Gujarat High Court
Pankajbhai Ranchhodbhai Chauhan vs Chirag Engineering Corporation on 13 October, 2021
Author: N.V.Anjaria
Bench: N.V.Anjaria, A. P. Thaker
C/LPA/830/2019 ORDER DATED: 13/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 830 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 6939 of 2016
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PANKAJBHAI RANCHHODBHAI CHAUHAN
Versus
CHIRAG ENGINEERING CORPORATION
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Appearance:
SHRIJIT G PILLAI(7937) for the Appellant(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE DR. JUSTICE A. P. THAKER
Date : 13/10/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr. Shrijit Pillai for the appellant and learned advocate Mr. U. T. Mishra for the respondent.
2. The present Letters Patent Appeal under clause 15 of the Letters Patent is directed against order dated 11.9.2017 passed by learned single Judge, allowing the Special Civil Application. The judgment and award dated 19.9.2015 passed by the Labour Court, Anand in Reference (T) No. 8 of 2012 came to be set aside. By the said judgment and award, the Labour court had directed reinstatement of the appellant-workman on the original post with 10% back wages to be calculated from 22.11.2011.
3. The appellant workman was working as production worker under the respondent since year 2003. His last daily pay was Rs. 162/- p.m.. In the statement of claim filed before the Labour Court, it was the case of Page 1 of 5 Downloaded on : Sun Jan 16 23:42:10 IST 2022 C/LPA/830/2019 ORDER DATED: 13/10/2021 the appellant workman that he had worked continuously to complete 240 days in each year. It was the grievance that with effect from 18.11.2011, the first party employer orally terminated the services of the appellant. According to the workman, he had gone on leave with prior intimation due to his illness and at the time of rejoining his duties, the employer had by force obtained the letter of apology. It was the case of the workman that he was denied entry in the premises of the factory and was driven out from the gate itself and was told that he was not needed for any work.
3.1 In the reply before the Labour Court, the case of the employer was that the workman was habitual in remaining absent. He was assigned work on 17.6.2011, but refused to do the same and for such conduct, he was warned by giving notice dated 23.6.2011. It was then stated that in the year 2011, the workman had remained absent without leave report for 11 days and had again submitted letter of apology. It was stated that the workman used to commit misconduct by not obeying the instructions of the supervisor and used to refuse to do the work. It was stated that the workman was called by the employer, but he did not give any explanation, whereafter notice dated 13.12.2011 was also sent asking the workman to show cause as to why he should not be dismissed from service for the reason of his unauthorised absence.
3.2 The Labour Court took into consideration the rival case and on the basis of evidence on record, it was concluded that the workman was not subjected to any inquiry before termination of his service on the ground of absenteeism, nor was there any evidence about payment of remainder salary. On the basis of Exh. 38 and 39, which were the documents in the nature of presence card and details of earned leave, the Labour Court recorded a finding that the workman was serving under the first party Page 2 of 5 Downloaded on : Sun Jan 16 23:42:10 IST 2022 C/LPA/830/2019 ORDER DATED: 13/10/2021 employer since long years.
3.3 The Tribunal took into consideration the evidence of witness of the first party employer namely Isuprakash Mekwan to record that the workman was paid less than the minimum wages. The evidence of the witness of the employer also suggested that though the workman was willing to join duties, there was no response from the employer, recorded the Labour Court.
3.4 On the basis of all such evidence and circumstances, the Labour Court found that the workman had not voluntarily left the service, on the contrary he was willing to rejoin the duties, however, his services came to be terminated orally. The termination amounted to breach of sections 25F and 25G of the Industrial Disputes Act, 1947, it was argued.
4. Learned single Judge while setting aside the judgment and award of the Labour Court proceeded on the premise that there were assertion on the part of the workman about his services and oral termination effected by the employer. Learned single judge disbelieved the case of the workman that his services were orally terminated. What was relied on by learned single Judge were certain communications addressed to the workman, by which he was called upon to join duties. Treating those correspondences and endorsement of the postal authorities, it was concluded that the workman had remained consistently absent and did not respond even though he was intimated that his name shall be deleted from the muster roll. Learned single Judge recorded from over all considerations that error was committed by the Labour Court in accepting the case of the workman and granting relief.
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5. The approach adopted by learned single Judge in setting aside the judgment and award of the Labour Court plainly overlooks various aspects noted by the Labour Court on the basis of the evidence and reiterated hereinabove. The findings of the learned single Judge that workman voluntarily left the service was not just based on lame facts but had no support of any direct evidence. On the contrary, the workman was served with the notice by the employer about his absenteeism and he was called upon to show cause. Thereafter ensued the oral termination. There was no escape from the aspect that the employer did not resort to any inquiry before driving out the workman from service on the ground of absenteeism.
5.1 The evidence discussed by the Labour Court showed that the workman was willing to rejoin his duties. When the termination was on the ground of absenteeism, it could be said to be founded on misconduct which could not have been acted upon without holding inquiry and proving the charge in accordance with law.
5.2 While awarding back wages, the Labour Court took into account the stand of the workman that he was ready to rejoin his duties and that he was unemployed. In any view, balancing the rights, 10% back wages have been awarded from 22.11.2011 by the Labour Court.
5.3 The setting aside of the judgment and award of the Labour Court by learned single Judge at the instance of the employer was not justified as it disregarded the material aspects emerged before the Labour Court on evidence. Learned single Judge was not expected to re-appreciate and reweigh the evidence which was properly considered by the Labour Court. Learned single Judge disregarded the main plank that termination Page 4 of 5 Downloaded on : Sun Jan 16 23:42:10 IST 2022 C/LPA/830/2019 ORDER DATED: 13/10/2021 of the workman was on the ground of absenteeism which was not preceded by any inquiry and therefore became punitive. On the basis of the material before it, the Labour Court had recorded that there was no voluntary abandonment by the workman. By ignoring all the above aspects learned single Judge committed an error of law and error of jurisdiction in allowing the writ petition.
6. The impugned order of the learned single Judge therefore deserves to be set aside. Accordingly, the order dated 11.9.2017 allowing Special Civil Application No. 6939 of 2016 is hereby set aside. The judgment and award of the Labour Court, Anand dated 19.9.2015 in Reference (T) No. 8 of 2012 shall stand to operate.
7. The Letters Patent Appeal is accordingly allowed.
(N.V.ANJARIA, J) (DR. A. P. THAKER, J) C.M. JOSHI Page 5 of 5 Downloaded on : Sun Jan 16 23:42:10 IST 2022