Gujarat High Court
For Approval And Signature vs J.C.T. Electronic Limited on 12 September, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/30107/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 30107 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE K.M.THAKER Sd/-
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 ?
KOMAL FAKIRA WAGH....Petitioner(s)
Versus
J.C.T. ELECTRONIC LIMITED....Respondent(s)
Appearance:
MR. BK. RAJ, ADVOCATE for the Petitioner(s) No. 1
MR KM PATEL, ADVOCATE for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 12/09/2017
ORAL JUDGMENT
In present petition the petitioner, original claimant before the learned Labour Court, has placed under challenge award dated 5.12.2001 passed by learned Labour Court in Reference Page 1 HC-NIC Page 1 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT (L.C.V.) No. 902 of 1998 whereby learned Labour Court rejected the reference.
2. So far as factual background is concerned, it has emerged from the record that the petitioner was appointed / employed by the respondent company in June 1996 vide order dated 12.6.1996. 2.1 According to the respondent company he was engaged as "Trainee Operator".
2.2 The terms and conditions of the appointment order dated 12.6.1996 prescribed that the training period will be of 12 months. 2.3 Subsequently, another order dated 12.6.1997 came to be issued whereby the petitioner came to be appointed as "Operator".
2.4 According to Clause No. 2 of the order dated 12.6.1997, the petitioner was engaged on probation basis and the period of probation was Page 2 HC-NIC Page 2 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT fixed at 6 months starting from 12.6.1997. 2.5 Subsequently, the service of the petitioner came to be terminated on 10.12.1997 vide order of even date, i.e. 10.12.1997, on the ground that petitioner's performance was not satisfactory. 2.6 Feeling aggrieved by the said order dated 10.12.1997, the petitioner raised industrial dispute with the allegation that his service was terminated illegally.
2.7 Appropriate government referred the dispute for adjudication to learned Labour Court. The dispute culminated into Reference (LCV) No.902 of 1998.
2.8 In the said reference case, the claimant filed his statement of claim wherein he narrated above mentioned factual background and claimed that his service came to be terminated before completion of probation period. He also claimed Page 3 HC-NIC Page 3 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT that actually he was a regular employee and that even if it is assumed that he was engaged on probation basis, the probation period was beyond permissible limit prescribed under model standing orders, inasmuch as he could not have been continued on probation for more than 3 months. He also claimed that even if it is assumed that he was engaged on probation basis, then period of probation expired after 3 months and consequently, his service could not have been terminated without following procedure prescribed by law. However, the opponent company terminated his service without following any procedure i.e. without payment of compensation and without granting opportunity of hearing and without any fault on his part.
2.9 The company opposed the reference case. The company contended that initially, the claimant was engaged as trainee operator and after completion of period of training, he was appointed on probation basis and that his period Page 4 HC-NIC Page 4 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT of probation was 6 months. The company claimed that during period of probation, his performance was not satisfactory and therefore, the company terminated his service. According to the company, since the claimant's service was terminated during probation, it was not obliged to follow procedure prescribed under Section 25F or to follow any other procedure and that the petitioner's termination vide order dated 10.12.1997 is not illegal or in breach of statutory provision.
2.10 Learned Labour Court recorded evidence of the workman.
2.11 It is pertinent that the opponent company did not attend the proceedings. Even the claimant, i.e. present petitioner, was not subjected to cross examination and his deposition (examination in chief) remained uncontroverted. 2.12 It is also pertinent to note that though the Page 5 HC-NIC Page 5 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT respondent company tendered its written statement on record, since said reply was sought to be tendered after period for filing written statement expired, the learned Labour Court had passed order directing that the written statement was filed after prescribed period and that therefore, it will not be taken into consideration. The proceedings, in any case, were not attended by the company.
2.13 It is also necessary to mention that such decision/order by learned Labour Court has not been challenged by the company.
Under the circumstances, the statement of claim filed by the claimant remained uncontroverted.
2.14 Furthermore, the respondent company did not offer any witness. Consequently, any evidence on behalf of the company was not placed on record before the learned Labour Court.
In that view of the matter, the learned
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Labour Court closed the stage of evidence for the company vide order below Exh.17.
