Gujarat High Court
Chandrikaben Kirtibhai Makwana vs Bosch Rexroth India Ltd on 17 July, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/5365/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5365 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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CHANDRIKABEN KIRTIBHAI MAKWANA
Versus
BOSCH REXROTH INDIA LTD
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Appearance:
MR AMRESH N PATEL(2277) for the PETITIONER(s) No. 1
MR YOGEN N PANDYA(5766) for the RESPONDENT(s) No. 3
NANAVATI ASSOCIATES(1375) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2,4
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 17/07/2018
ORAL JUDGMENT
1. Heard Mr. Patel, learned advocate for the petitioner, Mr. Desai, learned advocate for the respondent No.1 and Mr. Pandya, learned advocate Page 1 of 29 C/SCA/5365/2016 JUDGMENT for the respondent No.3.
2. In this petition, the petitioner has challenged award dated 31.3.2015 passed by learned Labour Court in reference case No.44 of 2010 whereby the learned Labour Court awarded Rs.7,000/, to the claimant, as lump sum compensation.
2.1 The claimant is aggrieved by the said order, inasmuch as the claim for reinstatement in service with consequential benefits is rejected by learned Labour Court and instead, lump sum compensation is awarded.
3. So far as factual backdrop is concerned, it has emerged from the record that present petitioner raised industrial dispute with the allegation that despite specific assurance that service conditions will not be changed and that claimant's service will not be terminated despite change in the contract/contractor, the opponents, in guise of transfer, terminated service of the Page 2 of 29 C/SCA/5365/2016 JUDGMENT claimant.
3.1 With said allegation, the claimant demanded reinstatement in service with all benefits. 3.2 Appropriate government referred the dispute for adjudication. In the order of reference, the appropriate government impleaded the company (present respondent No.1) and the concerned contractors (present respondent Nos.2 and 3) as parties to the said reference case. 3.3 The workman (contract worker) filed her claim before learned Labour Court with the allegation that she was working as Sweeper in housekeeping department of the company and that though the employer has issued Identity Card, ESIS Card and payslip, any deduction towards Provident Fund contribution are not made and she has been deprived of several benefits. The claimant also alleged that she was assured by the Company that her service will not be transferred anywhere and she will be continued in the service with the company even if the contract expires or Page 3 of 29 C/SCA/5365/2016 JUDGMENT the contract is terminated and/ or even if the contractor is changed, however in breach of the said understanding and assurance her service came to be terminated by oral instruction on 1.10.2009 merely because she demanded statutory benefits. With the said allegation the claimant demanded that she should be reinstated in service with the company.
3.4 The company opposed the reference. The company submitted that the claimant is employee of contractor and is working in the company as contract worker therefore any claim against the company cannot be raised and may not be granted. The company also claimed that it did not terminate service of the claimant and since the claimant was not employee of the Company question of terminating or any need to terminate her service never arose so far as the Company is concerned. The company also claimed that the service conditions for the claimant was determined by the concerned contractor and the Page 4 of 29 C/SCA/5365/2016 JUDGMENT said conditions were settled between the contractors and the claimant and not with the Company. The company claimed that it did not terminate service of the claimant. The company also raised several other contentions including the contention that out of 27 claimants, 12 claimants had tendered resignation from the Union and she was not member of the Union and therefore the Union has no locus to represent her. 3.5 The concerned contractor i.e. respondent nos. 2 and 3 filed their reply before the learned Labour Court. The Opponent No. 2 claimed that the company had awarded contract for house keeping and manpower supply and that the said contract expired on 31.12.2008 however it was extended until 31.12.2009 however subsequently the contract was terminated in September, 2009 and that therefore the claimant was transferred to other establishment where the contractor was executing similar contract. The opponent no.2 claimed that the service of the concerned Page 5 of 29 C/SCA/5365/2016 JUDGMENT claimant has not been terminated but she came to be transferred/ deployed to other establishment however the claimant did not report at the said other establishment. According to the said opponent no.2, the claimant, of her own choice, decided to not report for work at the place where her service came to be transferred/ deployed and that therefore the allegation that her service has been terminated is incorrect.
