Gujarat High Court
For Approval And Signature: Sd/ vs Dabhi Savjibhai Sangrambhai & on 9 January, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/676/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 676 of 2013
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR.JUSTICE K.M.THAKER
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 ?
SUYOG GRANITES AND MARBLES LTD THRO MANAGER....Petitioner(s)
Versus
DABHI SAVJIBHAI SANGRAMBHAI & 1....Respondent(s)
Appearance:
MR.SUBHASH G BAROT, ADVOCATE for the Petitioner(s) No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1 - 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 09/01/2017
ORAL JUDGMENT
1. Heard Mr. Barot, learned advocate for the petitioner. Neither anyone has entered appearance nor anyone has Page 1 HC-NIC Page 1 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT appeared at the time of hearing, for the respondent from the stage when notice to the respondent was issued before admitting the petition.
2. From the submissions by learned advocate for the petitioner and from the material available on record it has emerged that the petitioner company has taken out this petition against order dated 3.10.2012 passed by learned Labour Court in Misc. Application No. 24 of 2009 which was filed by present petitioner with a request that ex- parte award dated 24.11.2008 passed by learned Labour Court in Reference (LCP) No.58 of 1998 may be recalled and the proceedings of said reference may be restored. After considering the request learned Labour Court did not find any justification in the request and therefore learned Labour Court rejected the said Misc. Application No. 24 of 2009. Feeling aggrieved by the said decision the petitioner has taken out this petition.
3. So far as factual background is concerned, it has emerged from the record that the respondent herein Page 2 HC-NIC Page 2 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT raised industrial dispute on the allegation that the company illegally terminated his service w.e.f. 1.1.1998 by oral order. Appropriate government referred the dispute for adjudication to learned Labour Court at Palanpur. The dispute was registered as Reference (LCP) No. 58 of 1998.
3.1 In his statement of claim the claimant alleged that he worked with the company for four years i.e. 1.1.1994 to 1.1.1998 and that he was paid Rs.1,000/- as salary and that without any reason or any justification or without following procedure by law company terminated his service on 1.1.1998. With such allegation the claimant demanded that he should be reinstated in service with all consequential benefits.
3.2 From the record it appears that the learned Labour Court issued usual notices to the opponent company i.e. present petitioner. It also appears that the petitioner company engaged service of an advocate. Learned advocate entered appearance before learned Labour Court Page 3 HC-NIC Page 3 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT on behalf of the company however, thereafter no one attended the proceedings before the learned Labour Court on behalf of the employer / company. Since opponent employer did not file reply / written submission the stage to file reply came to be closed by the learned Labour Court's order.
3.3 During the proceeding before learned Labour Court the claimant filed affidavit in lieu of chief examination. 3.4 Even at that stage no one attended hearing before learned Labour Court on behalf of the company. The said affidavit by the claimant remained uncontroverted.
4. Before proceeding further, it is relevant and appropriate to mention that though order of reference was passed in April 1998 and reference was registered as Reference (LCP) No. 58 of 1998, the claimant did not file his statement of claim until April 2000. Subsequently with permission by learned Labour Court vide order dated 11.4.2000, the claimant filed his statement of claim.
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4.1 Subsequently i.e. in March 2007 i.e about 7 years after he filed statement of claim, the claimant filed affidavit in lieu of chief examination. 4.2 Meaning thereby the statement of claim came to be filed by the workman, about 18 months after reference was made and he came forward for getting his evidence recorded, almost 7 years after he filed statement of claim. 4.3 On behalf of the company, the claimant was not subjected to cross examination because no one was present.
4.4 Since the affidavit of the claimant remained uncontrovered and also in view of the fact that the company did not come forward to lead any evidence to controvert claimant's evidence, learned Labour Court proceeded to decide the reference.
4.5 Consequently vide order dated 24.11.2008 the learned Page 5 HC-NIC Page 5 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT Labour Court decided the reference in absence of the company i.e. opponent.
4.6 Sometime thereafter, the employer filed Misc. Application with the request that since the award is passed ex-parte the said award may be recalled and the proceedings of the reference may be restored. 4.7 The said Misc. Application was registered as Misc. Restoration Application No. 24 of 2009. The said application was opposed by the claimant. 4.8 Learned Labour Court heard the parties and thereafter passed impugned order dated 3.10.2012 whereby learned Labour Court rejected said Misc. Application. Feeling aggrieved by the said order dated 3.10.2012 the petitioner company has taken out this petition.
