KANTIBHAI RAMABHIA GAMAR Vs. ANUBHAG NIRIKSHAKNI KACHERI

JUDGEMENT

(1.) Heard Mr. Dipak R. Dave, learned advocate for the petitioner and Mr. Vishal Patel, learned A.G.P. for the respondent authorities.

(2.) After examining the documentary evidence and oral evidence, the Labour Court came to the conclusion that the petitioner has worked only for 194 days in a year preceding to his termination, i.e. in the year 1998. As per the case of the respondent, there is no evidence to show that after 1.10.1998 the petitioner has worked with the respondent. The Labour Court has found that after the scheme was over, along with other daily wagers, petitioner stopped coming on duty and accordingly, it is held by the Labour Court that there is no evidence to show that from 30.5.1999 the petitioner has been terminated from service and accordingly rejected the Reference.

(3.) Learned advocate Mr. Dipak R. Dave appearing for the petitioner has contended that undisputedly the petitioner has worked continuously from 1.7.1989 to 1.10.1998, i.e. almost for nine years. If it is the case of the respondent that petitioner has voluntarily left the services, then it was incumbent for the respondent to call the petitioner for joining the service. No letter or notice has been issued to the petitioner by the respondent calling upon him to resume duty. If at all it is the case of abandonment of service, then the respondent could not have taken any objection with regard to joining of service by the petitioner. Moreover, at no point of time, either before the Conciliation Officer or before the Labour Court, the respondent ever pleaded that they are ready and willing to provide work to the petitioner since they have not terminated the service of the petitioner. It is further contended by learned advocate for the petitioner that as per Exhibit 16, which is a summary of working days produced on behalf of respondent, in a year which precedes termination of the petitioner, i.e. 1.10.1997 to 30.9.1998, petitioner has worked for 235 days. If one includes Sundays and holidays in the said list, then easily it can be said that petitioner has worked for more than 240 days. Learned Advocate for the petitioner placed reliance in this regard on the decision of Hon'ble the Supreme Court in case of Workmen of American Express International Banking Corporation v. Management, 1985 51 FLR 481 . It is further contended that even otherwise also, looking to the fact that since the petitioner has put in more than nine years of continuous service, it was not required for the petitioner to show that he has worked 240 days in a year preceding to his alleged termination. The learned advocate has placed reliance on the judgment of this Hon'ble Court in the case of Gujarat State Forest Development Corporation, 2000 2 GLR 1558 It is contended that section 25-B(1) and section 25-B(2) are two independent clauses. If the case of the petitioner falls within clause 25-B(1), then it is not necessary for the petitioner to show that he has worked for 240 days in a year preceding to his alleged termination. The learned advocate for the petitioner has also relied upon the judgment of Hon'ble Supreme Court in case of Anoop Sharma, 2010 125 FLR 629 and Hajindersingh, 2010 124 FLR 700 to contend that when there is violation of section 25-F, full relief is required to be granted to the petitioner. Learned advocate for the petitioner has also contended that factually one Malabhai G. Makwana, who was appointed along with the petitioner when came to be terminated, in his Reference, the Labour Court awarded reinstatement, but without back-wages and in a petition filed before this Hon'ble Court against the said award, a statement was made on behalf of the respondent that workman has been granted all the benefits and therefore, no order was invited. It is contended that when similarly situated person viz. Malasinh G. Makwana has been reinstated, there was no reason to discriminate the petitioner and he is also required to be reinstated in service.