IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.6351 of 2002 With SPECIAL CIVIL APPLICATION No.9676 of 2004 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/ =====================================================
===================================================== STATE OF GUJARAT & 1 Petitioner(s) Versus KANTILAL PARSHOTTAMDAS JOSHI Respondent(s) ===================================================== Appearance :
Special Civil Application No.6351 of 2002 MS SHURUTI PATHAK, AGP for Petitioner(s) : 1 2. MR PH PATHAK for Respondent(s) : 1, Special Civil Application No.9676 of 2004 MR PH PATHAK for Petitioner(s) : 1, MS SHURUTI PATHAK, AGP for Respondent(s) : 1 2.
===================================================== CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 03/05/2012 ORAL (COMMON) JUDGMENT
(1) In both these petitions the challenge is to the same award passed by Presiding Officer, Labour Court, Kalol in Reference (L.C.K.) No.21 of 1997 dated 04.01.2000 and hence, the petitions are heard together and disposed of by this common judgment.
(2) The facts, as narrated in Special Civil Application No.6351 of 2002, are taken as the basis of this judgment.
(3) The facts which can be carved out from the record of the petitioner are summarized as under:
(4) That the respondentworkman was working from 01.12.1982 as a work charge daily wager clerk. It is the case of the respondentworkman that he was working continuously from 01.12.1982 to 31.05.1983 and thereafter from 01.06.1983 to 31.12.1983 in Dharoi Irrigation, Sub Division No.9 Unjha. It is further the case of the respondentworkman that again from 15.05.1984 to 30.09.1984 the respondentworkman worked in the office of Deputy Executive Engineer, Dharoi Field Chanal 'C' Sub Division at Khadosan village. It is the case of the respondent workman that without giving any notice and without any intimation whatsoever the petitioner terminated the services of the respondent workman from 01.10.1984.
(5) Being aggrieved by such action of termination, the respondentworkman raised a dispute and as the conciliation failed, the dispute was referred by the competent authority to Presiding Officer, Labour Court, Kalol and the same was registered as Reference (L.C.K.) No.21 of 1987. The respondentworkman filed a statement of claim and on the basis of the factual matrix that he worked continuously from 01.12.1982 to 30.09.1984, prayed for reinstatement with continuity in service and back wages, to which the petitioner filed written statement. The petitioner as well as the respondentworkman adduced oral evidence before the Labour Court and after considering the same by the impugned judgment and award dated 04.01.2000 the Labour Court allowed the reference and directed the petitioner to reinstate the respondentworkman on his original post with 25% back wages with continuity of service.
(6) Being aggrieved by the aforesaid judgment and award, the State Government has filed Special Civil Application No.6351 of 2002 and the respondentworkman has also challenged the said award by way of filing Special Civil Application No.9676 of 2004 whereby nongrant of 75% back wages is challenged.
(7) Heard Ms.Shuruti Pathak, learned Assistant Government Pleader for the petitionerState, and Mr.P.H.Pathak, learned advocate appearing for the respondentworkman.
(8) Ms.Pathak, learned Assistant Government Pleader, has taken this Court through the impugned judgment and award and submitted that even though there is ample evidence on record to prove the fact that the respondentworkman has not worked for 240 days, the Labour Court has come to an erroneous finding that there is breach of Section 25F of the Industrial Disputes Act, 1947 (the Act). It was submitted that the Labour Court has committed an error apparent on face of record in appreciating the evidence on record. It was vehemently submitted that even though the petitioner has brought on record the extract of the register which indicates that the respondentworkman has not completed 240 days in any of the years the Labour Court has wrongly recorded the finding that there is breach of Section 25F of the Act. It was further submitted that nowhere in the impugned judgment and award the Labour Court has come to a specific finding to the effect that the respondentworkman has worked for more than 240 days in the last preceding year and without any basis whatsoever the Labour Court has come to the finding that there is breach of Section 25F of the Act. It was also submitted that similarly merely relying upon the oral testimony of the respondent workman that he was not gainfully employed anywhere and he could not get any work even though efforts were made, the Labour Court has mechanically granted 25% back wages as well as continuity of service. It was submitted that the respondentworkman was only a daily wager and was given work as and when available, especially when regular employees were not available. It was submitted that the respondentworkman was not occupying any permanent post on the sanctioned set up. It is submitted that all these vital aspects and the evidence, oral as well as documentary, adduced by both the parties, are not considered by the Labour Court while passing the impugned judgment and award. It is therefore submitted that the petition filed by the State Government deserves to be allowed and the petition filed by the respondentworkman for enhancement of back wages to the tune of 100% deserves to be dismissed by quashing and setting aside the impugned judgment and award to that effect.
