1. Heard learned advocates appearing on behalf of respective parties.
2. These both petitions are filed by employer and employee challenging one award passed by Labour Court, Mehsana in Reference (LCM) No.974 of 2008 (Old No.108 of 2008) decided on 3rd May, 2010. The Labour Court has partly allowed reference in favour of workman with a direction to petitioner employer to reinstate workman in service with continuity of service, but, without backwages of interim period.
3. Special Civil Application No.67 of 2001 is filed by State Authority challenging relief of reinstatement with continuity of service to original post, but, without back wages of interim period. Whereas, Special Civil Application No.4368 of 2011 is filed by workman against denial of full back wages of interim period by Labour Court. Therefore, this Court has heard both matters together.
4. In Special Civil Application No.67 of 2011, this Court has passed following order on 31st March, 2011 :
"Heard learned advocates appearing on behalf of respective parties.
In this matter, on 7th March, 2011, following order is passed by this Court :
"1. Heard learned AGP Mr. AL Sharma on behalf of petitioner, learned advocate Mr. HB Singh appearing for respondent.
2. I have considered submissions made by both learned advocates. The question raised in present petition would require detailed examination. Hence, Rule. Interim relief in terms of para 10(C) on condition to comply with provision of section 17 B of Industrial Disputes Act, 1947. Notice to interim relief returnable on 31/3/2011."
Learned AGP Mr. Sharma brought to the notice of this Court a letter dated 25th March, 2011 written by Deputy Executive Engineer, Dharoi Canal Peta Vibhag-VI, Vadnagar that workman has not filed affidavit under Section 17B of Industrial Disputes Act, 1947. Xerox copy of letter dated 25th March, 2011 is ordered to be taken on record.
But, learned advocate Mr. Singh for respondent workman submitted that affidavit as required under Section 17B of ID Act, 1947 is filed by workman before registry of this Court. Therefore, let copy of affidavit may be supplied to learned AGP Mr. Sharma by learned advocate Mr. Singh during course of the day.
Thereafter, it is directed to petitioner to comply with provisions of Section 17B of Industrial Disputes Act, 1947.
Accordingly, matter is adjourned to 22 nd April, 2011."
5. Therefore, in Special Civil Application No.4368 of 2011, this Court has issued 'rule' considering cognate matter and learned AGP Mr. Sharma has waives service of notice of rule on behalf of state authorities.
6. With consent of all learned advocates appearing on behalf of respective parties, both matters are taken up for hearing and final disposal today by this Court.
7. In Special Civil Application No.67 of 2011, affidavit of unemployment is filed by workman.
8. Learned AGP Mr. Sharma appearing on behalf of State Authorities raised contentions before this Court that Labour Court has committed gross error in granting relief in favour of workman after a period of 18 years. He submitted that workman was not appointed after following recruitment procedure in a permanent establishment. He also submitted that workman was appointed as a 'Chowkidar' on basis of daily wages and as and when work is available, he was entrusted work as a daily wager. In Sabarmati Canal, when water was available, at that occasion, through canal, irrigation work was carried out and at that occasion, for supplying water for irrigation purpose on rotation basis, he was appointed as a 'Chowkidar' to look after work of controlling and maintaining/ supplying water as well as canal, but, a moment work of rotation of supplying water has been closed, then, his service has come to an end automatically. Now, work of irrigation is carried out by 'Piyat Mandali' and workman has not completed three years continuous service and not entitled benefits of Government Resolution dated 17th October, 1988. He submitted that Labour Court should not have to pass such order and there was a delay in raising industrial dispute about more than 16 years, that aspect has not been properly appreciated by Labour Court. He also raised contention that 240 days continuous service is not proved by workman and burden is upon employee to prove it, failing which, Labour Court should not have to consider merely oral evidence of workman in establishing 240 days continuous service. He submitted that whatever record of working days available with petitioner - State of Gujarat has been produced on record vide Ex.13 and 14 before Labour Court, but, in none of year, workman has completed 240 days continuous service. Therefore, contention raised by learned AGP Mr. Sharma that Labour Court has committed gross error in granting relief in favour of workman. He submitted that witness of petitioner Ex.19 Babubhai Prajapati's evidence has not been properly appreciated by Labour Court. In short, his submission is that Labour Court has committed gross error in granting relief of reinstatement with continuity of service in favour of workman which requires interference by this Court while exercising powers under Article 227 of Constitution of India.