5. While admitting the petition this Court passed below quoted order on 4.7.2013.
"1. Heard Mr. Subhash G.Barot, learned advocate for the petitioner.
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2. Though notice is served, none appears on behalf of the contesting Respondent No.1. It is indicated that though the petitioner-company has sent letters to the respondent more than once, calling upon him to join duty, he has not reported to join duty.
3. Rule. During pendency of this petition, the impugned order of the Labour Court qua back wages shall remain stayed."
6. As mentioned earlier, neither at the stage when this Court issued notice to the respondent nor during the interregnum nor at the time when the Court passed order admitting the petition, respondent caused appearance or anyone on his behalf entered appearance and right from first stage until now the proceedings have not been attended by original claimant.
7. Besides this, according to petitioner's claim the company had addressed couple of letters / requests to the original claimant to report for duty. This has emerged from the order dated 4.7.2013 passed by this Court. However, the respondent has not reported for duty (according to submission by Mr. Barot, learned advocate for the petitioner).
7.1 In this background, limited issue before this Court is whether to uphold the impugned order passed by the learned Labour Court or to remand the proceeding to Page 7 HC-NIC Page 7 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT learned Labour Court so that the petitioner company can get opportunity of effective hearing. 7.2 So as to support the challenge against impugned order the petitioner company has averred and stated that:-
"4. The petitioner company is registered under the Companies Act, 1956 as limited company. The petitioner company was dealing in cutting and sizing the marble and granite stones. The petitioner company was also dealing in erection and sculpture of temples. The petitioner states that the factory premises of the petitioner company situated at Ambaji was seized by the Gujarat Industrial Investment Corporation in the year of 2003 and the company has now settled dues of Gujarat Industrial Investment Corporation. The petitioner has now taken possession of the factory premises of the company but still need fund of more than 3 Cr. to restart the factory. It is not possible for the management of the company to restart the business in near future.
5. The petitioner states that as stated hereinabove, the petitioner availed financial facilities from Gujarat Industrial Investment Corporation and could not repay the loan in time and therefore, the factory premises of the company was seized on 5.3.2003. The petitioner states that even before 5.3.2003, the petitioner company was facing financial difficulties and was having financial problem to even meet with the day-to-day affairs of the company.
6.The petitioner states that respondent No.1 herein was working with the company as Watchman. The petitioner states that the petitioner company was making payment of monthly salary of Rs.1,000/- to him. The petitioner states that respondent No.1 herein has worked with the company from 1.1.1994 to 1.1.1998 and thereafter willingly he has stopped coming to the factory of the petitioner to discharge his duties. The petitioner has never terminated the services of respondent No. 1 herein. The petitioner states that as respondent no. 1 has voluntarily abandoned the services of the petitioner company, respondent No.1 herein was not entitled to get any benefit under the provisions of the Industrial Disputes Act, 1947.
7. The petitioner states that the respondent No. 1 herein raised industrial dispute and finally the dispute was referred to Labour Court at Palanpur. The reference was registered as Reference (LCP) No. 58 of 1998 on 15.4.1998.
8. The petitioner states that in the meanwhile, the factory premises of the petitioner was seized by the officers of Gujarat Industrial Investment Corporation on 5.3.2003 and the relevant record pertaining to the case of respondent No.1 was not available with the petitioner and the petitioner could not submit any documentary evidence before the Labour Court.
9. The petitioner states that respondent No.1 herein submitted statement of claim on 11.4.2004 before the learned Labour Court and contended that he has discharged his duties as Watchman from 1.1.1994 to 1.1.1998 and the petitioner company was making payment of Rs.1,000/- as salary. It is further contended that he has discharged duties for 240 days and as his services were terminated without giving any notice pay, he may be reinstated with full backwages.
10. The petitioner states that on 8.3.2007, respondent No.1 herein has placed on Page 8 HC-NIC Page 8 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT record oral evidence in form of affidavit and supported his claim. It may be noted that in the affidavit, it is mentioned that following documentary evidence are produced, but the space below the statement is kept blank and as such, no documentary evidence is placed on record by respondent No.1 as per the knowledge of the petitioner.
11. The petitioner states that the written statement could not be filed against the statement of claim of the employee. The petitioner states that due to above- mentioned difficulty, the petitioner company could not defend in reference case and finally in absence of documentary evidence to be submitted by the petitioner company, the Labour Court was pleased to finally pass the award in favour of respondent No. 1. The petitioner states that the Labour Court has partly allowed the reference and has ordered to reinstate respondent No.1 in service with 20% backwages which is illegal, erroneous and bad in law."
