2022 LLR 1311
GUJARAT HIGH COURT
Hon'ble Mr. R.M. Chhaya, J.
Hon'ble Mr. Hemant M. Prachchhak, J.
R/L Patent Appeal No. 1051/2021
In R/S C.A. No. 18929/2019 with
C.A. (For Stay) No. 1/12021, Dt/ 23-3-2022
State of Gujarat
vs.
Hamir Bhikubhai Parmar
DISMISSAL When illegal Management terminated services of workman without complying sections 25F, 25G and 25H of Industrial Disputes Act, 1947 Workman raised an industrial dispute Labour Court awarded reinstatement without back wages but with continuity of service Management challenged award in wit petition but failed Management filed writ appeal Held, Management witness has accepted in cross-examination that work from other daily wager is taken Hence, it is breach of section 25G of the Act Once the workman deposes that he has worked for more than 240 days during the preceding 12 calendar months, the burden of proving that the workman has not completed 240 days shifts upon the employer If an employer proposes to take into his employment any person, he shall give an opportunity to retrenched workman, who offer himself for re-employment shall have preference over the others Since this has not been done by the management, Labour Court has rightly held in terms that it is impermissible in law being violation of section 25H of the Act Without prior one month's notice or wages in lieu thereof termination of services of the workman is illegal being in violation of section 25F of the Act Hence, appeal is dismissed. Paras 7 to 10
For Appellant No. 1: Ms. Dhwani Tripathi, AGP.
For Respondent No. 1: Mr. Samir B. Gohil, Advocate.
IMPORTANT POINTS
ORDER
R.M. Chhaya, J. (Oral) 1. Feeling aggrieved and dissatisfied by the judgment and order dated 13.11.2019 by which the Special Civil Application No. 18929 of 2019 came to be dismissed by the learned Single Judge, the present appeal is filed by the State under Clause 15 of the Letters Patent.
2. The following facts emerge from the record of the appeal.
2.1 The respondent workman was working as Chokidar in Visavadar range of the appellant since 21.06.1997. As the respondent workman was removed from service on 23.06.2015, a reference came to be made being Reference L.C.J. Case No. 86/15. It was the case of the respondent workman that he has worked for 17 years and has completed 240 days and thus the appellant has committed breach of provisions of the Industrial Disputes Act , 1947 (hereinafter referred to as the Act). The record indicates that the appellant also filed reply to the same and both the parties adduced oral as well as documentary evidence before the learned Labour Court, Junagadh. The Labour Court, Junagadh by the impugned judgment and order dated 02.05.2019, was pleased to allow the reference directing the appellant to reinstate the respondent workman without backwages, with continuity of service. Feeling aggrieved by the same, the appellant preferred writ petition being SCA No. 18923 of 2019, which came to be dismissed, against which the present appeal is filed.
3. Heard Ms. Dhwani Tripathi, learned AGP for the appellant State and Mr. Samir Gohil, learned Advocate for respondent No. 1.
4. Ms. Tripathi, learned AGP has contended that even though 240 days have not been completed in each of the calendar year, the Labour Court as well as the learned Single Judge has wrongly came to the conclusion that there is breach of section 25F of the Act. Ms. Tripathi, learned AGP also contended that muster rolls were produced on record of the labour court, however, the same has not been considered by the Labour Court as well as the learned Single Judge and the findings arrived at by both that there is breach of section 25G and 25H of the Act is without any basis. According to Ms. Tripathi, learned AGP, the provisions of sections 25G and 25H are not attracted in the instant case. On the aforesaid grounds, it was therefore contended by the learned AGP that the appeal requires consideration.
5. As against this, Mr. Samir B. Gohil, learned advocate appearing for respondent has supported the impugned judgment and award of the learned Labour Court as well as the learned Single Judge. Mr. Gohil contended that the learned Labour Court has rightly appreciated the evidence on record and has correctly allowed the reference. It was contended that the learned Single Judge has committed no error, which warrants interference by this Court in its appellate jurisdiction. According to Mr. Gohil, the appeal being meritless, deserves to be dismissed.
