Bombay High Court
Noble Paints Private Limited (Formerly ... vs Mr. Ashok Tukaram Shinde on 16 September, 2003
Equivalent citations: 2004(3)BOMCR356, [2004(101)FLR27], 2004(1)MHLJ420
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Learned counsel for the Respondent waives service. By consent, taken up for hearing and final disposal.
2. On a Reference to adjudication under Section 10 of the Industrial Disputes Act, 1947, the Labour Court, by an Order dated 4th January 2003, directed the petitioner to reinstate the Respondent in service with continuity and full back wages. The employer is before the Court in these proceedings.
3. The Respondent was appointed as a Chemist by the Petitioner by a letter dated 1st June 1995. The contention of the Respondent before the Labour Court was that on 1st July 1997, he reported for work but, the Security Guard did not allow him to enter the premises. From the evidence of the Respondent, it would appear that on 29th June 1997, while the Respondent was on duty, there was an altercation with the Supervisor in regard to the decision of the employer to treat the leave of the Respondent between 24th April 1997 and 15th May 1997 as leave without pay. Be that as it may, the case of the Respondent was that on and from 1st July 1997, he was prevented from entering the premises of the Petitioner and that there was consequently a termination of his services. Immediately thereafter, on 17th July 1997, a letter of demand was addressed on behalf of the Respondent to the Petitioner making a grievance of the fact that the services of the Respondent, who had been engaged continuously as a Chemist for over four years, had been terminated orally without notice and without valid reason. No disciplinary enquiry had been held. A demand for reinstatement together with back wages was accordingly raised. The Petitioner waited to forward its response for nearly two months thereafter and in its letter dated 5th September, 1997, purported to contend that the Respondent had remained unauthorizedly absent between 26th April and 18th May 1997 and on certain dates thereafter. Thereafter, it was claimed that it was the Respondent who had abandoned service and terminated the contract of employment; that, there was no termination the contract of employment; that, there was no termination by the employer and it was, on the contrary, an abandonment of service by the Respondent. The demand for reinstatement with back wages was, therefore, rejected. Conciliation proceedings thereafter took pace before the Deputy Commissioner of Labour. Petitioner remained absent in the Conciliation proceedings. Upon a failure report, there was a reference to adjudication in which, as already noted, the Labour Court has directed the Petitioner to reinstate the Respondent with full back wages and continuity of service.
4. Before the Labour Court, it was sought to be contended by the Petitioner that the Respondent was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The Petitioner claimed that the Respondent was appointed as a Production Supervisor-cum-Chemist. On the basis of the evidence, which emerged on record, the Labour Court rejected that contention. The Labour Court then held on the merits of the case that in the present case, no enquiry was held by the employer nor was there even a single letter on the record complaining of the unauthorized absence of the Respondent. On the other hand, though the Respondent raised a demand for reinstatement on 17th July 1997, it was only on 5th September 1997 that the aforesaid demand came to be rejected. Before the Conciliation Officer, the employer had chosen to remain absent. The Labour Court, therefore, concluded by holding that there was no abandonment of service by the Respondent. This was held to be a case of an unlawful termination warranting relief in the terms, which have already been noted earlier.
5. On behalf of the Petitioner, learned counsel has urged that the finding of the Industrial Court that the Respondent was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 is contrary to the weight of the evidence on record. The case of the Petitioner is that the Respondent was appointed as a Production Supervisor. The submission that was urged was that the evidence of the employer has not been considered by the Labour Court.
6. There is no merit in the submissions. Now admittedly, the letter of appointment that was issued to the Respondent states that the Respondent was appointed as a Chemist in the factory at New Bombay. The letter of appointment does not state that the Respondent was appointed as a Production Supervisor. Counsel appearing on behalf of the Petitioner relied upon the application submitted by the Respondent which was for being appointed as a Chief Chemist/Incharge. Obviously, in the face of the letter of appointment, the application which was submitted by the Respondent cannot be relied upon. But, apart from the letter of appointment, the evidence-in-chief of Shri Ashwini Fatechand Nagpal who deposed on behalf of the employer is itself sufficient to reject the contention of the Petitioner. In his evidence Shri Nagpal clearly stated that the Respondent was working as Production Chemist and that he was required to work in the Laboratory to test products. Not only this, the witness stated that there were three other Chemists. He specifically referred to the nature of the work which was being carried out by the other three Chemists. He then stated that the Respondent was carrying out on-line product tests. The material part of the examination-in-chief is as follows:
"I know second party Ashok Shinde because he was working in Noble Paints as a Production chemist. I joined service of first party in May 1996 as a Production manager. The second party was working in production department in varnish section. He was also required to work in the laboratory to test the products. In the course of his discharge of his duties second party was supposed to work on shop floor as well as in the laboratory. In laboratory dept. there were 3 chemists and one Asstt. Chemist. Second party workman was testing the varnishing and painting the products. Other 3 chemists were carrying out different tests with the varnish and paint. The tests carried out by the 3 chemists were the final products tests. The 2nd party was carrying out on line product test."
From this, it is clear that the Petitioner was a Chemist who was carrying out on-line product tests. There was not even a claim that the Petitioner was supervising others. In fact, the witness states that the product tests carried out by the other three Chemists were final product tests.
