Partly allowed

Deputy Executive Engineer v. Mukesh Ajitsinh Jhala

Gujarat HC8 Aug 2005SCA/16055/2005

Case brief

AI extract

What is this about?

In a group of special civil applications, the High Court of Gujarat, Ahmedabad quashed labour court awards and remanded references to the Labour Court for fresh adjudication on termination/retrenchment. The court allowed the petitioner to lead evidence and directed that workmen remain in service during the period of the references.

What did the court decide?

Judgment and awards of Labour Court quashed; references remanded for fresh decision; workmen to be continued in service during pendency; time limit of 12 months for disposal.

Deputy Executive Engineer Vs Mukesh Ajitsinh… — Pension and Retirement Benefits | Gujarat HC (2005)

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SCA/16053/2005

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1/8

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JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION No. 16053 of 2005
To
SPECIAL CIVIL APPLICATION No. 16087 of 2005

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For Approval and Signature:

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HONOURABLE MR.JUSTICE M.R. SHAH

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

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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 ? 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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DEPUTY EXECUTIVE ENGINEER - Petitioner(s)

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Versus

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KISHORE NAVINCHANDRA & Others.- Respondent(s)

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

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Appearance :

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GOVERNMENT PLEADERfor Petitioner No(s).: 1.
MR MUKESH H RATHODfor Respondent No(s).: 1.

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

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CORAM :HONOURABLE MR.JUSTICE M.R. SHAH

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Date : 08/08/2005

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ORAL COMMON JUDGMENT

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As common question of law and facts arise in
this group of petitions, the present group of
petitions is being disposed of by this common
judgment and order.

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JUDGMENT

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SCA/16053/20052/8

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2.Rule in each petition. Service of notice of
Rule is waived by Shri Mukesh H. Rathod, learned
advocate appearing on behalf of respondent workman in
each of the matter. With the consent of the learned
advocates appearing on behalf of the parties, these
matters are being disposed of today finally.

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3.In all these petitions under Articles
226/227 of the Constitution of India, the common
petitioner, Deputy Executive Engineer, Irrigation
Sub-Division, Gondal, Rajkot has challenged the
legality and validity of the judgment and awards
passed by the Labour Court, Rajkot dated 3.8.2004 in
Reference (LCR) No. 411 of 1995 to Reference (LCR)
No. 450 of 1995.

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4.It appears from the record, that all the
concerned respondent workmen raised industrial
disputeschallengingtheiralleged
termination/retrenchment which were referred to the
Labour Court, Rajkot for its adjudication, and by
judgment and award dated 18.12.1996 the Labour Court,
Rajkot allowed all the References. It also appears
from the record that the judgment and awards passed
by the Labour Court dated 18.12.1996 came to be
challenged by the petitioners before this Court by
way of Special Civil Applications No. 3522 of 1998
to 3561 of 1998 with Special Civil Application No.
3500 of 1998, which came to be allowed by the learned
Single Judge of this Court [Coram: Mr. N.N. Mathur,

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JUDGMENT

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SCA/16053/20053/8

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J., as he then was], vide order dated 6.11.1998,
quashed and set aside the judgment and award dated
18.12.1996, and had remanded all the References to
the Labour Court, Rajkot with a direction to deal
with the individual cases and give a finding whether
the workmen had completed 240 days or not. It
appears from the record that being aggrieved and
dissatisfied with the said order dated 6.11.1998
passed in the aforesaid Special Civil Applications,
the concerned workmen preferred Letters Patent
Appeals No. 1504 of 1998 to 1543 of 1998 and the
Division Bench of this Court partly allowed the
aforesaid Letters Patent Appeals confirming the order
of remand passed by the learned Single Judge, however
with direction to the authorities to reinstate the
concerned workmen and that the proceedings before the
Labour Court will go on and the aforesaid
reinstatement will be subject to the final outcome of
the proceedings before the Labour Court. It appears

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from the record that thereafter on remand the
aforesaid References came to be dealt with by the
Labour Court, Rajkot and the Labour Court, Rajkot
considering the individual cases by its judgment and
award dated 3.8.2004 partly allowed the aforesaid
References insofar as reinstatement is concerned and
quashed and set aside the action of the petitioners
in terminating their services as illegal, however it
did not pass any order with regard to backwages but
granted continuity of service. Being aggrieved and
dissatisfied with the separate judgment and awards
passed by the Labour Court, Rajkot dated 3.8.2004 in

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SCA/16053/20054/8JUDGMENT

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Reference (LCR) No. 411 of 1995 to 450 of 1995, the
petitioner has preferred the present Special Civil
Applications under Article 226/227 of the
Constitution of India.

