Gujarat High Court
Executive Engineer, Public Health ... vs Rajendrasinh Gulabsinh Gohil on 21 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9372 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9401 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9403 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9404 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9783 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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EXECUTIVE ENGINEER, PUBLIC HEALTH DEPARTMENT
Versus
RAJENDRASINH GULABSINH GOHIL
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Appearance:
MR. BHARGAV V PANDYA(7103) for the Petitioner(s) No. 1
MR DARSHIT D THAKKAR(12434) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 21/04/2025
ORAL JUDGMENT
1. The issue involved in all the petitions are common,
therefore, the same is decided by a common judgment.
The facts involved in Special Civil Application No.9372
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of 2022 is taken into consideration.
2. The present petitions are filed under Article 226 and 227
of the Constitution of India challenging the award
passed by the learned labour court, Vadodara in
Reference (LCV) No.302 of 2006 dated 28.09.2021
whereby the directions were issued upon the present
petitioner to reinstate the respondent alongwith the
benefit of lump sum compensation of Rs.65000/- in lieu
of the back wages.
3. It is the case of the present petitioner that the dispute
was raised before the learned labour court claiming that
the respondent workman has worked since 1995
continuously, however, without following the due
procedure under the Act has terminated the services of
the respondent on 30.04.2006, therefore, claiming the
benefit of reinstatement alongwith other consequential
benefits the reference was filed which was registered
being Reference No.302 of 2006. The petitioner
appeared before the learned reference court and filed
the statement of claim and the learned reference court
after hearing the parties and the evidence adduced
awarded the reference in favour of the respondent which
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is a subject matter of challenge before this Court.
4. Heard learned advocate Mr.Bhargav Pandya for the
petitioner and learned advocate Mr.Darshit Thakkar for
the respondent.
5. Learned advocate Mr.Pandya submits that the
appointment of the respondent was made without
following the due procedure and dehorse the
recruitment rules, therefore, the Board has taken the
decision on 30.11.1984 to terminate all such employees
who are illegally appointed and the present respondents
were appointed after the decision taken on 30.11.1994.
Learned advocate Mr.Pandya submits that learned
reference court, by drawing adverse inference against
the present petitioner has awarded the reference in
favour of the respondent by ignoring the fact that before
terminating the services, notices were issued to the
workmen alongwith the payment of retrenchment
compensation. Learned advocate Mr.Pandya submits
that the said notice as well as the cheque was sent
through Registered A.D. However, respondent has
refused to accept the same, therefore, the envelopes
alongwith the cheque has been produced before the
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learned reference court which was marked as Mark
24/2. Learned advocate Mr.Pandya submits that
challenging the termination, petition came to be filed
before this Court, however, this Court did not enter into
the merits of the case and subsequently it was
withdrawn with a view to approach before the learned
labour court by filing a reference. Learned advocate
Mr.Pandya submits that as all the respondents were
illegally appointed, after following due procedure under
section 25(F) of the ID Act the services were put an end
to. However, without considering the same, learned
reference court has awarded reference in favour of the
respondent, therefore, the same is required to be
interfered with and the petitions are required to be
allowed.
5.1. Learned advocate Mr.Pandya has relied on the
decision rendered by the Apex Court in the case of
Surendranagar District Panchayat vs Dahyabhai
Amarsinh reported in 2005 8 SCC 750 and submitted
that it is the duty of the workman to produce the cogent
evidence to establish the claim of 240 days and in
absence of any proof, the burden cannot be shifted on
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the petitioner and therefore, it is prayed that adverse
inference which was drawn by the learned labour court
while awarding the reference in favour of the
respondent is erroneous and on that ground also, these
petitions are required to be allowed.
6. Per Contra, learned advocate Mr.Thakkar appearing for
the respondent submits that all the respondents were
given the cheque in lieu of the compensation which is to
be paid while acquiring the land of the respondent. On
being assured that they would be provided the service,
the land owners had agreed to give the land for the
acquisition purpose without receiving any amount
towards the compensation. After taking the work for
some time, when they became entitled for the benefits of
17.10.1988 G.R., their services were terminated in
violation of the provisions of the ID Act. It is submitted
by the learned advocate Mr.Thakkar that in all, 14
employees were terminated, out of that six workman
filed the reference and five references were decided in
favour of the respondent, one is still pending before the
learned labour court, it is submitted by the learned
advocate Mr.Thakkar that as per the evidence adduced
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before the learned labour court in the nature of cross-
examination of the witness of the respondent, it is
admitted that after terminating the service, the tender
was published by the petitioner, calling the people for
the job of the identical nature which was performed by
the respondent. Learned advocate Mr.Thakkar submits
that after serving for more than 10 years continuously,
the services were terminated by projecting illegal
services.
6.1. Learned advocate Mr.Thakkar submits that the office
order produced below Mark 10/2 suggests that
respondents were granted fix pay on 08.07.2002.
