1. The petitioners in all these eight petitions are second party workmen in Irrigation Department. The reference filed by them which came to be consolidated at their request and which culminated into award dated 30/5/2000, where under their references came to be dismissed with no order as to costs. Being aggrieved and dissatisfied with this order in award where under consolidated references came to be dismissed, the present eight petitions have been preferred by the workmen inter alia challenging the said award and findings by way of these petitions filed under Article 226 and also under Article 227 of the Constitution of India. As these matters have common challenge on common grounds, on almost common facts and they are always being listed together, same are being disposed of by this common judgment & order.
2. The facts in brief leading to filing these petitions as could be culled out from the memo of the petitions and record available before this Court could be set out as under in order to appreciate the controversy involved in these matters.
3. The petitioners herein / workmen were constrained to raise industrial dispute as despite their long services, as per their own say, the respondent employer brought an abrupt end to their services which was viewed as illegal exercise of power without following due procedure of law, including that of provision of Section 25-F of Industrial Disputes Act (herein after referred to as 'I.D. Act' for short). These disputes were referred to the competent court wherein they were numbered as Reference (LCJ) No. 55/96, 59/96 to 63/96, 303/95 and 304/95. The references were consolidated as the workmen filed purshish exhibit-7 requesting the concerned Court for consolidation of all the references as they involve common question of facts and law. Accordingly all the references were consolidated and ultimately they culminated into order of Labour Court, Junagadh dated 30/5/2000, where under the Court after recording its findings qua workmen not completing 240 days and workmen failed in establishing retention of their juniors and/or engagement of juniors, decided the references against the workmen. Being aggrieved & dissatisfied with this award these petitions have been preferred on the facts & grounds mentioned there under.
4. It would be most appropriate at this stage to mention that some of the workmen as per the say of learned advocate of the workmen in fact straightway moved this Court by filing Special Civil Application No. 7978 of 1990 wherein this Court did not entertain this petition and workmen were relegated to avail the remedy under I.D. Act, and hence those workmen have also preferred references which came to be disposed of by common judgment & award as it is stated herein above.
5. Learned advocate for the workmen/petitioners contended that the workmen worked for long period and their employment was brought to an end abruptly without following due procedure of law. The Labour Court unfortunately addressed incorrect law to the questions and arrived at an incorrect answers and therefore the award being vitiated same is required to be quashed and set aside.
6. Learned advocate for the petitioners/ workmen invited this Court's attention to the narration in the award and indicated that the award in reference to the statement of claim which indicated that workmen were working since long with the employer. The Labour Court ought not to have held that the workmen did not complete 240 days. The workmen had in fact completed 240 days so as to invoke provision of Section 25-F of I.D. Act. Learned advocate for the petitioners relying upon decision of the Apex Court in case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath(dead) by L.Rs. And others, reported in AIR 1994 SC 853, contended that the litigant who does not come clean to the Court is required to be thrown off the Court at anytime. The ratio laid down by the Apex Court in the aforesaid decision has been time & again relied upon by Courts in dealing with the dishonest and unscrupulous litigants. In the instant case the employer has brazingly come out with a case that they are not an 'industry' and the workmen never completed 240 days in any year and that the workmen were not entitled for protection of provisions of I.D. Act. Such stand is nothing but a stand indicating unfair labour practice on the part of the employer which is required to be deprecated by this Court in exercise of power under article 226 as well as article 227 of the Constitution of India.
7. Learned advocate for the petitioners relying upon another decision of the Apex Court in case of Workmen of American Express Intentional Banking Corporation Vs. Management of American Express International Banking Corporation, reported in AIR 1986 SC 458, contended that the workmen are not required to be working with hammer, sickle or pen for all 240 days, as sought to be made by the advocate for the respondent employer. Provision of section 25F coupled with provision of section 25B, as discussed and explained by the Apex Court in case of Workmen of American Express (supra) would persuade this Court to unequivocally hold in favour of workmen that workmen cannot be said to have completed 240 days as recorded by the Labour Court in the instant case.
8. Learned advocate for the petitioner invited this Court's attention to Annexure-B in the petition of 10907 of 2000 wherein Annexure-I to the affidavit-in-reply which was filed in earlier petition being Special Civil Application No. 7978 of 1990 is shown to have been incorrect and therefore on this ground also it is submitted that the employer who has not indicated this clearly and correctly cannot be given any hearing or his version cannot be considered by this Court.
9. Learned advocate for the petitioners relying upon Annexure-I and affidavit and other documents which the petitioners obtained under Right to Information Act in year 2007, contended that those documents are sufficient to indicate that the workmen had completed 240 days in view of the ratio laid down by Supreme Court in Workmen of American Express (supra) case, therefore this Court may atleast remand the matters for appropriate adjudication as the requirement of justice may persuade this Court in overlooking the lack of facts with regard to actual date of termination and the stand of the employer that it was abandonment of job which cannot be said to be made out so clearly. The workmen cannot be said to have abandoned their job as they were pursuing their remedy. Workmen not indicating their actual date of termination would be of no consequence in view of the fact that the workmen have been agitating that they have been working with the employer since years. The entire approach of the employer deserves due appreciation from this Court as employer has not come with clean case before this Court in light of ratio of AIR 1994 SC pg. 853. Therefore the most appropriate course to this Court is to remand the matter to Labour Court for proper adjudication of all issues.
10. Learned AGP Ms. Chitalia appearing for the State submitted that the remand at this time would be of no fruitful in any manner as the passage of time itself would militate against request for remand as the controversy relates back to year 1996 and there before. Learned AGP has further submitted that essential ingredients for making out case for invoking section 25F of I.D. Act are conspicuously lacking as is evident from the pleadings. The workmen have not bothered to indicate on which date termination was brought about. When the workmen have chosen to remain silent qua date of termination the claim of invoking section 25F on account of there being lack of non compliance of section 25F is uncalled for.
