Gujarat High Court
K vs Gavit on 7 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/9266/2009 18/ 18 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9266 of 2009
To
SPECIAL
CIVIL APPLICATION No. 9276 of 2009
With
SPECIAL
CIVIL APPLICATION No. 2364 of 2010
To
SPECIAL
CIVIL APPLICATION No. 2373 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
K
K BISCUIT BAKERY - Petitioner(s)
Versus
GAVIT
NAGINBHAI J - Respondent(s)
=========================================================
Appearance
:
MR
DAKSHESH MEHTA for
Petitioner(s) : 1,
MR DIPAK R DAVE for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 07/04/2010
ORAL
ORDER
Heard learned Advocate Mr. Dakshesh Mehta for KK Biscuit Bakery employer and learned Advocate Mr. Dipak R. Dave for workmen in this group of petitions.
In this group of petitions filed by employer and employees, common awards passed by Labour Court, Valsad in Reference No. 74/98 to 84/98, consolidated in Reference No.74/98, have been challenged by both, employer and employees. In Reference LCV No. 74/98, witness for first party Shri Rajeshbhai Khemchand Tharvani was examined and cross examined by Advocate of workmen. Application Exh. 21 was filed by second party for considering his cross examination for all Reference No.74 to 84 of 1998. Labour Court has discussed entire matter but passed separate independent award in respect to each reference and granted relief of reinstatement while setting aside the termination order with continuity of service with 20 per cent back wages for interim period with costs of Rs.2500.00. In one case being Special Civil Application NO. 9272 of 2009 filed by KK Biscuit in respect to workman Karsan Jivanbhai Patel who expired after reaching age of retirement and his service was terminated on 11.10.1997, at the time when deposition was given by Karsan Jivanbhai Patel, he was aged about 66 years old and, therefore, considering reached to age of retirement passing of order for his reinstatement was not necessary to be passed and, therefore, considering his entire length of service, labour court has granted Rs.56000.00 in lieu of back wagesand other service benefits towards compensation in respect of said workman who has subsequently expired. Except that, in respect to other workmen, relief of reinstatement with 20 per cent back wages has been granted with continuity of service by labour court in favour of rest of workmen.
Workmen have filed petitions challenging denial of 80 per cent back wages on the ground that once, section 25F of ID Act, 1947 is violated, then, workman is entitled for full back wages for interim period because employer has not proved gainful employment of concerned employees for interim period. Learned Advocate Mr. Dave appearing for workmen in these petitions has submitted that for denying 80 per cent back wages for interim period, no detailed reasons have been given by labour court and gainful employment has not been proved by employer and, therefore, in such circumstances, considering passage of interim period, as per his submission, denial of 80 per cent back wages for interim period amounts to imposing further punishment upon workmen it amounts to double jeopardy and giving premium to employer for passing illegal order of termination in contravention of the provisions of the Industrial Disputes Act, 1947. He submitted that burden is upon employee to prove unemployment during interim period. He submitted that burden was discharged by employees by filing affidavit before labour court which was cross examined by advocate for employer before labour court and statement was made on oath by workman that inspite of best efforts, and constant search, workmen have not been able to get any job or work and remained unemployed and, therefore, it was necessary for employer to disprove aforesaid facts but for that, there is no evidence led by employer before labour court for rebutting evidence against workman by producing evidence about gainful employment of workman. He submitted that no evidence was produced by employer to show that workmen have remained in gainful employment during interim period and, therefore, in such circumstances, labour court, Valsad ought to have granted full back wages for interim period which has not been granted therefore, workmen have filed petitions challenging denial of 80 per cent back wages by labour court Valsad.