Learned advocate Mr.Thakkar submits that to prove the
continuous service, the wage slip was produced below
Mark 10/3 to 10/4 as well as the statement was
produced below Mark 25/11 showing that the
respondents have been taken on fix pay from 01.12.1994
to 31.12.2005. In addition to that, respondents have also
produced the list of the workman who are Daily Wagers
below Mark 25/2 and has also filed application below
Exh.15 seeking production of the wage register, the
muster roll, appointment order for the period where the
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respondents have worked. In absence of the production
of such documents, learned reference court has drawn
the adverse inference in favour of the respondent as per
the decision rendered by the Apex Court in the case of
R.M. Yellatti vs The Asst. Executive Engineer,
reported in (2006) 1 SCC 106, no error is committed
by the learned reference court in granting the order of
reinstatement alongwith lump sum compensation of
Rs.65,000/- in lieu of back wages and therefore the
petition deserves to be dismissed.
7. Having considered the arguments advanced by learned
advocates for respective parties and on referring the
evidence which is produced alongwith the memo of the
petition as well as with the reply, it emerges that the
appointment of the respondent was made from the year
1995 onwards. They had served up to 30.04.2006 and on
referring the order of termination, it emerges that
alongwith the termination order, the petitioner has sent
the retrenchment compensation of Rs.47,096.50/-. The
notice which is part of the record suggests that
respondent entered with the petitioner Board on
27.12.1996 and served up to 30.04.2006. The chart
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showing the date of joining as well as the date of
termination of each respondent is reproduced herein
below:-
Sr. Date of Date of
Name of the Employee
No. Joining Termination
1 Rajendrasinh Gulabsinh Gohil 27.12.1996 30.04.2006
2 Uoendrasinh Chatrasinh Vaghela 12.02.1995 30.04.2006
3 Dilipsinh Sundersinh Padhiyar 11.04.1998 30.04.2006
4 Ravjibhai Gulabbhai Gohil 07.02.1995 30.04.2006
5 Dilipsinh Bhagwansinh Gohil 11.04.1998 30.04.2006
7.1. It emerges that the said notice alongwith the cheque
has not been accepted by the petitioner, therefore, same
returned with an endorsement of refused. On referring
the cross-examination of the workman below Exh.18, it
emerges that there are 14 other workmen who were
engaged alongwith the respondent by the petitioner
Board. It is admitted by the workman that notice
produced below Mark 15/1 is refused to be accepted. It
is also admitted by the workman that after termination,
no other employees were engaged on regular or daily
basis. As against the same, if one would refer the
evidence of the witness of the petitioner who was
examined below Exh.29, then he admits the identity card
issued to the respondent produced below Mark 9/1, the
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circular produced below Mark 9/2 to 9/3 and the
Provident Fund slip produced below Mark 9/4. It is also
admitted by the witness of the petitioner that the
workman who completed five or ten years has been
given the benefit of circular of Daulatbhai Parmar. It is
also admitted by the witness that in the termination
order the reason is stated to save the funds to meet with
the expenditure. However, subsequently the tenders
were issued which is produced below Mark 21/1 calling
other workman for work which is of identical in nature
of the present workman, it also emerges from the record
that the respondents were engaged against the
compensation which is to be paid in the acquisition
proceedings and the land owners were agreed for the
same. The said fact is reflected from the representations
which are made by the Mandal to the petitioner.
7.2. On referring the circular which is produced before the
learned reference court granting the benefit of fix pay of
Rs.2550/-, it transpires that the date of completion of 10
years mentioned in the said circular is 07.02.2000. It
also emerges that initially the reference was dismissed
in absence of any evidence produced by the workman in
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the year 2006, thereafter it was restored in the year
2013 and on being restored, the statement of claim was
produced on 28.11.2013. The learned reference court
has referred the evidence below Mark 25/1 which is the
list of employees, where in seniority, number of the
petitioner was mentioned at Sr.No.84. The pay scale in
the said statement is mentioned of Rs.2550 to 3200/-.
The said seniority list is a part of the reply at page
No.137 suggesting the name of the present petitioners
which was not controverted by the petitioner either
before learned labour court or before this Court. The
said list also suggests the educational qualification, the
date of joining and date of completion of five years as
per the circular dated 17.10.1988. In addition to that,
the annual statement of contributory provident fund was
produced below Mark 10/5 for the period of 2003-2004,
2004-2005 and 2005-2006, which suggests that the
appointment of the respondent was nor irregular
appointment, neither illegal, however, only to deprive
the benefits of GR dated 17.10.1988, order of
termination is passed.
7.3. So far as the contention with regard to the violation of
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section 25(g) and 25(h) of the ID Act is concerned, the
learned labour court has relied on the Exh.29 which is
cross-examination of the witness of the employer. As per
the said cross-examination, it is admitted that the work
being carried out by the contractual employee and the
tender was published inviting the employees to do the
work under contract. On referring the said cross-
examination the learned reference court held that there
is a breach of Rule 81 and 82 alongwith section 25(g) of
the ID Act.
7.4. From the above cross-examination it emerges that on
one hand, the employer has retrenched the workman
and on the other hand had engaged the contractors for
supplying man power, it is undisputed fact that as on
date also, the work which was carried out by the
employee is available.
8. In that background, this Court is of the view that learned
labour court is justifying in holding that there is a
breach of section 25(g) and 25(h) of the ID Act and has
awarded the reference in favour of the respondent.
Therefore, these petitions deserves to be dismissed.
9. It is needless to clarify that the lump sum compensation,
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as awarded by the learned labour court has been
received by the respondent pursuant to the order passed
by this Court dated 09.12.2024.
10. Resultantly, these petitions are dismissed.
(M. K. THAKKER,J)
NIVYA A. NAIR
