Gujarat High Court
Services Auto vs Vishvanath Kantilal Shrimali on 16 March, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/4619/2007 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4619 of 2007
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SERVICES AUTO....Petitioner(s)
Versus
VISHVANATH KANTILAL SHRIMALI....Respondent(s)
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Appearance:
MS NIYATI K SHAH, ADVOCATE for the Petitioner(s) No. 1
MR ND SONGARA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 16/03/2017
ORAL ORDER
1. The petitioner is a partnership firm duly registered under the Indian Partnership Act. This is a petition by the petitioner-employer being aggrieved by the judgment and award of the Labour Court, Ahmedabad, Dated: 06.06.2006, passed in Reference (LCA) No. 738 of 1997, whereby, the Respondent-workman has been given the reinstatement with continuity of service so also with 25% backwages.
2. The Reference was made by the Asst. Labour Commissioner, Ahmedabad, under Section 10(1) of the Industrial Disputes Act (for short, 'the ID Act'), 1947.
3. The brief facts of the case are as follows;
Page 1 of 10HC-NIC Page 1 of 10 Created On Sun Aug 13 23:23:00 IST 2017 C/SCA/4619/2007 ORDER The petitioner-firm is an authorized service station of Maruti Udyog Ltd., running a service station for service of Maruti cars. The petitioner is also said to have sent the respondent for necessary training. It is averred by the Respondent that in the month of November/December, 1996, he inquired about the status of his Provident Fund and other benefits. Annoyed by such an inquiry by the Respondent, the petitioner terminated his services without issuing him any notice or paying notice pay or retrenchment compensation. Further, the amount towards gratuity and overtime have also not been paid to him. The Respondent, therefore, challenged the order of his termination dated 28.01.1997. The dispute was taken before the Asst. Labour Commissioner, who made a Reference under Section 10(1) of the ID Act.
4. After the Statement of Claim was filed by the Respondent, the petitioner filed written- statement denying the entire claim.
5. It is contended by the petitioner that the respondent had not joined the duty from the year 1990, but, he had joined with effect from 01.05.1994. It is also contended by the petitioner that the Respondent had stopped coming Page 2 of 10 HC-NIC Page 2 of 10 Created On Sun Aug 13 23:23:00 IST 2017 C/SCA/4619/2007 ORDER to duty from 28.01.1997 and the petitioner never had retrenched him. The petitioner also wrote several letters to the Respondent to report for his duty. However, he never bothered to respond. He also is carrying out his personal business in the name and style of Speed Motors and is also running a garage with others. After allowing both the sides to adduce evidence, the Labour Court held that the termination of the respondent was illegal and directed the petitioner to reinstate him with continuity of service and 25% backwages.
6. This Court, while admitting this matter on 10.04.2008, had granted interim relief in terms of Paragraph-7(B) of the petition and thereby, during the admission and pendency of this petition, the execution of the impugned award dated 06.06.2006 has been stayed. However, the petitioner has been directed to comply with Section 17B of the ID Act.
7. This Court has heard, at length, the learned Advocate, Ms. Niyati Shah, for the petitioner. She drew the attention of this Court to the letter dated 27.12.2006 issued by the Indian Oil Corporation ('IOC' in brief) to urged that the Maruti Authorized Service Station, which was being operated in the name and style of M/s. Service Auto, Ahmedabad, was closed down in Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Aug 13 23:23:00 IST 2017 C/SCA/4619/2007 ORDER April, 2004 and an order of the Ahmedabad Municipal Corporation, while taking approval for modernisation of the retail outlet, had also been taken. The petitioner, since, only has a fuel station of IOC and that authorized service station of Maruti Company has been closed down, where the respondent was working, according to her to comply with the bye-laws, as there was shortage of space, the service centre had to be closed down. She urged that the Labour Court failed in appreciating the true facts and also the law on the subject.
8. Learned Advocate, Mr. Songara, appearing for the Respondent-workman has taken this Court through the award and has urged that no interference is desirable. According to him, the Respondent never abandoned the job. In fact, he was terminated. In absence of no notice or pay in lieu of notice or retrenchment compensation, the order should not be sailed through.
9. After hearing both the sides, the Court shall need to regard, whether this is a case for interfering with the judgment and award. Unless there is an illegality committed in exercise of jurisdiction or its having exceeded it jurisdiction or refused to have exercised jurisdiction and there is an error apparent on Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Aug 13 23:23:00 IST 2017 C/SCA/4619/2007 ORDER the face of record and such got resulted in manifest injustice, there will be no requirement for this Court to interfere, as if, it is sitting in appeal over the judgment and award under challenge.
10. Going by the case on hand, it is an award of reinstatement passed by the Labour Court and before passing the order of retrenchment, there are legal provisions, which are need to be followed by the employer. Once having acted contrary to these provisions, the Labour Court in its Reference will be entitled to direct the reinstatement so also the continuity of service and backwages, as well. It is not in dispute that the Respondent-employee, herein, has worked continuously and has completed 240 days in the preceding year of his date of termination. As contemplated under the provisions of the ID Act, either notice or notice pay or retrenchment compensation was never paid. Considering the oral as well as written-submissions, the Court concluded that he has completed 240 days, and therefore, it found unsustainable the argument of the petitioner that the Respondent had abandoned the work.
