Gujarat High Court
Dipak Jayantilal Vyas vs Saurashtra Cement Ltd on 6 February, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/4614/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4614 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DIPAK JAYANTILAL VYAS....Petitioner(s)
Versus
SAURASHTRA CEMENT LTD.....Respondent(s)
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Appearance:
MR V.C. PATEL, ADVOCATE WITH MS SAMATA V PATEL, ADVOCATE for
the Petitioner(s) No. 1
MR PS GOGIA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 06/02/2017
ORAL JUDGMENT
1. Heard Mr.V.C. Patel, learned advocate with Page 1 of 19 HC-NIC Page 1 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT Ms.Samata V. Patel, learned advocate for the petitioner and Mr.P.S. Gogia, learned advocate for the respondent.
2. A badli worker whose reference case is dismissed by the learned Labour Court, has taken out this petition.
3. In present petition, the petitioner has prayed, inter alia, that:
"7(A) YOUR LORDSHIPS be pleased to issue an appropriate writ, direction or order, quashing and setting aside the impugned award dtd. 8.08.2006 passed by the Labour Court, Janagadh in Reference (LCJ) No.48/2000 as being illegal, arbitrary, and also violative of Art. 14 & 16 of the Constitution of India;"
4. Feeling aggrieved by award dated 8.8.2006 passed by the learned Labour Court at Junagadh in Reference (LCJ) No.48 of 2000 whereby the learned Labour Court rejected the reference case, the original claimant has taken out this petition.
5. So far as factual background is concerned, it has emerged from the record that the original claimant, i.e. present petitioner was working as badli worker with the opponent employer i.e. Page 2 of 19 HC-NIC Page 2 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT present respondent company. He raised industrial dispute with the allegation that the opponent company illegally terminated his service on 28.3.1999 by oral order. Appropriate Government referred the dispute for adjudication to learned Labour Court at Junagadh. The dispute was registered as Reference (LCJ) No.48 of 2000. In the said reference case, present petitioner, i.e. original claimant filed his statement of claim dated 21.6.2000 wherein he alleged that he was working with the opponent company as badli worker from 26.3.1985. He alleged that the company had served a show cause notice dated 18.12.1998 and subsequently, the company terminated his service by oral order dated 28.3.1999. he further alleged that by the show cause notice, certain allegations including the allegation that while loading cement bags in the truck, he had loaded 265 bags, instead of 260 bags, which resulted into overloading of the truck which is impermissible under the provisions of the Motor Vehicles Act. He alleged that in connection with Page 3 of 19 HC-NIC Page 3 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT the show cause notice, enquiry was conducted and on completion of the domestic enquiry, Enquiry Officer submitted its report. He submitted that though the Enquiry Officer held that some of the allegations are proved, whereas some allegations are not proved, the company terminated his service. He alleged that on such trivial ground, the company terminated his service only with a view to harassing and that, therefore, he should be reinstated in service with all benefits.
6. The company opposed the reference and the demand by the claimant. In the written statement, the company denied the allegations by the claimant. The company contended that the claimant was working as badli worker and that he was engaged when the permanent workman remained absent or proceeded on leave. The company also contended that the claimant stopped reporting for duty from 5.2.1997. The company also contended that certain misconduct was reported against the claimant and therefore, after issuing show cause Page 4 of 19 HC-NIC Page 4 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT notice, domestic enquiry was conducted. It was also contended that the claimant was placed under suspension and after conclusion of enquiry, though the Enquiry Officer held that the charge against the claimant is proved, the company had taken lenient view and asked the claimant to submit an undertaking that he will perform his duties diligently and sincerely and will not be negligent while performing duties. The company further contended that the claimant did not submit the undertaking within the time which was granted to him and after about two months, he forwarded the undertaking. It was contended by the company that it is the claimant who abandoned the service and therefore, the reference case is unjustified and may be rejected.
7. Upon conclusion of the pleadings by both the parties, the learned Labour Court received and recorded oral as well as documentary evidence. When the contesting parties closed their evidence, the learned Labour Court heard Page 5 of 19 HC-NIC Page 5 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT submissions by learned advocates for the contesting parties and after considering the material available on record and rival submissions, the learned Labour Court passed the impugned award and rejected the reference case.
