13/10/2023

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 12395 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

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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 ?

========================================================== EXECUTIVE ENGINEER (ELECTRICALS) Versus KISHORBHAI JAYANTILAL TRIVEDI ========================================================== Appearance:

MR. PARTH H BHATT(6381) for the Petitioner(s) No. 1 MR RAJESH P MANKAD(2637) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

Date : 13/10/2023

CAV JUDGMENT

1. The aforesaid Special Civil Application impugns the judgment and award dated 26.02.2009 passed by the learned Industrial Tribunal, Ahmedabad in Reference (ITC) No.37 of 2008 [Old Reference (CGITA) No.52 of 2004 in Old Reference (ITC) No.20 of 1997], whereby the learned Industrial Tribunal has reinstated the

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respondent workman with continuity in service and 20% backwages.

1.1 The present Special Civil Application is filed praying for the following reliefs :-

"[A] YOUR LORDSHIPS may be pleased to admit and allow this petition.

[B] YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, by quashing and setting aside the impugned judgment and award dated 26/2/2009 passed by the Hon'ble Industrial Tribunal, Gujarat Ahmedabad in Reference No. (ITC) 37/2008 (Old ref CGITA/52/04 in old ref ITC No.20/1997), at Ahmedabad "A" to the petition, in the interest of justice.

[C] Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the operation, execution and implementation of the impugned judgment award dated 26/2/2009 passed by the Hon'ble Industrial Tribunal, Gujarat Ahmedabad in Reference No. (ITC) 37/2008 (Old ref CGITA/52/04 in old ref ITC No.20/1997), at Ahmedabad "A" to the petition, in the interest of justice.

[D] Record & Proceedings of the case from the Hon'ble Industrial Tribunal, Ahmedabad be called for.

[E] YOUR LORDSHIPS may be pleased to pass such other and further relief in favour of the petitioner, as deemed just and proper, in the facts and circumstances

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of the case."

2. The brief facts in the nutshell are as follows :- 2.1 That, the respondent workman was working as a daily wager on muster roll of the petitioner at Rajkot in Hot Mix Plant since January, 1981. That, upon completion of the work at Rajkot, the said plant was shifted at Ahmedabad during November, 1982. It is the case of the petitioner herein that the respondent workman had worked around three months at Ahmedabad and thereafter, returned back to his hometown at Rajkot without any intimation and never turned up for service. It is the further case that the respondent workman was engaged on temporary basis on the muster roll for a specific period from time to time. That, the workers were engaged on daily basis on muster roll as per the requirement of the petitioner so as to complete the work of strengthening and extension of runway at Civil Aerodrome, Rajkot through Hot Mix Plant. It is the further case that as the respondent workman had abandoned his service, no action was initiated by the petitioner since he was engaged on daily wages as casual basis.

2.2 That, the respondent workman approached the learned Labour Court, Rajkot under the Industrial Disputes Act on 05.04.1988 by filing Application No.7 of 1998 which came to be dismissed by the learned Labour Court on 20.02.1999 with a direction to approach the appropriate forum. That, thereafter, the respondent workman approached the Assistant Labour Commissioner, Ahmedabad and failure of conciliation proceedings came to be recorded on 20.02.1991. The respondent workman thereafter also filed a case before the Central Administrative Tribunal on 30.06.1993 by filing Original Application No.238 of 1993

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which came to be disposed of 10.04.1997 with a direction to make appropriate reference to the learned Labour Court within a period of two months. That, thereafter, the learned Industrial Tribunal, Ahmedabad was pleased to issue notice in Reference No.20 of 1997. However, since the respondent workman failed to attend the court, the said reference came to be rejected vide order dated 21.11.1997. That, the respondent workman filed Misc. Application No.2 of 1998 before the learned Industrial Tribunal to restore Reference No.20 of 1997 and the learned Industrial Tribunal was pleased to restore the said reference by allowing the application. By the impugned judgment and award, the learned Industrial Tribunal partly allowed the reference. Aggrieved by which, the petitioner herein has filed the present Special Civil Application.

2.3 This Court, vide order dated 11.12.2009, was pleased to stay the impugned award on condition of compliance with Section 17B of the Industrial Disputes Act.

3. Shri Parth Bhatt, the learned advocate appearing for the petitioner submits that the respondent workman worked as Khalasi in the year 1981-1982 and thereafter, abandoned his job. It is submitted that in the year 1981, the respondent workman had worked for 213 days and in the year 1982, he had worked for 229 days. After 24.01.1983, the respondent workman had stopped coming for work. The learned advocate submits that the respondent workman has not worked for 240 days and therefore, he is not entitled for any protection under the Industrial Disputes Act. The learned advocate submits that the provisions of Section 25F is not required to be followed in the case as the work was temporary in nature being the extension of runway at Civil Aerodrome, Rajkot

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through Hot Mix Plant. Since the said provision is not applicable, therefore, no notice, notice pay or any compensation has been paid as the respondent workman had abandoned the job. He submits that the evidence, as produced on record by the petitioner in respect of the working days of the respondent workman, has been accepted by the learned Tribunal. Even the same is not controverted by the respondent workman and therefore, it was erroneous to draw an adverse conclusion. He submits that no indulgence can be granted in the present case since the respondent workman had abandoned the job voluntarily and has not been terminated since the work of Hot mix plant shifted to Ahmedabad. He, therefore, submits that the impugned judgment and award be set aside and the present Special Civil Application be allowed.

