Allowed

Dy.Executive Engineer v. Vadansinh Magansinh Makwana

Gujarat HC4 Aug 2005SCA/16007/2004

Case brief

AI extract

What is this about?

The High Court of Gujarat allowed a special civil application under Article 227. The Court held that to avail benefits under Sections 25-F and 25-B of the ID Act, a workman must prove 240 days of service in the preceding 12 months. Since the respondent worked only 15 days in the year preceding termination, the Labour Court erred in recalling termination, and its award was quashed.

What did the court decide?

The judgment and award dated 14.10.2004 passed by the Labour Court, Himatnagar in Ref. LCH No. 133/02 are quashed and set aside.

Dy.Executive Engineer Vs Vadansinh Magansinh… — Labour and Industrial Disputes | Gujarat HC (2005)

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1/9

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JUDGMENT

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SCA/16007/2004

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION No. 16007 of 2004

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For Approval and Signature:

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HONOURABLE MR.JUSTICE M.R. SHAH

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1^{Whether Reporters of Local Papers may be allowed} to see the judgment ?

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2 To be referred to the Reporter or not ?

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3^{Whether their Lordships wish to see the fair copy} of the judgment ?

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Whether this case involves a substantial question of law as to the interpretation of the 4 constitution of India, 1950 or any order made thereunder ?

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5^{Whether it is to be circulated to the civil judge}

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DY.EXECUTIVE ENGINEER & 1 - Petitioner(s) Versus

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VADANSINH MAGANSINH MAKWANA - Respondent(s)

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Appearance :

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MR SHASHIKANT S GADEfor Petitioner(s) : 1 - 2.
NOTICE SERVED for Respondent(s) : 1,
MR KR KOSHTI for Respondent(s) : 1,

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==================================================================

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CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 04/08/2005

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ORAL JUDGMENT

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By way of this petition under Article 227 of

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the Constitution of India, the petitioners have
challenged the legality and validity of the judgment
and award passed by the Labour Court, Himatnagar,

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SCA/16007/20042/9JUDGMENT

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dated 14.10.2004 in Reference LCH No. 133/02 in
allowing the said Reference directing the petitioners
to reinstate the respondent-workman with full

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backwages from the date of termination till
reinstatement with continuity of service.

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2.The respondent was serving as a daily-wager
Watchman, and it appears from the record and so
observed by the Labour Court, Himatnagar that the
respondent workman worked for 76 days in 1994; 277
days in 1995; 18 days in 1998; 30 days in 1999; and
15 days in 2000; he was not offered work; and he was
not on duty thereafter. Therefore the respondent

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approached the Assistant Labour Commissioner,
Ahmedabad, by raising a dispute challenging his
alleged termination in the year 2002 and thereafter

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the dispute was referred to the Labour Court,

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Himatnagar by way of Reference LCH. No. 133/2002.
The Labour Court, Himatnagar, considering the fact

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that the respondent had worked for 277 days in the

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year 1995, i.e., more than the required 240 days and
before termination the procedure as required under

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Section 25-F was not followed; and neither any

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SCA/16007/20043/9JUDGMENT

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retrenchment compensation was paid nor any notice was
issued, held by impugned judgment and award that the
termination of the respondent by the petitioner is in
breach of Section 25-F read with Section 25-B of the
Industrial Disputes Act [“the I.D. Act” for short]
and directed the petitioners to reinstate the
respondent workman with full backwages and continuity
of service. Being aggrieved and dissatisfied with
the judgment and award impugned, the petitioners have
preferred the present Special Civil Application under
Article 227 of the Constitution of India.

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3.Shri Gade, learned advocate appearing on
behalf of the petitioners, has vehemently submitted
that the respondent was serving as a Daily Wager; the
respondent workman worked for 76 days in 1994; 277
days in 1995; 18 days in 1998; 30 days in 1999; and
15 days in 2000; as and when work was available he
was offered work; he was not offered work in the year
2000 and he has worked for only 15 days in the year
2000. He has further submitted that as in the
preceding year of alleged termination the respondent
workman had not worked for more than 240 days, the

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SCA/16007/20044/9JUDGMENT

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Labour Court has materially erred in holding that
there is a breach of Section 25-F read with 25-B of
the I.D. Act. He has relied upon the judgment of the
DivisionBenchofthisCourtdated

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22.6.2005/23.6.2005 rendered in Letters Patent Appeal
No. 899 of 1998 in Special Civil Application No. 3806
of 1998 with Civil Application No. 6754 of 1998,
wherein the Division Bench has held that for availing
benefit under Section 25-F read with Section 25-B of
the I.D. Act the workman must prove that he has
worked for more than 240 days in just preceding 12
calendar months. Therefore, it is requested to allow
the present Special Civil Application.

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4.Per contra, Shri Khoshti, learned advocate

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appearing on behalf of respondent workman, while
opposing the present Special Civil Application, has
submitted that it is not necessary that for getting
benefit of Section 25-F r/w. Section 25-B of the I.D.

