STATE OF GUJARAT Vs. MUKESH KUMAR S BHOI

JUDGEMENT

(1.) Heard the learned AGP, Mr. Dabhi, appearing on behalf of petitioners and learned Advocate, Mr. Nanavati, appearing on behalf of respondent.

(2.) In this petition, petitioner has challenged two orders; one is ex-parte award passed in Reference No. 316 of 1986 dated 3.6.1989 wherein Labour Court has granted reinstatement with continuity of service with full back wages for interim period. This being an ex-parte award, the petitioner has filed Misc. Application No. 14 of 1990 with a prayer to set aside the ex-parte award before the Labour Court, Godhara. Said application has been rejected by Labour Court, Godhara.

(3.) Learned AGP, Mr. Dabhi, submitted that respondent workman, who was working with Executive Engineer tribal area, Deval Division, Dahod, has been closed in the year 1986. The workman was remained in service upto 1985. He raised industrial dispute in the year 1986. The Labour court, Godhara has decided the matter in absence of petitioner. He submitted that application for setting aside ex-parte award was filed by another department and not the same department against whom ex-parte award was passed by labour court, Godhara. Therefore, Labour Court has rejected the application on the ground that applicant was not a party before the Labour Court in Reference. Learned AGP, Mr. Dabhi, submitted that respondent workman was appointed for a period of 29 days and after completion of 29 days service, fresh order has been issued in favour of respondent workman, so he was not remained in continuous service with the petitioner and his service was having the break for a period of one or two days in each month. Therefore, he had not completed 240 days continuous service within the meaning of Section 25B of the I.D. Act, 1947. Therefore, according to him, provision of Section 25F of the I.D. Act, 1947 is not applicable to the facts of this case. He also submitted that he was a daily wager working with the petitioner department tribal area and not entitled any amount of back wages for interim period. He also submitted that Labour Court has not discussed the question of back wages while granting the full back wages in favour of respondent workman. He also submitted that workman has not deposed before the Labour Court that he remained unemployed during the interim period. Therefore, according to him, when workman has not deposed before the Labour Court about his unemployment, then, it is not the burden upon the employer to prove gainful employment of the workman. He submitted that Labour Court remain silent about this aspect and not discussed at all in the award itself that on what basis and on what ground the Labour Court is granting full back wages of interim period. He also submitted that this Court has passed an order in CA No. 1368 of 1993 dated 23.7.1993 wherein benefit of wages from the date of award has been calculated by the petitioner which comes to Rs. 1,09,933.30 paise upto the date of order dated 23.7.1993 which has been deposited by the petitioner before this Court and that amount is lying with the Registry of this Court. The order passed by this Court in CA No. 1368 of 1993 dated 23.7.1993 is quoted as under: As per the Computation made by the respondent an amount of Rs. 1,09,933.30 ps. (Rupees One Lakh Nine thousand thirty and paise thirty only) becomes payable to the petitioner workman. In the facts of the case respondent is directed to deposit the aforesaid amount with the office of this Court on or before August 9, 1993. After the amount is deposited, the request of the learned Counsel for the respondent to place the main matter for final hearing will be considered. The respondent shall also explain as to why the direction given by the Labour Court as regards reinstatement of the workman has not been complied with so far. It will be open to the workman to verify the computation made by the respondent and submit his objection to the same, if any. 1]. Therefore, he submitted that the order passed in Misc. Application is required to be set aside and at the most, according to him, looking to the evidence on record, workman is not entitled to any relief from the Labour Court and, therefore, Labour court has committed gross error in granting the relief in favour of respondent workman.