3.6 On the other hand opponent no.3 claimed that the company had awarded house keeping contract however the said contract expired in October, 2007 and thereafter the company awarded the contract to other contractor. The opponent No.3 also claimed that when the Company changed the contractor and awarded the contract to opponent No.2 the workman had tendered resignation ( to opponent No.3)and she joined service with other establishment i.e. opponent no.2. The said opponent no.3 claimed that since the claimant had tendered resignation and collected all benefits and dues, any claim against the opponent no.3 was Page 6 of 29 C/SCA/5365/2016 JUDGMENT not maintainable.
3.7 During the proceedings before learned Labour Court the parties to the proceedings placed on record respective evidence (oral as well as documentary evidence).
3.8 According to the claimant, a document in form of "written assurance" by the authorised officer of the company declaring that the service of the contract workers ( in house keeping department) and the condition of her service will not be altered and though the contract expired or the contract is terminated or the contractor is changed, the service of claimant (contract workers in House Keeping department) will not be terminated, was placed on record before learned Labour Court.
3.9 Upon conclusion of the evidence by both sides, learned Labour Court heard rival submissions and after considering material available on record learned Labour Court passed impugned award.
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4. Mr. Patel, learned advocate for the concerned claimant assailed impugned award. He submitted that the impugned award is completely non speaking order and the learned Labour Court has not dealt with any contention and/ or documentary evidence and that therefore the award is contrary to evidence on record and unjustified. He, heavily relied on document which according to the petitioner is a vital document (i.e. written assurance/ declaration by the authorised officer of the company) and he submitted that the company acted in breach of said written assurance. He further submitted that though the learned Labour Court specifically recorded finding of fact that the concerned workman was engaged for house keeping work on contract and she was rendering service in the company and to the company, though through contractor, in company's house keeping department and that the said house keeping contract was terminated with effect from 1.10.2009 i.e. before the stipulated and agreed period of contract which, otherwise, was to Page 8 of 29 C/SCA/5365/2016 JUDGMENT expire on 31.12.2009 and that at the relevant time the concerned workman was rendering service in company's house keeping department. Learned advocate for the workman further submitted that learned Labour Court, having recorded such findings, also recorded that in view of the undertaking and assurance given by the authorised representative of the company, the service of the said claimant could not have been terminated or transferred and that the action of the respondent was contrary to and in violation of the written undertaking/ assurance. Mr. Patel, learned advocate submitted that despite the fact that learned Labour Court took into account the said document i.e. written assurance / undertaking given by the representative of the company and though the learned Labour Court reached to the conclusion that the action of the opponents i.e. alleged transfer to other establishment, amounted to breach of the said undertaking/ assurance, learned Labour Court committed material error in not passing direction to the opponents to Page 9 of 29 C/SCA/5365/2016 JUDGMENT reinstate the claimant in service and also committed error in not directing the opponents to abide by and to act in accordance with the written undertaking/ assurance and instead the learned Labour Court without any justification arbitrarily and without recording any reason, awarded paltry amount i.e. only Rs.7,000/ as compensation. According to learned advocate for the workmen, the said direction is unjustified and arbitrary. He further submitted that the learned Labour Court committed error in observing that the claimant expressed inability to report for work at the transferred place whereas the case of the claimant was that service of the claimant could not have been transferred in light of the specific understanding/ agreement with the company and the written assurance by the company. The learned advocate for the workman also submitted that the learned Labour Court even recorded the findings that the action of the respondents amount to breach of Section 25F and Section 25G however even after recording such Page 10 of 29 C/SCA/5365/2016 JUDGMENT finding learned Labour Court unreasonably awarded paltry amount of Rs.7000/ towards lump sum compensation and that therefore the award deserves to be set aside and the respondent company should be directed to reinstate the claimant to act in accordance with the understanding/ agreement and written assurance. 4.1 Mr. Desai, learned advocate for the respondent company opposed the petition and the demand by the workmen. He submitted that the company had not entered into any agreement or understanding of the nature alleged by the workmen. He submitted that the company never gave such written undertaking/ assurance as alleged by the claimant. He submitted that according to the company the said document is not genuine. According to learned advocate for the company, the claimant is undisputedly contract worker and therefore any direction against the company cannot be passed and any relief in favour of the workman and against the company cannot be Page 11 of 29 C/SCA/5365/2016 JUDGMENT granted. He submitted that the company did not terminate service of the claimant and/ or did not transfer the employee to any other place but it was the opponent no.2 contractor that transferred her service to other establishment and that therefore any demand against the company cannot be raised and any direction against the company cannot be passed.
