Gujarat High Court
Virendraprasad Ramnarayan Shukla vs Services Auto Petrol Pump on 9 September, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6517 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VIRENDRAPRASAD RAMNARAYAN SHUKLA
Versus
SERVICES AUTO PETROL PUMP
================================================================
Appearance:
MR YOGEN N PANDYA(5766) for the Petitioner(s) No. 1
MRS YOGINI V PARIKH(2163) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 09/09/2021
ORAL JUDGMENT
1. This petition has been filed under Article 226 of the Constitution of India by the petitioner, who is aggrieved by award dated 20.2.2009 passed by Presiding Officer, Labour Court, Ahmedabad, in Reference (LCA) No.186 of 2000, whereby the reference came to be rejected. The petitioner has sought for following reliefs:-
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(A) Your Lordships may be pleased to admit and Allow this petition;
(B) Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned Award dated 20.02.2009 passed by the learned Presiding Officer, Labour Court, Ahmedabad, below Exhibit-34 in Reference (LCA) No.186 of 2000 (Annexure-A) and further may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent to reinstate the petitioner on his original post and to pay back wages with all consequential benefits in the interest of justice and fairness of things;
(C) Pending admission, hearing and final disposal of the present petition, Your Lordship be pleased to stay the operation, implementation and execution of the Award (Annexure-A) and further be pleased to direct the respondent to reinstate the petitioner on service subject to the final outcome of the present petition, in the interest of justice;
(D) Your Lordship be pleased to pass such other and further orders as may be deemed fit, just and proper in the peculiar facts and circumstances of the present case."
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2. The brief facts of the case are that the petitioner was working as a Pump Operator with the respondent since last ten years and was being paid Rs.1,000/- per month as salary. It is also contended that he was not paid minimum wages as prescribed under the Minimum Wages Act and, therefore, he made demand. According to him, the respondent has terminated his service orally with effect from 27.7.1995 without following due process of law. Being aggrieved with such action, he has preferred reference by filing statement of claim and prayed for declaring termination of his service as illegal, arbitrary and unjust and prayed to direct the respondent to reinstate him in service with backwages and continuity of service and has also prayed for consequential benefits.
3. The respondent has filed its written statement vide Exh.12 and has denied the averments made by the petitioner and put up the defence that the respondent did not terminate him but he himself has abandoned work from 30.7.1995 voluntarily. The respondent has also contended that the petitioner was involved in theft and, therefore, FIR was lodged against him and on that basis the workman has tendered his resignation.
4. On the basis of the pleading of the parties and the evidence led, Labour Court has ultimately dismissed the reference.
5. Heard learned advocate Shri Yogen Pandya for the petitioner and Ms.Yogini Parikh, learned advocate for the respondent through video conferencing.
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6. Mr.Pandya, learned advocate for the petitioner herein has contended that the workman has specifically stated that the workman did not tender resignation and the respondent did not give him any document to show that he was working on the petrol pump since last ten years. He also contended that the workman has categorically denied all the averments made by the respondent and has submitted that the workman has worked for 240 days in a calendar year and since no documents were produced by the respondent, adverse inference needs to be drawn against the respondent. He submitted that the services of the petitioner came to be terminated without following due process of law. He has invited the attention of the Court to the statement of demand made by the petitioner before the Labour Court, wherein the petitioner has put forward his demand that he was serving since last ten years and he was being paid Rs.1,000/- per month as salary. He has also invited the attention of the Court to paragraph 5, 6 and 7 of the claim of the petitioner and stated that the employer has made false complaint regarding theft against the petitioner, wherein he has been acquitted by the trial Court. He has also submitted that the services of the petitioner came to be terminated on 27.7.1995 without paying any notice pay or retrenchment allowance or any prior notice. He has also submitted that the employer has committed breach of Sections 25-G and 25-H, while retaining other persons after terminating the services of the petitioner. While inviting the attention of the Court to the defence put up by the employer before the Labour Court, he has submitted that according to the defence raised by the employer, the petitioner has voluntarily resigned from service with effect from Page 4 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 30.7.1995 and his service was not terminated by the employer. He has also submitted that there is no defence put up by the employer that the workman has not completed 240 days in a year. He has submitted that, according to the defence of the employer, there was theft and the petitioner has taken away the cash of Rs.37,000/- and for that purpose, he was arrested by the police and he has deposited the amount in the institution and, thereafter, on 30.7.1995 he has voluntarily resigned from service. Therefore, the case put up by the employer is false one, as per his submission. According to Mr.Pandya, this defence of the employer is not in consonance with the fact that the petitioner has been acquitted by the trial Court from the alleged charges.
