Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= PASCHIM GUJARAT VIJ LTD., - Petitioner(s) Versus PARMAR MULAJI THAKARSHI - Respondent(s) ========================================================= Appearance :
MR SP HASURKAR for Petitioner(s) : 1, MR PH PATHAK for Respondent(s) :
1, ========================================================= CORAM :
HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 03/05/2012 ORAL COMMON JUDGMENT
1. In both these petitions, the challenge is to the judgment and award passed in Reference (LCJ) No.356 of 1991 dated 4.5.2000 passed by Presiding Officer, Labour Court, Jamnagar. The Presiding Officer, Labour Court, Jamnagar by impugned judgment and award was pleased to partly allow the Reference directing the employer i.e. erstwhile Gujarat Electricity Board (now known as Paschim Gujarat Vij Company Limited) and directing the respondent to reinstate the respondent workman without any back wages.
2. Special Civil Application No. 2940 of 2001 is filed by Paschim Gujarat Vij Company Limited (formerly known as 'Gujarat Electricity Board') whereby the judgment and award of reinstatement is challenged in writ petition being Writ Petition No. 1130 of 2001 is filed by the respondent workman challenging non-grant of back wages.
3. As recorded above, as the same Award is challenged in both these petitions, both these petitions were ordered to be heard together and are hereby disposed of by common judgment.
4. The facts of Special Civil Application No. 2940 of 2001 are taken the basis of the present judgment which are summarised as under.
5. The respondent workman was working as Daily Wager with the petitioner since 16.8.1983 and was paid Rs.18/- per day as wages. It is the case of the respondent workman that on 3.6.1987 the services of the respondent workman came to be terminated merely by oral direction without compliance to provisions of Section 25F of Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for the sake of brevity). The respondent workman raised dispute and as the conciliation failed, the same came to be referred to Presiding Officer of the Labour Court, Jamnagar and same was registered as (LCJ) No. 356 of 1991. The respondent workman filed statement of claim claiming reinstatement with back wages on the original post.
6. The Labour Court, after considering reply filed by the petitioner at Exh.8 and on appreciation of the oral evidence (Exh.10) and other evidence on record by impugned judgment and award dated 4.5.2000 has been pleased to allow the Reference partly by directing the petitioner to reinstate the respondent-workman without back wages. Hence, both the petitioner being employer and the respondent workman has filed these petitions as aforesaid.
7 Heard Mr. S.P. Hasulkar for the petitioner and Mr. P.H.Pathak, learned Counsel for the respondent workman.
8 Mr.
Hasulkar has taken this Court through the factual matrix arising in the matter as well as the impugned award. It was contended by Mr. Hasulkar on behalf of the petitioner the vital fact, that the respondent workman has raised the dispute after four years is not at all considered by the Labour Court. Mr. Hasulkar further pointed out that the respondent workman was only on nominal Muster Roll and thereafter was appointed as Temporary Helper. Mr. Hasulkar further submitted that the Labour Court has committed an error apparent on the face of record in coming to the conclusion that the provisions of Section 25F of the Act has been violated as the respondent workman has not worked for more than 240 days in preceding year. Mr. Hasulkar further submitted that the Labour Court has misread the provisions of Section 446 of the GSO. It was further contended that no person junior to the respondent workman has been taken/continued in service by the petitioner. It was further submitted that as per ratio laid down this Court in 2000(2) GLR Pg.
1522 the service of daily wager cannot be regularised in the manner in which the Labour Court has held. Mr. Hasulkar also submitted that the Labour Court has committed error in granting continuity of service. Mr. Hasulkar further submitted that in view of the above, the respondent workman is not entitled to any back wages much less the reinstatement and therefore the petition filed by the respondent workman deserves to be dismissed. It was therefore submitted that the impugned judgment and award is perverse and same deserves to be quashed and set aside by allowing the present petition. No further contentions are raised by Mr. Hasulkar.
9 Per contra Mr. Pathak, learned Counsel appearing for the respondent workman supported the award as far as the reinstatement is concerned. Mr. Pathak submitted that the Labour Court, after appreciation of the evidence on record, has rightly come to the conclusion that the respondent workman has worked for more than four years. It was submitted that even though petitioner being employer was in possession of the Muster Roll the same was not produced. Mr. Pathak submitted that even the seniority list was not prepared as admitted by the witness of the petitioner. Mr. Pathak in support of the impugned judgment and award as far as it relates to reinstatement further submitted that finding of fact arrived at by the Labour Court based on appreciation of the fact and evidence on record does not require any interference. Mr. Pathak submitted that on the basis of the evidence on record, the Labour Court has rightly come to the conclusion that the petitioner has committed breach of provisions of Section 25F,G. & H of the Act.
