Gujarat High Court
Usha Extrusion vs Kiritbhai Kuberbhai Solanki on 31 March, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/6460/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6460 of 2010
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE DR. JUSTICE A. P. THAKER
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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 ? No
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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USHA EXTRUSION
Versus
KIRITBHAI KUBERBHAI SOLANKI
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Appearance:
MR PRATIK P THAKKAR(6097) for the Petitioner(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 31/03/2021
ORAL JUDGMENT
1. The petitioner - employer has challenged the award dated 01.01.2010 passed by the Labour Court No.5, Ahmedabad in Reference (L.C.A.) No.643 of 2004 whereby the Labour Court has partly allowed the Page 1 of 9 Downloaded on : Sat Apr 03 20:16:22 IST 2021 C/SCA/6460/2010 JUDGMENT reference and directed the petitioner herein to reinstate the respondent - workman with 50% back wages from 01.06.2004.
2. It is contended by the petitioner that it is proprietorship dealing in manufacturing of Aluminum Collapsible Tubes and the respondent - workman joined as helper in printing department in the petitioner from 19.11.1999. It is further contended by the petitioner that respondent left the premises without intimating or informing any one and he was absent till 30.06.2001. It is also contended by the petitioner that on 01.07.2001, the workman has given written resignation to the petitioner which was accepted. It is contended by the petitioner that on 15.03.2004, the respondent has filed the complaint to the Labour Comissioner and, thereafter, he issued a demand notice on 10.12.2004 through the Shram Shakti Labour Union alleging that the respondent was orally terminated without giving any reasons on 01.07.2002 and demanded full back wages and continuity of service. It is contended that in the said reference, the statement Page 2 of 9 Downloaded on : Sat Apr 03 20:16:22 IST 2021 C/SCA/6460/2010 JUDGMENT of claim was filed by the respondent and the petitioner has also filed written statement with the averment that the workman has voluntary left the job in the year 2001 and it has produced the document showing that the resignation was tendered in 2001 and the same was was accepted and the workman had also taken benefits in lieu of such resignation. It is contended that though all these documentary evidence produced by the Labour Court, the Labour Court has erroneously granted the prayer in favour of the workman which is not in consonance with the facts and documentary evidence on record. It is also contended that the entire award is erroneous on facts and law and, therefore, the said award is required to be quashed and set aside.
3. Heard Mr.Pratik Thakkar, learned advocate for the petitioner through video conferencing. Though served, nobody has appeared on behalf of the respondent.
4. Mr.Pratik Thakker, learned advocate for the petitioner has submitted the same facts which are narrated in the memo of petition. He has submitted that Page 3 of 9 Downloaded on : Sat Apr 03 20:16:22 IST 2021 C/SCA/6460/2010 JUDGMENT the petitioner was proprietary firm and now, it is not in existence and the workman did not appear before the Court. He has submitted that as per the workman, he was terminated on 01.07.2001 and he did not file any reference till 31.05.2004 and there is a delay of two years. He has also submitted that on 01.07.2001, the workman has resigned the service and his resignation was accepted which is at page-24 and he was paid requisite amount which is at page-25. While referring to the award, he has submitted that the Labour Court has erroneously not accepted the documentary evidence produced by the petitioner. He has submitted that there is documentary evidence to show that the amount was paid to the petitioner as per the cash voucher which has signed by the workman. According to him, the reasoning given by the Labour Court is not sustainable in the eyes of law.