(9) Per contra Mr.P.H.Pathak, learned advocate for the respondentworkman, has supported the impugned judgment and award. Mr.Pathak also produced on record of the petition, the certified copies of the documents, which were produced by both sides as well as oral deposition of the witnesses of the petitioner and the oral deposition of the respondent workman. It was submitted that the petitioner is the custodian of the record and it was the bounden duty of the petitioner to produce proper material on record to establish the fact that the respondentworkman has not completed 240 days. Relying upon the documents, which were produced by the list Exh.5, it was submitted that on the contrary the authorities of the petitioner have given certificate to the respondentworkman, which establishes the fact beyond doubt that provisions of Section 25F of the Act is breached. It was therefore submitted that the findings arrived at by the Labour Court cannot be termed as an error, much less any error apparent on face of record, which requires interference by this Court. It was, on the contrary, submitted that the petition filed by the respondentworkman for getting benefit of 100% back wages deserves to be allowed and the petition filed by the State Government deserves to be dismissed.
(10) Considering the submissions made by both the learned counsel for the respective parties and on going through the impugned judgment and award, this Court finds that the Labour Court has straightway come to the conclusion that there is breach of Section 25F of the Act. From the copies of the documents supplied by the learned counsel, which were produced before the Labour Court, it transpires that no such documents have been considered by the Labour Court while passing the impugned judgment and award. It also transpires that both the parties have produced certain evidence which would indicate the fact that the respondentworkman has worked for how many days in the organization of the petitioner. It reveals from the impugned judgment and award that the Labour Court has given more emphasis of the written argument rather than the documents which are produced on record. It appears from the copies, which are
Engineer, Sub Division of Dharoi Project were produced before the Labour Court. This Court also finds that further correspondences as well as chart exhibiting the number of days for which the respondentworkman has worked from 16.05.1984 to 29.09.1984 is also placed on record before the Labour Court. Learned Assistant Government Pleader further submitted that on the basis of the original documents in her possession that even further chart was produced. However, as the copy of the same is not placed on record of this case. It, therefore, transpires that the Labour Court has not dealt with such evidence produced by both sides and without given any reasons as aforesaid only on consideration of written arguments has come to the conclusion that there is breach of Section 25F of the Act and has resultantly passed an order of reinstatement with 25% back wages. This Court is therefore, of the opinion that the Labour Court has committed an error apparent on face of record. Even though, this Court is conscious of the fact that the reference is very old, considering the fact that certain vital documents are not at all considered by the Labour Court, it would be appropriate to quash and set aside the impugned judgment and award and remand the matter back for its rehearing on merits.
(11) In view of the above, the impugned judgment and award is hereby quashed and set aside. The matter is remanded back to Presiding Officer, Labour Court, Kalol. Reference (L.C.K.) No.21 of 1997 is hereby restored to the file of Presiding Officer, Labour Court, Kalol. Parties shall report before the Labour Court latest by 11.06.2012.
(12) Ms.Shuruti Pathak, learned Assistant Government Pleader for the petitionerState, and Mr.P.H.Pathak, learned advocate appearing for the respondentworkman, assure this Court that the parties shall cooperate with the Labour Court in early hearing and disposal of the reference. The Labour Court is directed to re consider the matter afresh after giving opportunity of hearing to the parties. It is, however, made clear that the parties shall not ask for any adjournment, unless and until it is unavoidable. It would be open for the parties to take all contentions that are available under the law. At the time of rehearing of the reference, the Labour Court shall make an endeavour to hear and decide the reference as expeditiously as possible, latest by 31.12.2012.
(13) Special Civil Application No.6351 of 2002 filed by the State Government is allowed accordingly. Impugned judgment and award dated 04.01.2000 is hereby quashed and set aside. Matter is remanded back, as directed above. Rule is made absolute to the aforesaid extent.
(14) Special Civil Application No.9676 of 2004 filed by the respondentworkman is hereby dismissed. Rule discharged. There shall be no order as to costs.
(15) Registry to place a copy of this judgment in connected matter.
Bhavesh* *** Sd/ [R.M.CHHAYA, J ]