9. Learned advocate Mr. H.B. Singh appearing on behalf of respondent workman submitted that Labour Court has rightly examined matter and considering Ex.13 and Ex.14, details of working days have been properly appreciated and in the year 1986, according to muster roll, 240 days continuous service has been established and if it is included weekly off, then, workman has established 240 days continuous service and Section 25F has been violated by petitioner, for that, order of termination is considered to be ab initio void. Therefore, Labour Court has rightly granted relief in favour of workman. For delay aspect, learned advocate Mr. Singh submitted that there is no provision in Industrial Disputes Act for raising industrial disputes in particular time or period and therefore, Article 137 of Limitation Act is not made applicable to proceedings under provisions of ID Act. Therefore, he submitted that Labour Court has rightly considered decision of Apex Court in support of his conclusion and delay cannot come in way of workman for raising industrial disputes. Therefore, Labour Court has rightly granted relief in favour of workman, for that, no error is committed by Labour Court. Therefore, no interference is required by this Court under Article 227 of Constitution of India.
10. Learned advocate Mr. U.T. Mishra raised contention before this Court that once order of termination is found to be ab initio void, then, Labour Court must have to grant back wages in favour of workman, because, unemployment period has been established by workman and no gainful employment has been proved by employer petitioner. That aspect has not been properly considered by Labour Court. He submitted that in evidence of workman Ex.11, unemployment has been proved which was cross-examined by advocate of employer, but, this fact has not been stated in statement of claim Ex.4, therefore, that fact has not been believed by Labour Court. He submitted that merely delay is not enough to deny total period of back wages to workman. The employer has not proved gainful employment of workman. In such circumstances, Labour Court has failed in considering oral evidence of workman Ex.11 and not granted any amount of back wages that a basic error committed by Labour Court which requires interference by this Court while exercising powers under Article 227 of Constitution of India.
11. I have considered submissions made by all learned advocates appearing on behalf of respective parties. I have also perused award passed by Labour Court. The industrial dispute has been referred for adjudication on 24th September, 2008. According to workman, he was appointed on 14th October, 1984 as per statement of claim filed before Labour Court Ex.4. He was appointed in post of 'Chowkidar' and he was working on canal to see that no farmer can obtain water without permission of Authority and no farmer can utilise more water than made available to him and also to see that no damage can be made by any person to canal and after supplying water to farmer, it requires to be surveyed and also prepared demand notice for payment to be made by farmer. These are daily works which are carried out by workman after receiving daily wage Rs.31=50 ps., but, during course of employment, weekly off, overtime and medical facility are not made available to workman. He made request/complaint in year of 1992 for appointment because his service was terminated on 30th June, 1992, but, assurance was given by Officers concerned that he will be appointed as and when order has been received from Head Office. Ultimately, he was not taken back in service and his service has come to an end on 30th June, 1992. At the time of terminating service, Section 25F has not been followed though he has completed 240 days continuous service and he was in service without any break from 14th October, 1984 to 30th June, 1992. Therefore, according to workman, he is entitled for reinstatement in service. Against statement of claim Ex.4, written statement Ex.18 is filed by employer denying averments made by workman in statement of claim and according to employer, workman was not appointed after following due process of recruitment rules and he was appointed as and when work was available on the basis of daily wage and work of rotation of water has been come to an end because that work has been entrusted to 'Piyat Mandali' and therefore, workman has not completed three years continuous service and not entitled to benefits of Government Resolution dated 17th October, 1988.
