State of Gujarat vs Govindbhai Kathadbhai Mayaid

S.R. Brahmbhatt, J.—Heard learned advocates for the parties.

The petitioner, a second party employer, has approached this Court under Article 227 of the Constitution of India, challenging the order and award dated 29.12.2008 passed in Reference (L.C.R.) No. 254 of 1997, whereunder the Presiding Officer, Labour Court, Rajkot has allowed the reference partly and directed the petitioner to pay 20% backwages with continuity of service and benefit flowing from the Government Resolution 17.10.1988 and cost of Rs. 1,000/- with reinstatement.

This Court while issuing notice on 24.11.2009 passed the following order:

Notice for final disposal returnable on 21.12.2009. In the meantime and till the returnable date, there shall be ad-interim stay against the impugned award.

Accordingly, the matter is taken up for final disposal. Hence, Rule. With the consent of the learned advocates for the parties, Rule is fixed forthwith.

The facts in brief leading to filing of this petition deserve to be set out as under:

1) The respondent workman had to raise industrial dispute as, on 22.2.1997, his services were terminated without following due procedure of law and especially without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947. The workman vide communication letter 19.3.1997 requested for reinstatement. However, rely thereto was never received. The dispute was raised and referred to the competent Court, wherein it was marked as Reference (L.C.R.) No. 254 of 1997. In the statement of claim, the workman contended that he has worked for more than 1 year as a watchman and he was drawing daily wage of Rs. 44.10 ps. His services were terminated abruptly on 22.2.1997 without following due procedure of law and without complying the provisions of Section 25F of the Industrial Disputes Act, 1947. The workman had put up continuous service of 1 year and therefore, the provisions of Section 25F were not attracted and his services ought not to have been terminated without paying him retrenchment compensation and 1 month''s notice or notice pay in lieu of the notice for bringing about an end to his service. The workman also contended that while terminating his service, his juniors were retained and after termination fresh hands were recruited. Thus, there was a breach of Section 25G of the Industrial Disputes Act, 1947. The statement of claim was responded by the present petitioner for filing written statement wherein the opponent employer contending that the work which was performed by the workman was not permanent in nature. The employer is not being an industry and hence reference was not maintainable. As and when there was work, the workman used to be engaged but as and when the work was over the workman was not retained. In view of this kind of engagement of the workman, there was no question of issuing workman, notice, notice pay in lieu of notice or retrenchment compensation etc. as provided u/s 25F of the Industrial Disputes Act, 1947.

2) It was further contended by the petitioner in the written statement that the workman never completed 240 days in a given year and, therefore, it was the duty cast upon the workman to produce evidence and prove to justify the stand taken in the statement of claim. The petitioner, further contended that there was no breach of the provisions of Section 25F or breach of any other provisions of the Industrial Disputes Act, 1947 in terminating the services of the workman. The petitioner put up a stand that the work performed by the workman was such, which did not warrant his continuous engagement or employment. In other words, the petitioner pleaded that the work was seasonal in nature and therefore, the reference was not required to be accepted and the Court may pass order accordingly.

3) The workman was cross-examined and the workman had to accept that the workman did not have any other material to justify that he was working since 1988. The Court, after perusing the testimony of the workman, came to the conclusion that the workman establishes his case that he had worked for 240 days and hence he was entitled to be accorded retrenchment compensation, notice or notice pay in lieu of notice while terminating his services as there was admittedly no notice pay given and no notice was issued and no compensation was paid. Therefore, his services were wrongfully terminated. The Labour Court, therefore, partly allowed the reference and ordered reinstatement of the workman with continuity of service and 20% of backwages with cost of Rs. 1,000/- and directed to the petitioner to accord the workman benefit flowing from the Government Resolution dated 17.10.1988.

The employer being aggrieved and dissatisfied with this judgment and award impugned, assailed the same in the present petition filed under Article 227 of the Constitution of India.

Shri Neeraj Soni, learned Assistant Government Pleader has taken this Court through the award impugned and contended that the Labour Court has travelled beyond its jurisdiction in issuing direction which is impugned award. The Labour Court could not have come to the conclusion that the workman had established that he worked for more than 240 days in a given year. The Labour Court has evinced perversity in recording its finding that not only the workman had completed 240 days but he was working since 1988 and on that basis passed the impugned order. The Labour Court has, without considering the material on record and without appreciating the testimony of the workman in its true spirit, wrongly drawn adverse inference and has rendered judgment untenable in the eyes of law and therefore, the same is required to be quashed and set aside. Shri Soni, learned Assistant Government Pleader has further submitted that the workman cannot be said to have established his case merely on the strength of his testimony and few Xerox copies wherein the same work is said to have been assigned to the workman. Those, Xerox copies and the testimony of the workman have been taken to be unimpeachable proof of evidence for drawing the conclusion with regard to workman''s continuity of service or completion of 240 days so as to attract the provisions of Section 25F of the Industrial Disputes Act, 1947. Therefore, when employer is a State within the meaning of Article 12 and when it is expected to discharge its duty qua its employee and when such a set up available, engagement of casual hand for taking away intermittent casual work without any proof of continuity of such work cannot be permitted in light of the decision of the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, Moreover, the terms of reference also would not go to show that nowhere the workman was ever clamoring for any other benefits apart from reinstatement. Thus, on that count it can be said that the order impugned deserves to be quashed and set aside.