Learned Advocate Mr. Dakshesh Mehta appearing for employer has raised contention before this Court that labour Court has committed gross error in granting relief of reinstatement in favour of concerned workmen. He submitted that against statement of claim, written statement was filed by employer Exh. 10. He submitted that employer firm is having biscuit and bakery shop in the city of Valsad. Employer desires to maintain industrial peace and respondents workmen were working as employees in the shop of employer. Learned Advocate Mr.Mehta submitted that labour court has committed gross error in considering inadmissible facts and not considering material fact that respondents workmen themselves had stopped to come for work and employer had never terminated their services. He submitted that the labour court has failed to appreciate submissions made on behalf of employer on affidavit that at no point of time, services of workmen were terminated and even during pendency of references, affidavit was filed by employer on 13.11.2006 that the employer is ready and willing to take respondents workmen for work even now. He submitted that it ought to have been appreciated by labour court that workmen were working as daily wager and workmen have not produced any cogent evidence to the effect that he had tried to obtain job at some other place but he could not receive the same. He submitted that during the examination of workman, he has nowhere prayed for back wages and certain documents were produced by workmen being xerox copy were never exhibited before labour court and, therefore, it cannot be considered to be evidence led before labour court and such xerox copy is having no evidentiary value and yet, same has been considered by labour court. He submitted that concerned workmen were employee of shop and not of factory and written submissions filed by employer were not considered by labour court in their proper perspective and respondents workmen had never made any application for production of documents before labour court and there is no such order passed by labour court, Valsad directing employer to produce any document on record. He further submitted that it ought to have been held by labour court that the averments made by workmen in their statement of claim have not been proved by workmen and workmen were not remaining in continuous service with employer and it is not established that they have completed 240 days continuous service and, therefore, employer is not required to comply with section 25F of ID Act, 1947. He submitted that labour court has committed gross error in not appreciating all these facts while passing award. He submitted that labour court has committed gross error in holding that employer has committed breach of section 25F of ID Act, 1947. As per his submission, aforesaid finding is baseless and perverse and no detailed reasons have been given by labour court, Valsad and, therefore, present group of petitions filed by employer are required to be allowed in toto while dismissing petitions filed by workmen. He further submitted in respect to Special Civil Application NO. 9272 of 2009 where service of workman was terminated on 11.10.1997 and at that time, said workman was 57 years old and on the date of giving deposition, he was aged about 66 years and his last drawn salary was Rs.3000.00 p.m. and he had joined service with effect from 1.4.1981. He submitted that in respect of said workman who had reached age of retirement during pendency of reference before labour court, labour court has awarded Rs.56000.00 without any calculation and without any application of mind and, therefore, that award is also required to be set aside along with other awards passed by labour court Valsad. Except these submissions, no other submission is made by learned Advocate Mr. Mehta before this court on behalf of employer and no decision has been cited by him in support of the aforesaid submissions made by him.
I have considered submissions made by both learned advocates. I have also perused each award made by labour court separately. It is not in dispute before labour court that workmen were employees of KK Biscuit Bakery, so, relationship as employer and employee between petitioner and respondents was not in dispute before labour court. On the contrary, it was case of employer before labour court that services of concerned workmen were never terminated by employer but because of illegal activities carried out in collusion with other workmen with a view to damage work of employer, with mala fide intention and just to pressurize employer, workmen themselves were not reporting for duty and that is how dispute had arisen and, therefore, question of terminating service by employer was not arising at all and, therefore, section 25F of ID Act, 1947 is not required to be complied with and no inquiry is necessary. Statement of claim were filed by workmen and written statement thereto were filed by employer in these cases and thereafter, issues have been framed by labour court in paragraph 6 which were examined by labour court on the basis of evidence on record. Labour Court has also considered various decisions referred to and relied upon by learned advocates for respective parties as discussed and referred to while considering issue no.1 and 2, page 24 and 25. Labour Court considered contention of employer and examined question whether workman himself left job or not reported for work and service of workman was not terminated by employer while considering some decisions. Real controversy between the parties is, whether service of workman was terminated by workman or not and whether workman himself had left job and abandoned job or not. This controversy has been considered by labour court in light of various decisions referred to and discussed by labour court and according to labour court, if workman has left job, being abandonment of service, then, it is the duty of employer to call the workman by issuing letter at his address about his absence and for that purpose, it is necessary for employer to ask employee to report for duty within the period or 3 or 7 days and then to point out that otherwise, presumption shall have to be made that workman is not interested in job and he has left service or abandoned