12. Before Labour Court, two documents have been produced by workman vide Mark 9/1 and Mark 9/2 which have been given pakka number vide Ex.13 and Ex.14. The workman was examined vide Ex.11 and on behalf of petitioner employer, one witness Shri Babubhai Prajapati was examined, thereafter, matter was heard by Labour Court. The Labour Court has considered evidence of workman Ex.11 and while dealing with contention of delay which has been raised by employer, Labour Court has considered one decision of Ajayab Singh v. The Sir Hind Coop. Marketing cum Processing Society Ltd. & Another of Apex Court reported in 1999 SC Service Law Journal (SC) 446, where, dispute was raised after a period of seven years and Apex Court has held that Article 137 of Limitation Act would not made applicable in ID Act. Therefore, merely on the ground of delay, reference cannot be dismissed.
13. Similarly, Labour Court has also considered one decision of Apex Court in case of Ratanchand Samanta and Others v. Union of India and Others reported in 1992 (67) FLR 709, where, dispute was raised after a period of 15 years, even though, Apex Court has held that due to delay, reference cannot be rejected, but, it can be considered at the time of granting relief in favour of workman.
14. The Labour Court has also considered one decision of this Court in case of Agriculture Produce Market Committee v. Bhandari Dhirubhai Narsinhbhai reported in 2008(1) GLH 1879, where also, this Court has held that under Section 10, there is no time limit fixed by statutory provisions for raising industrial dispute, therefore, ultimately, Labour Court has come to conclusion that only on ground of delay, industrial dispute which has been raised by workman cannot be dismissed.
15. The Labour Court has also considered Ex.13 and Ex.14 which have been produced by workman before Labour Court and on that basis, workman was appointed on 14th October, 1984. His working hours were from 8-00 am to 8-00 pm and he was paid daily wage Rs.31-50 ps. His service was orally terminated on 30th June, 1992. The work carried out by workman was to maintain canal as well as to supply water to farmer. The witness Babubhai Prajapati Ex.19 examined by employer who was not having any personal knowledge about total service period of workman, but, he has given evidence only on the basis of record. No record has been produced by petitioner employer before Labour Court and his presence was marked in muster which muster roll was in possession of employer and on the basis of calculating presence, marked in muster roll, monthly salary was paid to workman. Therefore, Labour Court has considered that during period of service 1984 to 1992, no Presence Card, Pay Slip and Identity Card was supplied to workman by employer and weekly off is also not paid to workman. The nature of work performed by workman to supply water from canal to farmer, that work was remained continue about 24 hours and during supplying water from canal, workman must have to remain present at the sight and nature of duties which was performed by workman was remained continued even after terminating service of workman. At the time of terminating service of workman, no notice, notice pay or retrenchment compensation was paid by employer. Ex.13 and Ex.14 are extract of Presence Register, where, workman has completed continuous service from year of 1984 to 1990; in year of 1984 - 90 days, 1985 - 167, 1986 - 239 days, 1989 - 38 and 1992 - 21 days. According to employer, workman was remained in continuous service in year of 1986 from January to August, October and November and there was no details of presence card produced on record by employer in respect of month of September and December, therefore, Labour Court has come to conclusion that workman was remained continue in service from 1984 to 1992 and in between, his service was not terminated, therefore, workman has established continue service as required under Section 25B of ID Act, 1947. The employer has not produced any rebuttal evidence against oral evidence Ex.11 of workman and not produced muster roll/presence register before Labour Court and due to that, in absence of record, Labour Court has relied upon oral evidence of both parties and come to conclusion that workman was remained in continuous service for the period from 1984 to 1992. The Labour Court has considered that no documentary evidence was supplied to workman during course of employment viz., presence card, pay slip and identity card and no weekly off was paid with wages to workman. Therefore, Labour Court has considered that weekly off is to be included in continue service of 240 days as per decision of Apex Court in case of Workmen of American Express International Banking Corporation v. Management of International Banking Corporation reported in AIR 1986 SC 458. On that basis, Labour Court has come to conclusion while appreciating oral evidence of workman that in case if weekly off is included in actual work of workman, then, workman has completed 240 days continuous