1. Heard learned advocates appearing for the parties.
2. The petitioner, employerfirst party in Reference (LCA) No.132/97, from the Labour Court, Ahmedabad, has approached this Court under Articles 226 and 227 of the Constitution of India, challenging the award and order dated 25/07/2003 passed by the Court whereunder while partly allowing the reference, the petitioner is directed to reinstate the workman with continuity of service and 50% of back wages without any cost.
3. The facts in brief leading to filing this petition, as could be culled out from the memo of petition deserve to be set out as under.
4. The workman was constrained to raise industrial dispute, as despite his continuous 7 years of service with the petitioner employer, he was discharged without following due procedure of law on 19/09/1996. The workman was not offered retrenchment compensation, notice, notice pay in lieu of dues thereof. In short no provision of Industrial Disputes Act was followed. The dispute was referred to the competent Court wherein it was marked as Reference (LCA) No.132/97. The petitioneremployer put up a stand before the Court that the employee does not undertake permanent nature of work and as per the statutory scheme the various schemes are undertaken on behalf of the authorities, as statutory corporations or local authorities and as and when schemes are over either the staff is transferred or relieved. The workman never put up 240 days in a given year and workman's services were never terminated and he abandoned the job, therefore, workman was not entitled to seek any relief from the Labour Court.
5. The Labour Court after examining the evidences on record framed issues and came to the conclusion that the workman was not permanent employee, but the workman had completed 240 days so as to entitle him to receive benefits under Section 25-F of the Industrial Disputes Act, as admittedly the provision of Section 25-F are not followed, the termination was declared to be illegal and hence the order of reinstatement with 50% of back wages was ordered looking to the facts. This award dated 25/07/2003, is subject matter of challenge in this petition under Articles 226 and 227 of the Constitution of India.
6. Learned advocate for the petitioner invited this Court's attention to the findings recorded by the Court in respect of issue nos. 1 and 2 and contended that the findings recorded by the Court would clearly reflect the nature of work being undertaken by the petitioner-employer which would persuade the Court not to grant any relief in favour of the workman. The Court below was not appreciated these facts and hence the award is required to be challenged.
7. Learned advocate for the petitioner contended that the evidences qua completion of 240 days cannot be said to be so cogent and clear so as to persuade the Court to hold in favour of the workman that the workman has completed 240 days.
8. Learned advocate for the petitioner further contended that the burden of proving the working of 240 days, the burden lies upon the workman and even the Labour Court has accepted that proposition of law, and if one looks it from that angle, then the documentary evidences in form of muster role and wage register etc. would not indicate that workman has completed 240 days and, therefore, on this ground the findings recorded by the Court was incorrect and immaterial.
9. Learned advocate for the workman invited this Court's attention to the testimony of the management's witnesses and contended that the testimony indicates that the workman had not abandoned the job and his name was scored off from the record, as there is clear admission available on the record and before scoring off the name, the workman was not issued any notice nor was any explanation was called from him. This is sufficient to indicate that the stand taken by the petitioner-employer qua abandoning of job by the workman is not accepted by the Court, as it was not acceptable on account of clear and unambiguous testimony of the management's witnesses.
10. Learned advocate for the workman further contended that the workman has produced record and the muster role and salary slip produced at Exhibit-42 and 43, also would clearly go to show that in the preceding year from the date of termination, the workman completed more than 240 days, as rightly observed by the Labour Court, therefore, this Court would not interfere with the award impugned.
11. The Court has heard learned advocates appearing for the parties and perused the award impugned. The finding of facts recorded by the Court need not be interfered by this Court, as the finding of facts are in no way be indicative of any perversity. In fact the finding of fact of completion of 240 days on the part of the workman is proved on the documentary evidences produced by the employer themselves at exhibit-
42 and 43, which would unequivocally go to show that workman has completed more than 240 days, as recorded by the Court. Therefore, this Court is of the considered view that the award impugned cannot be said to be in any manner illegal so as to call for any interference under Articles 226 and 227 of the Constitution of India. The quantum of back wages as awarded is also appropriate, as the workman laid evidence with regard to his attempt to obtain employment during the forced unemployment and his failure thereof. There exists no other challenge to the testimony of the workman in the form of cross examination and, therefore, the entire award, in my view, being just and proper is not required to be interfered in any manner under Article 226 or even under Article 227 of the Constitution of India. The petition being bereft of merits, deserves rejection and is accordingly rejected. However, there shall be no order as to costs. Interim relief, if any, stand vacated. Rule is discharged.
Pankaj (S.R.BRAHMBHATT, J.)