5. Having considered the submissions canvassed by the learned advocate for the petitioner and considering the materials placed on record, it clearly transpires that there is no dispute to the fact that the workman was Page 4 of 9 Downloaded on : Sat Apr 03 20:16:22 IST 2021 C/SCA/6460/2010 JUDGMENT engaged with the petitioner and after his alleged oral termination, he has filed the reference in the year 2004. On perusal of the impugned award, it appears that the Labour Court has heavily relied on the deposition of the witness of the employer that he had no knowledge. Now, on perusal of the cross-examination of the workman, it transpires that he had accepted that there is his signature on the resignation letter. According to him, the content of the resignation is not written by him and his signature was taken on blank paper. He has admitted the fact that his signature was obtained on voucher, but according to him, it was a blank and the signature was obtained by Uditbhai, Manager. He has accepted that he has not made any complaint before any authority as his signature was on blank paper. The workman has also admitted that from 01.07.2001 till 16.03.2004, he has not served any legal notice to the petitioner. He has submitted that from July 2001, he was maintaining his family by doing miscellaneous labour work. On perusal of his own evidence, it clearly transpires that the signature on the voucher as well resignation letter is of the workman. Page 5 of 9 Downloaded on : Sat Apr 03 20:16:22 IST 2021
C/SCA/6460/2010 JUDGMENT
6. It also appears from the record that the Manager Uditbhai has been examined at Exhibit 19 wherein he has categorically stated that the workman left the job on 01.07.2001 and, thereafter, he remained present till 30.06.2001 and on 01.07.2001, he came for tendering his resignation and accordingly, his resignation was accepted and necessary amount was paid to him and he was also issued necessary certificate pertaining to his work with the institution. He has stated that since the workman was resigned from 01.07.2001, there was no case for terminating his service orally on 01.07.2001. He has stated that Rs.2,350/- and Rs.2,025/- paid to the workman by vouchers on which there is a signature of the workman. During his cross-examination, he has stated that the workman has worked in the institution for one year. He has stated that for absence in the job, no notice has been issued to the workman and no departmental inquiry was carried out. He has accepted that in the resignation letter, there is no date. It is also stated that he has no knowledge regarding the contents of the said Page 6 of 9 Downloaded on : Sat Apr 03 20:16:22 IST 2021 C/SCA/6460/2010 JUDGMENT document. He has stated that there is no averment regarding the acceptance of the resignation. He has stated that there was no relieve order issued to the workman. He has stated that they are paying the amount to the workman on vouchers.
7. Thus, on perusal of the evidence of the witness of the firm, it clearly appears that the person who is manager, has no knowledge regarding the contents of the so-called resignation letter and the amount paid. Now, on perusal of the so-called resignation letter at Exhibit 23, there is no specific date for issuance or tendering the resignation with the affidavit. Of course in the letter at Exhibit 24, the date i.e. 01.07.2001 is mentioned, but the witness who has been examined by the petitioner has no knowledge regarding the contents thereof. It appears from Exhibit 24 that there is signature of one Ushaben Gupta, who is said to be proprietor of the firm and has authority for acceptance of the resignation, has not examined by the institution. Whereas, the person who has been examined has no knowledge regarding the contents Page 7 of 9 Downloaded on : Sat Apr 03 20:16:22 IST 2021 C/SCA/6460/2010 JUDGMENT of Exhibit 24. At the same time, on perusal of the vouchers, it appears that the amount of Rs.2350/- was paid is of leave encashment and bonus in the year 2001, whereas, in the second voucher, it is reflected that since he has resigned from the service, as a gracious, he has been paid Rs.2025/- for his two years' service. The witness examined on behalf of the firm has no knowledge regarding both these vouchers. Thus, the contention raised by the petitioner regarding so-called resignation letter as well as payment of amount are not proved.
8. It is pertinent to note that the contents of the workman, in the cross-examination by the employer, regarding his signature being taken on blank form has not been challenged and, therefore, the version of the petitioner herein is not believable and is rightly believed by the Labour Court. However, on perusal of the award, it appears that the relief granted to the workman is regarding payment of 50% back wages is not justifiable. Considering the evidence on record, especially the admission on the part of the workman that during Page 8 of 9 Downloaded on : Sat Apr 03 20:16:22 IST 2021 C/SCA/6460/2010 JUDGMENT interregnum period he has maintained his family by doing miscellaneous work. He was not unemployed. No back wages is liable to be paid to the workman since the workman was earning and, therefore, he is not entitled for any back wages. Of course he is entitled with continuity of service from the date of filing of the reference before the Court.
9. In view of the aforesaid facts and circumstances of the case, the present petition is liable to be allowed partly.
10. Resultantly, the petition is partly allowed. The impugned award dated 01.01.2010 passed by the Labour Court, Ahmedabad in Reference (L.C.A.) No.643/2004 is modified to the extent that instead of 50% back wages, only the petitioner shall paid 10% back wages to the workman and other reliefs granted regarding reinstatement and continuity of service is confirmed.
Sd/-
(DR. A. P. THAKER, J) V.R. PANCHAL Page 9 of 9 Downloaded on : Sat Apr 03 20:16:22 IST 2021