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Gujarat High Court
Judgename :H.K.RATHOD
EXECUTIVE ENGINEER - Appellant
Versus
HARISINGH MODHBHAI GADHVI - Respondent
Special Civil Application 17582 Of 2007
Decided On : 08/03/2007
Whether in the facts of the case retrenchment of petitioner without complying with the mandatory requirement of law sustainable?
Head Note :
Industrial Disputes Act, 1947 (Central act 14 of 1947) - Sections 2(oo), 25-F, 25-G and 25-H - Mandatory requirements - Non-compliance -Violation of -Reinstatement without back wages - Order of - Finding as to - Sustainability - Workman in his statement of claim alleged that he remained in the service of petitioner for twelve years and had completed 240 days of continuous service in one year preceding the date of alleged termination of his services - Labour Court rightly appreciated the evidence to come to the conclusion that workman services were terminated without complying with the mandatory requirements of law and therefore, not sustainable - Court held that Labour Court was right in drawing an adverse inference against petitioner in view of the fact that the petitioner had cross-examined evidence of workman and also not produced any documentary evidence which was in its possession as admitted by witnesses for petitioner to rebut the statement of claim made by workman - Court accordingly held that Labour Court has not committed any error in passing the award - Petitioner has not been able to point out any jurisdictional error committed by Labour Court - The award passed by Labour Court calls for no interference by the Court.
Held :
Labour Court has come to the conclusion the oral evidence of the workman concerned vide Exhibit 10 had remained uncontroverted in cross examination by the petitioner before the Labour Court. Labour Court also considered that the seniority list was not published by the petitioner before passing order of termination against workman concerned. Labour Court also appreciated that no muster card, presence card, wage slip, identity card were supplied by the petitioner to respondent-workman and, therefore, workman concerned was having no material with him except to contend on oath before the Labour Court that he was working for 12 years continuously and has also completed 240 days continuous service in a year preceding the date of termination and that part of their oral evidence was cross examined by the petitioner before the Labour Court. Therefore, Labour Court also came to the conclusion that the respondent has proved completion of 240 days continuous service and, in view of the non compliance of Section 25-F of the Industrial Disputes Act, 1947, action of termination of his service is violative of Section 25-F of the Industrial Disputes Act, 1947. Thus, Labour Court has recorded clear finding that 240 days continuous service was proved by the workman and the petitioner has violated Section 25-F of the Industrial Disputes Act, 1947. [Para 6]
Labour Court was right in appreciating the evidence before it and the Labour Court was also right in drawing an adverse inference against the petitioner in view of the fact that the petitioner had cross examined evidence of workman Exhibit 10 and also not produced any documentary evidence which was in its custody and that aspect was also admitted by even witness for petitioner namely Mr. Delvadia at Exhibit 18 and, therefore, according to my opinion, Labour Court has not committed any error in passing the award in question and the award of the Labour Court would, therefore, not call for any interference of this Court in exercise of the powers under Article 227 of the Constitution of India. [Para 13]
Law Laid Down :
The provisions of the Evidence Act in terms do not apply to the proceeding under Industrial Disputes Act.
Case Law Analysis :
R.M. Yellatti vs. Assistant Executive Engineer, 2005 (9) Scale 139 = 2006 (1) SCC 106 [Paras 4, 7, 10 & 11];; M/s. Sriram Industrial Enterprises Ltd. vs. Mahak Singh & Ors., 2007 (3) Supreme Today 553 [Para 11];; Range Forest Officer vs. S.T. Hadimani, 2002 (3) SCC 25 [Para 11];; Surendranagar District Panchayat vs. Dahyabhai Amarsinh, 2005 (8) SCC 750 [Para 11].-Relied on
Conclusion :
Labour Court has not committed any error in passing the award in question therefore, it does not call for any interference by the Court.
Cases Referred :
State of Gujarat vs. Ramesh Mopabhai Rathod, 2003 (3) GLR 2590;; Government of A.P. vs. B. Satyanarayana Rao, 2000 (4) SCC 262;; Bharat Industries vs. Khemiben Valjibhai & Ors., 1995 (1) GLH (UJ) 6.
Decided in Favour of :
Respondent
Petition Dismissed
( 1 ) HEARD learned Assistant Government pleader Ms. Sandhya Natani for the petitioner and Mr. H. S. Mulia, learned advocate appearing for respondent workman in this petition.
( 2 ) THROUGH this petition, petitioner is challenging the award made by the Labour court, Surendranagar, in Reference (L. C. S.)No. 77 of 2001 dated 05. 1. 2007 whereby labour Court has allowed the reference in part and granted reinstatement in favour of the workman concerned without back wages for interim period by directing the petitioner establishment to reinstate the workman concerned on his post within thirty days from the date of publication of award without back wages for interim period.
( 3 ) LEARNED AGP Ms. Sandhya Natani for petitioner submits that before the Labour court, detailed reply was filed by the petitioner wherein none of the averments made in the statement of claim were admitted. The petitioner had disputed working days and working years of the respondent workman. Continuous service of the workman concerned was also denied by the petitioner. According to the petitioner, in seniority register, name of the present respondent is not noted and, therefore, he is not considered to be employee of the petitioner. It was also disputed by the petitioner that the concerned workman has completed 240 days continuous service as alleged and in view of that, it was contended that the question of giving notice or notice pay in lieu thereof and retrenchment compensation to the workman concerned does not arise and no new workmen were recruited/engaged by petitioner after termination of services of the workman concerned. She submits that the Labour court has committed gross error in not appreciating these contentions raised by petitioner in its written statement. She submits that Labour Court has committed gross error in granting relief in favour of the workman. She submits that when section 25f of the ID Act, 1947 was not violated by petitioner, question of non-compliance of the mandatory provisions contained therein was not arising and, therefore, Labour Court ought not to have granted such relief of reinstatement. She also submits that none of the workman was completing 240 days continuous service as alleged and no concrete evidence was produced by the workman before the labour Court. As per his submission, oral evidence of the witness for the petitioner namely Rameshbhai K. Delwadia Exh. 18 was also not properly appreciated by the labour Court and, therefore, award in question is required to be set aside by dismissing the reference of the workman concerned. Except these submissions, no other submission was made by learned AGP ms. Natani before this Court and no decision whatsoever was cited by Ms. Natani, learned AGP for petitioners before this Court in support of her submissions as aforesaid.
( 4 ) LEARNED Advocate Mr. Mulia appearing for the respondent has, while supporting the award in question, submitted that the evidence of the workman on affidavit had remained unchallenged in cross examination by the petitioner. He submits that at the time of terminating services of the workman concerned, junior employees were retained and continued in service and subsequently fresh workmen were also engaged by the petitioner as daily wager and at that time, petitioner had not given offer of work to the workman concerned and, therefore. Labour Court has rightly set aside the order of termination and rightly granted reinstatement alone. He also submits that the seniority list was not published by the petitioner and no documentary evidence whatsoever was produced by petitioner in support of the contentions raised by petitioner in his written statement, in respect of presence card, wage slip, identity card and muster roll of the workman working in the establishment of petitioner and, therefore. Labour Court was right in considering the evidence on record and rightly relied upon the decision of the Apex Court in case of R. M. Yellatti v. Asstt. Ex
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