4. Per contra, Shri Rajesh Mankad, the learned advocate appearing for the respondent workman submits that admittedly, the respondent workman has worked for a period of 213 days in the year 1981 and 229 days in the year 1982, however, no holidays are taken into account and if the same are calculated, the workman has worked for more that 240 days and therefore, he was entitled for protection under the Industrial Disputes Act. He further submits that the respondent had not abandoned his work. He submits that the persons, who are junior in the seniority list, were continued by the petitioner, however, the respondent was not continued. It is further submitted by the learned advocate for the respondent workman that the respondent workman has been reinstated by the interim order, but not on the establishment directly, but through a contractor. He submits that the respondent workman ought to have been reappointed in the same post and the capacity. He submits that the juniors of the respondent workman have been continued

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and even, they have been promoted. He further submits that in an application submitted by the respondent workman for production of certain documents in the proceedings before the learned Industrial Tribunal, the same were not produced by the petitioner. No muster roll was produced and by way of reply, only the working days in respect of the year 1981-1982 were placed on record. He submits that since no muster roll was produced, the petitioner cannot take advantage of the same. It is the case of the respondent workman that he has worked with the petitioner since January, 1981 and that, in absence of production of muster roll, the the learned Tribunal has rightly drawn an adverse inference. He submits that cogent evidence has been brought on record to prove the case. He submits that the present Special Civil Application be dismissed and the award be confirmed.

5. Heard the learned advocates for the parties and perused the documents on record.

6. In the present case, it is the case of the respondent workman that he has worked continuously for three years from 01.01.1980 till 24.01.1983. The petitioner herein, however, has placed on record the copy of the muster roll for the period from January, 1981 to January, 1983 disputing the case of the respondent workman. However, it is to be noted that before the learned Industrial Tribunal, the petitioner did not lead any oral evidence or produce any witness in support of its case and accordingly, the right of the petitioner to lead the evidence came to be closed on the application of the respondent workman. Therefore, the petitioner has not substantiated its claim and proved the muster rolls by leading oral evidence.

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6.1 However, the petitioner herein has submitted written submissions. A perusal of Exh.14, which is the certificate certifying that the respondent workman has worked with the petitioner, establishes that the respondent workman was in continuous service of the petitioner. Further, the seniority list, which is produced of record, also shows that the workmen, junior to the respondent herein, have been continued on the post of peon, while the services of the respondent herein came to be terminated. In the present case, the petitioner has not placed on record any termination notice or any document showing that the action was taken against the respondent workman for terminating his services. It is the case of the petitioner herein that the respondent workman had abandoned his services and had stopped coming on job. However, admittedly, no action was taken against the respondent workman and neither anything has been produced on record to that effect. Whereas, the case of the respondent workman is that the services have been terminated without undertaking any due process of law or issuance of show cause notice, notice pay or retrenchment compensation. Further, the petitioner has not produced on record the complete documentary evidence in respect of the respondent workman and number of days, he was in service with them and in view thereof, the learned Industrial Tribunal has taken an adverse inference which cannot be said to be erroneous. Further, the respondent workman had demanded the documents in respect of his services by way of an application in the Industrial Tribunal, which came to be allowed, but the petitioner chose not to produce any such document. In the present case, it is an admitted position that the respondent workman has worked for a period of 213 days in the year 1981 and 229 days in the year 1982. Taking into account the holidays, it can be said that the petitioner has worked for more than 240 days in the

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year 1981-1982. The learned advocate for the petitioner has submitted that in the present case, the respondent workman has approached the learned Industrial Tribunal only when a regularization scheme was introduced by notification dated 19.11.1985 and till then, there was no representation/communication from the respondent workman from the year 1983 till the year 1985. A look at oral as well as documentary evidence led by the respondent workman shows that after he was terminated from the service, he approached various forums, trying to get reinstatement and in view thereof, the learned Industrial Tribunal has also taken a view that there was no delay and latches.

7. In the present case, it has been duly proved by leading the evidence on record that the respondent workman was illegally terminated from the service and the provisions of the Industrial Disputes Act were not followed. Further, the documentary evidence on record shows that the persons, junior to the respondent workman, were continued in service, made permanent and further granted promotion also.

8. At this stage, it may be pertinent to take note of the fact that pursuant to the interim order dated 11.12.2009, the respondent workman has been reinstated, but not on the establishment directly, but through a contractor. It is further submitted by the learned advocate for the respondent workman that the respondent workman is still in service and has more two years of service till his retirement. It is submitted that he is still employed through a contractor. The said fact is not disputed by the learned advocate for the petitioner.

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9. In view of aforesaid, no interference is called for in the judgment and award dated 26.02.2009 passed by the learned Industrial Tribunal, Ahmedabad in Reference (ITC) No.37 of 2008 [Old Reference (CGITA) No.52 of 2004 in Old Reference (ITC) No.20 of 1997]. The present petition is devoid of merits and the same is accordingly dismissed. No order as to costs.

(ANIRUDDHA P. MAYEE, J.)

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