4.2 Mr. Pandya, learned advocate for opponent nos. 2 and 3 submitted that on termination of the contract, the service of the claimant was transferred. It is submitted that it is incorrect that the service of the claimant came to be terminated. He submitted that the document on which the learned advocate for the workman placed reliance i.e. the written assurance is a document and a material between claimant and the company and the opponent Nos. 2 and 3 have no say and no role in the matter of written assurance. Mr. Pandya, learned advocate for opponent Nos. 2 and 3 submitted that the concerned workman was Page 12 of 29 C/SCA/5365/2016 JUDGMENT working with the company even prior to the time when the contract came to be awarded to the opponent no.2 and/ or opponent no.3. According to learned advocate for the respondent nos. 2 and 3 in view of the arrangement and agreement with the company the claimant was taken over by the opponents. Mr. Pandya, learned advocate further submitted that when the contract with the opponent no.2 came to be terminated in October, 2009, the opponent no.2 had made efforts to accommodate the claimant at other establishment where the opponent no.2 was executing the contract and the opponent no.2 had instructed the claimant to report for work at other establishment however the claimant did not report for duty at that establishment.
5. I have considered rival submissions and material available on record. I have also considered impugned award.
6. It is pertinent to note that the company has Page 13 of 29 C/SCA/5365/2016 JUDGMENT not challenged the award.
6.1 Meaning thereby the findings and conclusion recorded by learned Labour Court and the observation by learned Labour Court in the award are not challenged by the company and all findings as well as conclusion and observation recorded by learned Labour Court in the award, are accepted and admitted by the company, without any dispute and/ or without any objection.
7. Now, in this backdrop, it is necessary to note that in the impugned award the learned Labour Court has held that the action of the respondents amounts to breach of Section 25F and Section 25G.
7.1 It is pertinent, as mentioned above, the said findings of fact is not disputed, much less challenged by the company.
7.2 Therefore the said observation and findings recorded by learned Labour Court are conclusive and binding to the company. Page 14 of 29
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8. Similarly, it is also relevant and necessary to note that the learned Labour Court has also taken note of the document i.e. written undertaking/ assurance given to the workman by the authorised officer of the company. 8.1 On reading said document it comes out that it is signed by one Mr. Hiren Shah for the company. The said document reflects an assurance and promise/ undertaking to the effect that even if there is any change in contract/ contractor, the service condition of the lady workmen (whose names are mentioned in the said document) shall not be altered or adversely affected and the said workmen shall be continued in the company under the contract (as contract workers) and if need be with other contractor.
9. It is not in dispute that the said document was placed on record of reference cases before the learned Labour Court.
9.1 Actually, the learned Labour Court has taken Page 15 of 29 C/SCA/5365/2016 JUDGMENT note of the said document and the award reflects discussion with regard to the said document. 9.2 Since, the said observations and findings have not been disputed and have not been challenged by the company they are binding to the Company. The Company has accepted entire award i.e. not only final direction but the findings and the conclusions as well as the reasons and the material/ evidence which are considered and relied on by labour Court. Therefore the Company cannot now oppose any finding, conclusions and reasons justification on which the Court considered its decision and findings.
10. The learned Labour Court has also recorded specific observations and findings in the award to the effect that the action of the respondent, i.e. discontinuing service of the claimant or transferring them to other establishment, amounts to breach of said written undertaking / assurance.
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11. As mentioned above, the petitioner company has not challenged the award and even the said observations and findings and conclusions by the learned Labour Court are also not challenged by the company.
12. Therefore, the said conclusions and findings are also binding to the company.
13. The company has accepted the conclusion that the action of the company and the contractors viz. not continuing the concerned claimant in service with the company, despite specific written undertaking / assurance amounts to breach of written undertaking / assurance to the claimant.