8. Learned advocate for the claimant submitted that the claimant was working as badli worker and with a view to harassing the claimant, a show cause notice in connection with the trivial incident was issued against the claimant and the allegations in light of the clauses 20(11), 20(8) and 20(4) of the Standing Orders were levelled against him and thereafter domestic enquiry was conducted. He further submitted that though, the Enquiry Officer held that the allegations are not proved, the claimant was asked to submit an undertaking. Learned advocate for the claimant further submitted that due to his personal circumstances, the claimant could not submit the undertaking within specified time, however, after about a month he did submit the undertaking, Page 6 of 19 HC-NIC Page 6 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT however, the claimant was not allowed to resume his duty. Learned advocate for the claimant submitted that the claimant had served a notice to the company and then the claimant raised the dispute. Learned advocate for the claimant submitted that even as of now, the company has not revoked the order of suspension. He submitted that the learned Labour Court failed to appreciate the facts of the case and committed error in holding that it is the claimant who abandoned the service. According to the claimant, the impugned award is unjustified and arbitrary and that, therefore, the award deserves to be and may be set aside.
9. Mr.Gogia, learned advocate for the opponent company opposed the submissions by learned advocate for the claimant. He submitted that upon completion of the domestic enquiry, the Enquiry Officer submitted its report, holding, inter alia, that except the allegations about fraud and dishonesty, the other allegations Page 7 of 19 HC-NIC Page 7 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT against the claimant are proved, however, the company took lenient view and merely asked the claimant to submit an undertaking that he would not be negligent in performance of duty, however, the claimant did not submit the undertaking within the specified time and instead, he served a notice to the company and after about one month he submitted the undertaking. Learned advocate for the company further submitted that the claimant had actually accepted negligence in performance of duty, however, the company had taken lenient view. Learned advocate for the company relied on the details mentioned in the reply affidavit dated 28.11.2015 and submitted that there is no error in the award and the learned Labour Court has not committed any error in recording the findings of fact and/or in rejecting the reference case. He submitted that the petition may not be entertained.
10. I have heard learned advocates for the petitioner and the respondent at length and have Page 8 of 19 HC-NIC Page 8 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT considered the material available on record and the impugned award.
11. It is appropriate to keep in focus the fact that the claimant herein was working with the company as badli worker. The claimant was not a permanent employee of the company.
12. It has emerged from the record and from rival submissions that certain misconduct of negligence and of repeatedly committing breach of Standing Orders was reported against the claimant. In view of the complaint against the claimant, a show cause notice about violation of rules under the Standing Orders, i.e. clauses 20(11), 20(8) and 20(4) was issued on 18.12.1998.
13. In connection with the said show cause notice, domestic enquiry was conducted. Upon conclusion of the domestic enquiry, the Enquiry Officer submitted his report dated 10.1.1999. In the said report, the Enquiry Officer recorded his conclusions which read thus:
Page 9 of 19
HC-NIC Page 9 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT "CONCLUSION:
Based on the statement given by accused workman and his witness and subsequently introgation by Myself and Management representative it is felt that Mr.Depak Vyas has not performed his duty sincerely and also looking to the apology letter it seems that the same mistake committed repeatedly by him. However for his claim, he has not signed such letter. I have checked various signature of Mr.Deepak Vyas which found different at all the time and it is possible that he letter produced by M.R. would be signed by Mr.Deepak Vyas.
Finally I am in the opinion that following charges levelled against Mr.Deepak Vyas are proved:
01. Habitual negligence of work.
02. Habitual breach of any Standing orders or Rules and Regulation issued thereunder.
Not proved:
01. Theft, fraud or dishonesty while dealing with the Company or in connection with the Company's business or property, or that of any other person on the Company's premises. Using colony or any property which is under the custody of the Company. Fraud will conclude false impersonation for giving one's attendance, identification, or payment card, to another person's attendance, tampering with any of the Cards or with any of the Company's record or papers, or attempt to obtained advantage of any amenities through fraudulent measures."
14. The competent authority of the company considered the said finding of the Enquiry Officer and issued a communication / order dated 16.1.1999 and informed the claimant that though the allegations against him are proved and despite the fact that he is in habit of committing misconduct and being negligent while Page 10 of 19 HC-NIC Page 10 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT performing duty, as a last chance, the company called upon the claimant to submit undertaking that henceforth he will not commit breach of Standing Orders and will perform his duties diligently and sincerely and that if any other misconduct is reported in future, then serious action will be taken against him. The claimant was, thereby, asked to submit an undertaking within 24 hours. The claimant did not submit the undertaking for more than one month and after about one month he submitted letter dated 10.3.1989 wherein he seems to have stated that he will perform his duties sincerely and diligently. According to the company, the claimant did not report for duty ether after the company's communication dated 16.1.1999 or after forwarding his letter dated 10.3.1999 and instead, he raised industrial dispute and approached the learned Labour Court.
