Gujarat High Court
State Of Gujarat vs Lilabhai Dilipbhai Jethsurbhai on 12 February, 2024
NEUTRAL CITATION
C/SCA/17435/2018 JUDGMENT DATED: 12/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17435 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
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 ?
==========================================================
STATE OF GUJARAT
Versus
LILABHAI DILIPBHAI JETHSURBHAI
==========================================================
Appearance:
MS ROSHINI PATEL ASST. GOVERNMENT PLEADER for the Petitioners
RAJAT R GADHVI(9438) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 12/02/2024
ORAL JUDGMENT
1. State as petitioner has filed this petition challenging the
award of the Labour Court, Bhavanagar dated 30.04.2018 in
NEUTRAL CITATION
C/SCA/17435/2018 JUDGMENT DATED: 12/02/2024
undefined
Reference (LCB) No.123 of 2005, wherein the petitioner - State
was directed to reinstate respondent - workman with
continuity of service w.e.f. 16.12.2004, and 15% backwages.
This Court by order dated 22.11.2018, had issued notice.
Thereafter, by order dated 10.01.2022, the matter was
admitted and implementation and execution of the award was
stayed subject to payment of wages under Section 17B of the
Industrial Disputes Act ("the Act" for short). Pursuant to
order dated 10.01.2022, the workman has been paid wages
under Section 17B of the Act.
2. Facts in brief are that, it is case of the workman that he
was appointed as skilled labourer orally on 16.11.1999 and
worked till 16.12.2004. His services were terminated illegally,
for which, he raised dispute before the Labour Court,
Bhavnagar registered as Reference (LCB) No.123 of 2005. The
Labour Court, Bhavnagar upon adjudication directed petitioner
- State to reinstate workman with continuity of service w.e.f.
16.12.2004 and awarded 15% backwages. Aggrieved by the
award dated 30.04.2018, present petition is filed.
3. Heard Ms. Roshni Patel, learned Asst. Government
Pleader for the petitioner - State and Mr. Jigar Gadhvi for Mr.
Rajat Gadhvi, learned advocate for the respondent - workman.
4. Record and proceedings was called for. It was received
NEUTRAL CITATION
C/SCA/17435/2018 JUDGMENT DATED: 12/02/2024
undefined
and perused.
5. Ms.Patel, learned Asst. Government Pleader for petitioner
- State submitted that the award of the Labour Court is
erroneous because the Labour Court eared in not appreciating
that the respondent was not terminated but stopped coming for
work on his own after 2004. The petitioner called the
respondent for work in the year 2005 and thereafter during
pendency of reference in the year 2007. This aspect has been
admitted by the workman in his cross-examination and
recorded by the Labour Court. In the cross-examination at
Exh.12, the workman stated that he went for duty and met
one officer of the Forest Department, Shri D.K.Boricha.
Placing reliance on the documents placed before the Labour
Court below Exh.8 marked as 8/1 to 8/8, she submitted that
the document below mark 8/1 confirms that the workman had
not completed 240 days in a year. Further, the document
mark-8/5 refers to the respondent having come for work only
on 30.03.2005 and thereafter, had not joined duty. The
documents below mark 8/1 to 8/8 justifies that the workman
left the work on his own and, therefore, it is not a case of
illegal termination. Most importantly, the workman had not
completed 240 days in a year and, therefore, the case would
not fall under the provisions of the I.D Act. To the query
raised, she admits that the said documents were not filed
NEUTRAL CITATION
C/SCA/17435/2018 JUDGMENT DATED: 12/02/2024
undefined
before stage of filing the evidence was closed and, therefore,
the same were not exhibited.
5.1. Referring to one more document at mark 8/8, she
submitted that the panchnama drawn, in presence of Sarpanch
of the village and the letter written by Sarpanch, confirms that
the workman was not residing at the address given and,
therefore, the case put up of illegal termination or that the
workman was not permitted to join duties, was beyond the
facts.
5.2. Learned AGP further submitted that the reference was
allowed since the documents produced by the petitioner -
State were not taken into consideration as the same were not
Exhibited. The Labour Court also erred in not appreciating
that the workman after raising the dispute in the year 2005,
filed his affidavit of evidence in the year 2015, after a gap of
10 years for the first time. Further, the internal
correspondence, marked as mark 8/1 to 8/7 were not taken
into consideration though they are government documents.
Further, the State is not expected to keep the post vacant and
workman remained without work is also not possible. Further,
age of the workman in the year of reference was 22 years,
therefore, it is not believable that he remained without work
for more than 20 years and, therefore, the award of
NEUTRAL CITATION
C/SCA/17435/2018 JUDGMENT DATED: 12/02/2024
undefined
reinstatement and backwages deserves to be quashed and set
aside. On the aspect of grant of reinstatement with
backwages, she relied upon the decision of Hon'ble Supreme
Court in the case General Manager, Haryana Roadways vs.
Rudhan Singh reported in (2005) 5 SCC 591, wherein it is held
that if the work is not done, no remuneration is required to be
paid. She, thus submitted that the petition may be allowed.