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Act the workman is required to prove that he has
worked for more than 240 days in the last preceding
12 months only. He has submitted that if in any year
in the past the workman had worked for more than 240

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SCA/16007/20045/9JUDGMENT

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days it is sufficient to attract the provisions of
Section 25-F read with Section 25-B of the I.D. Act.
He has further submitted that in the present case in
the year 1995 the respondent workman had worked for
277 days and therefore the Labour Court has rightly
held that the action of the petitioners in
terminating the services of the respondent-workman is
in breach of Section 25-F read with Section 25-B of
the I.D. Act and passed the order of reinstatement
accordingly. Relying upon Section 25-B of the I.D.
Act he has submitted that if work was not offered it
was due to cessation of work and not due to fault on
the part of workman, and even if the respondent-
workman has not worked it is to be held that the
respondent is entitled to benefit of Section 25-B of
the I.D.Act. He has relied upon the ratio of the
judgment of the Hon'ble Supreme Court in the case of
Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari,
reported in 2005 AIR SCW 1817 and requested to

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dismiss the present Special Civil Application.

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5.Heard the learned advocates appearing on

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SCA/16007/20046/9JUDGMENT

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behalf of the parties. It is not in dispute that the
respondent workman was serving as a daily-wager and
as and when work was available he was offered work.

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It is also not in dispute and even so observed and

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held by the Labour Court while appreciating the
evidence on record that the respondent workman has
worked for 76 days in 1994; 277 days in 1995; 18 days
in 1998; 30 days in 1999; and 15 days in 2000. Thus,
in the year 1998, the respondent had worked for only
18 days; in the year 1999 for 30 days; and in the
year 2000 he had worked for only 15 days. Thus, even
in the last three years the respondent workman had

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not worked for more than 100 days. The Labour Court

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has held that there is breach of Section 25-F and
Section 25-B of the ID Act only considering the fact

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that in the year 1995 the respondent workman had
worked for more than 240 days, i.e., 277 days. Now,
therefore, the question, which requires consideration

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by this Court is whether for getting the benefit of
Section 25-F read with Section 25-B of the ID Act the

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respondent workman should prove that he has worked
for more than 240 days in the last preceding 12

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months or in the past in any year. The said

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SCA/16007/20047/9

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JUDGMENT

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controversy in question is now already settled by the
Division Bench of this Court [Coram: Mr. R.S. Garg,
J., and R.R. Tripati, J.] vide the aforesaid judgment
and order dated 22/23.6.2005 rendered in Letters
Patent Appeal No. 899 of 1998 in SCA No. 3806 of 1998
with C.A. No. 6754 of 1998. Considering the judgment
of the Hon'ble Supreme Court in the case of M/s. U.P.
Drugs and Pharmaceuticals Co.Ltd. Vs. Ramanuj Yadav

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and Others, reported in (2004) SCC (L & S) 46,

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wherein the Hon'ble Supreme Court referred its own
judgment in the case of Mohan Lal Vs. Management of
M/s. Bharat Electronics Ltd., as relied upon by the
learned counsel for the appellant therein and
specifically held that for Section 25-B mandates that
an employee to show that he had worked for a period
upto 240 days during the period of 12 calendar months
preceding the date with reference to which
calculation is to be made, the Division Bench has
also held that for the purpose of entitlement to any

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benefit under Section 25(F) read with 25(B) of the
I.D. Act, a workman has to prove that he has worked

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for 240 days and more in just preceding 12 calendar
months. Under the circumstances, now considering the

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SCA/16007/20048/9

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JUDGMENT

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case on hand, the alleged date of termination of the
respondent workman was 29.1.2000 and the respondent
workman had worked only for 15 days in the year 2000;
and even in the year 1999 he had worked for 30 days;

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and 18 days in the year 1998. Thus, admittedly, the

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respondent workman had not worked for more than 240
days in the last preceding 12 months of 29.1.2000.
When the principle laid down by the Division Bench of
this Court in the Judgment referred to hereinabove is
to be applied to the facts of the case on hand, the
Labour Court, Himatnagar has materially erred in
ordering reinstatement of the respondent workman with

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full backwages with continuity of service.

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Therefore, the Judgment cited at the Bar by the
learned advocate appearing for the respondent workman
in the case of Bank of Baroda (Supra) is not of
assistance to the respondent workman as the
controversy involved in the said case was different
than what is raised in the present Special Civil
Application, more particularly in that case the main
dispute was with regard to non-appreciation of
documentary evidence, whereas in the case on hand

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there is a finding of the Labour Court on

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SCA/16007/20049/9

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JUDGMENT

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appreciation of evidence with regard to the number of
working days. In the facts and circumstances, the
judgment and award passed by the Labour Court
impugned in the Special Civil Application requires to
be quashed and set aside.

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6.For the reasons stated hereinabove, the
Special Civil Application is allowed. The Judgment
and Award dated 14.10.2004 passed by the Labour
Court, Himatnagar in Ref. LCH No. 133/02 is hereby
quashed and set aside. Rule is made absolute to the
aforesaid extent, however, there will be no order as
to costs.

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RMR.

Dy.Executive Engineer v. Vadansinh Magansinh Makwana

Case brief

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Dy.Executive Engineer v. Vadansinh Magansinh Makwana

Case brief

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