6.1 Mr.Pandya, learned advocate for the petitioner has invited the attention to the deposition of the workman as well as to the deposition made on behalf of the employer and has submitted that though extensive cross-examination has been carried out of the version of the workman, nothing came out denying or destroying the case of the petitioner-workman. He has also submitted that burden was upon the employer to establish that workman has voluntarily resigned from service. According to him, as the employer has taken the plea that the workman has voluntarily resigned, it was for the employer to prove it. He has also submitted that this defence ultimately reflects that the petitioner herein was in service with the respondent. He has also submitted that, for the alleged theft, no inquiry was conducted by the employer and the oral evidence of the employer is not satisfactory so far as issue of tendering resignation by the petitioner is concerned. He has also submitted that the Labour Court has committed serious Page 5 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 error of facts and law in dismissing the reference, though there was sufficient evidence in favour of the petitioner. He has prayed to allow present petition.
7. Per contra, Mrs.Yogini Parikh, learned advocate for the respondent has vehemently submitted that the employer has already taken a stand that the workman has not completed 240 days in a calendar year and since the workman has not put in requisite days of service, the Labour Court has not committed any error of fact and law in dismissing the reference. She has also submitted that the reference has been raised in the year 1999, though the petitioner has voluntarily resigned in the year 1995. Thus, there is delay in preferring reference, and the employer has taken this stand in written statement before the Labour Court.
7.1 She has invited the attention of the Court to Statement of Demand as well as written statement filed by the employer and oral evidence produced by both the sides and has submitted that there is no evidence to the effect that the workman has worked for 240 days in a calendar year. She has referred to various portions of depositions of both sides and written statement to state that in absence of any evidence of service for 240 days in a year, the workman cannot be reinstated. She has submitted that since the workman has tendered his resignation, which has been proved by the employer by examining partner of the petrol pump and other witness, as well as the fact that after passage of five years the workman has filed reference in question, it is obvious that the employer may assume that the workman has no interest in service, since he has resigned voluntarily from service.
Page 6 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 According to her submission, the employer has specifically stated in the written statement that if the Labour Court comes to the conclusion that the workman has not tendered resignation then opportunity be provided to the employer to prove the misconduct on the part of the workman. She has also submitted that if this Court comes to the conclusion that the workman has not tendered resignation then the matter may be remanded back to the Labour Court for providing opportunity to the employer for leading appropriate evidence in this regard. She further submitted that the workman did not give any application for production of documents to establish his stand that he has worked for 240 days in a calendar year. According to her submission, the Labour Court has rightly observed that the workman has not produced any single document to prove his case that he was working since last ten years. She has submitted that the Labour Court has rightly rejected the reference and there is no need of interference by this Court with the impugned award. In support of her submissions, she has relied upon following decisions. 7.2 In the case of Ranip Nagar Palika v. Babuji Gabbaji Thakore and Others reported in 2008 (2) GLH 45, it is held by the Supreme Court that burden lies with workman to show that he has worked continuously for 240 days in the preceding year and the workman has to adduce evidence, apart from examining himself, to prove the factum of being in employment of the employer.
7.3 In the case of Laljibhai Ambalal Rawal v. Deputy Executive Engineer and Anr., reported in 2009 (1) GLH (U.J) 11, this Court has upheld the finding of fact by the Labour Court that the workman has failed to establish his case of completion of 240 days in a calendar year.
Page 7 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 7.4 In the case of Parmar Satishkumar Mangusinh v. Deputy Executive Engineer, reported in 2003 (4) LLJ 465, this Court held that burden of proof to prove that he has worked for 240 days lies upon the employee and if he fails to discharge this burden then it is not the duty of the employer to satisfy the Court that the workman has not completed 240 days of continuous service.