job. Service of workmen in this case were not terminated by any order in writing and it is not case of workmen but according to workmen, moment, old settlement has come to an end, and new demand for revision of pay was made with other demands, for that, employer become displeased and due to that, new employees have been recruited by employer and as a result thereof, services of present workmen came to be terminated orally. According to employer, demand which was raised by union in respect to establishment situated near Dhobi Talav and not for the present workmen by union but workmen of both establishment are having collusion with each other and therefore, stopped to reporting for work with effect from 11th October, 1997 and, therefore, question was examined by labour court whether it was voluntary abandonment of service or a case of termination by the employer. After considering entire evidence on record as discussed in page 33 where written statement filed by employer has been discussed, where specific averments were made by employer that the service of concerned workmen were not terminated by petitioner employer and workmen themselves have stopped to come on duty. In light of this back ground, only reaction of employer would be to call workmen immediately on duty because their service has not been terminated by employer. In this group of cases, not a single letter was written to any of workmen by employer calling upon them to report for duty on the ground that their service has not been terminated by employer, therefore, labour court has come to conclusion while deciding issue no.1 and 2 that it was not a case of abandonment of service by employee but it is a clear case of termination of service of workmen by employer with effect from 11.10.1997. Labour Court has considered second question whether workmen have completed continuous service of 240 days by producing cogent evidence before labour court or not and whether workmen are entitled for benefit of section 25F of ID Act, 1947 or not. In support of arguments made by employer, certain decisions were relied upon as discussed by labour court in issue no.3 and 4, page 34. Labour Court has considered decisions which have been relied upon by employer and also considered averments made in statement of claim by workmen that workmen were working with employer for more than four to five years on daily wage basis and service has been terminated by employer on 11.10.1997. Workmen have supported on oath the averments made in statement of claim which was cross examined by advocate for employer but during said cross examination, employer has not been able to bring anything adverse to workman on record before labour court. On the contrary, as per evidence of witness for employer, Shri Rajeshbhai Khemchand Tharvani, who has given deposition before labour court, in respect to date of joining of workmen, salary and designation, there is no dispute between the parties and there is also no dispute raised by employer about completion of 240 days continuous service with employer within 12 months preceding date of termination. Therefore, this being undisputed fact between the parties, has been considered by labour court and labour court has also considered that in written statement, employer has not raised any contention before labour court that workmen have not completed 240 days continuous service within the period of one year. Therefore, moment dispute is not raised by employer that workman has not completed 240 days within 12 months preceding date of termination, question of proving such contention does not arise, meaning thereby, workmen are not required to prove before labour court in absence of dispute from employer that workmen have completed 240 days continuous service within 12 months preceding date of termination. Therefore, these facts are not in dispute between the parties before labour court, therefore, it has been proved from record looking to pleadings made by both parties that each workman remained in continuous service and completed 240 days continuous service within 12 months preceding date of termination, therefore, decisions which were relied upon by employer serial no.2 to 10 as referred to at page 34 are not helpful to employer, therefore, labour court has rightly come to conclusion that because there is no dispute raised by employer that workmen have completed 240 days continuous service within 12 months preceding date of termination and there is also no dispute about date of joining, length of service and salary of workmen between the parties. If workman has completed continuous service of 240 days within 12 months preceding date of termination, then, in the event of termination of his service, he is entitled for protection of section 25F of ID Act and if employer has terminated service of a workman in violation of mandatory provisions of section 25F of ID Act, then, such termination becomes void, ab initio. In case before hand, employer has submitted before labour court that employer has not terminated service of workman and, therefore, question of complying with sec.25F is not arising but workmen have abandoned job but that contention was not proved by employer before labour court as stated above. It was not case of employer that at the time of terminating service of workmen, provisions of section 25F of ID Act, 1947 were complied with by employer, therefore, considering evidence of witness for employer namely Rajesh Thorwani who has admitted in his cross examination that at the time of terminating service of workmen, no notice or notice pay in lieu thereof and retrenchment compensation were paid by employer to workman and also considering averments of employer made in its written statement, labour court has rightly come to conclusion that service of workmen were illegally terminated by employer in breach of section 25F of ID Act, therefore, contention raised by learned Advocate Mr.Mehta cannot be accepted in light of pleadings of employer and evidence which has been found on record before labour court and, therefore, labour court has rightly come to conclusion that once termination is found to be illegal and contrary to section 25F of ID Act, 1947, workmen are entitled for relief of reinstatement with continuity of service.