2.15 Thereafter, the learned Labour Court placed the matter for hearing rival submissions.
Even at the stage of hearing, no one attended the hearing on behalf of the company. Therefore, the learned Labour Court heard the submissions by learned advocate for the claimant and reserved the order.
Subsequently, after considering the material available on record, learned Labour Court passed the award dated 5.12.2001 and rejected the reference.
3. I have considered material available on record, impugned award and the contentions raised in the petition and the case of the company and the reply affidavit filed by the officer of the company (AGM, P & A).
4. From the order dated 9.5.2008, it appears Page 7 HC-NIC Page 7 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT that at the time when the petition was heard for admission, learned advocate for the petitioner had raised objection against maintainability of the petition on the ground of delay. It was claimed that against the award passed by the learned Labour Court in December 2001, the workman preferred the petition in 2007. Thus, the petition is hit by delay of 6 years and that therefore, the petition should not be entertained. Having regard to the said objection by the respondent company, this Court recorded said objection and while keeping the respondent's objection open the Court admitted the petition with clarification that such contention can be raised at the time of final hearing. The relevant part of the order dated 9.5.2008 reads thus:-
"2. Learned advocate Mr. Patel vehemently raised objection that award is challenged after a period of six years. Keeping open his contentions, the question is that respondent remained absent before Labour Court, even though, Labour Court has rejected reference.
3. Therefore, this question would require detailed examination. Hence, Rule expedited.
4. It is made clear that it is open for respondent to raise this contention about delay in filing present petition along with all other permissible contention in accordance with law at the time of final hearing."
Page 8 HC-NIC Page 8 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT 4.1 So as to deal with the said objection by the respondent company who never attended hearing before the learned Labour Court, the petitioner has filed additional affidavit dated 18.1.2008 wherein the petitioner i.e. original claimant has averred and stated that:-
"(2) I solemnly affirm and state that delay in filing S.C.A. No.30107/07 is genuine, unavoidable due to various reasons and personal problem. I solemnly affirm and state that I have been jobless since 10/12/97. I solemnly affirm and state that I do not have any regular and prosperous source of income. I solemnly affirm and state that I had the responsibility of my old age father, mother and younger unmarried sister.
(3) I solemnly affirm and state that in the marriage of my younger sister we had incurred some date of 15,000/- rupees and still continued and I am paying interest over that to one private financer.
(4) I solemnly affirm and state that order of this Hon'ble Labour Court is dated 5/12/01 and thereafter published on 9/6/02. I solemnly affirm and state that I was communicated by my Trial Court advocate and I was in search of some another competent Advocate of the High Court, when I inquired I was quoted Rs.3,000/- to Rs.7,000/- fees for write petition against the order of the Labour Court. At that relevant time I was hand to mouth and could not manage that amount. Thereafter I sincerely tried to collect the amount but I could never do as one after another problems were arising in my family. I solemnly affirm and state that because of poverty I could not file the write petition against the order of the Labour Court. I humbly submit that poverty is the genuine ground in costly judicial system of the country and no person can be denied justice for any inability which may have arisen because of poverty. I humbly submit that the Hon'ble Courts are the protectors and guards of the poor and weaker and with that view, I am praying the kindness of your Lordship to condone the delay or dispense with the delay."
4.2 Having regard to the said reply affidavit and also having regard to various aspects which Page 9 HC-NIC Page 9 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT emerge from the impugned award (which are discussed hereafter) and also having regard to the fact that considering the issues involved in the award/petition, the Court considered appropriate to admit the petition and thereafter the petition remained pending for almost 10 years and also having regard to the fact that this Court would ultimately strive for substantial justice rather than rejecting the petition on ground of limitation, this Court is not inclined to dismiss the petition, at this stage, on the ground of delay or laches and the Court would rather decide the petition on merits.
5. So far as relevant dates with regard to the appointment of petitioner and his termination from service is concerned and the nature of petitioner's appointment as borne out from the appointment orders, they are not in dispute. The appointment orders issued by the company are placed on record. Besides this, the said details which were mentioned by the petitioner in the Page 10 HC-NIC Page 10 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT statement of claim before the learned Labour Court were not denied and opposed by the company even before the learned Labour Court. Even in the affidavit which is filed by the company in present petition, any dispute with regard to the factual aspects mentioned by the petitioner is not raised and the said relevant details are not disputed by the company. The company has opposed the petition only on the ground of delay.