8. Mr. Barot, learned advocate for the petitioner submitted that since the company was unable to pay installments of loan availed by it from Gujarat Industrial Investment Corporation ('GIIC' for short), the company was put under seal by GIIC and possession of the company's assets was taken over by the GIIC somewhere in 2012 / 2013. According to Mr. Barot, learned advocate for the claimant for such reason and other difficulties the company could not attend the proceedings before learned Labour Court.
8.1 At this stage this Court cannot verify veracity of such contention by the company.
8.2 Before this Court the fact remains that the learned Labour Court passed award in Reference (LCP) No. 58 of Page 9 HC-NIC Page 9 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT 1998 in absence of the company. However, relevant fact which has emerged before this Court is that after the learned labour Court passed the award the concerned claimant has not taken any steps to report for duty. 8.3 From the record it also appears that the claimant has not come forward with any application seeking reinstatement in service or payment of last drawn salary under Section 17B of the Industrial Disputes Act, 1947. 8.4 The said vital aspect is required to be considered in light of the fact that the claimant did not come forward before learned Labour Court to lead evidence for almost 7 years after filing statement of claim and that he caused delay in filing statement of claim before learned labour Court.
8.5 When abovementioned factual aspects are taken into account it appears that it would be in the interest of justice and fitness of things if with appropriate condition opportunity is granted to the company for effective Page 10 HC-NIC Page 10 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT hearing and defence.
9. Therefore, following order is passed:-
(A) The company shall pay Rs.15,000/- to the claimant as nonrefundable cost.
(B) Such amount shall be paid by the company to the claimant within 8 weeks from receipt of certified copy of this order.
(C) Such amount shall be either forwarded to the claimant by demand draft in name of the claimant at residential address of the claimant by Registered Post or the said amount shall be deposited by the company before the learned Labour Court.
(D) Thereafter the company may file application before learned Labour Court to restore the proceedings of Reference (LCP) Case No. 58 of 1998. Such application shall be accompanied by proof of payment of the amount Page 11 HC-NIC Page 11 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT to the claimant.
(E) Learned Labour Court will satisfy itself about the fact that the amount payable towards cost i.e. Rs.15,000/- is paid to the claimant.
(F) Upon being satisfied about said compliance learned Labour Court shall restore the proceedings of Reference (LCP) Case No. 58 of 1998 to its original stage and learned Labour Court shall then grant petitioner company an opportunity to file reply and shall offer the claimant for cross examination by company and also to lead evidence in support of its case and thereafter learned Labour Court will pass fresh award on merits after hearing both sides. (G) It is clarified that this order will take effect only after the condition to pay cost to the tune of Rs.15,000/- is complied with. Otherwise petition will be deemed to have been rejected.
(H) The company shall also simultaneously reinstate the Page 12 HC-NIC Page 12 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT claimant during pendency of the proceeding before learned Labour Court.
(I) For the said purpose the company will issue appropriate order reinstating the claimant in service and the company shall forward such order to the claimant by Registered Post at his residential address.
(J) A copy of the said order shall be placed on record before the learned Labour Court alongwith the application for restoration of the proceeding.
(K) It is clarified that such reinstatement by the petitioner company will not create any fresh right or equity in favour of the claimant and such order of reinstatement will not be used or held against company during the proceeding before learned Labour Court. (L) It is clarified that said order is passed only with a view to reducing difficulty of the claimant in whose favour ex-parte order is passed and only because the company is Page 13 HC-NIC Page 13 of 15 Created On Sat Aug 12 02:41:33 IST 2017 C/SCA/676/2013 JUDGMENT granted further hearing before learned Labour Court however such reinstatement shall not be used, in any manner, against the company. Appropriate fresh award shall be passed by the learned Labour Court on merits in light of the evidence which may be available on record. (M) It is also clarified that such reinstatement shall be subject to final award which may be passed by the learned Labour Court.
(N) With the aforesaid clarification the petition is partly allowed. The award dated 24.11.2008 in Reference (LCP) No. 58 of 1998 and order dated 3.10.2012 in Misc.
Application No. 24 of 2009 are set aside on abovementioned condition.
(O) This order will take effect on compliance of the abovementioned conditions.
With the aforesaid clarifications the petition is partly allowed. Rule is made absolute to the aforesaid extent.
Orders accordingly.
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Sd/-
(K.M.THAKER, J.)
Suresh*
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