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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.G.URAIZEE, J.
State Of Gujarat – Appellant
Versus
Galabhai Fatabhai Damor – Respondents
R/SPECIAL CIVIL APPLICATION NO. 12171 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12092 of 2020 With CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020 In R/SPECIAL CIVIL APPLICATION NO. 12092 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12095 of 2020 With CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020 In R/SPECIAL CIVIL APPLICATION NO. 12095 of 2020
Decided on : 18-03-2021
Code of Civil Procedure ,1908 - Section 115 - Industrial Disputes Act - Sections 25F,25(E),2,2(c), 2(j), 25F ,25G , 25F, 25-B(2),25- B(1) ,25-F,25B(1) - Constitution of India,1950 - Articles 226 or 227 - Termination of Services - Working continuously under the petitioner Department from 1992 as a daily wage labourer cum Chowkidar and was paid Rs.800 per month and had completed 240 days in a year. He further claimed that his services were terminated in the year 1997 without giving any notice, notice pay or retrenchment compensation. In response to the statement of claim, the Department filed a written statement before the Labour Court whereby the allegations were denied - Respondent workman had worked only on seasonal basis and had not completed 240 days in a year. However, the Labour Court had allowed the reference - Whether departments are industry or not under Section 2(j) of the ID Act is not to be raised before the Court - whether the Forest Department and Irrigation Department are industry as defined under the Act or not - whether the department of government is an 'Industry' within the ambit of Section 2(j) of the Act, according to the Full Bench is a mixed question of law and facts, which cannot be allowed to be raised first time before the Court
Finding of the court: Section 25-B(2) suggests that, when he is not in continuous service for a year then a deeming fiction of 240 days is considered. Mr. Desai, contends that the learned Judge could not have considered the Certificate showing the number of working days as 319, as "that period was not a period preceding 12 months prior to retrenchment". In our opinion, this submission of Shri Desai, is without merit. Continuous service as defined under Section 25-B suggests entire tenure of service continuously for a period for which the workman has worked prior to the relationship between the workman and the employer coming to an end. If for a certain period the employer is in no position to provide work, cessation of such work without fault of the employee would not be an interruption in service and the employee would be deemed to be in service for such period. 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. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings
Result: Civil applications disposed of
ORDER :
1. Since these petitions raise identical issue, the same are being disposed of by this common order.
2. In Special Civil Application No.12171 of 2020, the State of Gujarat has assailed the judgment and award dated 20.9.2019 passed in Reference T No.332/1999 passed by the Labour Court, Godhra whereby the action of the petitioner terminating the respondent workman herein is held as illegal and it has ordered to reinstate the respondent workman to his original post with continuity of service and without backwages. The Labour Court has also awarded Rs.5000/- towards costs.
3. As per the statement of claim, the respondent was working continuously under the petitioner Department from 1992 as a daily wage labourer cum Chowkidar and was paid Rs.800 per month and had completed 240 days in a year. He further claimed that his services were terminated in the year 1997 without giving any notice, notice pay or retrenchment compensation. In response to the statement of claim, the Department filed a written statement before the Labour Court whereby the allegations were denied. It was mainly contended that the respondent workman had worked only on seasonal basis and had not completed 240 days in a year. However, the Labour Court had allowed the reference. Hence, the petition.
4. In Special Civil Application No.12092 of 2020, the State of Gujarat has assailed the judgment and award dated 20.9.2019 passed in Reference T No.331/1999 passed by the Labour Court, Godhra whereby the action of the petitioner terminating respondent workman herein is held as illegal and it has ordered to reinstate the respondent workman to his original post with continuity of service and without backwages. The Labour Court has also awarded Rs.5000/- towards costs.
5. As per the statement of claim, the respondent of SCA No.12092/2020 was working continuously under the petitioner Department from 1987 as a daily wage labourer cum Chowkidar and was paid Rs.800 per month and had completed 240 days in a year. He further claimed that his services were terminated in the year 1998 without giving any notice, notice pay or retrenchment compensation. In response to the statement of claim, the Department filed a written statement before the Labour Court whereby the allegations were denied. It was contended that the respondent workman had worked only on seasonal basis and had not completed 240 days in a year. However, the Labour Court had allowed the reference. Hence, the petition.
6. In Special Civil Application No.12095 of 2020, the State of Gujarat has assailed the judgment and award dated 20.9.2019 passed in Reference T No.330/1999 passed by the Labour Court, Godhra whereby the action of the petitioner terminating the respondent workman herein is held as illegal and it has ordered to reinstate the respondent workman to his original post with continuity of service and without backwages. The Labour Court has also awarded Rs.5000/- towards costs.
7. As per the statement of claim, the respondent was working continuously under the petitioner Department from 1987 as a daily wage labourer cum Chowkidar and was paid Rs.800 per month and had completed 240 days in a year. He further claimed that his services were terminated in the year 1998 without giving any notice, notice pay or retrenchment compensation. In response to the statement of claim, the Department filed a written statement before the Labour Court whereby the allegations were denied. It was mainly contended that the respondent workman had worked only on seasonal basis and had not completed 240 days in a year. However, the Labour Court had allowed the reference. Hence, the petition.
8. I have heard Mr. Akash Chhaya, learned AGP for the petitioner and Mr. Dipak Dave, learned advocate for the respondent.
9. Mr. Chhaya, submits that the respondent in these petitions were not engaged by the Department as workmen on regular basis but they worked on seasonal basis for few days. He submits that the respondents had worked without complet
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