Gujarat High Court
Guardian Plasticote Ltd vs Dhrupad Yadav C/O Guj.Rajya Kamdar ... on 12 November, 2014
Author: M.R.Shah
Bench: M.R. Shah
C/SCA/17953/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17953 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
================================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
GUARDIAN PLASTICOTE LTD.....Petitioner(s)
Versus
DHRUPAD YADAV C/O GUJ.RAJYA KAMDAR SABHA....Respondent(s)
================================================================
Appearance:
MR NIRAV C THAKKAR, ADVOCATE for the Petitioner(s) No. 1
MR P C CHAUDHARI, ADVOCATE for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 12/11/2014
ORAL JUDGMENT
1.00. By way of this petition under Article 226 of the Page 1 of 6 C/SCA/17953/2005 JUDGMENT Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction to quash and set aside the impugned Judgement and Award dated 7/5/2005 passed by the Labour Court, Valsad in Reference (LCV) No.269 of 1994 by which the learned Labour Court has allowed the said reference and has directed the petitioner to reinstate the respondent with full back wages and with continuity of service.
2.00. That the respondent was serving as a Machine Operator with the petitioner in the production department. That according to the respondent, after 7/12/1993 he was not permitted to resume the duty and his services were terminated illegally and therefore, he raised an industrial dispute by approaching the Labour Commissioner. The dispute was referred to the Labour court, Valsad by order dated 15/12/1994 which was registered as Reference (LCV) No.269 of 1994 before the Labour Court. It was the defence on behalf of the petitioner that the respondent workman has committed a serious misconduct of insubordination as well as misbehaving with the higher officers and therefore, the respondent workman has voluntarily left the service from 7/12/1993 to avoid departmental proceedings. In support of the above, initially the petitioner examined Factory Manager at Ex.21, however, thereafter at the time of cross-examination though number of opportunities were given, the Factory Manager did not remain present before the Labour Court for cross- examination and therefore, as such no further evidence was led by the petitioner to establish and prove their aforesaid defence. That by the impugned Judgement and Award, the learned Labour Court has directed the petitioner to reinstate the respondent workman with full back wages with continuity Page 2 of 6 C/SCA/17953/2005 JUDGMENT of service w.e.f. 6/12/1993 by observing that no evidence has been led to substantiate the contention on behalf of the management that to avoid departmental proceedings, as he was facing serious charge of misconduct of insubordination of giving threats to the higher officers, the respondent workman left the service voluntarily on and from 7/12/1993.
2.01. That feeling aggrieved and dissatisfied with the impugned judgement and award passed by the Labour Court, the petitioner management has preferred the present Special Civil Application under Article 227 of the Constitution of India.
3.00. Mr.Yash Joshi, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned Labour Court has materially erred in allowing the reference and directing the petitioner to reinstate the respondent workman with full back wages continuity of service. It is submitted that as such the petitioner did produce First Information Report filed against the respondent workman and also produce evidence in the form of deposition of Factory Manager who was examined at Ex.21. It is submitted that, therefore, it is the case of the petitioner that the petitioner was facing that the respondent workman was facing serious charge and therefore, to avoid departmental inquiry / proceedings, he voluntarily left the service from 7/12/1993, has been established and proved. It is submitted that therefore, the Labour Court has materially erred in passing the order of reinstatement with full back wages.
3.01. It is further submitted by Mr.Joshi, learned advocate appearing on behalf of the petitioner that after 2006 the Page 3 of 6 C/SCA/17953/2005 JUDGMENT respondent has been reinstated in service, which is disputed by Mr.Chaudhary, learned advocate appearing on behalf of the respondent.
It is submitted that by Mr.Chaudhary, learned advocate appearing on behalf of the respondent that initially while admitting the petition and granting ad-interim relief subject to compliance of provisions of section 17B of the Industrial Disputes Act, the respondent workman was paid the salary under section 17B of the Industrial Disputes Act. However, thereafter for few months, he was taken back in service and thereafter again the respondent workman was not called for duty and/or was not permitted to resume the duty and the petitioner continued to pay back wages under section 17B of the Industrial Disputes Act. It is submitted that despite the order passed by the learned Single Judge dated 13/8/2014, the petitioner has not filed any reply controverting the above.
Making above submissions, it is requested by Mr.Joshi, learned advocate appearing on behalf of the petitioner to dismiss the present petition.
4.00. Mr.Chaudhary, learned advocate appearing on behalf of the respondent workman while opposing the present petition has vehemently submitted that in the facts and circumstances of the case and when there is finding recorded by the Labour Court that the petitioner has failed to lead any evidence that as the respondent workman was facing serious allegations, to avoid departmental proceedings he left the job from 7/12/1993, no error has been committed by the Labour Court in directing the petitioner to reinstate the respondent workman with full back wages and continuity of service w.e.f.
Page 4 of 6C/SCA/17953/2005 JUDGMENT 6/12/1993.
Making above submissions, it is requested to dismiss the present petition.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and perused the impugned judgement and Award passed by the Labour Court.
5.01. At the outset, it is required to be noted that it was the specific case on behalf of the respondent workman that from 6/12/1993 the respondent was not permitted to resume the duty and his services were terminated illegally. On the other hand, it was the specific case on behalf of the petitioner that as the respondent workman was to face departmental proceedings with respect to serious allegations of misbehaving with the higher officers, he voluntarily left the job from 7/12/1993 to avoid departmental proceedings. However, as rightly observed by the learned Labour Court, no evidence has been led and/or produced on record by the petitioner management to substantiate the above. It is required to be noted that initially on behalf of the petitioner Factory Manager stepped into Witness Box and his examination-in-chief was recorded at Ex.21, however, thereafter though number of opportunities were given to him, he did not appear before the Labour Court for cross-examination and therefore, the learned Labour Court has rightly not considered the deposition of the said Factory Manager. Except examining the Factory manager, no evidence has been led by the petitioner to substantiate their defence. Considering the overall facts and circumstances of the case, it cannot be said that the learned trial court has Page 5 of 6 C/SCA/17953/2005 JUDGMENT committed any error in directing the petitioner to reinstate the respondent workman with full back wages and continuity of service. The order of termination is held to be illegal as the same has been passed without holding any inquiry. Abandonment of service by the respondent workman voluntarily from 7/12/1993 as contended by the petitioner has not been established and proved. Under the circumstances, no case is made out to interfere with the impugned judgement and award passed by the learned Labour Court.
6.00. In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad- interim relief granted earlier stands vacated forthwith. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(M.R.SHAH, J.) Rafik Page 6 of 6