7. The examination-in-chief to the aforesaid effect took place on 6th March 2002. Immediately thereafter, on that date, the further examination-in-chief came to be reserved. When the witness then appeared again before the Labour Court, an attempt was made to improve upon the case by contending that the duty of the Respondent was to supervise the raw material which was weighed by workers; that the Respondent had to supervise the weight of the raw material and the unloading of the raw material together with the dispatch of the final product. The witness then also sought to depose that the Respondent was supervising and manufacturing of the Paint Shop and Quality Control Chemists. Obviously, it does not require any effort to appreciate that after the examination-in-chief came to be deferred, an effort was made by the witness to improve upon the case. But, even then, what is of significance is that there was absolutely no documentary material brought on record to establish what had been stated by the witness. Ordinarily in a case like the present, one would expect that some documentary material would be produced by the employer in the form of Production Reports or Log Books to establish the nature of the supervision that was allegedly being exercised by the employee. The facts of the present case are conspicuous by a complete absence of any documentary material. In the course of cross-examination, the witness for the employer sought to state that the Respondent had been appointed as a Production Supervisor-cum-Chemist. However, he then stated that he was not in a position to produce the appointment order or any other document showing that the Respondent was appointed as a Production Supervisor-cum-Chemist. (On the contrary, the letter of appointment which has come on the record shows that the Respondent was appointed as Chemist.) Finally, the witness did admit that the Respondent was appointed as a Chemist. Apart from the fact that there was no documentary evidence forthcoming from the side of the employer in support of the case that the Respondent was a Supervisor, it is significant that in paragraph 1 of the written Statement, there is no case to the effect that the Respondent was a Supervisor looking after the loading and unloading of raw material or the weighing thereof. On the contrary, the case was that the supervision work was in respect of Laboratory Assistants/Technicians working under the Respondent. However, even this case is clearly belied by what is stated in the examination-in-chief by the Petitioner's witness, Shri Nagpal.
8. The grievance of the Petitioner that the evidence of the witness who deposed on behalf of the employer has not been considered is manifestly incorrect. The Labour court has duly considered the evidence in paragraph 8 of the judgment. The Labour Court has duly appreciated the evidence before coming to the conclusion in paragraph 9 that the Respondent was, in fact, a workman. The finding of the Labour Court that the Respondent was a workman is borne out by the letter of appointment dated 1st June 1995 as well as by the evidence, both of witness for the employer as well as the evidence of the Respondent himself. The Respondent, on his part, denied that he was appointed as a Production Supervisor. The Labour Court has arrived at a conclusion, which is based on the material on record. The conclusion of the Labour Court can, by no means, be regarded as perverse or erroneous. The interference of this Court under Article 227 is clearly, therefore, not warranted.
9. In so far as the question of abandonment is concerned, in view of the well settled position in law, abandonment or relinquishment of service is a question of intention. Whether there has been a voluntary abandonment of service is a question of fact which has to be determined in the light of the surrounding circumstances of each case. In G.T. Lad and Ors. v. Chemicals & Fibres of India, (1979) Vol.1, L.L.J., Page 258, a Bench of three learned Judge of the Supreme court, while laying down these principles, also held that normally such an intention cannot be attributed to an employee without adequate evidence in that behalf. In so far as this Court is concerned, in Gaurishankar Vishwakarma v. Eagle Spring Industries Private Limited and Ors. (1988) 1, C.L.R., Page 38, a Division Bench held that it is well settled that even in a case of abandonment of service, the employer has to give a notice to the workman calling upon him to resume his duty and must hold an enquiry before terminating his service on that ground. In Abdul Rashid v. Indian Sailors Home Society and Ors., (1988) 1, L.L.N., Page 129, the Division Bench, in a case where the employer had raised the defence of abandonment of service, noted that if it was a case of voluntary abandonment, the employer would have communicated with the workman and asked him to report for duty. That was not done.
10. In the present case, the contention of the Respondent, which has been accepted by the Labour Court, is that on 1st July 1997 when he reported for work, he was prevented from entering the premises by the Security Guard. The Respondent has expressly stated so in the course of his cross-examination. On 17th July 1997, a letter of demand was addressed to the employer on behalf of the workman. The absence of an immediate response from the employer is significant, because if this was a case of abandonment, the employer, in the normal course, would have immediately responded to the letter of the workman. It was only belatedly on 5th September 1997 that the employer contended that the Respondent had unauthorizedly remained absent and had abandoned the contract of employment as a result of which the employment stood terminated. If there was unauthorized absence on the part of the Respondent, it was the obligation of the employer to hold a disciplinary enquiry if he chose to proceed against the employee. No disciplinary enquiry was held. Thereafter, before the Conciliation Officer, the employer chose to remain absent. The Labour Court has, in these circumstances, quite correctly come to the conclusion that there was no abandonment of service. The employee had at all material times, remained ready and willing to join the duties which he was prevented from rendering.
11. In these circumstances, I do not find any merit in either of the contentions urged on behalf of the employer. No case for interference under Article 227 has been made out.
12. The Petition is accordingly rejected.
13. Issuance of certified copy is expedited.