1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs :
(“A) This Hon'ble Court may be pleased to admit the petition by quashing and setting aside the award dated 30/3/2001 passed by the Presiding Officer, Labour Court, Nadiad in reference (LCN) No.40/96, in the interest of justice.
(B) Pending admission and final disposal of the petition, this Hon'ble Court may be pleased to stay the Execution, operation and implementation of the award passed by Presiding Officer, Labour Court, Nadiad in reference (LCN) No. 40/96.
(C) To pass such other and further relief/s be granted to the petitioner as Your Lordships deem fit and proper in the interest of justice.
(D) Cost of the petition may be awarded.”
2. Heard Ms. Sejal Mandavia, learned Counsel for the petitioner and Ms. Bela Prajapati for Mr. B.M.Mangukiya, learned Counsel for the respondent workman.
3. By way of the impugned judgment and award dated 30.3.2001 passed in Reference (LCN) No. 40 of 1996, Presiding Officer of the Labour Court, Nadiad was pleased to pass an award whereby the petitioner was directed to reinstate the respondent workman with back wages on his original post.
4. Ms. Prajapati, under instructions from the party who is present in the Court as identified by Ms. Prajapati, does not press for the back wages as awarded by the impugned award and therefore the only question of reinstatement now remains to be considred by this Court in the present petition.
5. It was pointed out by Ms. Mandavia that the impugned award is illegal and is based on wrong appreciation of evidence on record. She further submitted that the Labour Court has wrongly come to the conclusion that the respondent workman has worked for more than 240 days and has committed an error apparent on the face of the record in recording a finding to the effect that there is breach of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'I.D. Act' for the sake of brevity).
6. Ms. Mandavia further submitted that the respondent workman was not appointed on regular basis but in fact the Labour Court has passed an ex-parte order and the petitioner could not produce any evidence as the learned Advocate who was engaged by the petitioner did not inform about the hearing. Ms. Mandavia has also relied upon the chart prepared by the petitioner at Annexure 'C' to the petition and has pointed out that in fact, the respondent workman has worked for 127 days in the last precedent year.
7. Per contra Ms. Prajapati has relied upon the judgment and award of the Labour Court and has supported the same. Ms. Prajapati submitted that the findings arrived at by the Labour Court is based on correct appreciation of evidence, which was adduced by the respondent workman and has therefore submitted that the petition is devoid of any merits and the same deserves to be dismissed except the statement made as regards back wages as awarded by the Labour Court, which the workman has forgone.
8. Considering the submissions made by both the learned Counsels appearing on behalf of the respective parties and on perusal of the award impugned as well as the other documents which are produced on record, more particularly written submissions filed by the petitioner as well as the deposition of the workman. It appears that the respondent workman was appointed as daily wager Chowkidar (Watchman) by the petitioner. It appears from the award that the petitioner has not produced anything on record to counter the version of the respondent workman that he has not worked for 240 days in the last preceding year. It also appears from the record that ample opportunity was given to the petitioner for hearing and for cross examining the respondent workman, however, the same is not availed and no evidence contrary to what has been produced by the respondent workman has been produced on record by the petitioner. The Labour Court on the basis of the evidence on record has recorded the finding that the petitioner has worked for 240 days in the last preceding year and without following the procedure as prescribed under Section 25F of the Act has been orally terminated with effect from 30.12.1994. On the contrary, the Labour Court has recorded the finding that inspite of ample opportunities having been granted to the petitioner, the petitioner has not adduced any evidence. Even in reply which is part of the record of this petition filed by the petitioner except the bare denial, no further evidence was adduced by the petitioner. On the contrary, as pointed out by Ms. Prajapati, the Labour Court has recorded that the respondent workman had worked for more than 240 days and in fact as per the case of the respondent workman he had worked for 16 years, the findings arrived at by the Labour Court are proper. The petitioner has relied upon statement at Annexure 'C' to the petition. The said statement was not produced before Labour Court and the same cannot be considered by this Court. The respondent workman has been able to establish the fact on evidence adduced by him that he has worked for more than 240 days. The petitioner has not been able to point out any error much less the error which is apparent on the face of the record which warrants interference of this Court in its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
9. Resultantly, the petition is dismissed as far as the award of reinstatement is concerned. In view of the statement made by Ms. Prajapati, under instructions from respondent workman the award of back wages is hereby modified. Hence, the impugned award dated 30.3.2001 passed by the Presiding Officer, Labour Court, Nadiad in Reference (LCN) No.
40/96 stands modified, the judgment and award as far as the reinstatement of the respondent workman on the original post is concerned, is confirmed and the award as regards back wages is concerned, is quashed and modified to the aforesaid extent. The petition is partly allowed. Rule made absolute to the aforesaid extent only with no order as to costs. The petitioner is hereby directed to implement the award within a period of eight weeks from the date of the receipt of the copy of this judgment.
Sd/-
(R.M. Chhaya, J.) M.M.BHATT