service as per presence register produced on record Ex.13 and Ex.14. The Labour Court has also considered one decision of Apex Court in case of State of Gujarat v. Jitendra M. Raval reported in 2005 (106) FLR 97, where, this Court has held that it is not a case of employer that documentary evidence was supply to workman, then, employer cannot prove that workman has not remained in service continuously. Therefore, Labour Court has also considered one decision of this Court in case of Moti Ceramic Industries v. Jiyuben Rupabhai and Others reported in 2001 (1) CLR 156, wherein, this Court has held that for establishing continuous service under Section 25B of ID Act, it is not necessary to establish 240 days continuous service if case of workman is covered under Section 25B(1) of ID Act. If workman remained continue in service for one year without break or without any termination in between, then, workman is entitled benefit of Section 25F of ID Act. That Section 25F was not followed in benefits of workman when service was terminated. Therefore, Labour Court has also considered one decision of this Court in case of Principal, S.B. Doshi Girls High School and Another v. Lilaben Somabhai Nadiya reported in 2008 (1) GLH 286. In aforesaid decision, this Court has held that if workman remained continue in service for a period of one year, in between service was not interpreted due to fault of workman, then, that period of one year is considered to be continue service under Section 25B(1) of ID Act and for that also, workman is entitled benefits of Section 25F of ID Act.
16. In light of this evidence which has been appreciated by Labour Court and when termination was taken place, Section 25F is not followed, then, order of termination is held to be ab initio void.
For that, termination is considered to be retrenchment under Section 2(oo) of ID Act, 1947. For that, Labour Court has considered one decision of Apex Court in case of State Bank of India v. N. Sundarmani reported in 1976(1) LLJ and another decision in case of Workmen of Sunder Workshop of Jorehout Tea Co. Ltd. v. The Management reported in 1980 (40) FLR 474 and also considered decision of Apex Court in case of State of Bombay and others v. Hospital Mazdoor Sabha reported in 1960 (1) LLJ 251 and also considered decision of Apex Court in case of Indian Hum Pipe Co. Ltd. v. Workmen reported in AIR 1960 SC 251, where, following observations made by Apex Court has been considered by Labour Court :
"As the expression "retrenchment compensation" indicates it is compensation paid to a workman on his retrenchment and it is intended to give him some relief and to soften the rigour of hardship which retrenchment inevitably causes. The retrenchment workman is suddenly and without his fault, thrown on the street and has to face the grim problem of unemployment at the commencement of his employment a workman naturally expects and look forward to security of service spread over a long period; but retrenchment destroys his hopes and expectation the object of retrenchment compensation is to give partial protection to the retrenchment employee and his family to enable them to tide over the hard period of employment."
17. The Labour Court has also considered decision of Apex Court in case of Workmen of Sunder Shop of Jorehout Tea Co. Ltd. v. The Management reported in 1980 (40) FLR 474 as referred above, where, Apex Court has held that in case of non-compliance of Section 25F is established, then, retrenchment is considered to be bad. Similarly, in case of Punjab Land Development and Recoalmation Ltd. v. Presiding Officer, Labour Court reported in 1990(2) CLR 1, Para 82, wherein, it is held as under :
"82. Applying the above reasoning principles and precedents to the definition in Sec.2(oo) of the Act, we held that "retrenchment means the retrenchment by the employer of the service of a workman for any reason what so ever except those expressly excluded in the section."
18. The Labour Court has also considered one decision of Apex Court in case of Mohanlal v. Management of Bharat Electronics Ltd. Reported in AIR 1981 SC 1253. The relevant Para 9 is quoted as under :
"9. Reverting to the facts of this case, termination of service of the appellant does not fall within any of the excepted, or to be precise, excluded categories. Undoubtedly, therefore the termination would constitute retrenchment and by a catena of decisions it is well settled that where pre-requisite for valid retrenchment as laid down in Sec.25(F) has not been complied with retrenchment bringing about termination of service is ab initio void. In state of Bombay and Ors. "Hospital Mazdoor Sabha & Ors.3 this Court held that failure to comply with the requirement of Sec.25(F) which prescribes a condition precedent for a valid retrenchment renders. The order of retrenchment invalid and operative. In other words, it does not bring about a cessation of service of the workman and the workman continues to be in service. This was not even seriously controverter before us."
