STATE OF GUJARAT Vs. AHER JAGA RAMSHI

JUDGEMENT

(1.) Heard the learned AGP, Ms.Archna Raval, appearing on behalf of petitioners.

(2.) In both these petitions, the petitioner " Forest Department has challenged the common award passed by Labour Court, Jamnagar in respect to Aher Jaga Ramshi and Pratapsinh Ratansinh in Reference Nos.145 of 1994 and 147 of 1994 dated 19th May,2004. The Labour Court, Jamnagar has partly allowed the Reference in favour of Aher Jaga Ramshi and Pratapsinh Ratansinh and granted reinstatement with continuity of service without back wages of interim period. The Labour Court, Jamnagar has rejected the Reference No.146 of 1994 in respect to Bhikhubhai Khimaji. The Labour Court has directed to implement the said award within a period of 30 days from the date of its publication. The contention raised by learned AGP, Ms.Archna Raval, before the Labour Court that the petitioner is not an 'industry' within a meaning of Section 2(j) of the I.D.Act,1947. She submitted that according to budgetary provision, casual employees are employed by the Department and, therefore, workman is not entitled any relief under the provisions of the I.D.Act,1947. She also submitted that there is no termination by the petitioner, but workmen have stopped coming to work and, therefore, it is not a case of retrenchment and for that, Section 25-F of the I.D.Act,1947 is not required to be complied with. She relied upon the decision of Full Bench of this Court in case of Gujarat Forest Producers, Gatherers and Forest Workers Union Vs. State of Gujarat, reported in 2004 (2) GLR 1488 and submitted that in view of this decision of the Full Bench of this Court, the petitioner is not an "industry" within a meaning of Section 2(j) of the I.D.Act,1947. She also submitted that the termination as alleged is of the year 1985 and the dispute has been raised by the workmen after a period of 9 years and, therefore also, the reference is bad. She also submitted that workmen had not completed 240 days' service as required under Section 25-B of the I.D.Act,1947 and the date of appointment is not mentioned by the workmen in the statement of claim. Except that, no other submission is made by learned AGP, Ms.Archna Raval and no decision is relied by her.

(3.) I have considered the submissions made by learned AGP, Ms.Archna Raval and have also perused the common award passed by Labour Court, Jamnagar. The facts of the case are that according to workmen, they were working for more than 7 to 8 years continuously and in each year, they completed 240 days' continuous service. They were working as Watchman and their services were terminated by petitioner on 1st July,1985. That after service of demand notice to the petitioner, the dispute has been referred for adjudication to the Labour Court on 26th April,1994. The contentions raised by petitioner before the Labour Court are same, which are raised before this Court. It is mainly contended that petitioner is not an "industry" and PWD Manual is applied and accordingly work has been taken from the workmen, and payment was made which depends upon the budgetary provision receiving grant from the Government and workmen have left the job at their own. So, there was no termination by the petitioner. Before the Labour Court, workmen have produced certain documents vide Exh.16 in which a certificate has been issued by the Forest Officer on 20th February,1984 vide Exh.18 in respect to workman " Jaga Ramshi. That details of service prepared by workman " Jaga Ramshi from 1976 to 1985 are also produced. The certificate in respect to Pratapsinh Ratansinh about service rendered by him, given by Forest Officer dated 21st August,1984 was produced by him. Similarly his personal report is also produced on record by the workman. Workman Jaga Ramshi was examined vide Exh.17 and another workman was also examined vide Exh.26. Both the workmen supported their case as mentioned in statement of claim. Thereafter, on behalf of petitioner, vide Exh.29, one Vasudev Bhagwanji was examined, who supported the averments made in written statement. Said witness in cross- examination stated that 8 workmen made permanent, but from which date, he is not aware. That 5 daily rated employees were working, but from which date, he is not aware. But they were working in Nursery Department and on completion of one work site, the work at another site has to be entrusted to the workmen. The nature of work which were performed by the workmen is still continued with the petitioner and the payment is made to the workmen by Department and for that, no prior permission is necessary from authority. Thus, according to evidence of said witness of petitioner, work which was being performed by respondents - workmen is still continue with petitioner and same is perennial in nature. According to requirement of work, Range Forest Officer, considering budgetary provision, employed such daily wager in absence of permanent employee. The work which was carried out by these workmen in Nursery Department, they are not performed by permanent employee. He also admitted in cross-examination that such daily wagers had completed 240 days' service within one year and in some cases, it is not completed. It is stated that workman has stopped coming to work, but for that there is no documentary evidence with him and no notice have been served to the workman by the petitioner. Then, vide Exh.32, 33 and 34, written arguments were produced by the workmen relying upon certain decisions of Apex Court and various High Courts. Similarly, petitioner has also produced written arguments vide Exh.35, 36 and 37 raising the same contention in written submissions. Thereafter, Labour Court has examined the matter on merits. Ultimately, the Labour Court has come to the conclusion relying upon the certificate issued by the petitioner. The certificate in favour of Jaga Ramshi from Forest Department, Jamnagar Road Side, Range Lalpur, wherein, he was working for 7 to 8 years continuously as a watchman and his work was found satisfactory and regular and for that, a certificate was issued to Jaga Ramshi by the authority. According to certificate issued by the petitioner, from 1977 to 1984, in each year, workman had completed 240 days' continuous service and similarly in case of Pratapsinh Ratansinh, vide Exh.16/4, the certificate issued by the Officer, wherein, he was working for about 1 year and 6 months continuously in the post of watchman and completed continuous service of 240 days. Vide Exh.16/6 the details produced by the petitioner with the signature of Range Forest Officer. Even considering that details also, both the workmen have completed continuous service of 240 days' within a period of one year and from the date of termination preceding 12 months. Therefore, Labour Court relying upon these documentary evidence produced by the workmen as well as by the petitioner, come to the conclusion that both the workmen had completed continuous service of 240 days. But in respect to Bhikhubhai, no such evidence was produced by the workman and, therefore, his case was rejected. There is no dispute by the petitioner that Section 25-F has been complied with. Therefore, ultimately, Labour Court has come to the conclusion that mandatory requirement of Section 25-F of the I.D.Act,1947 has been violated by petitioner. The contention raised by petitioner that workmen have left the job and not reported for work, the Labour Court has come to conclusion that if the workmen have left the job, there was no notice issued by the petitioner to the workmen calling the workman on job and no departmental inquiry was initiated and no effective steps to show or to prove the defence was taken by the petitioner. Therefore, ultimately, Labour Court has come to conclusion that it is not a case of abandonment of service, but it is a case of termination by petitioner. Having completed 240 days' on the basis of certificate, non-compliance of Section 25-F rendered order of termination ab initio void. According to my opinion, this finding given by the Labour Court is perfectly legal and valid. For that, Labour Court has not committed any error. The Labour Court has not granted any amount of back wages in favour of both the workmen on the ground that delay in raising the dispute by the workmen and petitioner is a public department and, therefore, Labour Court has not granted any amount of back wages in favour of workmen.