7.5 In the case of Bhavnagar Municipal Corporation v. Vinodbhai Madhabhai reported in 2016 AIJEL-HC 235698, this Court has set aside the order of the Labour Court in absence of evidence about date of appointment and unexplained delay of 5 to 13 years in raising the dispute/reference.
7.6 In the case of Dhanani Manjubhai Rambhai v. Executive Engineer reported in Lab.I.C. 2447, coordinate Bench of this Court has dismissed the petition filed by the workman on the ground of delay and laches coupled with the fact that in absence of any material indicating completion of 240 days and in wake of settled principle of law.
7.7 In the case of Deputy Executive Engineer v. Jagdishbhai Somabhai Chaudhary reported in 2015 (2) LLJ 710, coordinate Bench of this Court has observed that relief of reinstatement would not automatically lead to grant of backwages and observed that there was no justification either on facts for grant of backwages, neither there was any discussion or iota of evidence and on that ground grant of backwages was set aside.
Page 8 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 7.8 In the case of Vijay S. Sathaye v. Indian Airlines Limited and Others reported in (2013) 10 SCC 253, the Apex Court has observed as under:-
"12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
13. In M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen, AIR 1961 SC 1567, this Court held as under:
"......there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee." (See also: Shahoodul Haque v. The Registrar, Co-operative Societies, Bihar & Anr., AIR 1974 SC 1896).
14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as 'retrenchment' from service. (See: State of Haryana v. Om Prakash & Anr., (1998) 8 SCC
733).
15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah & Anr., AIR 1964 SC 1272 while dealing with a similar case, this Court observed :
"Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf." A similar view has been reiterated in G.T. Lad & Ors. v.
Chemicals and Fibres India Ltd., AIR 1979 SC 582.Page 9 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021
C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021
16. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association & Anr ., AIR 2000 SC 2198; and Aligarh Muslim University & Ors. v. Mansoor Ali Khan, AIR 2000 SC 2783, this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in V.C. Banaras Hindu University & Ors. v. Shrikant, AIR 2006 SC 2304; Chief Engineer (Construction) v. Keshava Rao (dead) by Lrs., (2005) 11 SCC 229; and Regional Manager, Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC 462."
7.9 In the case of Regional Manager, Bank of Baroda v. Anita Nandrajog reported in (2009) 9 SCC 462, it was held that the management had been extremely lenient to the respondent by condoning her absence on the first occasion from 4.8.1986 to 29.3.1987 that is for a period of over seven months when she was absent without leave, and then again from 20.7.1987 to 10.4.1988 that is for a period of about seven months. Thus, the respondent was absent for a very long period without leave. The bank taking a lenient view condoned the absence without leave. However, it seems that the respondent thought that she could do whatever she liked and remained absent whenever she liked for whatever period she liked. It was observed in such facts that no establishment can function if it allows its employees to behave in such a manner. Accordingly, the Apex Court uphold the order of the appellant- Bank dated 25.8.1989 terminating the service of the respondent as a voluntary cessation of her job, and set aside the award of the Tribunal dated 5.6.1996 and the impugned judgment of the High Court dated 22.9.2003.
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8. At the outset, it is pertinent to note that though the petition is filed under Article 226 of the Constitution of India, it is in reality under Article 227 of the Constitution of India i.e. under the revisionary powers of this Court. Now, it is settled by the catena of decisions of the Apex Court that jurisdiction of the High Court in the matter under revisionary jurisdiction is very much circumscribed. The scope of interference by this Court is very much limited. The Labour Court or the Tribunal is a fact finding Court and the High Court being a revisional Court, generally should not interfere with such finding of fact, unless and until it is shown that the Labour Court or the Tribunal has misdirected itself or misread the evidence on record, or has not considered the evidence on record.