19. Similarly, in case of Pramod Jha v. State of Bihar reported in AIR 2003 SC 1872, Apex Court has made observation in paragraph 9 which is quoted as under :
"9. ...Firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment and so, either he should be given one month;s notice of the proposed termination or he should be paid wages for the notice period. Secondly the workman must be paid retrenched compensation at the time of retrenchment or before. So, that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation so paid is not only a reward earned for his previous service rendered to the employer but it is also a substance to the worker for the period which may be spent in searching for another employment."
20. The Labour Court has also considered one decision of Division Bench of Apex Court in case of Kishan Singh v. Executive Engineer, Haryana State Agricultural Marketting Board, Rohtak (Haryana) reported in (2010) 3 SCC 637 and thereafter come to conclusion that workman has established 240 days continuous service before Labour Court and also remained in service continuously for more than one year with employer and Section 25B(1) and 25B(2) both have been established, even though, at the time of terminating his service, Section 25F has not been followed by employer and therefore, order of termination is held to be ab initio void.
21. Therefore, contentions raised by learned AGP Mr. Sharma cannot be accepted in light of discussion and observations made by Labour Court while appreciating oral as well as documentary evidence produced by both parties. Therefore, in case when Section 25F is violated, then, workman is entitled relief of reinstatement. For that, Labour Court has not committed any error which requires interference by this Court while exercising powers under Article 227 of Constitution of India.
22. The contention raised by learned advocate Mr. U.T. Mishra that once termination order is found to be ab initio void and gainful employment is not proved by employer and unemployed period is proved by workman, then, workman is entitled full back wages of interim period. This contention cannot be accepted by this Court simply on the ground that dispute has been raised after a period of sixteen years and half month, because, termination is dated 30th June, 1992 and dispute was referred for adjudication on 20th August, 2008, therefore, there was a delay which was not explained by workman as to why he was not able to raise dispute in reasonable time, therefore, for delay period, no back wages can be awarded in favour of workman and merely employer is not able to prove gainful employment, that does not mean that workman is automatically entitled back wages of that period. The Labour Court is having discretionary powers to consider question of back wages and for that, there is no straight jacket formula available to grant back wages in case of gainful employment is not proved by employer. The Labour Court has applied its mind and considered that it is very difficult to presume that workman was remained unemployed for such a long time and remained without gainful employment. Labour Court has also considered that workman was remained in service from 1984 to 1992 about eight years as a daily wager and not appointed by following recruitment procedure and then in such circumstances, daily wager is not entitled automatically full back wages of interim period. Therefore, contention raised by learned advocate Mr. U.T. Mishra cannot be accepted. On the contrary, in paragraph 14, Labour Court has rightly discussed evidence of workman as well as detailed reasons have been given in support of its conclusion for denying total back wages of interim period. For that, Labour Court has not committed any error which requires interference by this Court while exercising powers under Article 227 of Constitution of India.
23. In light of aforesaid reasoning and discussion made by Labour Court in its award, three recent decisions are very relevant which have not been considered by Labour Court, which are as under :
24. in case of R.M. Yellatti v. Assistant Executive Engineer reported in 2006 SCC Labour and Service p.1 = 2005 (3) CLR 1028. Relevant discussion is made in Para 17 to 19 which are quoted as under :
"17. Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated 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 workmen stepping 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 earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non production of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down basic principle, namely, that the High Court under Art. 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.
