STATE OF GUJARAT - THROUGH SECTION OFFICER - UCHADI v. KALUBHAI VASHRAMBHAI JALIYA

filed with following prayers:-

"(A) Your Lordship may be pleased to admit and allow this petition;

(B) Your Lordship may be pleased to issue a writ of certiorari and/or any other appropriate writ, direction or order for quashing and setting aside the impugned judgment and award dated 29.05.2015 passed in Reference T No. 44 of 2005 by the learned Presiding Officer, Labour Court, Bhavnagar in the interest of justice;

(C) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to stay the implementation, execution and operation of the impugned judgment and award dated 29.05.2015 passed in Reference T No. 44 of 2005 by the learned Presiding Officer, Labour Court, Bhavnagar in the interest of justice;

(D) Such other and further relief as may be just, expedient and proper in the interest of justice."

3. By the impugned award, the respondent-workman was directed to be reinstated with continuity of service along with 20% back wages with ancillary benefits within 30 days of publication of the award with cost of Rs. 500/-.

4. Mr. Pranav Dhagat, learned AGP for petitioners-State submitted that respondent - workman was working with the petitioner - Department for 19 years prior to date of relieving

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as a daily wager and assigned work of watchman plus misc. work as per the claim of the workman, his services were taken. It is submitted that the respondent-workman was not recruited after due procedure or taking any interview. It is further submitted that neither the respondent-workman deliberately relieved from post nor junior to him was continued in service.

4.1 It is submitted that impugned award of the Labour Court is ex-facie, illegal, arbitrary and without appreciating the evidence on record and facts of the case. It is further submitted that nature of work which the respondent-workman was performing was seasonal and it was as per requirement. At that time, respondent-workman was paid remuneration as per the rates prevalent at that time for the period he had worked and therefore, question does not arise of violation of any provision.

4.2 Learned AGP for the petitioners relied upon decision of Apex Court in case of Range Forest Officer Vs. S.T. Hadimani, reported in 2002 (3) SCC 25, by which it was held that onus of proof lies on the concerned workman to prove before the Labour Court, by leading evidences that he had completed more than 240 days in a calendar year. However, in the present case, respondent workman has failed to prove the same before the Labour Court. Therefore, the impugned award requires to be quashed and set aside.

4.3 It is submitted that respondent-workman from the year 1988 to 2000 has worked only for 26, 95, 26, 149, 109, 77, 09, 51, 81, 50 and 25 days.

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4.4 In view of aforesaid details, the Labour Court ought to have considered the fact that when the workman did not work for 240 days in the preceding year, of his alleged termination, the question of his being illegally terminated from the service does not arise.

4.5 It is submitted that the Labour Court has erroneously held that there is a clear breach of 25-F of the Industrial Disputes Act, 1947, when respondent workman has not worked for 240 days. Therefore, question of violation of section 25-F would not arise.

4.6 It is submitted that the Labour Court ought to have considered the fact that provision of Sections 25-G and 25-H of the Act would be made applicable only in case of there is breach of Section 25-F of the Act. It is further submitted that respondent workman has worked for the period between 1988 to 2000, however not continuously for 240 days in any year. It is submitted that the respondent-workman has failed to prove the basic ingredients of satisfying the provision of Section 25- B of the Act. Therefore, award of the Labour Court is bad in law and needs to be quashed and set aside.

5. As against this, learned Advocate Mr. Vinod Gamara for the respondent - workman submitted that respondent- workman was working as watchman for 19 years and discharging his services continuously. It is submitted that he had not been given any documents, i.e. pay slip, etc. The respondent-workman had continuously made his demand for

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legitimate right and without issuing any notice as well as without giving any opportunity of being heard, on 30.04.2003, he had been relieved illegally from the services and petitioner breached the Section 25-F of the ID Act.

5.1 It is submitted that by illegally terminating the services of the respondent, the petitioner committed breach of Sections 25-F, 25-G, 25-H and 25-S of Act. It is submitted that petitioner failed to produce the record of salary and other relevant document and hence, the Labour Court was justified in passing the impugned award of reinstatement with 20% back wages.

6. Having considered the rival submissions of the parties and having perused the documents on the record, it appears that the respondent-workman was working with the petitioner department as a watchman and he had been relieved from the service on 30.04.2003, against which the respondent- workman raised dispute by filing Reference T No. 44 of 2005, which was allowed by award dated 29.05.2015 directing reinstatement of the respondent-workman with 20% back wages with ancillary benefits within 30 days of publication of the award with cost of Rs.500/-. Being aggrieved by the impugned award, the petitioners-State filed the present petition.

7. From the record, it appears that the Labour Court observed that there is no violation of Section 25-G and 25-H of the Industrial Disputes Act. However, the Labour Court considered that the respondent-workman was in continuous service in pursuance of Section 25-B of the Industrial Dispute

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Act, 1947. Therefore, the petitioner has violated the section 25-F of the Industrial Dispute Act, 1947, as per which notice in writing indicating the reasons for relieving must be addressed to respondent - workman.

8. The grievance raised by the petitioners is that the respondent-workman has not proved the continuous service of 240 days in a calendar year and hence, there is no violation of Section25-B is made out before this Court.

9. Moreover, it is the burden of the workman to prove that he worked for more than 240 days in a calendar year, but if the facts are taken into consideration, it appears that the respondent workman failed to prove that he worked for more than 240 days in a calendar year.

10. The Apex Court in case of State of Uttrakahnd Vs. Sureshwati, reported in 2021 (3) SCC 108, has observed in para25 as under:-

"25. On the basis of the evidence led before the Labour Court, we hold that the School has established that the Respondent had abandoned her service in 1997, and had never reported back for work. The Respondent has failed to discharge the onus to prove that she had worked for 240 days' in the preceding 12 months prior to her alleged termination on 8.3.2006. The onus was entirely upon the employee to prove that she had worked continuously for 240 days' in the twelve months preceding the date of her alleged termination on 8.3.2006, which she failed to discharge."

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11. The Court has taken into consideration the cross examination of petitioner's witness, wherein it is stated that respondent was only called upon to the work whenever there was a need. Moreover, whenever services were rendered by the respondent workman, his name was entered in the muster roll. The respondent-workman was not paid gratuity as he was not in regular pay.

12. In view of the aforesaid reasoning, the Court is of the view that the Labour Court has committed an error in ordering reinstatement of the respondent workman with 20% back wages, when there was no conclusive ground that respondent workman had worked for more than 240 days. Moreover, in the year 2016, the respondent-workman is aged about 56 years and therefore, it would not be appropriate to direct reinstatement. However, the petitioner employer has violated the Section 25-F, by not providing the notice to the respondent workman.

13. In view of the above, this petition is partly allowed. The impugned award of the Labour Court dated 29.05.2015 in Reference T No.44 of 2005 is hereby ordered to be set aside. However, this Court is of the opinion that in the facts of the case, the respondent-workman is entitled for a lump sum compensation in lieu of reinstatement. The Court is of the opinion that compensation of Rs.2,50,000/- would be adequate compensation in lieu of order of reinstatement. The petitioners- State is directed to pay the compensation to the respondent workman to the tune of Rs.2,50,000/- and if any

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amount u/s.17B paid during the pendency of this petition to the respondent workman by the petitioner - department, the same shall be deducted from the aforesaid amount of Rs.2,50,000/- and the outstanding amount shall be paid to the respondent workman within the period of six weeks, failing which the petitioners department is liable to pay interest @ 10%.

14. Rule is made absolute to the aforesaid extent. No order as to costs.

(RAJENDRA M. SAREEN,J)

SALIM/

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