Mansukhbhai Kushalbhai Machhar vs Deputy Executive Engineer

By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following relief(s):Â​

“17 (a) YOUR LORDSHIP be pleased to issue writ of mandamus, or writ of certiorari, or any other writ, order or direction, directing that the

order and award dated 31.07.2018, passed by the learned Labour Court, Dahod in Reference (L.C.D.) No.58 of 2012 (Reference (L.C.D.) (Old)

No.135 of 2001), is illegal, improper, arbitrary and contrary to evidence on record and contrary to the settled proposition of law and be pleased to

quash and set aside the same.

(b) YOUR LORDSHIP be pleased to issue writ of mandamus, or writ of certiorari, or any other writ, order or direction, directing the respondent to

reinstate the petitioner on his original post with continuity of service along with all consequential benefits and full back wages.

(c) YOUR LORDSHIP be pleased to grant such other and further relief as may be deemed fit in the interest of justice.â€​

The short facts of the case are that the petitioner was working with the respondent no.1 since 20 years prior to the date of termination. The service

of the petitioner was terminated with effect from 22.06.1999.

Being aggrieved by the order of termination, the petitioner raised an industrial dispute under the provisions of the Industrial Disputes Act, 1947 (for

short the “Actâ€). The Assistant Labour Commissioner, vide order dated 08.02.2001, referred the dispute to the learned Labour Court, Dahod

being Reference (L.C.D.) No.58 of 2012 (Reference (L.C.D.) (Old) No.135 of 2001).

The petitioner, thereafter, filed a detailed statement of claim before the learned Labour Court contending that the petitioner was working as a daily

wager for more than 20 years with the respondent no.1. The petitioner was paid monthly salary of Rs.1100/Â. The respondent no.1 did not give any

appointment letter, identity card, salary slip to the petitioner. It was further contended that the petitioner was not given any document of his service

though demanded. The petitioner worked for more than 240 days in a year as per the provisions of Section 25B of the Act. The service of the

petitioner was terminated with effect from 22.06.1999 without giving him any notice, notice payee or retrenchmentcompensation as the petitioner

demanded benefits of permanent employee. It was, therefore, pleaded that there is a breach of Section 25F of the Act. It was also contended that no

departmental inquiry was conducted by the respondent no.1 and the respondent no.1 continued to employ other workmen in place of the petitioner. It

was, therefore, prayed before the learned Labour Court by the petitioner to reinstatement him with backwages.

The respondent no.1 filed writtenÂstatement at Exh.12 denying the averments made by the petitioner in the statement of claim. In the written

statement, it was contended by the respondent no.1 that there is no employee and employer relationship between the petitioner and the respondent

no.1. The petitioner was daily wager and wages was paid on daily basis for the work done by the petitioner. According to the respondent no.1, the

petitioner had worked for 29 days in the year 1990, 38 days in the year 1991, 21 days in the year 1992, 54 days in the year 1993 and 41 days in the

year 1994. It was contended that in the year 1995Â96, the petitioner did not come for work and in the year 1997, he worked only for 23 days. It was,

therefore, contended that the petitioner never worked for 240 days in any of the year. It was further submitted before the learned Labour Court that

the petitioner had voluntarily stopped coming for work, as the petitioner got better job than what was paid in the labour job of the respondent no.1. It

was also contended that as the construction work of the dam site was over, no other labourer was employed by the respondent no.1. It was contended

that there is no breach of any of the provisions of the Act.

The petitioner, thereafter, filed his affidavit at Exh.15 reiterating what is stated in the statement of claim. The respondent no.1 filed written

arguments at Exh.24, wherein details of the working days of the petitioner from AugustÂ1991 to OctoberÂ1994 were submitted. The respondent no.1

also filed an affidavit of the one witness Mr.Manas Ranjan Roy.

Thereafter, it appears that the crossÂexamination of the witness taken in another reference being Reference (L.C.D) No.56/12 was adopted for

the purpose of adjudication of the pending reference before the learned Labour Court.

The learned Labour Court, thereafter, framed issues and rejected the reference by the impugned judgment and award dated 31.07.2018. The

learned Labour Court, after considering the oral and documentary evidence on record, came to the conclusion that after 1996, the petitioner has never

worked with the respondent no.1. The petitioner also admitted in his crossÂexamination that he had never worked with the respondent no.1 after 1996

and he has received the wages for the period during which he had worked with the respondent no.1. The learned Labour Court, therefore, has arrived

at the finding of fact that the termination of services of the petitioner by oral order with effect from 22.06.1999 is not proved. The Labour Court,

therefore, came to the conclusion that there is no violation of any of the provisions of the Act and rejected the reference filed by the petitioner.