14. Both the findings i.e. that (a) the said action amounts to breach of sections 25F and 25G as well as the finding / conclusion; that (b) the impugned action amounts to breach of written undertaking / assurance, are final and binding so Page 17 of 29 C/SCA/5365/2016 JUDGMENT far as the company and the contractor(s) are concerned.
15. Of course, the said observations and findings would also be binding to the opponent Nos.2 and 3 inasmuch as even the said two opponents also have not challenged the award and/or any finding, conclusion and observation recorded by the learned Labour Court in the award, including the above mentioned findings and conclusions.
16. However, to some extent the opponent Nos.2 and 3 are justified i.e. so far as their contention to the effect that the said document and the said written undertaking / assurance is a matter between the company and the said 15 employees and it would be binding to the company and it cannot be enforced against the said opponent No.2 and/or opponent No.3 because the said opponents did not give such written undertaking / assurance to the employees. Page 18 of 29
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17. At this stage, it is relevant to note that neither the company nor other two opponents examined any witness. The evidence of the claimant was recorded and the said claimant was subjected to crossexamination on behalf of the company and the opponents however any witness by the company or other two opponents were not examined.
18. Now, what is relevant to note is the fact that even during the crossexamination, any question with regard to the written undertaking / assurance was not put to the claimant.
More important is the fact that even during claimant's cross examination (by company and/ or contractors) any question - to oppose or challenge the claimant's statement about Mr. Hiren Shah and/ or about the document (i.e. the written assurance/ undertaking) including any question about its genuineness were not put to the claimant.
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19. Though, the company has, for the first time during the hearing of this petition, made submission with regard to the said document viz. that the said document is not genuine and it is, for the first time, alleged that it is a fabricated document, such defence or contention was never raised before the learned Labour Court. Any evidence to the said effect was never placed before the learned Labour Court.
20. More pertinent aspect is that the officer whose signature is on the face of the document i.e. Mr.Hiren Shah, was not examined by the company before the learned Labour Court. Further, during the claimant's crossexamination even any doubt about the document, the Officer and/ or the officer's authority to issue such assurance was also not put to the claimant.
21. In reply to the query by the Court, learned advocate for the company did not dispute, rather fairly admitted, that at the relevant time said Page 20 of 29 C/SCA/5365/2016 JUDGMENT Mr.Hiren Shah was undisputedly an employee of the company and it is not the case even of the company that such person was not employee of the company. If the company wanted to contend that the said officer (Mr. Hiren Shah) had no authority to issue such written undertaking/ assurance and/ or that the said officer had not signed and issued said document, then the obligation to prove both said aspects was on the company. It is pertinent that the company did not examine the author/ signator of the said document. He was the only person who could have said that the said written undertaking/ assurance does not bear his signature and/ or he did not sign the said document and/ or that he never issued such written undertaking/ assurance. However, though the said Officer was in service with the company at the relevant time, company did not examine him as witness and, for reasons best known to it, kept back the said witness/ evidence. The company also did not lead any evidence and did not establish that such Page 21 of 29 C/SCA/5365/2016 JUDGMENT authority was not given to the said Officer and that said Mr. Shah had no authority to give such assurance/ undertaking. The company neither examined said Mr. Shah nor any other superior officer, so as to clarify and establish said aspect.
22. In this background, it becomes important and relevant that said Mr.Hiren Shah was not examined before the learned Labour Court.
23. Any dispute about veracity of the document or the contention that such written undertaking / assurance was never given by the company to the said employee, much less that the said document is fabricated document, was raised before the learned Labour Court.
24. Even otherwise, when the company and/ or the contractors did not examine the author of the document/ the person who is signator (to the document), to plead that he did not issue such Page 22 of 29 C/SCA/5365/2016 JUDGMENT written undertaking / assurance and/or that he had not signed such document, the plea of such factual aspect which is raised for the first time before this Court cannot be considered.
25. In this view of the matter, the findings and conclusions recorded by the learned Labour Court with regard to the said document (i.e. written undertaking / assurance given by the company to the concerned claimant) and the findings as well as the conclusion, that the action of the company and the contractors amount to breach of sections 25F and 25G, cannot be faulted.
26. In this view of the matter, it becomes necessary to note that despite having recorded such findings viz. that the action of the company and the contractors amount to breach of Sections 25F and 25G as well as breach of the undertaking/ assurance, the learned Labour Court has not recorded any reason for refusing the relief by way of reinstatement and backwages. Page 23 of 29
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27. The learned Labour Court has also not recorded any reason to justify its decision to award lump sum compensation instead of the relief of reinstatement and backwages.
28. Of course, the learned Labour Court has observed that since the contract stands terminated / has expired, the direction to reinstate the claimant is not granted. However, when the learned Labour Court has recorded the finding that the action of the opponent amounts to breach of written undertaking / assurance, then proper effect to such finding and conclusion should have been given by the learned Labour Court.
29. Actually, the observation that since the contract has come to end, reinstatement may not be granted, is contrary to the observations and findings by the learned Labour Court in the award with regard to written undertaking / assurance Page 24 of 29 C/SCA/5365/2016 JUDGMENT and it is also contrary tot he written undertaking / assurance given by the company viz. that even if the contract expires or the contract is terminated or there is any change in the contract/ contractor, then also the concerned claimant will be continued in the company, under the contract, though with another contractor.
30. The learned Labour Court should have taken into account the said assurance and passed appropriate direction in consonance with the said written undertaking / assurance by the company, more particularly when the learned Labour Court took into account the said document.
31. Since, as mentioned above, the findings and conclusions recorded by the learned Labour Court are not challenged by the company and/or other two opponents( i.e. contractors), all observations, findings and conclusions recorded by the learned Labour Court, including the finding that the action impugned in the reference Page 25 of 29 C/SCA/5365/2016 JUDGMENT cases is in breach of the written undertaking / assurance given by the company and that it also amounts to breach of sections 25F and 25G are binding to the Company. When the company failed to establish that the said document is not binding to it and/ or that it had never given such written undertaking / assurance the learned Labour Court ought to have passed appropriate consequential order and directions. However the learned Labour Court failed to give effect to its own findings and conclusions and the Court also failed to pass appropriate direction in furtherance of its own finding and conclusion. Therefore, the impugned award deserves to be partly set aside and modified so as to give effect to the findings and conclusions by the labour Court with regard to the written undertaking / assurance which are not challenged by the company or the concerned contractor and therefore are binding to the company.
32. In the interest of justice and fitness of Page 26 of 29 C/SCA/5365/2016 JUDGMENT things and to pass proper and effective order in light of the findings and conclusions recorded by the learned Labour Court, it is necessary to take into account the relief prayed for by the claimant in present petition, more particularly the request that 'direct them to treat the petitioner's services continued for all purposes and direct her to pay full backwages with all allowances'.
33. Having regard to the aspects discussed above and in light of the foregoing discussion and reasons mentioned above, impugned award is partly set aside and modified. Having regard to the findings and conclusions recorded by the learned Labour Court with regard to the written undertaking / assurance by the company, the company is directed to reinstate / continue the claimant in service, i.e. to act in consonance with the written undertaking / assurance given to the concerned claimant, by means of the document (document at page 60 of present petition). Page 27 of 29
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34. If necessary, the concerned claimant should be accommodated, as contract worker, with other contractor/ under different contract (i.e. in consonance with the specific assurance mentioned in above referred document).
35. So far as the petitioner's claim for backwages and other benefits are concerned, the amount awarded by the learned Labour Court shall be treated as compensation / amount in lieu of backages until the date of award.
36. In view of peculiar facts and circumstances of the case and also having regard to the fact that the learned Labour Court did not grant reinstatement, the claim for wages for the period from the award until today i.e. 16.7.2018 is not accepted.
37. It is declared and clarified that the claimant will not be entitled for any wages for the period from the date of award until Page 28 of 29 C/SCA/5365/2016 JUDGMENT 16.7.2018.
38. For the period from the date of dispute / impugned termination in October 2009 to the date of award i.e. 31.3.2015, the amount awarded by the learned Labour Court shall be treated as compensation towards wages for the said period.
With the aforesaid observations, clarifications and directions, the petition is disposed of. Rule is made absolute to the aforesaid extent.
(K.M.THAKER, J) saj Page 29 of 29