9. Having considered the submissions made by both the sides coupled with aforesaid decisions and the material placed on record, it appears that there is no dispute about the fact that the workman was working with the respondent herein. Of course, there is dispute regarding tenure of such service. Further, it is the stand of the workman that his service has been terminated without issuance of any notice or payment of any notice pay or retrenchment allowance. Against this, a specific stand taken by the employer is that the workman has voluntarily resigned from service and has abandoned the work. Thus, the burden has shifted on the employer to establish that the workman has voluntarily abandoned the service by tendering resignation. For deciding this point, it is worthwhile to refer to oral evidence produced by both sides. At the same time, it is necessary to refer to the statement of claim of the workman wherein he has contended that the employer has taken his signature on blank paper and has submitted that if Page 11 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 such blank paper is treated as resignation or used for any other purpose, then the same may be declared as void.
10. Now, on perusal of the oral evidence, it appears that the petitioner herein has been examined at Exh.9 before the Labour Court, wherein he has stated that he was working since last 10 years before his termination by the respondent and he was getting Rs.1,000/- per month as salary. He has also stated that he was relieved by oral order dated 27.7.1995 and at that time no compensation was paid to him nor any notice was issued to him. He has stated that he is ready to join the service. According to him, after 1995, he has tried to get employment elsewhere but he did not get the same. He has denied that he has tendered resignation as well as denied that he has committed theft. He has stated that he has not tendered any amount in presence of the police to the employer. He has also deposed that criminal Court has acquitted him from the charge. During his cross-examination, he has denied the suggestion that he is known as "Pappu" by the people. He has denied that in police complaint his name is referred to as "Pappu". He has placed on record the judgment of the criminal Court. At the next moment, he has stated that he will submit the same on the next date. He has also stated therein that mark 14/1 is the copy of the judgment. He has admitted that police has instituted criminal case of theft and his name has been shown as Pappu Ramnarayan Shukla. He has also deposed that there is no document to show that he was serving on petrol pump. He has voluntarily stated that the employer has not given any document in writing to him. He has admitted that his father was also serving on the petrol pump. According to him, the salary was being paid to the Page 12 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 workmen by obtaining signature on the salary sheet. He has voluntarily stated that salary was being paid to him by obtaining his signature on voucher. He has also deposed that he does not remember as to whether Kishan Dubey or Krishnachandra Dave were serving on the petrol pump. He has stated that in addition to his father other persons viz., Mayaram Oza, Premchand Pandey, Abdulraheman, Rameshbhai Sarju Prasad Prajapati etc. were serving on the petrol pump. He has denied the suggestion that other persons on the petrol pump were addressing him as "Pappu" and in his family also, he is known by the same Name. He has admitted that on 27.7.1995, he was on service, when police arrested him in case of theft. He has stated that he was in police custody for 1-2 days. He has denied the suggestion that on 30.7.1995, he went on the petrol pump. According to him, after the incident of theft till his deposition, he has never visited the petrol pump. He has denied the suggestion that on 30.7.1995, he has tendered his resignation. He has admitted that after the incident of theft, after passage of long time he has filed present case. He has admitted that since criminal case was pending, he has not filed any case for reinstatement in service.
10.1 Regarding his maintenance, he has stated that he is residing with his uncle, whereas his wife and children are residing at their native place and they are maintaining themselves by earning from agricultural activity. According to him, his uncle is maintaining him. He has stated that lastly he has tried to get job in Top Security, Ahmedabad, as well as he has tried to get job in a Medical Store and Hotel. He has denied the suggestion that he has not served for 240 days in a year. He has stated that the respondent has not issued any letter in Page 13 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 writing to him, however, he has not made any complaint in this regard.
11. On perusal of the evidence of Jagdish Bakulchandra Jagad, who is examined by the respondent, it appears that he has stated that he is partner in petrol pump and father of the petitioner, Mr.Ramnarayan Shukla was working as Attendant on petrol pump and the petitioner is his son. He has stated that the petitioner is also known as "Pappu". He has stated that the petitioner was used to come on petrol pump for providing tiffin to his father and as and when some attendant is not present, work was offered to him and, accordingly, he has worked for about one or one and a half year only. He has also stated that the petitioner has only worked for 10 to 15 days in a month.