18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commnencing from 22/11/1988 to 20/6/1994. This period is the period borne out the certificate (Ex. W1) issued by the former Asstt. Executive Engineer the evidence in rebuttal from the side of the management produce five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex. M4 and Ex. M5, which indicated that the workmen had worked for 43 days during the period 21/1/1994 to 20/2/1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour Court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstance, we are of the view that the Division Bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the Labour Court and confirmed by the learned Single Judge vide order dated 7/6/2000 in writ petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workmen are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workmen was working in SD 1, Athani and Ex. W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani-591304. In the present case, the defence of the management was that although Ex. W1 refers to the period 22/11/1988 to 20/6/1994, the workmen had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the Labour Court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workmen had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the Division Bench of the High Court had erred in interfering with the concurrent findings of fact.
19. Before the concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earner, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of terminations. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper record of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and procuniary liability for the Government."
25. Thereafter, recently, in case of Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda reported in 2010 AIR SCW 542, wherein, same view has been taken while considering earlier decision of Apex Court in case of R.M. Yellatti (supra) in para 13 to 16 which are quoted as under :
"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 25F of the Industrial Disputes Act, 1947 were not complied with.
14. Section 25B of the Act defines "continuous service". In terms of Sub section (2) of Section 25B 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 vs. Assistant Executive Engineer [(2006) 1 SCC 106], 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, inspite 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 Vs. Siri Niwas [(2004) 8 SCC 195], 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 25F of Industrial Disputes Act. Section 25G 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 25G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference."
26. In case of Anoop Sharma v. Executive Engineer, Public Health Division No.1 reported in 2010 (2) CLR 1.
The relevant discussion is made by Apex Court in paragraphs 13 to 20, which are quoted as under :
"13. An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity - State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay (1964) 6 SCR 22, State Bank of India v. N. Sundara Money (1976) 1 SCC 822, Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340, Mohan Lal v. Management of M/s. Bharat Electronics Ltd. (1981) 3 SCC 225, L. Robert D'Souza v. Executive Engineer, Southern Railway (1982) 1 SCC 645, Surendra Kumar Verma v. Industrial Tribunal (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Das (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25-F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated.
14. The question whether the offer to pay wages in lieu of one month's notice and retrenchment compensation in terms of Clauses (a) and (b) of Section 25-F must accompany the letter of termination of service by way of retrenchment or it is sufficient that the employer should make a tangible offer to pay the amount of wages and compensation to the workman before he ask to go was considered in National Iron and Steel Company Ltd. v. State of West Bengal (1967) 2 SCR 391. The facts of that case were that the workman was given notice dated 15.11.1958 for termination of his service with effect from 17.11.1958. In the notice, it was mentioned that the workman would get one month's wages in lieu of notice and he was asked to collect his dues from the cash office on 20.11.1958 or thereafter during the working hours. The argument of the Additional Solicitor General that there was sufficient compliance of Section 25-F was rejected by this Court by making the following observations:
"The third point raised by the Additional Solicitor-General is also not one of substance. According to him, retrenchment could only be struck down if it was mala fide or if it was shown that there was victimisation of the workman etc. Learned counsel further argued that the Tribunal had gone wrong in holding that the retrenchment was illegal as Section 25-F of the Industrial Disputes Act had not been complied with. Under that section, a workman employed in any industry should not be retrenched until he had been given one month's notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lieu of such notice, wages for the period of the notice. The notice in this case bears the date November 15, 1958. It is to the effect that the addressee's services were terminated with effect from 17th November and that he would get one month's wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on November 20, 1958 or thereafter during the working hours. Manifestly, Section 25-F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with Section 25-F, we need not consider the other points raised by the learned counsel."
15. In State Bank of India v. N. Sundara Money (supra), the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25-F(b).
16. The legal position has been beautifully summed up in Pramod Jha v. State of Bihar (supra) in the following words:
"The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month's notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment."
17. If the workman is retrenched by an oral order or communication or he is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove compliance of Clauses (a) and (b) of Section 25-F of the Act.