Mr. P. C. Chaudhary, learned advocate for the petitioner submitted that the Labour Court has not considered the fact that the provision

contemplated under Section 25B of the Act for continuous service is running into two parts, whereby the petitioner has specifically satisfied the

definition contemplated under Section 25B(1) of the Act. It was further submitted that the respondent no.1 did not produce the entire record pertaining

to the service of the petitioner viz. attendance register, wage register before the Court. It was, therefore, submitted that in absence of any

documentary evidence with the petitioner it is the lawful obligation of the respondent no.1 to provide entire record before the Labour Court to prove

the fact that the petitioner did not worked for 240 days in any of the year.

Learned advocate for the petitioner further submitted that as the petitioner was not provided with any kind of document by the respondent no.1, it

was the duty of the respondent no.1 to prove that the petitioner did not work for more than 240 days in a year.

Learned advocate for the petitioner relied upon decision of the Apex Court in the case of Director, Fisheries Terminal Division vs. Bhikhubhai

Meghajibhai Chavda [2010 L.L.N. 48] to submit that the burden of proof on the part of the petitioner would be discharged by deposing from witness

box, and thereafter, burden to prove otherwise is upon the respondent no.1. He relied upon the following observations made by the Apex Court.

“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 1986Â87 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 crossÂexamination. 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 readsÂ​

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.â€​

Reliance is also placed on the decision of this Court in the case of State of Gujarat & Anr vs. Jitendra M. Raval & Ors. [2005 (106) FLR 97] to

contend that the respondent no.1, who was under obligation to send the communication to the petitioner to join the duty in order to take plea of

abandonment of service as against the termination of the service. In absence of proof of any such evidence by the respondent no.1, the Labour Court

ought to have rejected the plea of abandonment of service by the petitioner. He relied upon the following paragraph:-

“6. I have perused the entire award in question. In my opinion, the labour court has not committed any error while passing such award. It is clear

case of violation of Section 25Â​F of the I.D.Act.

If Section 25ÂF has been violated, the order of termination or retrenchment is rendered ab initio void. Ordinarily, the workman is entitled to full

backwages unless exception is pointed out by the employer. In this case also, exception was about delay of about four years which has been rightly

taken care of by the labour court. It is not necessary that the workman should have remained in continues service for twelve months from the date of

entitlement of the benefits under Section 25Â F of the I.D.Act. Section 25[b] defines continues service. According to the said definition, if the

workman completed 240 days continues service from the date of termination preceding twelve months, then he is entitled to benefit of Section 25ÂF

of the I.D.Act. Even if within eight months the workman had completed 240 days continues service, then also, he is entitled to benefit of Section 25Â‐

F of the I.D.Act. In this case also, the workman remained in service for ten months. The oral evidence of the workman was not disproved by the

petitioner by producing documentary evidence before the labour court. Therefore, the labour court has rightly appreciated the oral and documentary

evidence and rightly drawn adverse interference against the petitioner and rightly granted relief to the workman, for that, according to the my opinion,

the labour court has not committed any error which requires no interference by this Court while exercising the powers under Article 227 of the

Constitution of India and as such, no infirmity has been pointed out by the learned AGP Ms.Nandini Joshi. This Court cannot act as appellate authority

and even this Court cannot reappreciate the evidence as appreciated by the labour court. Therefore, considering the entire facts and circumstances in

its totality, according to my opinion, the labour court has rightly passed the award and as such, not committed any error apparently found on the face

of the record. Therefore, there is no substance in the present petition which deserves to be rejected.â€​

Having heard the learned advocate for the petitioner and having considered the impugned judgment and award passed by the learned Labour

Court and the documents produced on record, it is not in dispute that the petitioner was a daily wager. It is also admitted fact that the petitioner has

never worked for more than 240 day from August 1990 to AugustÂ1994. In the crossÂexamination of the petitioner, he admitted that he has never

gone to work after 1996. He has also admitted that he has received wages for the period for which he had worked.

In view of the aforesaid findings of fact arrived at by the learned Labour Court to the effect that the petitioner has never worked after 1996, and

therefore, it is not possible to believe the case of the petitioner that his service was orally termination with effect from 22.06.1999.

In view of the aforesaid facts, reliance placed by the learned advocate for the petitioner in the case of Director, Fisheries Termination Division

(supra) and in case of Jitendra Raval would not be helpful to the petitioner, as the petitioner did not comply with the provision of Section 25B of the

Act, there is no breach of Section 25F of the Act.

For the foregoing reasons, the petition fails and is hereby dismissed being devoid of any merit. No order as to the cost.