IMPORTANT POINT
The judgment establishes that a breach of Section 25F of the Industrial Disputes Act warrants reinstatement, but the award of backwages should be based on the circumstances and alternative income of the employee.

JUDGMENT :

BIREN VAISHNAV, J.

1. Heard learned advocates for the respective parties.

2. Challenge in these appeals at the hands of the State is to the oral order dated 16.03.2018 passed by the learned Single Judge in Special Civil Applications No. 2900 and 7231 of 2017. Aggrieved by the award of the Labour Court dated 06.04.2016 passed in Reference T No. 15 of 2010 which denied full backwages to the workman, Special Civil Application No. 29700 of 2017 whereas aggrieved by the award qua reinstatement and backwages the State has preferred Special Civil Application No. 7231 of 2017. Both these petitions were heard and disposed of by the order under challenge.

3. So far as these petitions are concerned i.e. qua Special Civil Application No. 29700 of 2017, the same was partly allowed granting 35% backwages and the employer – State’s petition granting reinstatement was dismissed.

4. Facts in brief indicate that it was the case of the respondent that he was engaged with the respondents with effect from 01.05.1990 as a Chowkidar and his services were terminated with effect from 31.07.2006. A statement of claim was filed in the year 2010 and in a response filed by the State, the Labour Court after examining the evidence in question found that the workman was examined at Ex.19. It was his case that he had been engaged on a monthly salary of Rs.1800 with effect from 01.05.1990 and his services were terminated on 21.07.2006.

4.1 The State examined one Harjibhai Nathabhai at Ex. 22. It was the case of the employer that he was working as a Range Forest Officer for the past 5 years prior to the date of termination. It was the case of the department that since the activity had closed down with effect from 01.04.2003, it was not necessary for the forest department to continue with the services of the respondent herein.

4.2 Perusal of the award of the Labour Court would indicate that it is undisputed that the case of the employer that the work was not available with effect from the year 2003 was not proved. In fact when an application was made vide Ex. 16 for production of evidence such as wage registers and attendance registers, the Labour court found that such records were not produced by the employer. The Labour court therefore came to the conclusion that since it was the burden of the employer, on its assertion that the workman had not completed 240 days to prove the case on hand, which it did not in light of the production of documents not being made even on an application made at Ex. 16.

4.3 Having found that there was breach of provisions of Section 25F of the Industrial Disputes Act, on the question of backwages, it is admitted fact on the basis of the oral evidence and the statement of workman himself that after being terminated he was earning about Rs.1100 to 1200 per month. Based on this, the Labour Court passed an award of reinstatement with backwages.

5. Mr. Chintan Desai, learned advocate appearing for the respondent would submit that the respondent workman has rightly been granted reinstatement and that the amount of backwages to the extent of 35% is reasonable and there is no reason why this court should disturb the award of the Labour Court.

6. On the petition being heard together and having perused the order of the learned Single Judge, we found that the learned Single Judge on analysing the evidence found that though the appellants tried to make out a case that the respondent workman was engaged on a project work, it was found that the services that were undertaken were continued and in absence of any evidence by the employer to dislodge the case of the workman that he had not completed 240 days, the learned Single Judge found that the requisite condition prior to the termination under Section 25F was not followed. This was particularly in view of the fact that the learned Single Judge had held that Section 25B of the Industrial Disputes Act was satisfied inasmuch as it was proved that the respondent workman had worked for more than 10