6. No other or further submissions, grounds or contentions have been raised by the learned advocates appearing for the respective parties.
7. Upon considering the submissions made and on perusal of the impugned judgment and award of the learned Labour Court, it is noteworthy that in the oral evidence of the appellant's officer himself, in his cross-examination, he has admitted the fact that the work is on and they take work from other daily-wagers. The Labour Court on the basis of correct interpretation of the evidence on record, has come to the conclusion that there is a breach of section 25G and 25H as well as 25F of the Act and relying upon the judgment of the Apex Court in the case of Manager of General Manager, Hariyana Roadways v. Ruddhan Singh , (2005) II CLR 1055 (SC): (2005) 5 SCC 591, backwages is not awarded. Similar contentions were also raised before the learned Single Judge, though not averred in the memo of the writ petition and the learned Single Judge having examined the impugned judgment and order, has observed thus
6. Having heard learned Assistant Government Pleader and on perusal of the record, it appears that in case of each of the respondents, there is completion of 240 days at least in some of the years, which is prior to the termination of the status as a daily wager. The details of course provide that except 2 years, in rest of the years, there is non-completion of 240 days of work.
7. Section 25F of the Act lays down the conditions precedent to retrenchment of workman and requires the employer to give notice to the appropriate government apart from giving one month's wages in lieu of the notice and payment of retrenchment compensation to the concerned workman, as held by the Apex Court in the case of Empire Industries Ltd. v. State of Maharashtra , (2010) I CLR 1070 (SC): AIR 2010 SC 1389. At this stage, apt would be to reproduce section 25F of the Industrial Disputes Act, which read as under:
25F. Conditions precedent to retrenchment of workmen
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by appropriate Government by notification in the Official Gazette.
8. The Apex Court has also directed in the case of the Director, Fisheries Terminal Division v. Bhikhubhai Meghajibhai Chavda , AIR 2010 SC 1236 and has held that, once the workman deposes that he had worked for 240 days during the preceding twelve months on daily wages, and if the workman would have difficulty in having access to all the official documents, muster rolls, etc. in connection with his service, the burden of proving that the workman has not completed 240 days of service shifts to the employer.
9. Apt would be to reproduce the findings and observations of the Apex Court in this regard, which reads as under:
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 10 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 198687 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 v. Siri Niwas, (2004) III CLR 543 (SC): (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.
10. Adverting to the facts of the instant case, it is not the case of the workman having been terminated on satisfying the prescribed procedure of law but, the retrenchment was on account of respondent being a surplus workman and the nature of the work being transitory,as can be noticed from the judgment and award of the Labour Court in each case, there is no seniority list maintained by the State. It has also not adduced any evidence to indicate that it has not continued taking work from other workmen, overlooking the fact that present respondent has continued to work for number of years. Once there is a breach of sections 25G and 25H of the Act, aspect of completion of 240 days' work in a preceding year would also fall into insignificance for attracting the applicability of section 25G of the Act. The workman is not required to prove that he has completed 240 days during twelve months preceding termination of service. Section 25H of the Act makes it very clear that any workman who is retrenched and if the employer proposes to take into his employment any person, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workman, who offer themselves for reemployment shall have preference over other persons. This having not been done in case of all the respondents, the Labour Court has rightly relied upon the various decisions, to hold in terms that it is impermissible under the law.
8. We are in total agreement with the judgment and award passed by the Labour Court and the observations made by the learned Single Judge. From evidence of the appellant itself, it has come on record that they continued to take services of other daily wagers instead of taking work from the respondent workman. Thus, there is clear breach of the provision of the Act and hence, the judgment and award passed by the Labour Court as well as the order passed by the learned Single Judge does not call for any interference. Resultantly, the appeal fails and is hereby dismissed. However, there shall be no order as to costs. Connected Civil Application, if any, stands disposed of accordingly.