15. At this stage, it would not be out of place to take into account certain details and facts Page 11 of 19 HC-NIC Page 11 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT stated by the opponent company in its affidavit dated 28.11.2015. In the said affidavit, the company has stated, inter alia, that:
"4. I further state and submit that since the present petitioner was negligent in performing his duties, he was charge sheeted by the respondent company and accordingly charge sheet was issued to the petitioner and was given opportunity to explain the charges leveled against him. The enquiry was conducted against the petitioner, wherein he was given fair opportunity to represent his case. Thereafter, the enquiry officer on 10.1.99 had given his findings and found the petitioner guilty of misconduct such as habitual negligent of work and habitual breach of standing orders or rules and regulation.
5. I state and submit that the petitioner had also admitted his guilt vide his letter dated 23.12.98. I further state that considering the overall circumstances and the apology letter of the petitioner, the management had decided to take the lenient view and decided that instead of imposing any harsh punishment, the petitioner vide letter dated 16.01.99 was asked to tender the undertaking within twenty four hours about not committing the above said misconduct in future.
6. I state and submit that in response to the above said letter dated 16.01.99, the petitioner did not report on duty or given any undertaking to the management within the time given to the petitioner. However, almost after two months from the above said letter of the management, the petitioner had sent the undertaking through post vide his letter dated 10.3.99.
7. I state and submit that even earlier the petitioner had committed the several misconducts, however keeping lenient view he was not seriously punished on the basis of his undertaking about not committing such misconducts in future. As such his past service record was not good. The petitioner had also given apology letter dated 30.6.91 to the management and undertook that he will now not commit any misconduct in future. However, instead of improving his work he repeatedly remained negligent and had committed serious misconduct.
8. I state and submit that the averment of the petitioner in the para (1) that he was ready and willing to work but was not allowed is completely Page 12 of 19 HC-NIC Page 12 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT incorrect and hereby denied.
I deny the averments of the petitioner made in para 2.2 of the petition that petitioner had never given any letter stating that he accepts the charges. I state and submit that letter dated 23.12.98 given by the petitioner clearly reflects that he had admitted his mistake any accepted the charges. The said letter dated 23.12.98 was produced at exh.34 before the Labour Court. In reply to para 2.3 of the petition, the averments and allegations of the petitioner in the para under reply that though the charges leveled against the petitioner were not proved, the petitioner was required to give undertaking of good conduct are completely incorrect. I state and submit that enquiry officer in his findings had clearly held that charges qua negligence in work is proved by the management."
16. It has also emerged from the record that (a) the company has not passed any order terminating service of the claimant; (b) it is not even the case of the claimant before the learned Labour Court that the company passed any order and terminated his service; (c) the claimant alleged that his service was terminated by oral order on 28.3.1999 whereas the company's intimation dated 16.1.1999 gives out that the claimant was merely asked to submit an undertaking.
17. It has also emerged from the record before the learned Labour Court that the claimant did not dispute the legality and propriety of the enquiry and/or he did not even dispute and Page 13 of 19 HC-NIC Page 13 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT challenge findings of the Enquiry Officer.
18. Thus, the legality of the enquiry and the findings of the Enquiry Officer remained unchallenged and uncontroverted.
19. In this backdrop, the learned Labour Court examined the deposition / evidence by the workman. After evaluating and assessing the evidence of the workman, the learned Labour Court reached to the conclusion that it was the claimant who stopped reporting for work.
20. At this stage, it is appropriate to take into account the findings of fact and conclusions recorded by the learned Labour Court after evaluating and assessing evidence available on record. In the award, the learned Labour Court has observed and held that:
"(16)It is the case of the 2nd party workman that he was suspended without any fault on his part and was discharged by verbal order from 20.3.99. It is the case of the 1st party that a departmental inquiry was held against the workman for the misconduct and charges were proved. It is also pleaded that he opponent has not discharged the workman but he did not report for duties on his own. It is also stated in written statement that the 2nd party workman was at liberty to report for Page 14 of 19 HC-NIC Page 14 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT duties.
(17) It comes out from oral evidence of the workman that he had joined the institute from 1985. He was working as a checker. He has stated that he was not allowed to work in spite of submitting an undertaking on 10.3.99 produced at Mark10/7. He has stated that he had gone on 20.3.99 to inquire as to when he would be given service. He had met Patel Saheb on that day and Mr.Patel had stated that he was discharged from that day.
(18) It comes out from his cross examination that he had no written documents to show that he had gone on 20.3.99. It is admitted that a departmental inquiry was held and he had remained present during departmental inquiry. It is admitted that he did not go to the institute after 20.3.99.