6. On the other hand, Mr. Gadhvi, learned advocate for the
respondent - workman submitted that the workman was
appointed on 16.11.1999 and terminated on 16.12.2004. For
attendance, no register was maintained and produced by the
employer. Therefore, it was rightly held that despite
opportunity, the petitioner - State failed in leading the
evidence. The documents which were not produced and not
exhibited, as per the provisions of the Evidence Act, are no
evidence in the eye of law and, therefore, the same may not
be considered. This aspect has been appropriately considered
by the Labour Court. In respect of completion of 240 days in a
year only a chart reflecting the presence of the workman was
produced on a plain sheet of paper. Admittedly, no muster
roll or the register was produced by the employer and,
therefore, the same was rightly not considered by the Labour
Court. In support, he relied upon the decision of the Hon'ble
Supreme Court in the case of Sriram Industrial Enterprises
NEUTRAL CITATION
C/SCA/17435/2018 JUDGMENT DATED: 12/02/2024
undefined
Limited vs. Mahak Singh reported in 2007 (4) SCC 94. he
further submitted that when the attendant register and muster
roll has not been produced presumption in favour of workman
is to be made. The internal correspondence which was placed
on record and marked as mark 8/1 to 8/7 are the
correspondence between the officers of the department, where
nothing contrary came on record. Despite opportunity, the
State failed to establish non completion of 240 days and
therefore, the Labour Court had rightly awarded reinstatement
with 15% backwages. Further, the workman remained
unemployed during the interregnum period and, therefore, he
would be entitled for backwages and principle of "no work no
pay" would not be applicable. He, therefore, submitted that
the Labour Court award is appropriate and no interference is
required.
7. Revisitation of facts reveal that for the termination of the
year 2004, the workman raised dispute in the year 2005 and
filed his affidavit of evidence in the year 2015, after a gap of
10 years. Further, admittedly, the petitioner - State failed in
producing the evidence before closing of the stage, which are
mark 8/1 to 8/8. The documents marked as 8/1 to 8/7, refers
to internal correspondence between the officers of the Forest
Department where note of workman not attending the work
was informed to the range forest officer. The letter dated
NEUTRAL CITATION
C/SCA/17435/2018 JUDGMENT DATED: 12/02/2024
undefined
16.04.2005 at mark 8/5, notes that the workman went for
work on 30.03.2005, however, when assigned the work, he
refused to work and left. Thereafter, he had not come for
joining duties till 16.04.2005. This letter dated 16.04.2005 is
in conformity with the cross-examination of the workman
below Exh.12. In the cross-examination, the workman had
stated that on 30.03.2005, he went to join duties and met one
Shri D.K.Boricha. The letter dated 16.04.2005, at mark 8/5,
was by Shri Boricha. It is true that under the provisions of the
Evidence Act, the documents which were not exhibited are
weak piece of evidence. However, as held by the Hon'ble
Supreme Court, strict proof of evidence is not necessary in the
proceedings before the Labour Court. In the decision of
Hon'ble Supreme Court in the case of Karnataka State Road
Transport Corpn. vs. Lakshmidevamma (Smt) and Anr. reported
in (2001) 5 SCC 433, it is held as under:
"45. It is consistently held and accepted that
strict rules of evidence are not applicable to the
proceedings before the Labour Court/Tribunal but
essentially the rules of natural justice are to be
observed in such proceedings. Labour
Courts/Tribunals have the power to call for any
evidence at any stage of the proceedings if the
facts and circumstances of the case demand the
NEUTRAL CITATION
C/SCA/17435/2018 JUDGMENT DATED: 12/02/2024
undefined
same to meet the ends of justice in a given
situation.......".
8. Further, from the Record and Proceedings, it is noticed that
all the documents marked as Mark 8/1 to 8/8 are Government
Documents, signed and stamped by the concerned department.
Therefore, in the opinion of this Court, communication dated
16.04.2005-mark 8/5, in relation to workman despite being
called, had not joined duties cannot be ignored. In relation to
completion of 240 days, it is true that entire attendance
register was not produced and only a sheet of paper showing
presence of the workman was produced marked as 8/1, in
which one year refers to completion of 240 days. On the
contention of the State with regard to delay, it is noticed that
for the termination of the year 2004, reference was referred in
the year 2005.
9. In view of the above, considering that the workman despite
called, had not joined the duties and, therefore, in the opinion
of this Court, the workman shall not be entitled to 15% back
wages as awarded by the Labour Court, Bhavnagar.
Therefore15% backwages awarded from the date of termination
that is 16.12.2004 is hereby quashed and set aside. The order
of reinstatement with continuity is confirmed.
NEUTRAL CITATION
C/SCA/17435/2018 JUDGMENT DATED: 12/02/2024
undefined
10. With the above, the petition is disposed of. Rule is
made absolute to the aforesaid extent. No costs.
11. Record and Proceedings to be sent back to the concerned
Court.
(MAUNA M. BHATT,J)
NAIR SMITA V.
