1. Heard learned advocates appearing for the parties.
2. The petitioners, first party employer in Reference (L.C.A.) No.1179/2000 have approached this Court by way of this petition filed under Articles 226 and 227 of the Constitution of India, challenging the award and order dated 21.05.2010, whereby the concerned Labour Court while partly allowing the reference directed the petitioners to reinstate the workmen on their original posts with 20% of back wages and imposed Rs.1000/ cost.
3. The facts leading to filing of this petition deserve to be set out as under.
4. The workmen were constrained to raise industrial dispute, as though they were serving as daily wagers since 20.12.1989. Their services were terminated unceremoniously vide order dated 07.10.1999. The workmen have claimed that before terminating their services, the provision of Industrial Disputes Act especially Section 25F was not followed. The said dispute was referred to the Labour Court wherein, it is numbered as Reference (L.C.A.) No.1179/2000. The statement of claim was filed. The workmen in the statement of claim were also contended with regard to breach of Section 25G and 25H of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the I.D. Act' for the sake of brevity). The written statement was filed contending that the workmen's services were never terminated and they abandoned their job on their own accord and they were intermittently absent from their job and used to present for their work as and when offered to them, therefore, as workmen have not completed 240 days, there is no question of compliance of Section 25F of the I.D. Act, as the workmen were intermittently working, there is no question of maintaining seniority list. This was based upon the pleadings and the pleadings were completed and ultimately after recording the evidences, the Labour Court come to the conclusion that the workmen were discharged without following due procedure of law and thereby the employer has not followed Section 25F of the I.D. Act and hence, Labour Court has ordered 20% of back wages with reinstatement vide order dated 21.05.2010, which is impugned in this petition. Hence, this petition is filed under Article 226 and 227 of the Constitution of India.
5. Learned advocate for the petitioners invited this Court's attention to the award and order and the findings of the Court with regard to completion of 240 days and submitted that this finding does not get support from the material on record, as the workmen's burden of proving that they have completed 240 days was wrongly fasten upon the employer. The workmen were under an obligation to establish their completion of 240 days, then only the burden would shift or the Court can go into the fact. In the instant case, the material on record clearly indicate that workmen failed in establishing their case on completion of 240 days and the Labour Court has wrongly fasten burden upon the employer, which even from that angle one looks at, it could be said to have been discharged successfully by the employer, as per the muster roll maintained for the period from 1989 to 1999, when the workmen were present and performed duties were produced and there from the Labour Court has contrary to the record gone on recording submissions and findings qua thumb impression of the workmen i.e. first workman husband of workman no.2.
6. Learned advocate for the petitioners has demonstrated by inviting this Court's attention to the muster roll where from it is clearly indicated that the Labour Court's finding qua workmen, is produced, qua workman no.1 i.e. Raval Vitthalbhai Sagrambhai is not indicated anywhere. The thumb impression is not of his wife i.e. Raval Jasuben Vitthalbhai, yet the Labour Court has in utter disregard of the facts on record recorded a finding of fact that the Sangrambhai's thumb impression is shown without any explanation. The record which is produced before the Court do not indicate that the counsel is in any manner incorrect in making the submission to this effect.
7. Learned advocate for the workmen contended that the workmen have in fact made an application vide exhibit 7, wherein it was clearly urged calling upon the employer to produce attendance register from 1989 to 1999. The employer was also called upon to produce the pay slips and cash leave record from 1989 to 1999 and seniority list of the employees and new employees list from 1999 to 2000. This application was made on 16.05.2001, but the same though was ordered to be listed for hearing, but the petitioners have not produced complete record, which could have persuaded the Court to take a decision. It was submitted by learned advocate for respondents that the matter had checkered history and before the judgment impugned came to be passed, twice on earlier occasion this reference was allowed exparte, but on both the occasion the same was set aside and the matter was taken up for hearing. These facts would justify the workmen's lapse, if any, in not persuading the application exhibit7 for that workmen cannot be held responsible and no adverse interference could be drown against the workmen, as the workmen did apply and the Court put up the application for hearing and orders.
8. Learned advocate for the workmen without prejudice to the aforesaid submission further contended that the workmen have deposed unequivocally before the Court that workmen were not given any documentary evidences or any services proving whether they can successfully establish that they have been working continuously for 240 days in a given year in absence of whatsoever been given in form of identity card, wage slip etc. It was simply impossible for the workmen to justify their claim of working of 240 days that way in such a situation. The Court has observed that when the workmen made deposition that they have worked 240 days itself is sufficient to shift the burden upon the employer.
9. Learned advocate for the workmen has placed reliance upon decision of this Court as well as decision of the Apex Court in case of State of Gujarat Vs. Jitendra M. Raval, reported in 2005 (106) FLR 97, and in case of Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda, reported in 2010ILLJ3 (SC), and contended that in light of these two decisions, the workmen's deposition and the factum of workmen working for 240 days has rightly been accepted by the Court and this Court under Article 226 and 227 of the Constitution of India may not interfere with the same.