6. In view of the fact that the respondent company would contend that for period of 1 year i.e. from 12.6.1996 to 12.6.1997, the petitioner was engaged as trainee, it would be appropriate to take into account the definition of the term "workman" under Section 2(s) of Industrial Disputes Act because on the ground that the petitioner was initially engaged as trainee, the company would contend that such trainee, cannot be considered workman. The said Section 2(s) of the Act reads thus:-
"2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, Page 11 HC-NIC Page 11 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -
(i) who is subject to the Air Force Act, 1950. or the Army Act, 1950, or the Navy Act, 1957; or
(ii) who is employed in the police service or as an officer or other employee of a prison, or (iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]"
6.1 The said Section provides, inter alia, that any person who is employed in any industry including "apprentice" to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward is a workman. The said provision, however, excludes from the purview of the term workman, the person employed "mainly in a managerial or administrative capacity or a person employed in supervisory category with salary of more than prescribed pecuniary limit (which was in force at the relevant time) or a person employed in police service or as an officer or other employee of a Page 12 HC-NIC Page 12 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT prison or a person employed who is subjected to Air Force Act or Army Act or Navy Act". It is not the case of the company that the petitioner was engaged as an apprentice under the Apprentice Act.
Therefore, it was necessary for the learned Labour Court to decide (a) whether the petitioner should be considered workman/employee of the company right from his initial appointment w.e.f. 12.6.1996 or not; and (b) whether his service should be considered continuous w.e.f. 12.6.1996 or not and whether entire period from 12.6.1996 to 10.12.1997 should be considered as period of continuous service rendered by a workman or not. Unfortunately, learned Labour Court did not address, deal with and decide the issue and passed the award without addressing said vital issue.
6.2 It is also pertinent to note that the company did not place any material on record before the learned Labour Court that any scheme of training Page 13 HC-NIC Page 13 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT was in force in the company at the relevant time and/or that the company engaged persons for purpose of training. Merely because, the company mentioned in the appointment order that the person was engaged as trainee such appointee cannot be taken out of the purview of the term workman unless it is established that the employer actually imparted training to the said person and the service of such person was not taken for activities of the company and he was engaged purely for training purpose only.
It is pertinent that the company failed to lead evidence on this count and the learned Court failed to decide this issue.
6.3 In absence of such evidence from the company, learned Labour Court could not have assumed that the petitioner was engaged purely as trainee. 6.4 In the impugned award, learned Labour Court has failed to examine this aspect from the perspective of the definition of the term workman Page 14 HC-NIC Page 14 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT under Section 2(s) and also from the perspective that the said term workman includes apprentice except apprentice under the Apprentice Act. 6.5 The award is, to this extent, defective because the said aspect is not examined by learned Labour Court.
6.6 It was necessary for the learned Labour Court to examine the said aspect and if after considering the relevant evidence, if any available on record on this count, the learned Labour Court reached to the conclusion that the claimant should be considered workman, then, it would have emerged before the learned Labour Court that the claimant, as a workman, had worked for more than 12 months and that during said period, he had worked for more than 240 days and consequently, the company was obliged to follow the procedure prescribed under Section 25F before terminating his service.
However, unfortunately, the learned Labour
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Court did not address even this aspect and
rendered defective award.
7. There is another perspective to this matter. The claimant was continued in service by the respondent company even after 12.6.1997 when the period of training expired, though by a separate appointment order.
The company issued an appointment order dated 12.6.1997 appointing the petitioner as operator. The company in the order dated 12.6.1997 prescribed that the claimant is appointed as operator on probation basis and that the period of probation was for 6 months from 12.6.1997.
Above mentioned aspects establish that there was not a single day's break in petitioner's service with the respondent starting from 12.6.1996.