(19) It comes out from oral evidence of the management witness, Mr.Sanjaybhai Joshi, that he was working as a senior personal Officer. The applicant was working as a 'Badli' in different departments, as and when required.
The applicant was issued a charge sheet for his misconduct. The charges were proved. However, the workman was given an opportunity to amend. He has stated that the workman was directed to report for duties after filing an undertaking vide letter of 16.1.99. the workman had received the letter in person. The applicant did not submit undertaking as directed nor reported for duties. He has stated that the workman has never submitted duty joining report. (20) It appears that the 2nd party workman has filed a note at Ex.15 contending that he did not challenge departmental enquiry held against him. It also appears that the 2nd party workman was issued a letter of 16.1.99 issuing not to commit any misconduct in future and was directed to submit and undertaking within 24 hrs. from receipt of the letter. It also appears that the 2nd party had received the above mentioned letter on the same day in person. However, surprisingly, the 2nd party workman has sent and undertaking as sought by Regd. P.A.D. On 12.3.99.
(21) Therefore, it can be said that the 2nd party workman has not submitted the undertaking within reasonable time, let alone the time of 24 hrs. as directed by the employer. It also appears that the said undertaking was sent by post after passing 2 months. Therefore, considering these documents, according to me, the workman has avoided reporting for duties or submitting the undertaking in person. It also appears that the 2nd party workman has placed a new case during Page 15 of 19 HC-NIC Page 15 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT his oral evidence by deposing that he had gone to enquire on 20.3.99 and had met Mr.Patel and Mr.Patel orally discharged him. No such case has been pleaded by the workman in his statement of claim. The workman has not pleaded that Mr.Patel discharged him by verbal order. It also appears that no such facts were stated in the demand notice of the workman sent on 13.4.99. The 1st party employer has contended in the written statement that the 2nd party workman was at liberty to report for duties. However, the workman was never responded to this offer.
(22) Therefore, considering all these facts and circumstances together, I am of the opinion that the 2nd party workman has not reported for duties on his own and has failed to prove that his services were terminated by verbal order."
21. Thus, the learned Labour Court rejected the allegation that the claimant's service was terminated by oral order. The learned Labour Court also recorded below mentioned finding and conclusion:
"(24) Considering the note accepting departmental enquiry and findings of the enquiry officer produced it Ex.39, it appears that the charges of habitual negligence of work and habitual breach of standing order were found proved. Therefore, I cannot agree with Mr.Mehta that no charge was proved against the workman."
22. During hearing of present petition, learned advocate for the petitioner failed to point out any error in the said finding of fact. Learned advocate for the petitioner could not point out any evidence or any other material from the Page 16 of 19 HC-NIC Page 16 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT record of the learned Labour Court which would establish that the said findings of fact recorded by the learned Labour Court are incorrect or contrary to evidence available on record or perverse.
23. The said observations, conclusions and findings by the learned Labour Court are required to be considered in light of the fact that neither the enquiry nor the findings by the Enquiry Officer were challenged by the claimant and also in light of the fact that the claimant did not plead that any order terminating his service, was passed by the company. The claimant failed to prove that his service was terminated by oral instructions. On the contrary, the company's instruction to the workman to submit undertaking, which was issued vide communication dated 16.1.1989, was established before the learned Labour Court.
24. When, in this background, the claimant's notice dated 27.7.1999 is examined, it comes out Page 17 of 19 HC-NIC Page 17 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT that the claimant came out with incorrect as well as unjustified allegations and then raised industrial dispute against the company.
25. As mentioned above, during hearing of the petition, learned advocate for the petitioner failed to establish that the learned Labour Court has committed any error in passing the impugned order. He also failed to point out any material from record to establish that the findings are perverse.
26. In the present proceedings, there is nothing on record to convince this Court to interfere with the findings of fact recorded by the learned Labour Court or to disturb the award. The petitioner has failed to make out any ground to disturb the impugned award.
27. Any error of law or jurisdiction is not established. Even any error on factual aspect is also not established and the petitioner has also failed to demonstrate that the impugned award is Page 18 of 19 HC-NIC Page 18 of 19 Created On Sun Aug 13 09:38:25 IST 2017 C/SCA/4614/2007 JUDGMENT perverse. Thus, the petition falls and deserves to be rejected and is accordingly rejected. Rule is discharged.
Sd/ (K.M.THAKER, J.) Bharat Page 19 of 19 HC-NIC Page 19 of 19 Created On Sun Aug 13 09:38:25 IST 2017