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5. Shri A.D. Oza, learned Government Pleader has made number of submissions on merits with regard to the nature of work being performed by concerned workman and that they have not completed 240 days in the last preceding year, and/or even with regard to juniors being continued and/or alleged breach of Sections 25(F), (G) and (H). He has relied upon the documentary evidence at Exhs. 20, 134 and 260 in support of his submission that none of the workmen has completed more than 240 days and that the finding given by the Labour Court is contrary to the evidence on record. He has submitted that the Labour Court has given the finding with regard to completion of 240 days mainly on the ground that the petitioner has not produced the relevant documents to prove the contents of the documents at Exhs. 20, 134 and 260 and shifting the onus upon the petitioner. He has relied upon the decisions of the Hon'ble Supreme Court in the case of Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan & Another, reported in (2004) 8 SCC Page 161; in the case of Municipal Corporation, Faridabad Vs. Shri Niwas, reported in (2004) 8 SCC Page 195; and in the case of Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan & Another, reported in AIR 2005 Supreme Court Weekly 3160, in support of his

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SCA/16053/20055/8

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JUDGMENT

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submission that the onus is upon the respondent
workmen to first prove by leading evidence that they
have completed 240 days in the last preceding year,
and non-production of muster-rolls, ipso facto, will
not lead to any adverse inference and to hold that
the concerned workman has completed more than 240
days in the last preceding year. However he has
submitted that in fact the petitioner is also having
documentary evidence to prove the contents of Exhs.
20, 134 and 260 and if opportunity is given to the
petitioner to prove the same they can adduce the
evidence to show that the concerned workman has not
completed 240 days. It is therefore requested to
remand the References to the Labour Court for its
fresh decision.

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6.On the other hand, Shri Mukesh H. Rathod,
learned advocate appearing on behalf of the workmen
has tried to support the judgment and awards passed
by the Labour Court, Rajkot in each Reference. He
has submitted that even considering the three
documentary evidences at Exhs. 20, 134 and 260 the
number of working days of the concerned workmen even
as per the petitioner are not tallying and/or
different and therefore no reliance can be placed
upon those documents as rightly held by the Labour
Court that the concerned workman has completed 240
days. He has also further submitted that if this
Court is of the opinion that the matters deserve

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SCA/16053/20056/8JUDGMENT

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remanding then in that case the services of the
concerned workmen be ordered to be protected until
there is final decision on remand and that they may
also be given an opportunity to lead and adduce
evidence and the Labour Court may be directed to
decide and dispose of the same within the time as may
be specified by this Court.

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7.Heard the learned advocates appearing on
behalf of the parties. It is the contention on
behalf of the petitioner that none of the concerned
workmen has completed 240 days in the last preceding
year and for that purpose they have produced a
Statement of Working Days of each concerned workman
by way of documentary evidence at Exhs. 20, 134 and
260. However, the Labour Court having held that the
petitioner has not produced the documentary evidence
in support of the Statement of Working Days mentioned
at Exhs. 20, 134 and 260, disbelieved the same and
further held that the concerned workman has completed
240 days. It is the contention on behalf of the
petitioner that they were having documentary evidence
in support of Statement of Working Days for being
produced before the Labour Court, however the same
was not produced as according to them the Statement
of Claim is prepared on the basis of documentary
evidences.

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8.In the facts and circumstances and

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considering the reasoning given by the Labour Court
in the judgment and awards, this Court is of the

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SCA/16053/20057/8

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JUDGMENT

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opinion that if the matters are remanded to the
Labour Court, Rajkot, allowing the petitioner to
prove documentary evidences at Exh. 20 and/or Exh.134
and/or Exh. 260 by producing further materials to
show that none of the workmen has completed 240 days
in the last preceding year, it will meet the ends of
justice. However, Shri Rathod is right in his
submission that while quashing and setting aside the
judgment and awards passed by the Labour Court and
remanding the References to the Labour Court, the
position which is prevailing may be continued,
meaning thereby all the concerned workmen may be
continued in service. In view of the fact that the
concerned workmen came to be reinstated during the
pendency of the aforesaid References pursuant to the
judgment and order passed by the Division Bench of
this Court in the aforesaid Letters Patent Appeals
No. 1505 of 1998 to 1543 of 1998, the services of the
concerned workmen are to be protected during the
pendency of the References, on remand. On remand, it
will be open for the concerned workmen to also prove
breach of Section 25(G) and (H) of the I.D. Act also
by leading evidence.

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9.For the reasons stated above, all the
petitions succeed. The judgment and awards passed by
the Labour Court, Rajkot in Reference (LCR) No. 411
of 1995 to 450 of 1995 is hereby quashed and set
aside. All the References are remanded to the Labour
Court, Rajkot, for fresh decision in accordance with

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SCA/16053/20058/8

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JUDGMENT

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law and on merits and after considering the
observations made hereinabove and after allowing the
concerned parties to lead fresh evidence documentary
as well as oral. It is directed that during the
pendency of the References, all the concerned workmen
be continued in service, in light of the observations
made in the judgment and order passed by the Division
Bench of this Court dated 11.5.1999 in Letters Patent
Appeals No. 1505 of 1998 to 1543 of 1998 and their
services are protected till final disposal of the
References and subject to ultimate outcome of the
judgment and award that may be passed by the Labour
Court, Rajkot, on remand. The Labour Court, Rajkot
is directed to decide and dispose of the same as
early as possible preferably within the period of 12
months from the date of receipt of this order. Rule
is made absolute to the aforesaid extent in each of
the matter. However, there will be no order as to
costs.

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[ M.R. Shah, J. ]

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RMR.

Deputy Executive Engineer v. Mukesh Ajitsinh Jhala

Case brief

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Deputy Executive Engineer v. Mukesh Ajitsinh Jhala

Case brief

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