11.1 He has also stated that on 27.7.1995, while calculating cash on petrol pump, it was found that there was theft of Rs.37,000/- and, therefore, police complaint was filed and due to that police has recovered this amount from the petitioner and he was arrested by police. He has further deposed that thereafter within two or three days, the petitioner came to petrol pump and has confessed about the offence and tendered his resignation from service. He has produced the same at mark 15/1 and has stated that there is signature of Pappu Shukla and witness was Kishanchand Dubey and this resignation is in the hand-writing of the petitioner. He has deposed that after tendering such resignation, the workman has never came on duty and, he has filed reference after 3 to 4 years. He has denied the fact that the workman has worked for 10 years as well as the averment that he has worked for 240 days in a year.
Page 14 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 11.2 During his cross-examination, he has stated that there is different muster roll for permanent workers and casual workers and there are different salary sheets also. He has stated that there are 10 to 12 permanent employees and rest were casual workers. He has deposed that the attendance was being recorded in muster roll and accordingly, the salary was being paid after obtaining signature of the workman on the salary sheet. He has deposed that no Attendance Cards were issued to the workmen. He has denied the suggestion that no Identity Cards were issued to the workmen, however, he has voluntarily stated that Identity Cards were being issued to the permanent workmen, whereas no appointment letter was given to the casual workers. He has stated that permanent workmen were serving as Supervisor as well as Cashier and they were performing other duties. He has stated that all the workmen were treated as Attendants. He has admitted the fact that the petitioner herein was working as Pump Attendant. He has voluntarily stated that he was casual workman. He has shown his ignorance as to in which year the petitioner has joined the duty. He has stated that no appointment letter was issued to the petitioner as a casual workman. He has stated that he does not remember as to whether name of the petitioner was mentioned in the muster roll.
11.3 He has shown his inability to state as to whether salary was being paid to the petitioner by obtaining his signature in salary sheet. He has admitted that no written document was being given to the workman for his attendance. He has stated that he has never produced the salary sheet as well as attendance sheet for the year 1994-95, as those documents Page 15 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 are not available. Regarding theft, he has stated that he came to know of the incidence on the next day at 7 a.m. and he was informed by the Supervisor-Mayaram. He has admitted that Mayaram has not given any written complaint to him but he has informed him telephonically. He has admitted that no show cause notice was issued to the workman regarding theft, nor any departmental inquiry was held against him. He has deposed that he does not remember as to who has filed written complaint to the police. He has admitted that in the said criminal case, the petitioner herein has been acquitted. He has admitted that Virendra Shukla has not tendered any resignation. He has also stated that the petitioner herein has not tendered any written confession for the alleged theft. However, he has denied the suggestion that the workman was serving as Pump Operator on permanent basis since last ten years. He has stated that no benefit under Provident Fund Scheme or ESI Scheme were afforded to him as he was casual employee. He has admitted that no such benefits were provided to all the casual labourers.
12. The Labour Court has also referred to the deposition of witness, Krishanchandra Shriram Dubey, who has been examined on behalf of the employer. In paragraph 9 of the award, his deposition is referred, wherein it is stated that he has deposed that he was serving on petrol pump for 14 years as Pump Attendant and the petitioner's father was also working. He has also stated that on the day of theft, he was on duty and the petitioner has confessed regarding alleged theft and he was arrested by police and, thereafter, within 2 to 3 days, the petitioner came on the petrol pump and confessed his default and tendered his resignation, which was in the Page 16 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 hand-writing of the petitioner and he has signed himself as witness. Said resignation letter has been produced. During his cross-examination, he has admitted that at the instance of his master, he has came to depose and he has not received any witness summons from the Court. He has stated that theft has happened in the night at 11 O' clock. He has stated that he came to know regarding this incident on the next day. He has stated that he has not filed any criminal complaint. He has admitted that the petitioner has not confessed before himself. He has also admitted that the petitioner workman has not produced any amount in his presence. He has admitted that he himself is Kishan Dubey and the resignation is not tendered by the petitioner. He has stated that he has no any document to show that Virendra Shukla and the Pappu Shukla are the same persons. He has stated that at the time of theft, Virendra Ramnarayan Shukla was in service. He has stated that there is no signature of Virendra Ramnarayan Shukla on the resignation. He has stated that when resignation was tendered, there were 6 to 7 workmen present. According to him, Sarju Prasad, Jagdish, Kishan and Manish were also present. He has admitted that there is no signature of Manager or Cashier or any other employee. He has stated that in the alleged resignation the word "witness" is written by Manager- Manubhai. He has stated that whenever any person tenders resignation, the same is being approved by the owner. He has stated that he has signed as "witness", however, there is name of Kishanchand Dubey, below the underlined portion and no such person is working in the firm.
