1. Petitioner-State has challenged the award passed by the Presiding Officer, Labour Court, Bharuch in Reference (LCB) No.258 of 1990 (Old No.643 of 1988). By the impugned award, the Labour Court passed an order of reinstatement in favour of three employees on original post, on whose behalf Reference was made before the Labour Court, with 20% backwages. The said award is challenged by way of present petition.
2. During the pendency of the present petition, award was stayed by this Court, subject to compliance of Section 17B of the Industrial Disputes Act, 1947. It is a case of workmen that even though they have completed 240 days, by oral order, their services were terminated. In order to find out the period during which they were in service, the concerned workmen gave evidence regarding number of days on which they had worked. The respondent No.1 Harshadbhai Maganbhai in his evidence before the Labour Court has stated that he was serving for more than seven years and by oral order, his services came to be terminated on 20th December, 1987. Each workman led evidence regarding the fact about their employment for more than 240 days as it is their case that they were served many years and without following the provisions of retrenchment, their services came to be terminated by oral order. On behalf of the Department, the stand was taken that the concerned workman has given in writing that he is willing to give up his job, which fact was denied by the concerned workman. The Labour Court found that on behalf of the Department, no evidence was led at all by producing documentary evidence on record which can throw light about the number of days on which the concerned workmen had worked. It is submitted that on 11th October, 1991 the Labour Court had passed an order that the Department should produce evidence in the matter. Inspite of that, no documentary evidence was produced. After considering the evidence led by the concerned workmen, the Labour Court found that the concerned workmen had served for more than 240 days and they were serving for last more than seven years at a monthly salary of Rs.341/-. It was found by the Labour Court that terminating their services by such an oral order is not proper. It was found that there was breach of Section 25(F) of the Industrial Disputes Act. After appreciating the evidence, the impugned award was passed. Before the Labour Court, contention was taken on behalf of the appellant-State that the concerned workmen were employed without following the due process of law. That contention was not accepted by the Labour Court and accordingly the concerned award was passed, by which the Labour Court has directed the appellant herein-State to reinstate the respondents herein on their original post with 20% backwages.
3. Learned Assistant Government Pleader Ms.Reeta Chandarana argued that since the concerned workmen were not appointed by regular selection process, benefit of Section 25(F) of the Act is not made available to the concerned workmen. Ms.Chandarana relied upon the decision of the Supreme Court reported in (2004) 8 Supreme Court Cases 262 wherein the Supreme Court has held that completion of 240 days of continuous service in a year may not by itself be a ground for directing an order of regularization. It is also held that burden to prove that workman was employed in any other establishment is on employer.
4. In this behalf, learned counsel for the respondent has relied upon the decision of the learned Single Judge of this Court passed in Special Civil Application No.2416 of 2011. In the said decision, the learned Single Judge has considered the judgment of the Supreme Court in case of Maharashtra State Road Transport Corporation and Another v. Casteribe Rajya Parivahan Karmchari Sanghtana. In paragraph 5.2, the learned Single Judge has observed as under:
“5.2 In support of his submissions, Mr. Rathod has placed reliance upon the decision of the Apex Court in the case of Maharashtra State Road Transport Corporation and Another v. Casteribe Rajya Parivahan Karmchari Sanghtana and more particularly, on the observations made in Paras – 34 to 36, which reads as under:
“34. It is true that Dharwad Distt. PWD Literate Daily Wages Employees' Assn. arising out of industrial adjudication has been considered in Umadevi (3) and that decision has been held to be not laying down the correct law but a careful and complete reading of the decision in Umadevi (3) leaves no manner of doubt that what this Court was concerned in Umadevi (3) was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed.
35. Umadevi (3) is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and the High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36. Umadevi (3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act or order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exists. Umadevi (3) cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established.”
Considering the same, it is clear that so far as industrial law is concerned, statutory benefit is available to concerned workman irrespective of whether the appointment is made in accordance with law or not.
5. So far as finding of the Labour Court is concerned wherein it has been found by the Labour Court that each of the workman has served for more than seven years and atleast for more than 240 days is based on appreciation of evidence. This Court cannot interfere with the said finding under Article 227 of the Constitution of India. In case of Anoop Sharma vs Executive Engineer, Public Health Division No.1, Panipat (Haryana) reported in (2010) 5 Supreme Court Cases 497 in paragraph 12 the Supreme Court has held as under:
“A reading of the impugned order shows that the Division Bench of the High Court set aside the award of the Labour Court without even adverting to the fact that challenge to similar award passed in the cases of other employees was negatived by the High Court and this Court. We have no doubt that if the Division Bench had taken the trouble of ascertaining the status of the disputes raised by other employees, then it would have discovered that the award of reinstatement of similarly situated employees has been upheld by the High Court and this Court and in that event, it may not have passed the impugned order. That apart, we find that even though the Division Bench did not come to the conclusion that the finding recorded by the Labour Court on the issue of non-compliance of Section 25-F of the Act is vitiated by an error of law apparent on the face of the record, it allowed the writ petition by assuming that the appellant’s initial engagement/ employment was not legal and the respondent had complied with the conditions of a valid retrenchment.”
I have also perused the judgment cited by Ms.Chandarana, learned Assistant Government Pleader reported in (2004) 8 Supreme Court Cases 497 (supra). It was found in the said case that burden of proof of engagement of employee with other establishment was discharged by the employer. In the instant case there is noting on record to show that employer has discharged the burden in any manner. No evidence was produced inspite of earlier order passed long back by the Labour Court.
6. In my view, the finding of fact recorded by the Labour Court can never be said to be contrary to the evidence. In its limited jurisdiction, this Court cannot sit in appeal over the said finding. Since the workmen were entitled to the benefit of provisions of the Industrial Disputes Act and since on the basis of evidence, the Labour Court passed an award of reinstatement having found that there was breach of Section 25(F) of the Industrial Disputes Act, no interference of this Court is called for in this petition. Hence, the present petition deserves to be rejected and is hereby rejected with no order as to cost. Interim relief, if any, shall stand vacated. Rule is discharged.
(P.B. Majmudar, J) Anup