10 Mr.
Pathak further submitted that merely considering the fact that respondent workman was earning Rs.25/- to Rs.30/- per day only on the sole ground and without any further discussion and/or appreciation of the evidence on record has come to the conclusion that the respondent workman is not entitled to the back wages and therefore submitted that the petition filed by the petitioner challenging order of reinstatement with continuity of service alongwith consequential benefits is meritless and the same deserves to be dismissed and the petition filed by the workman for getting his legitimate right of back wages deserves to be allowed.
11 Considering the submission made by both the learned Counsels it appears that the respondent workman has come with a specific case to the effect that he was working as daily wager with the petitioner since 6.8.1983 and has further been able to prove that he was terminated from service orally on 30.6.1987. It borne out from the record that the respondent workman has brought on record and has also proved that he was working as daily wager, whereas the petitioner has not produced any evidence including Muster Rolls. The witness of the petitioner has admitted in his deposition that no seniority list is prepared. It has also come on record that witness of the petitioner came to be terminated without compliance of the provisions of Section 25F of the Act.
12 At this stage, it would be appropriate to refer to the decision of the judgment of the Hon'ble Apex Court in the case of Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda, reported in AIR 2010 S.C.1236, wherein the Hon'ble Apex Court has observed thus :
"13. The next contention of the learned counsel for the appellant is that the respondent had not worked for 240 days during the preceding-twelve months on daily wages and, therefore, the respondent cannot claim any protection under the provisions of Industrial Disputes Act, 1947. The case of the respondent before the Labour Court was that as he had completed working for more than 240 days in a year, the purported order of retrenchment is illegal, as conditions precedent as contained in Section 25-F of the Industrial Disputes Act, 1947 were not complied with.
14. Section 25-B of the Act defines "continuous service". In terms of sub-section (2) of Section 25-B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This court in the case of R.M. Yellatty v. Assistant Executive Engineer [(2006) 1 SCC 106] : (2005 AIR SCW 6103), has observed :
"However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
15. Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, in spite of the direction issued by the Labour Court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three-Judge Bench of this court in the case of Municipal Corporation, Faridabad v. Siri Niwas [(2004) 8 SCC 195] : (2004 AIR SCW 5184), where it is observed :
"A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
16. It is not in dispute that the respondent's service was terminated without complying with the provisions of Section 25-F of Industrial Disputes Act. Section 25-G of the Act provides for the procedure for retrenchment. The section reads -
"25G. Procedure for retrenchment. - Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman." The Labour Court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the respondent was continued after the respondent was discharged from its duties. The dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the appellants. The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus, the procedure laid down in Section 25-G has also not been followed. The findings on facts by the Labour Court cannot be termed as perverse and need no interference."
13 Under these circumstances, it cannot be said that the impugned judgment and award is perverse and that the Labour Court has committed any error in passing the impugned judgment and award directing the petitioner to reinstate the respondent workman.
14 It appears that the Labour Court has considered the documentary evidence produced by the respondent workman whereby the certificates issued by the competent officer of the petitioner are brought on record which shows the days for which the petitioner and respondent workman has worked as daily wager. Certificate dated 21.6.1983 recites that the petitioner has worked as daily wager from 1.12.1982 to 31.5.1983. Similar certificate dated 9.2.1984 indicates that the respondent workman has worked as daily wager from 1.6.1983 to 31.3.1983. Further certificate dated 15.11.1984 indicates that the respondent workman has worked as daily wager from 15.5.1984 to 3.6.1984.
15 It appears from the award that the Labour Court has rightly considered and appreciated the evidence of respondent who has deposed in his deposition at Exh. 10 that after his termination he is working as daily wager and earns Rs.25/- to Rs.30/- per day. Considering the aforesaid fact it cannot be said that the respondent workman was not gainfully employed and therefore the Labour Court has rightly denied the back wages. This Court finds no error much less any error on the face of the record which required interference by this Court.
16 In view of the above, the judgment and award dated 4.5.2000 in Reference (LCJ) No. 356 of 1991 passed by the Presiding Officer, Labour Court, Jamnagar is hereby confirmed. The petitions fail and are hereby dismissed. Rule discharged with no order as to costs.
17 Registry to place copy of this judgment in cognate matter.
Sd/-
(R.M.
Chhaya, J.) M.M.BHATT Top