18. The stage is now set for considering whether the respondent had offered compensation to the appellant before discontinuing his engagement/employment, which amounts to retrenchment within the meaning of Section 2(oo) of the Act. In his statement, the appellant categorically stated that before discontinuing his service, the respondent did not give him notice pay and retrenchment compensation. Shri Ram Chander, who appeared as the sole witness on behalf of the respondent stated that the compensation amounting to Rs.5,491/- was offered to the appellant along with letter Ext. M-1, but he refused to accept the same. The respondent did not examine any other witness to corroborate the testimony of Ram Chander and no contemporaneous document was produced to prove that the compensation was offered to the appellant on 25.4.1998. Not only this, the respondent did not explain as to why the demand draft was sent to the appellant after more than three months of his alleged refusal to accept the compensation on 25.4.1998. If there was any grain of truth in the respondent's assertion that the compensation was offered to the appellant on 25.4.1998 and he refused to accept the same, there could be no justification for not sending the demand draft by post immediately after the appellant's refusal to accept the offer of compensation. The minimum which the respondent ought to have done was to produce the letter with which draft was sent at the appellant's residence. The contents of that letter would have shown whether the offer of compensation was made to the appellant on 25.4.1998 and he refused to accept the same. However, the fact of the matter is that no such document was produced. Therefore, we are convinced that the finding recorded by the Labour Court on the issue of non-compliance of Section 25-F of the Act was based on correct appreciation of the pleadings and evidence of the parties and the High Court committed serious error by setting aside the award of reinstatement.
19. The judgment of the Constitution Bench in Secretary, State of Karnataka vs. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Court's approach in dealing with the appellant's challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section 25-F of the Act and employer's obligation to comply with the conditions enumerated in that section.
20. At the cost of repetition, we consider it necessary to mention that it was not the pleaded case of the respondent before the Labour Court and even before the High Court that the appellant was engaged/employed without following the statutory rules or Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. Therefore, the High Court was not justified in relying upon the alleged illegality of the engagement/employment of the appellant for upsetting the award of reinstatement."
27. The Apex Court in case of Ramesh Kumar v. State of Haryana reported in 2010 (1) SCALE 432 has considered said question and observed in paragraphs 12 and 13 which are quoted as under :
"12. The perusal of all these details clearly shows that the appellant alone was singled out and discriminated. We have already noted the specific finding of the Labour Court that the appellant had fulfilled 240 days in a calendar year before the order of termination. The appellant has also highlighted that he is the sole bread earner of his family and his family consists of his old mother, wife and two minor sons and a minor daughter. The above-mentioned chart also shows that identical awards passed in the case of Mast Ram, Rajesh, Paramjit and Amarjit was upheld by the High Court and the award in favour of the appellant alone was quashed by the High Court in the second round of litigation. Though, it was contended that the initial appointment of the appellant was contrary to the recruitment rules and constitutional scheme of employment, admittedly, the said objection was not raised by the Department either before the Labour Court or before the High Court at the first instance. It was only for the first time that they raised the said issue before the High Court when the matter was remitted to it that too the same was raised only during the arguments. In such circumstances, the High Court ought not to have interfered with the factual finding rendered by the Labour Court and in view of the different treatment to other similarly placed workmen the Department ought not to have challenged the order of the Labour Court. In addition to the above infirmities, the appellant has also pointed out that one Gurbax Singh who was engaged subsequent to the appellant on casual basis has challenged his termination order, which was quashed by the Labour Court; interestingly the Department did not challenge the award of the Labour Court by filing writ petition. It was also highlighted by the appellant that on the basis of the award, Gurbax singh was not only taken back in service but his services were regularized w.e.f. 01.07.2004.