13. Now, considering aforesaid oral evidence, it clearly transpires that the employer was not providing any document Page 17 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 in writing to the casual worker. Now, it is the stand of the owner of the pump that present petitioner was a casual worker and considering this fact, the petitioner may not be in a position to produce any documentary evidence in support of his version that he has worked for 240 days in a calendar year. It is also pertinent to note that the owner of the pump has specifically stated in his evidence that he is unable to produce the documentary evidence of the year 1994-95 relating to muster roll as well as salary sheet. Under these circumstances, no fault could be found on the part of the workman for non- production of such documents. Further, when the employer himself has shown his inability to produce the documents, the workman may not be in a position to file any application for production of such documents. It also appears from record that the witness examined on behalf of the employer to substantiate their version that the workman has tendered his resignation, has specifically admitted that it was not signed by Virendra Shukla. This fact itself destroys the defence of the employer that workman has tendered his resignation. It is pertinent to note that so far as alleged resignation is concerned, the Labour Court itself has observed in paragraph 14 that factum of tendering resignation on 30.7.1995 is not proved. Therefore, the defence put up by the respondent herein is not established and this observation of the Labour Court is not challenged by the respondent herein.
14. It appears from the award that reference has been rejected only on the ground of non-sufficiency of documentary evidence to show that workman has served for 240 days on petrol pump. It appears from the award that the Labour Court has misread the evidence on record and only on the basis of Page 18 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 assumption has come to the conclusion that the workman has not produced necessary evidence regarding performing duty for 240 days in a calendar year. However, on perusal of entire oral evidence, which has been reproduced herein above, it clearly transpires that there is consistent stand of the workman that he has worked for 240 days. Against this, as observed earlier, the employer was not providing any document, even appointment letter to the casual labourers nor identity card to such workers, then the version of the workman is acceptable. Considering the special facts and circumstances of this case, it clearly transpires that the Labour Court has committed serious error of facts while appreciating the oral and documentary evidence on record. Hence, the impugned award is required to be set aside.
15. The request made by learned advocate for the respondent for remand of the matter to the Labour Court is concerned, it appears from record that there is specific stand taken during oral evidence of the partner of the petrol pump that documentary evidence is not available with the firm, since almost 13 years have passed at the time of deposition. Entire evidence on record has been considered by this Court, as referred to herein above. In that view of the matter, submission made by the employer to remand the matter back to the Labour Court is not acceptable.
16. However, so far as the point of reinstatement and continuity of service and backwages is concerned, it is an admitted fact that the service of the workman was terminated in 1995 and he has filed reference after five years and considering the fact that he was a casual worker and Page 19 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021 C/SCA/6517/2010 JUDGMENT DATED: 09/09/2021 considering the judgment of the Apex Court in the case of Tapash Paul Vs. BSNL and another reported in 2016 (1) Scale 92 and BSNL Vs. Bhurumal reported in 2014 (7) SCC 177, this Court is of the considered opinion that instead of granting prayer of reinstatement as well as continuity of service and backwages, if some lumpsum amount is granted towards full and final settlement, then it will meet the ends of justice.
17. In view of above, present petition is allowed. The impugned award passed by Labour Court No.7, Ahmedabad, in Reference (LCA) No.186 of 2002 is hereby quashed and set aside. The respondents are hereby directed to pay Rs.1,50,000/- (Rupees One Lac and Fifty Thousands only) as compensation towards full and final settlement in lieu of reinstatement, continuity of service and backwages to the workman. Such amount be paid to the workman, after proper verification of the identity by an account payee cheque/ pay order within a period of two months from the date of receipt of this order, failing which the workman shall be entitled to get interest at the rate of 6% from the date of this order till the date of actual realization. It is observed that the aforesaid amount is in addition to whatsoever amount paid to him till today. Rule is made absolute accordingly with no order as to costs.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 20 of 20 Downloaded on : Fri Sep 10 03:49:18 IST 2021