Shri N.D. Joshi, learned advocate for the respondent workman contended that the Court has rightly drawn adverse inference in respect of non-production of the documentary evidence by the employer petitioner. The workman has clearly stated in the statement of claim that he was working since 1988 or 1989 and when the Xerox copies of some of the documents produced would also go to show that the workman was assigned some work and when these Xerox copies remain uncontroverted, the Court was justified in accepting that the workman established his case for having worked for more than 240 days and on that basis if the order is passed, the same may not be opened to any other or further scrutiny under Article 227 of the Constitution of India. Shri Joshi, further submitted that the workman has been given only 20% of backwages and continuity of service and the order being just and proper, this Court may not interfere with the same under Article 227 of the Constitution of India. Shri Joshi, has taken this Court through the documents accompanying the affidavit-in-reply filed in this petition and contended that though the list of documents as well the Xerox copies in itself should not be considered as a great factor militating against the workman''s plea of having completed 240 days, these documents would go to show that the workman was assigned work by the employer time and again and, therefore, on that basis when the Court has recorded the same by its finding, this Court under Article 227 of the Constitution of India need not substitute the same. The Court under Article 227 of the Constitution of India may not go into the findings and, therefore, the petition itself is required to be dismissed.

This Court has heard learned advocates for the parties and perused the documents thereof.

Before adverting the rival contentions of the learned advocates for the parties, certain indisputable aspects of the matter as they emerge from the record, deserve to be set out as under:

1). The workman in his statement of claim has mentioned time and again that he has worked for more than 1 year continuously as a watchman which was permanent in nature.

2). The workman has mentioned in unequivocal terms in the statement of claim that the workman was receiving Rs. 44.10ps per day as remuneration. The workman in para 4 of the statement of claim has mentioned that his service was for more than 1 year.

3). The workman has though claimed that his juniors were continued while his services were terminated, not named any juniors who were said to have been continued. The workman has though claimed that fresh hands were engaged, no names have been said or spelt out in the statement of claim or in the testimony of the workman.

4). The written statement is filed wherein the employer has taken a specific stand that the workman had not completed 240 days in a given year.

5). The petitioner employer has taken a stand that the workman was being engaged as and when the work was available and, therefore, there was no question of maintaining any seniority list in such a case.

6). The employer, second party, has also taken up a contention that the workman is called upon to prove his say that he had worked for 240 days in a given year so as to justify his claim. The testimony of the workman also go to show that, at many a place, the workman has admitted that he did not have any evidence to justify his say that he was working continuously. However, the workman has relied upon the Xerox copies of some orders whereunder it is shown that the workman was given some work. The Xerox copies produced were not proved though it is sought to be canvassed that those copies have remained uncontroverted. The Labour Court has recorded its finding that the workman has proved his case that he had worked for more than 240 days.

7). The Labour Court has recorded its finding that the workman had completed 240 days as per Section 25F of the Industrial Disputes Act, 1947.

8). The Labour Court has also held that there was breach of Section 25G and accordingly ordered reinstatement.

9). The Labour Court has also recorded that the workman was receiving Rs. 80/- from labour work which he was doing and hence only awarded 20% of the backwages.

Against the aforesaid backdrop, now this Court shall examine the rival contentions of both the sides.

There cannot be any dispute with regard to preposition of law under Article 227 of the Constitution of India. This Court would not replace or substitute the findings recorded by the Labour Court in the first instance. But when the findings are assailed to be perverse and are assailed to be findings based upon no material on record, then the Court must look into it and arrive at its appropriate conclusion. In the instant case, as could be seen from the record, the documents which are said to have been documents indicative of continuous service are far and few indicating only assignment of duty which are not consistently assigned to the workman but that in itself would not merit evidence to show that the workman has continuously worked for the period. Application for production of documents is placed on record but there is no order calling upon the party to produce the documents. As against this, even the judgment impugned also is silent with regard to any such order. Therefore, the petitioner employer has taken a specific stand that the workman was given an particular kind of work as and when the same was available the work was offered to the workman. There was no question of engaging fresh hands and so also there was no question of keeping the list, which is required to be viewed and the same would lend some credence to the stand. The documents are not available to indicate that the workman worked continuously. The documents produced by the workman have been accepted by the Labour Court. However, they could not have been accepted as the documents are though not controverted but that in itself would not attach any undue importance to be indicative of continuous service on the part of the workman. Moreover, it is required to be noted at this stage, that the workman in his testimony has stated that if he was not given Identity Card, if he was not given appointment letter and even if he was not given any other documents to show that there was relationship of employer and employee, he did not make any complaint to the concerned authority. All factors collectively put together would go to show that the workman did not establish his case so as to invoke provisions of Section 25F of the Industrial Disputes Act, 1947. The breach thereof, cannot be straightaway attracted to the State Employer only on the strength of oral testimony of the workman that too which is not consistent enough to suggest that the workman was continuously in service in the preceding year of termination. The paucity of material ought to have been persuaded by the Court and not to accept them and pass order fastening the employer with liability of giving employment to the employee in terms of continuity of service and backwages.

The order, in my view, therefore, can well be said to be an order which is not sustainable in the eyes of law as the Labour Court has gone ahead with the presumption of continuity of service without there being enough material and the same has been rendered perverse. Such orders cannot be countenanced and, therefore, the petition succeeds and the order impugned is quashed and set aside. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.