In light of the fact that the order dated 12.6.1997 prescribed 6 month's probation, the learned Labour Court ought to have taken into account the provision under the model standing Page 16 HC-NIC Page 16 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT orders which prescribe the definition of the term probationer.
Under Rule 2(b), the term probationer is defined to mean "a workman who is provisionally employed to fill a permanent vacancy or post and who has not completed three month's service in the aggregate in that post".
7.1 The petitioner was appointed on post of operator. The company claimed that the period of probation was 6 months. This discrepancy and anomaly is also not considered and not decided by learned Labour Court. Therefore also, the award is defective.
7.2 In this view of the matter, the learned Labour Court ought to have addressed the issue as to whether the petitioner can be considered probationer even after completion of period of 3 months from 12.6.1997 or he should be considered regular / permanent workman of the company.
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8. There is third perspective involved in this case. When the order dated 10.12.1997 (whereby the petitioner's service came to be terminated) is examined, it comes out that the company mentioned that the petitioner's performance was not found satisfactory and that his attitude towards the job and his duty was not satisfactory.
8.1 The company failed to place any material on record to demonstrate that during the period from 12.6.1997 to 10.12.1997, the company had ever informed the petitioner that his performance was not satisfactory and that he should improve his performance.
Any material to establish such intimation to the claimant was not placed on record before the learned Labour Court.
Neither before the learned Labour Court nor before this Court it is the case of the company that such intimations were given to the petitioner during the said period of 6 months.
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8.2 Under the circumstances, the learned Labour Court ought to have addressed the issue as to whether the reason mentioned in the termination order should be accepted on its face value or the said order should be treated as stigmatic order.
9. Above mentioned aspects, though involved in the dispute raised by the petitioner, have not been addressed by the learned Labour Court in the impugned award.
A glance at impugned award shows that the learned Labour Court passed the impugned award very casually and without considering relevant aspects involved in the matter.
It is pertinent to note that the company did not file written statement and the company also did not subject the claimant to cross examination.
In this view of the matter, case of the claimant remained uncontroverted.
The company did not attend the final hearing Page 19 HC-NIC Page 19 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT also before the learned Labour Court.
In absence of any defence by the company and in absence of any evidence from the side of company, the learned Labour Court passed impugned award, that too without addressing above mentioned relevant aspects involved in the matter.
Therefore, the matter deserves re- consideration.
10. At this stage, it is necessary to clarify that above mentioned observations by this Court in present order are only for the purpose of ascertaining as to whether the learned Labour Court has addressed relevant aspects before passing impugned award or not and to demonstrate that relevant issues have not been considered and decided by learned Labour Court.
It is further clarified that this Court has not, in any manner, whatsoever, expressed any view or opinion with regard to above mentioned issues including the issue as to whether the Page 20 HC-NIC Page 20 of 22 Created On Sun Oct 01 18:47:01 IST 2017 C/SCA/30107/2007 JUDGMENT claimant can be said to be a workman or his appointment was purely as a trainee and/or that as to whether the petitioner could have been engaged on probation basis for more than 3 months or not and/or whether his service should have been considered continuous from 12.6.1996 to 10.12.1997 or it should have been considered as separate appointments in separate capacity though of same person.
This Court has also not expressed any view with regard to the issue as to whether the order dated 10.12.1997 can be termed as stigmatic order or bonafide termination of an employee on probation.
The said issues can be determined only in light of evidence.
Unfortunately, any evidence which would enable the Court to decide the said issues is not available on record of present petition. Therefore also, this Court has not expressed any view with regard to said issues.
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11. Above discussed aspects and the reasons
mentioned above bring out that the award deserves to be set aside and the matter deserves re- consideration by learned Labour Court.
Consequently, following order is passed:-
[a] The impugned order dated 5.12.2001 in Reference (LCV) No.902 of 1998 is set aside; and [b] The said reference case is remitted to learned Labour Court for fresh decision in accordance with law after granting opportunity of hearing to the petitioner claimant and the respondent company.
Accordingly, present petition stands partly allowed. Rule is made absolute to aforesaid extent.
Sd/-
(K.M.THAKER, J.) kdc Page 22 HC-NIC Page 22 of 22 Created On Sun Oct 01 18:47:01 IST 2017