1. By way of present petition under Articles 226 and 227 of the Constitution of India, the petitioner – Siddhpur Nagarpalika has challenged the judgment and award dated 2.4.2002 passed by Presiding Officer of Labour Court, Kalol, in Reference (L.C.K.) No.267 of 1990 by which the respondent has been reinstated with full backwages and with a cost of Rs.251/ to be paid to the respondent – workman.
2. The brief facts arising from the case are as under:
2.1 That the respondent workman raised an industrial dispute which came to be referred to the Labour Court, Kalol for adjudication which was registered as Reference (L.C.K.) No.267 of 1990. It was alleged by the respondent workman that the petitioner Municipality appointed him on the post of Bore well Operator from 5.3.1988 and was working since last seven months on the said post. Since the respondent had passed Class Wireman Examination, he was working in Street Light Department of the Municipality. It was alleged that on 31.7.1989 he was orally discontinued from the services without following due process of law.
2.2 Pursuant to the demand made by the workman, the petitioner – Municipality filed its defence and contended that the respondent – workman was not appointed on permanent post and he has not worked for 240 days neither in the year 1988 nor in the year 1989. It was contended that the workman had worked only for 47 days in the year 1988 and, therefore, he is not entitled for the reliefs prayed by him for reinstatement with backwages. The respondent – workman, by filing an application at Exh.9, requested the trial court to direct the Municipality to produce certain documents, upon which, by order dated 27.6.1992 the Presiding Officer had asked the petitioner – Municipality to reply to the said application or to comply with the same. On 16.12.1992 the Municipality requested the trial court to grant time of 30 days to produce said documents.
2.3 It is pertinent to note that neither the petitioner – Municipality has complied with the order dated 27.6.1992 nor produce the documents. The documents which were demanded by the workman whereof the documentary evidence like list of all workmen with the date of entry in the service and seniority list thereto.
2.4 The respondentworkman examined himself at Exh.14 in which he deposed that he had worked with the Municipality for 13 months without any break. The question put by the Municipality in the crossexamination, he has denied that he had worked only for 47 days with the Municipality.
2.5 The learned Presiding Officer, after considering the deposition of complainant, allowed the reference and directed the Municipality to reinstate the workman with full backwages.
2.6 The Municipality, being aggrieved and dissatisfied with the said order, preferred present writ petition in which by order dated 5.3.2004 the matter was admitted and ad interim relief was granted qua backwages only.
3. Learned advocate Mr.Keyur Vyas appearing for learned advocate Mr.P.K.Jani for the petitioner has submitted that the learned Reference Court has erred in accepting the say of workman that he was in continuous service of 13 months in absence of any documentary evidence. He has further submitted that the respondent workman was appointed orally without following the procedure prescribed under the Municipalities Act and, therefore, he is not entitled for reinstatement.
4. On the other hand, learned advocate Ms.Mohini Bhavsar appearing for learned advocate Mr.B.G.Jani for the respondent has submitted that no interference is called for by this Court, particularly, while exercising the jurisdiction under Article 227 of the Constitution of India, and in support of her submission, she has submitted that, though the workman had requested by filing application Exh.9 to produce documentary evidence, the petitioner – Municipality has failed its duty to prove its case. In absence of any documentary evidence like register maintained by the Municipality about the attendance of the workman, the Reference Court was right in allowing the reference.
5. I have heard learned advocates appearing for the parties. I am of the opinion that, though sufficient opportunity was given by the Reference Court to the petitioner – Municipality, the Municipality had failed in its duty to prove its case and, therefore, there was no alternative for the Reference Court but to accept the say of the workman. The petitioner Municipality has neither produced any documentary evidence nor examined any witness on its behalf and, therefore, the Presiding Officer of Labour Court was right in accepting the say of the workman.
6. Learned advocate Ms.Mohini Bhavsar has submitted that, pursuant to the order dated 5.3.2004, the workman has been reinstated on the post of Bore well Operator from 1.4.2004 and he is in continuous service on the said post. She has further submitted that her client is ready to forgo his right of backwages.
7. On the other hand, learned advocate Mr.Keyur Vyas appearing for the petitioner has produced an oral order dated 30.1.2006 passed by this Court in Special Civil Application No.1170 of 2004, and submitted that, similar question has been decided in the said matter.
8. I have gone through the order passed by this Court in the abovereferred matter. I am in agreement with the observations made by the Coordinate Bench in para 5.1 of the order that, since the respondent is reinstated and is working at the place since 2004, it would not be appropriate to disturb the said position at this stage.
As far as backwages are concerned, since learned advocate appearing for the workman has shown willingness to forgo his right towards backwages, the petition can be considered for that aspect only.
9. In the result, the petition is partly allowed. The judgment and award dated 2.4.2002 passed by Presiding Officer of Labour Court, Kalol in Reference (L.C.K.) No.267 of 1990 is modified to the extent that the direction of 100% backwages to be given to the respondent – workman is hereby quashed and set aside. The rest of the judgment and award is confirmed. Rule is made absolute to the aforesaid extent with no order as to costs.
( A.J. DESAI, J. ) syed/