13) We are conscious of the fact that an appointment on public post cannot be made in contravention of recruitment rules and constitutional scheme of employment. However, in view of the materials placed before the Labour Court and in this Court, we are satisfied that the said principle would not apply in the case on hand. As rightly pointed out, the appellant has not prayed for regularization but only for reinstatement with continuity of service for which he is legally entitled to. It is to be noted in the case of termination of casual employee what is required to be seen is whether a workman has completed 240 days in the preceding 12 months or not. If sufficient materials are shown that workman has completed 240 days then his service cannot be terminated without giving notice or compensation in lieu of it in terms of Section 25F. The High Court failed to appreciate that in the present case appellant has completed 240 days in the preceding 12 months and no notice or compensation in lieu of it was given to him, in such circumstances his termination was illegal. All the decisions relied on by the High Court are not applicable to the case on hand more particularly, in view of the specific factual finding by the Labour Court. "
28. In light of aforesaid recent decisions of Apex Court as referred above, according to my opinion, contentions raised by learned AGP Mr. Sharma as well as contentions raised by learned advocate Mr. Mishra cannot be accepted, hence, rejected.
29. This Court is having very limited jurisdiction under Article 227 of Constitution of India. This Court cannot act as an appellate Authority and re-appreciate evidence which has been already appreciated by Labour Court. The finding recorded by Labour Court cannot consider to be baseless or perverse. The facts almost being finding of fact decided by Labour Court based on evidence. This Court cannot disturb such finding of fact while exercising powers under Article 227 of Constitution of India. Recently, this Court has considered this issue in Special Civil Application No.3073 of 2011 vide order dated 10th March, 2011, where, this Court has observed in paragraph 15, which is as under :
"15. The contention raised by learned AGP Mr. Sharma can not be accepted. The Labour Court has rightly examined matter and daily wager is also workman within a meaning of Section 2 (S) of Industrial Disputes Act, 1947. The Section 25 F of Industrial Disputes Act, 1947 is also made applicable to daily wager and 240 days has been proved by oral evidence of workman. Vide exh 12 and exh 14, documents have been produced by petitioner and service was terminated by petitioner. It was not proved that workman was abandoned the work. Therefore, finding recorded by Labour Court after considering number of decisions on the basis of facts, rightly come to conclusion that termination is held to be invalid, violated section 25 F of Industrial Disputes Act, 1947, which rendered termination order ab initio void. For that, workman is entitled to relief of reinstatement as it has been held by Apex Court recently in case of Harjinder Singh Vs. Punjab State Warehousing Corporation reported in 2010 (1) SCALE 613, where relevant observations are made in para 16 to 45. The Labour Court has also discussed each and every evidence, which has been placed on record by respective parties before Labour Court. The finding recorded by Labour Court can not consider to be baseless and perverse. The facts almost being finding of fact, decided by Labour Court based on evidence against which this Court can not disturb it while exercising power under Article 227 of Constitution of India. This Court is having very limited jurisdiction in exercising power under Art. 227 of Constitution of India. This Court can not act as an Appellate Authority. The aspect in respect to power of Article 227 of Constitution of India, Apex Court has considered in case of Harjinder Singh as referred above in para 10 and 11, which are quoted as under:
"10.
We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution - Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others 2003 (6) SCC 675. In Syed Yakoob's case, this Court delineated the scope of the writ of certiorari in the following words:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955 (1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168).
11. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
11. In Surya Dev Rai's case, a two-Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions:
"(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction -- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction -- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the corporation that termination of the appellant's service falls within the ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of corporation was contrary to Section 25G of the Act which embodies the rule of last come first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs.87,582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellant's claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family.""
30. In view of having limited jurisdiction of this Court, Labour Court has rightly examined matter based on evidence and Labour Court has given detailed reasons in support of its conclusion and therefore, contentions raised by learned AGP Mr. Sharma as well as learned advocate Mr. Mishra cannot be accepted, hence, rejected. Labour Court has rightly decided matter and granted relief of reinstatement with continuity of service and without back wages of interim period. For that, Labour Court has not committed any error which requires interference by this Court under Article 227 of Constitution of India.
31. Hence, there is no substance in present both petitions. Accordingly, both petitions stand dismissed. Rule is discharged. Interim relief granted in Special Civil Application No.67 of 2011 stands vacated.
32. It is directed to petitioner - State of Gujarat to implement award passed by Labour Court, Mehsana in question as early as possible within a period of one month from date of receiving copy of present order.
[H.K.
RATHOD, J.] #Dave Top