11. Learned AGP further contended that reliance placed on behalf of the petitioner/workmen reported in AIR 1994 S.C. pg. 853 (supra) and also in AIR 1986 S.C. 458 (supra) are not helping the workmen concerned at all. Those decisions have no applicability to the facts & circumstances of the present case. The affidavit in reply tendered is right now before this Court which is purported to have been filed in a petition being Special Civil Application No. 7978 of 1990. Thus admittedly this affidavit and the so called inaction cannot be said to be in any manner helping the workmen as that affidavit filed in a petition which has not been allowed in favour of workmen and the workmen were relegated to approach competent court for its adjudication.
12. Learned AGP further submitted that the order in award of Labour Court recorded clear finding of facts which this Court in exercise of Article 226 as well as under article 227 of the Constitution of India may not be interfered.
13. The Court has perused the award in question. The fact remains to be noted that the Labour Court has in detail recorded its finding qua workmen not completing 240 days prior to date of termination. Now this finding of fact has remained uncontroverted as though subsequent documents have been pressed into service to indicate that the workmen were in fact successful in showing that they had worked for more than 240 days in a given year. The documents produced in year 2007 i.e. much after the date of pronouncement of the award are strictly speaking of no avail to workmen concerned.
14. The Court is of the considered view that when the Labour Court has recorded its finding in unequivocal terms, those findings are not to be interfered with under Article 226 or in that matter under Article 227 of the Constitution of India as they being findings of fact this Court cannot interfere with the same in light of catena of Apex Court decisions which hardly needs any reproduction. Perusal of Labour Court award clearly indicate that the workmen unfortunately did not mention the date of their termination. In absence of any actual date of termination the workmen would not be justified in claiming completion of 240 days so as to invoke provision of section 25F of I.D. Act as section 25F of I.D. Act reading with section 25B would indicate that for invoking section 25F completion of 240 days as envisaged in section 25B is to be reckoned from the date of termination and 12 months preceding therefrom. Thus in any controversy wherein completion of 240 days is a question, Labour Court has to bear in mind actual date of termination. In the instant case as could be seen from Labour Court's discussions neither the workmen nor the employer indicated date of termination of the workmen but non mention of date of termination would go against contention of the workmen as the workmen have been burdened to prove their case with regard to completion of 240 days. In the instant case the workmen's assertion qua completion of 240 days or breach of section 25F remains undischarged and therefore when the Labour Court has come to a positive finding qua non completion of 240 days on the strength of the documents adduced by employer in form of wage register, this Court would not be justified in negativing said findings in exercise of power under Article 226 or under Article 227 of the Constitution of India.
15. The Labour Court has recorded in its award that the employer filed written statement in all the references by exhibit no. 22, 25, 28, 31, 34, 37, 6 & 8 and the employer produced the dates and documentary evidences to show the dates on which workmen actually remained present. It was the say of the employer before the Labour Court that workmen were given work as & when they were present and the work was available. In short the workmen did not contend that they were in employment in real terms of employment with the employer which would eminently clear from either the service conditions embedded in the Standing Order or the Employment Order or the Service Rules & Regulations. In the instant case as could be seen from the discussions adverted to by Labour Court in respect of completion of 240 days or non completion thereof, it can be seen that the workmen did not either submit their case invoking so called unfair labour practice or indicated any factum with regard to there existing any employment which would indicate that the paid holidays and all Sundays would be counted for completing 240 days. Had there been an employee- employer relationship in terms of Model Standing Order or in terms of any appointment order, or service regulations, then in that case the workmen would have been entitled to urge and argue that paid holidays and non working Sundays would contribute towards reckoning period of 240 days as envisaged under section 24B and in view of the decision of Apex Court in case of Workmen of American Express (supra) cited herein above. In the present case, it is clear from the observations that the workmen were presenting themselves for cleaning work when there were work available. A question arise as to whether in such a situation can there be ever a submission with regard to employment which would indicate that even if the workmen were absent on Sunday they were to be paid on that day as there was no monthly wages and it is clear that workmen were paid on the day on which they have put in work. All these factors coupled with the fact that even with those factors the workmen could not establish that they worked for 240 days, there exists no justifiable reason for this Court to interfere with the findings recorded by the Labour Court which were recorded on the basis of the documents adduced before the Court by employer.
16. This Court would also not agree to the submission made on behalf of the workmen to remand the matters as had there been some substance in what is being urged qua workmen successfully establishing or successfully raising doubt about findings of the Labour Court, then, there could be some justification for remanding the matters. In the instant case in absence of any such pleading before the Court merely relying upon documents subsequently obtained in year 2007 remand would not be justified and therefore the request for remand is also declined.
17. The Labour Court's award & order is based on the basis of the pleadings of the parties. The petitions are filed under Article 226 as well as under Article 227 of the Constitution of India, and even if both the articles are taken into consideration in the respective purport, then also this Court would not be justified in interfering with the findings recorded by the Labour Court which imminently indicate that the workmen did not have any case qua completion of 240 days so as to invoking provision of section 25F. So far as the other provisions are concerned, the workmen are found to be not producing any evidence purporting to show their juniors were retained, nor the workmen produced any evidence to show that other juniors were retained after so called retrenchment was brought about. Thus on all the grounds the award and findings being not suffering from any infirmity this Court is of the considered view that same need no interference either under Article 226 or under Article 227 of the Constitution of India. Petitions being bereft of merits deserves dismissal and are accordingly dismissed. Rule discharged in each petition and interim relief if any granted earlier shall stand vacated in each of the petitions. However there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn