Gujarat High Court
For Approval And Signature: Sd/ vs Nathu Meru & on 20 January, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/22871/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 22871 of 2006
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 ?
TATA CHEMICALS LTD.....Petitioner(s)
Versus
NATHU MERU & 1....Respondent(s)
Appearance:
MR.VARUN K.PATEL, ADVOCATE for the Petitioner(s) No. 1
A H OZA, ADVOCATE for the Respondent(s) No. 1
NIMISHA J PAREKH, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 20/01/2017
ORAL JUDGMENT
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1. Heard Mr.Patel, learned advocate for the petitioner and Ms.Parekh, learned advocate for the respondent workman.
2. In present petition, the petitioner company has challenged award dated 20.6.2006 passed by the learned Labour Court at Jamnagar in Reference (LCJ) No.279 of 1996 whereby the learned Labour Court held that the action of the company of relieving the claimant on the ground that he attained prescribed age of superannuation on the basis of the record of the company, is illegal and the claimant should be deemed to be in service for entire period from the date when he came to be relieved (as per company's record) until the date on which the claimant attained prescribed age of superannuation (according to the document on which the claimant placed reliance before the learned Labour Court), i.e. for the period from 4.3.1996 to 15.9.2002 and the Page 2 HC-NIC Page 2 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT Court directed the company to pay full wages for the said period from 4.3.1996 to 15.9.2002.
3. So far as the factual background is concerned, it has emerged from the record that upon being relieved from service on the ground that the workman had reached / attained age of superannuation (on the basis of record available with the company and the record of Provident Fund), the respondent herein, i.e. original claimant raised industrial dispute with the allegation that the company illegally and arbitrarily terminated his service on ground of superannuation. Appropriate Government referred the dispute for adjudication to learned Labour Court. The dispute - reference culminated into Reference (LCJ) No.279 of 1996.
3.1 In his statement of claim, the claimant alleged that he had worked with the company for about 35 years before his service came to be Page 3 HC-NIC Page 3 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT terminated on the ground that he has attained age of superannuation. In the statement of claim, the claimant alleged that the date of his birth is 15.9.1942, however, the company considered 4.3.1936 as his birth date and accordingly relieved him from service on 4.3.1996 on the ground that he attained age of 60 years, i.e. the age prescribed by standing order as superannuation age. The claimant alleged that when he joined service, he had informed the company that his birth date is 15.9.1942, however, on the basis of certificate given by doctor, after medical examination, 4.3.1936 was recorded as his birth date and the company acted on the said details and arbitrarily relieved him from service. He claimed that he should have been continued in service until 15.9.2002 and instead, his service came to be terminated on 4.3.1996 on incorrect basis and that, therefore, he should be granted all benefits including wages for the period from Marcy 1996 to September 2002. He Page 4 HC-NIC Page 4 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT alleged that he had shown his horoscope to the company at the time when he was appointed and on the basis of the horoscope, he had informed that his birth date is 15.9.1942, however, the company arbitrarily acted on the details recorded on the basis of medical test and certificate and relieved him from service.
3.2 The company opposed the reference and resisted the demand of the claimant. In its reply / written statement, the company contended that before initiating the dispute which culminated into Reference No.279 of 1996, the claimant had twice raised dispute by way of Conciliation case No.2 of 1996 and Conciliation Case No.24 of 1996, however, on both occasions, he had withdrawn the said cases and subsequently, the claimant again raised dispute which culminated into Reference No.279 of 1996. In its written statement the company contended that according to the record of the company the claimant's birth date is 4.3.1936 Page 5 HC-NIC Page 5 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT and according to applicable Standing orders which prescribes 60 years of age as the age for superannuation and that therefore the claimant came to be relieved on 4.3.1996. The company contended that during entire tenure of his service the claimant never raised any dispute or objection with regard to details recorded in the company's register and he had never taken any steps, with aid of any cogent evidence, to get any modification or alteration carry out with regard to date of birth. The company also contended that same date was recorded as claimant's birth date in the Provident Fund record. The company further contended before learned Labour Court that after claimant was relieved from service on 3.3.1996 on the ground that he attained age of superannuation, the claimant even filled up the form for withdrawal of provident fund and thereupon provident fund also came to be released and the claimant received the payment of provident fund without Page 6 HC-NIC Page 6 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT protest. The company further contended that subsequently the claimant filed an application before the controlling authority under Payment of Gratuity Act and with a view to raising dispute for more amount towards gratuity the claimant mentioned different date of birth and at that stage the claimant raised present dispute. The company also contended in its written statement that the claimant had, on two occasions, withdrawn the dispute (i.e. in the proceedings of Conciliation Case No. 2 of 1996 and Conciliation Case No.24 of 1996) and only with a view to gaining undue advantage of salary and higher amount towards gratuity the claimant had raised dispute which deserve to be dismissed. The company also contended that 6 months notice was issued to the claimant on 2.9.1995 informing him that according to the details recorded in company's register he would attend age of superannuation on 3.3.1996 and therefore he would be relieved w.e.f. 3.3.1996 on superannuation Page 7 HC-NIC Page 7 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT however, even after service of the said notice / advance intimation (which was given before almost 6 months) the claimant did not take any steps and accepted the said notice and only after he was relieved and after provident fund amount was paid to him that the claimant raised dispute. According to the company the dispute was not bonafide and that therefore it deserved to be dismissed.
3.3 On conclusion of evidence the Learned Labour Court received evidence from both sides and upon conclusion of the submissions by both sides learned Labour Court passed impugned award with abovementioned directions.
4. Learned advocate for the company assailed the impugned award and he submitted that the learned Labour Court failed to appreciate that the claimant had not raised dispute during entire tenure of his service and the claimant also did Page 8 HC-NIC Page 8 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT not raise any dispute and did not take any steps when advance notice of 6 months was issued to the claimant and that therefore such belated dispute with regard to birth date and / or against superannuation should not have been entertained. He submitted that the claimant failed to submit any cogent evidence with regard to date of birth i.e. he did not submit School Leaving Certificate and / or Birth Certificate. He also submitted that while joining service he had not submitted evidence prescribed by standing order (with regard to date of birth) and that therefore he was subjected to medical examination and at the relevant time the medical officer, after conducting claimant's medical examination determined that the claimant's age is 37 years. The company claimed that the claimant's age / birth date was accordingly registered in the company and then for almost 22 years i.e. 1973 until September 1995 (when company issued advance notice) the claimant never raised any dispute Page 9 HC-NIC Page 9 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT with regard to the date of birth which was recorded in company's register. He further submitted that even after notice was served on 2.9.1995 for 6 months the claimant never raised any dispute and accepted said notice. He submitted that subsequently on 3.3.1996 (i.e. the date when according to the record of the company, the claimant attained age of superannuation) when he came to be relieved the claimant also received payment of provident fund and thereafter the claimant raised dispute with regard to birth date and therefore such dispute and claim should not have been entertained. According to learned advocate for the company the learned Labour Court failed to appreciate that such belated dispute deserved to be rejected and could not have been and should not have been entertained. Learned advocate for the company submitted that during proceeding before learned Labour Court the claimant sought to place reliance on the document of policy executed by LIC wherein the claimant's Page 10 HC-NIC Page 10 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT age in 1991 was recorded as 29 years. On the basis of said policy the claimant sought to support his claim and learned Labour Court accepted said document and case of the claimant and only on strength of the said document the learned Labour Court allowed the reference case without having regard to the conduct of the claimant and the inordinate delay in raising dispute and learned Labour Court also ignored or overlooked the fact that during entire tenure of his service the claimant never raised any dispute with regard to birth date. He submitted that since the learned Labour Court has passed award without considering the said relevant aspects, the award deserves to be set aside.
5. Per contra Ms. Parekh, learned advocate for the company opposed the submissions by learned advocate for the company. She submitted that the claimant had earlier worked for sometime with the company on temporary basis and at that time he Page 11 HC-NIC Page 11 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT had submitted horoscope with regard to his date of birth. She submitted that subsequently after sometime when the claimant came to be appointed by the company as permanent workman in 1973 he had submitted the policy to support the claim with regard to his birth date however the company chose to get the claimant examined medically and took into account the opinion of medical officer and on that basis recorded the details in the register of the company. According to the learned advocate for the claimant the details which the company recorded on the basis of the certificate of the medical officer is incorrect and the company should have accepted the details which were mentioned in the document of policy issued by LIC. She submitted that during his deposition also the claimant had emphasized that he had submitted the policy at the time when he was appointed as permanent workman and therefore company's action is not approved by the learned Labour Court. She submitted that learned Labour Page 12 HC-NIC Page 12 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT Court has not committed any error and the findings recorded by learned Labour Court are based on the details recorded in the policy issued by LIC and therefore there is no error or illegality in the decision of learned Labour Court.
6. I have considered the material available on record and I have also considered rival submissions by learned advocates for the petitioner and the respondent and impugned award. 6.1 Before proceeding further it is relevant to note that after the claimant was relieved from service on 3.3.1996 on the ground that he attained age of superannuation, the claimant had raised dispute with regard to payment of gratuity. Somewhere in November 1996 the claimant filed Gratuity Claim Application which was registered as Gratuity Claim Application No. 51 of 1996. The Gratuity Claim Application would be Page 13 HC-NIC Page 13 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT maintainable only when the service of an employee comes to end. In his Gratuity Claim Application the claimant himself declared relevant facts, dates and details. From the details declared by the claimant in his Gratuity Claim Application before the controlling authority it has emerged the claimant averred and asserted that:-
(a) According to the claimant his date of joining with the company was 1.3.1973.
(b) The date of retirement on superannuation when the service came to end was shown as 4.3.1996.
(c) The total length of service, as declared by the claimant was 27 years
(d) Last Drawn Salary declared by the claimant was Rs.121/-.
(e) The controlling authority passed order in the said Gratuity Claim Application No. 51 of 1996 on 2.3.1997.
(f) The controlling authority quantified gratuity payable to the claimant after taking into account Page 14 HC-NIC Page 14 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT abovementioned details and accordingly directed the company to pay Rs.41,904/- with interest @ 10%.
From the said details it comes out that the claimant himself, in claim application filed by him, declared that his service came to end on superannuation on 4.3.1996. The said application was filed somewhere in 1996 and at that stage also he did not raise dispute with reference to date of birth and/or allegedly premature superannuation. Further, now the claimant wants to contend and claim details contrary to what he himself stated in his application. 6.2 In this context, it is relevant to mention that it is given out by the company that the dispute with regard to gratuity arose between the parties because at the relevant time the claimant unauthorizedly continued to occupy the quarter of the company therefore the company had withheld Page 15 HC-NIC Page 15 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT gratuity and during proceedings before controlling authority the application was opposed on the ground that company is entitled to withhold the gratuity until claimant vacates the quarter of the company. The said contention camew to be rejected by the controlling authority and company was directed to release the gratuity amount and to make payment of Rs.41,904/-. 6.3 During hearing of this petition learned advocate for the petitioner further submitted that it is only recently i.e. in 2012 that the claimant ultimately vacated the quarter of the company.
6.4 From the abovementioned details mentioned by the claimant in his claim application it comes out even according to the claimant his service came to end on 3.3.1996 on superannuation and that the claimant never raised grievance before the controlling authority on the ground that he Page 16 HC-NIC Page 16 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT is wrongfully and/or permanently relieved from the service. Instead the claimant himself accepted the fact that his service came to end on ground of superannuation and on that strength and basis he demanded gratuity.
6.5 In that view of the matter, it is not permissible for the claimant to claim or contend anything contrary to what he averred, stated and contended before controlling authority in his application and during his deposition before the controlling authority.
6.6 Further, it is also relevant to note that the said details / facts or the date which was recorded in the company's register was also recorded in the register and record of the provident fund. The provident fund record also reflected 4.3.1936 as birth date of the claimant.
6.7 When the service of the claimant was
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discontinued and he was relieved on ground of superannuation on 3.3.1996 the claimant applied for provident fund and subsequently the provident fund came to be paid to the claimant. The claimant demanded provident fund and received provident fund on the premise that his service came to end on superannuation on 3.3.1996. At that stage also the claimant did not raise any dispute with regard to date of birth.
7. From abovementioned details it appears that in respect of two claims i.e. claim under the Payment of Gratuity Act and claim under the Provident Fund Act the claimant demanded the payment and for that purpose he supported his claim on the premise that he attained superannuation on 3.3.1996 and his service came to end on 3.3.1996 on superannuation and even at that stage the claimant never contended that the date mentioned in the record is incorrect and/or that he is permanently relieved though he has Page 18 HC-NIC Page 18 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT actually not reached age of superannuation and his service is arbitrarily terminated.
8. Third relevant aspect which deserves to be taken into account is the fact that before raising present dispute i.e. Reference Case No. 279/1996 the claimant had approached conciliation office on two occasions and his case was registered as Conciliation Case no. 2 of 1996 and 24 of 1996. On both occasions the claimant withdrew the said conciliation cases. Subsequently he raised dispute 3rd time and the said dispute culminated in present reference case.
8.1 It is pertinent that according to claimant's own case he came to be appointed in March 1973 (as disclosed in his Gratuity Claim Application). In the gratuity claim application the claimant himself declared that total length of his service with the company is 27 years. However, before Page 19 HC-NIC Page 19 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT learned Labour Court he claimed that he worked with the company for 35 years.
9. On the other hand during his deposition before learned Labour Court the claimant mentioned that he had joined service with the company in 1960 and at relevant time his age was 18 years.
9.1 From the said details which the claimant mentioned before the controlling authority and the facts which he mentioned before learned Labour Court it comes out clearly that the claimant continued to change his stand and the details / facts before different fora. 9.2 It has also emerged that there is no consistency in the details and facts stated by the claimant from proceedings to proceedings. 9.3 It is also relevant to note that the claimant Page 20 HC-NIC Page 20 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT contended that at the time when he had joined service with the company he had shown his horoscope however interestingly, during the proceeding before the learned Labour Court, the claimant never produced horoscope and did not rely on the so called horoscope before learned Labour Court. In the same breath the claimant also claimed before the learned Labour Court that when he joined service with the company he had submitted policy issued by the LIC and to support his claim with regard to date of birth he relied on the details mentioned in policy issued by LIC. As mentioned above he did not place on record before learned Labour Court the horoscope on which he allegedly relied at the time when he joined service of the company.
9.4 Above discussed details make it abundantly clear that stand of the claimant and the allegation by the claimant and details mentioned by him have been differing from authority to Page 21 HC-NIC Page 21 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT authority and from stage to stage. Thus, they are not reliable.
10. Even if abovementioned aspects are, for a moment, not taken into account then also most relevant aspect which stares in the face of claimant is the fact that from 1973 to 1996 i.e. for about almost 23 years the claimant never raised any dispute with regard to date of birth recorded in the register of the company and / or in the record of provident fund.
10.1 Not only this but when the claimant was served advance notice about superannuation, in September 1995, at that stage/time also the claimant did not raise any dispute. 10.2 It is also pertinent that the company had undisputedly issued and served a notice dated 2.9.1995 to the claimant and informed the claimant that he would be relieved on 3.3.1996 on Page 22 HC-NIC Page 22 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT attaining age of superannuation. It is not in dispute that the said notice was served to and received by the claimant.
10.3 Even after receipt of the said advance intimation (6 months in advance) the claimant did not raise any dispute during period of about 6 months.
10.4 Thereafter, on 3.3.1996 the claimant came to be relieved.
10.5 At that stage also the claimant did not raise any dispute. Sometime after provident fund came to be paid and when the claimant received said payments at that stage also he did not raise any dispute with regard to the date of his birth. After being relieved and after receiving provident fund amount the claimant raised dispute and initiated reference case.
10.6 The said chronology not only shows the
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conduct of the claimant but it also shows his motive/intention.
10.7 Sometime thereafter the claimant filed gratuity claim application and in his gratuity claim application the claimant himself declared that he attained age of superannuation on 3.3.1996 and his service came to end on ground of superannuation on 3.3.1996. In the said proceedings also the claimant, before the controlling authority, did not raise any dispute with regard to the date of birth and/or on the ground that the company permanently relieved him.
11. In this background, the dispute belatedly raised by the claimant before the learned Labour Court could not and should not have been entertained.
11.1 The said claim and the dispute raised by
the claimant deserved to be rejected on
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abovementioned grounds and atleast on the ground it was raised after inordinate delay of almost 23 years and that too despite the claimant got opportunity during tenure of his service to raise such dispute, more particularly after service of advance intimation in March 1995. 11.2 Unfortunately, learned Labour Court, without appreciating abovementioned aspects and conduct of the claimant, allowed itself to be dragged into or being influenced by the jugglery created by the claimant.
11.3 At any stage the claimant did not place on record before learned Labour Court birth certificate or other cogent evidence or document having probative evidentiary value (or even horoscope on which he had allegedly relied while joining company).
11.4 Instead of taking into account all such
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discrepancies and more particularly inordinate
delay on part of the claimant, learned Labour Court, as mentioned above, allowed itself to be dragged into or influenced by the discrepancies created by the claimant and learned Labour Court accepted the claimant's belated claim only by relying on the policy issued by LIC.
12. Actually having regard to the fact that during entire tenure of his service of 23 years (or 27 years) and having regard to the fact that even after receipt of the notice and even at the time when provident fund amount came to be paid the claimant had not raised any dispute and the claimant raised the dispute after he was relieved and retiral benefits were paid, reference should not have been entertained and claim ought not have been granted.
13. Since learned Labour Court lost sight of abovementioned aspects and allowed reference Page 26 HC-NIC Page 26 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT directing company to pay wages for period of 6 years the said direction does not deserve to be sustained.
13.1 Learned Labour Court has lost sight of and/or overlooked all relevant aspects and also ignored fact that the claimant did not wake up even at the stage when advance intimation was served to him but he initiated the dispute after being relieved from service and after receiving payment of retiral benefits payable on superannuation. Therefore such claim should not and could not have been entertained. On the said ground learned Labour Court ought to have rejected the reference.
13.2 Actually, by entertaining such claim after he was relieved from service, learned Labour Court exercised jurisdiction arbitrarily and irregularly. The impugned award therefore, suffers from error of irregular exercise of Page 27 HC-NIC Page 27 of 28 Created On Sat Aug 12 17:23:14 IST 2017 C/SCA/22871/2006 JUDGMENT jurisdiction and award deserves to be set aside.
14. Therefore, following order is passed:-
The impugned award dated 20.6.2006 passed by the learned Labour Court at Jamnagar in Reference (LCJ) No.279 of 1996 is set aside. The petition is allowed. Rule is made absolute. However, there shall not be any cost.
Orders accordingly.
Sd/-
(K.M.THAKER, J.) Suresh*/Bharat* Page 28 HC-NIC Page 28 of 28 Created On Sat Aug 12 17:23:14 IST 2017