10. Learned advocate for the workmen has contended that in case, in alternative, if the Court is not inclined to accept the submission qua workmen completed 240 days, then also the workmen have specifically pleaded their case qua non compliance and breach of Section 25-G and 25-H and, therefore, on this ground also the order cannot be disturbed by this Court in exercise of power under Articles 226 and 227 of the Constitution of India.
11. Learned advocate for the workmen further submitted that allegation of the employees abandonment of services before the Labour Court is not proved and when the workmen are willing to join the place of work, the order of reinstatement will not be disturbed and even otherwise also the Labour Court has granted 20% of back wages which the workmen are ready and willing to accept and are willing to give up rest of 80% back wages.
12. It is required to be noted that Shri Choudhary has emphatically relied upon the affidavit of the workmen and contended that the affidavit indicate that the documents are forged document.
The Court is of the considered view that even Labour Court has not given any findings accepting the said affidavit to be correct or as a correct peace of evidence. Therefore, this Court did not elaborate on this affidavit, but suffice it to say that in absence of evidence on record, the Court need not go into these facts.
13. This Court has heard learned advocates appearing for the parties and perused the annexures in the petition. First of all it is required to be noted that this petition is styled as petition under Article 226 and 227 also, but the pleadings and the prayers and the attendant circumstances indicate that this could have been filed under Article 227 of the Constitution of India, as the ingredients attracting Article 226 are conspicuously absent and hence this Court has to treat the petition, as one having been filed under Article 227 of the Constitution of India only. Thus, the constraints of examining the Courts order under Article 227 are required to be borne in mind. Despite these facts, the Court is inclined to allow this Special Civil Application and quash and set aside the order of the Labour Court for the following reasons namely;
(i) The entire award contains specific findings qua workmen's completing 240 days. This is based upon the wrong premise of fastening liability on the employer to prove the workmen's completing 240 days. As, in the instant case, the workmen deposed that they have worked 240 days, but that in alone is not sufficient to accept successfully discharging of the burden which is laid upon the workmen to establish their case of completion of 240 days.
(ii) Learned advocate for the employer has relied upon the decisions of the Apex Court in case of Surendranagar District Panchayat Vs. Gangaben Laljibhai, reported in 2006 (0) GLHEL SC 37344, and in case of Surendranagar District Panchayat Vs. Jethabhai Pitamberbhai, reported in 2005 (0) GLHELSC 35925, and that decisions also would surely help the proposition canvassed for challenging successfully the award and findings in question.
(iii) The decision cited at the bar on behalf of the workmen, in my view will have no applicability, so far as the peculiar facts and circumstances of the present case are concerned. In the instant case, as could be seen from the statement of claim and the written statement it becomes clear that the employer who is in fact instrumental agency of the State could not have asked the workmen to work without their being any material on record. Therefore, the workmen were constrained to say that they were not given any documentary evidences, which could have been sufficient to prove their working for 240 days. However, the workmen have not left the matter there and have specifically called upon the employer by way of application exhibit 7, which application for the reasons best known to the workmen, have not been persuaded of its logical end and was chosen to be abandon amidst the hearing. That fact would be required to be viewed in appropriate perspective which would persuade this Court that there was abandonment of the application and there was no order invited whereunder the other side would have been called upon to produce the documentary evidence, as requested or prayed for in the application.
(iv) This Court is of the considered view that the employer has of his own volition produced exhibits 20, 21 and 23, where under the wage register of the year 1989 to 1999 have been produced. The question arises as to when such an elaborate list of evidence, xerox copy of evidence have been produced, then the workmen could not have accepted the same, if their version was correct and they could have challenged the same by putting appropriate question. In the instant case, the workmen have chosen to be satisfied by only contending that the documentary evidence of the workmen who have actually worked have been withheld. The list appended to the aforesaid exhibits clearly belie the claim of the workmen and this is available on a mere glance on the documents which would not require any further appreciation in any manner. Therefore, it could be safely concluded that the workmen failed in establishing their case of competition of 240 days.
(v) This brings the Court to consider alternative prayer qua not disturbing the order of reinstatement, in view of the fact that workmen also contended breach of Section 25-G and 25-H. The facts remain to be noted that Labour Court has not recorded any findings qua this challenge. Assuming for the sake of examining without holding that this challenge was preciously available, as the terms of reference were very widely couched, then also in absence of complete findings of fact, this Court will not go into these facts, as otherwise also this is to be treated as a petition filed purely under Article 227 of the Constitution of India.
14. The Court is, therefore, of the view that the Labour Court's order being bereft of merits deserve to be quashed and set aside and is accordingly quashed and set aside. The petition is accordingly allowed. Rule made absolute. No costs.
15. No order in Civil Application No. 5780 of 2012. Rule is discharged.
Pankaj
(S.R.BRAHMBHATT, J.)