11. It is quite apparent from the detailed adjudication of the dispute that on 28.01.1997 Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Aug 13 23:23:00 IST 2017 C/SCA/4619/2007 ORDER and as rightly held by the Labour Court, Ahmedabad, when his services came to be terminated, there was no order in writing and no notice was issued to him nor any pay, in lieu of the notice, was given to him. so far as the retrenchment compensation is concerned, that was not given at all. The respondent had been working as a car Mechanic and he also knows driving of four wheeler vehicle. He was working in the authorized Maruti Service Station. He produced sufficient material, like his pay slips, PF slips and other documents to prove that he continued to work from 01.05.1994. Although, according to the Respondent, he had been working from 1991 and not from 01.05.1994. It is also his say that in November, 1992, he was sent for training and a certificate to that effect dated 14.03.1992 was also issued to him. All this cumulatively led the Labour Court to hold in favour of the Respondent, however, the Labour Court believed the Respondent having worked with effect from the year 1994.
12. It is also to be noted that on 02.03.1998, when the Respondent was disappointed by the conduct of the petitioner of not replying him, he had issued a legal notice. The evidence, which have come on record, are that some communications had been made by the petitioner to Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Aug 13 23:23:00 IST 2017 C/SCA/4619/2007 ORDER the Respondent, but, he chose not to attend to his duty, whereas, according to the respondent, he attempted to resume his duty, but, he was not allowed to do so. In this background, the aforesaid notice dated 02.03.1998 came to be issued by the Respondent. However, no reply to the said notice was given, as he had already approached the Asst. Labour Commissioner and the Reference was made to the Labour Court. The petitioner had been directed to remain present on 15.11.1997 and the petitioner remained present through its advocate, accordingly. All the factual aspects along with law have been extensively dealt with by the Labour Court and it held that the communications, which have been sent by the petitioner to the Respondent were not bona fide. It is also need to establish that the was interested in pursuing his job. In such circumstances, while accepting that being a technical person, he would have continued to work elsewhere, as he needed to sustain his family, the Labour Court allowed the Reference partly by directing his reinstatement with continuity of service and 25% backwages. Thus, there is no reason to interfere with the order of reinstatement with continuity of service.
13. So far as the issue of backwages is concerned, according to learned Advocate, Ms. Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Aug 13 23:23:00 IST 2017 C/SCA/4619/2007 ORDER Shah, as the petitioner could establish that the Respondent was working elsewhere no amount of backwages should be granted. She, further, urged that now as authorized Maruti Service Station, which was being operated under the name of M/s. Service Auto, Ahmedabad, has been closed down since April, 2004, for the modernization of the retail outlet after the approval of the Ahmedabad Municipal Corporation, the work, which could be assigned to the Respondent is of filling-up fuel. This Court specifically inquired from the learned Advocate, Mr. Songara, who has kept the Respondent present before this Court, today, and the Respondent also has been questioned by this Court and he does not mind carrying out the work of filling-up fuel and other sundry works incidental to his job. The pay which is being paid to others, who are similarly placed by the petitioner, is as per minimum wages applicable to the workman working in the petrol pumps. With this, since, the Respondent is ready to work at the petrol pump of the petitioner and carrying out the work of filling-up fuel, no indulgence is required to be shown so far as the issue of reinstatement and continuity of service are concerned.
14. The evidence with regard to the work, which has been carried out by the respondent in Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Aug 13 23:23:00 IST 2017 C/SCA/4619/2007 ORDER the interregnum period, the Court has held that he is a skilled worker, who is bound to have worked elsewhere. It was the case of the petitioner that the respondent was working as a foreman in Krishna Motors and others and was also having his own garage. However, bearing in mind the overall facts and circumstances, the Labour Court deemed it fit to grant 25% backwages. The petitioner is being paid the amount under Section 17B of the ID Act by virtue of the order passed by this Court dated 10.04.2008 from the year 2007. This Court finds, from the evidence that has been recorded, that the Respondent has worked at a couple of places in different capacities. As earnings from those joints or services also have been reflected in the evidence recorded before the Labour Court.
15. This area always remains debatable, as there can be hardly any proof, more particularly, when a person is working either as a daily wager or he works during the pendency of the proceedings to sustain himself and his family, attempt on his part would be not to get his name registered in any official document even of a private firm. As Labour Court has rightly held, he being a mechanic and having expertise in the work of repairing cars, it is unlikely that he would not have any employment for all these Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Aug 13 23:23:00 IST 2017 C/SCA/4619/2007 ORDER years. At the same time, a person, since, is not having a regular income from a job and as he also need to litigate before the Court of law for his rights, taking into account, these aspects, the Court has reduced 75% of the salary, which, otherwise, he would be getting.
16. There has been a continuous payment of Rs.1200/- to the Respondent from the date of the matter has been admitted. The last drawn salary of the Respondent was Rs.1200/- and so far he has been paid a total amount of Rs.1,50,000/- (rounded off). Considering the evidence and also the possibility of the dispute being ended amicably, at this stage, the backwages are REDUCED to 10% only. Further, one of the partners of the Petitioner-firm is present before this Court and on his instructions, Ms. Shah, submits that if, the Respondent is desirous of joining the work, he shall report for duty tomorrow, i.e. on 17TH MARCH, 2017, at about 11:00 a.m., before one Shri. Jaydeepsinh Vaghela, who shall explain to him his duty hours and other details. Disposed of, accordingly. No order as to costs. Direct service is permitted, TODAY.
(MS SONIA GOKANI, J.) UMESH Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Aug 13 23:23:00 IST 2017