STATE OF GUJARAT Vs. NAVIINCHADRA L MANDAVIA

JUDGEMENT

(1.) Learned A.G.P. Shri Gharania appearing on behalf of the petitioner and Learned Advocate Ms. D.T.Shah appearing on behalf of the respondent. In the present petition rule made returnable by 26th August, 1996 and meanwhile the operation of the impugned order shall remain stayed subject to the provision of Section 17 (B) of the Industrial Disputes Act by order dated 2nd August, 1996. The respondent has filed a reply affidavit against the petition and alongwith the reply, the evidence of respondent workman and witness of petitioner and statement of workman has been produced on record. In the present petition, the award passed by the Labour Court, Bhavnagar in reference No. 183 of 1993 old No. 209 of 1990 dated 27th February, 1996 is challenged wherein, the Labour Court, Bhavnagar has granted reinstatement of respondent workman with continuity of service with 70% back wages of interim period.

(2.) The brief facts of the present petition is that respondent was working as a driver with the petitioner more than one year continuously and his service was terminated on 13th August, 1989 by the petitioner. The said termination order has been challenged by the respondent before the Labour Court, Bhavnagar in present reference. The statement of claim was filed by the respondent workman and reinstatement was filed by the respondent. Thereafter, the petitioner has produced some documents relating to the muster role and presence register and log book vide Ex. 6, 9, 25 and 26. Before the Labour Court, respondent workman was examined vide Ex.8 and witness of petitioner was examined vide Ex.13. Thereafter, the Labour Court has considered the oral and documentary evidence which are on record. The Labour Court has come to the conclusion that respondent had worked as per documentary evidence produced by the petitioner from 9th September, 1988 to 31 August, 1989 and completed 187 days continuous service thereafter, the Labour Court has examined that petitioner has not produced the muster role for the period 8th October, 1988 to 30th October, 1988 and 29th January, 1989 to 27th February, 1989. Therefore, so far the above documents which were not produced by the petitioner. The Labour Court had relied upon the oral evidence of witness of the petitioner that during this period from 8th October, 1988 to 30th October, 1988 and 29th January, 1989 to 27th February, 1989. The respondent was remain in service and actually he had worked with petitioner which covered 53 days working of respondent workman and if, said period is included in earlier working days 187 days continuous service and considering the facts during this period from 9th September, 1988 to 31st August, 1989 in all. 52 are Sundays and other public holidays, if included then workman concerned has completed 240 days continuous service, during this period from 9th September, 1988 to 31st August, 1989 which found to be proved by the Labour Court. The Labour Court has included the 52 Sundays and other public holidays in calculating 240 days continuous service relying upon the decision of Apex Court in case of Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation reported in A.I.R. 1986 S.C. page-458. The relevant observation of the above referred case of the Apex Court are as under :

(3.) Thereafter, the Labour Court has examined the question that whether the petitioner has followed the legal procedure as a condition precedent under Section 25-F of the Industrial Disputes Act or not ? The clear finding given by the Labour Court in paragraph 11 in come to the conclusion that petitioner has not complied the provisions of Section 25-F of Industrial Disputes Act and therefore, come to the conclusion that respondent is entitled the reinstatement in service. This is a pure finding of fact based upon evidence which does not required any interference by this Court.