Thereafter, labour court has examined question of back wages while deciding isue no.5 and 6 and labour court has considered evidence of workmen as well as evidence of employer one Rajeshbhai Khemchand Tharvani. Both parties relied upon certain decisions as discussed while considering issue no. 6. Question of gainful employment of workman is required to be proved by employer. Before that, it is the burden upon the employee to prove that he has remained unemployed during interim period. This aspect has been examined by labour court while considering oral evidence of both parties. Labour court has considered that in the year 2006, during the pendency of reference, offer was made to workmen to report for duty without prejudice to their rights and contentions but according to workmen, on 14.11.2006, it was decided to report for duty by workmen as per affidavit filed by witness of employer, Shri Rajeshbhai Khemchand Tharvani, on 14th November, 2006, workmen had reported for duty at Valsad firm of employer which is near Valsad Tower but they were not allowed to report for duty by employer and condition was imposed by employer that all the workmen would not be allowed to report at one shop but they will have to report as per the choice of employer and workmen had put certain conditions also before employer, ultimately, this has not been worked out between both parties and thereafter, labour court has considered in light of aforesaid offer made by employer against which different kind of demands were made by workmen, therefore, labour court has considered total interim period and length of service and also considered various decisions relied upon by both parties and then awarded only 20 per cent back wages for interim period in favour of workmen. According to my opinion, considering total interim period from 1997 to 2009, it comes to about more than twelve years where, for the first time, employer made offer in the year 2006 though dispute was pending before labour court for more than nine years, therefore, offer made by employer cannot be considered as bona fide because employer waited for about nine years for making such offer to workmen. However, conduct of workmen is also not satisfactory because they also insisted for certain conditions to be complied with by employer which has not been possible, therefore, in view of this conduct of both parties, 20 per cent back wages for interim period which comes to about 12 years cannot be considered to be unreasonable, unjust or improper, therefore, contentions raised by both learned Advocates, Mr. Dakshesh Mehta for employer and Mr. Dipak R. Dave for workmen challenging award in question granting reinstatement with 20 per cent back wages for interim period cannot be accepted and same are, therefore, rejected.Looking to contention raised by employer that service of workmen was not terminated and thereafter no letter has been written to employee for reporting on duty and no action has been taken, therefore, labour court has rightly come to conclusion that it amounts to termination and 240 days continuous service has been established by workmen, for that, there is no dispute raised by employer and section 25F of ID Act, 1947 is also violated being undisputed fact, therefore, labour court has rightly set aside termination order and has rightly granted reinstatement with 20 per cent back wages for interim period while keeping in mind conduct of both parties and, therefore, contentions raised by both learned advocates cannot be accepted. According to my opinion, considering reasons given by labour court after appreciating evidence produced by both parties, award of reinstatement with 20 per cent back wages for interim period cannot be considered to be unjust, improper and labour court has not committed any error which would require interference of this court in exercise of powers under Article 227 of Constitution of India. Labour Court has applied mind, discussed evidence and also considered all the documents which were produced by respective parties. Labour Court has rightly relied on oral evidence led by both parties and also rightly considered decisions which were relied on by both parties, for that, detailed reasons have been given by labour court. Finding given and reasons recorded by labour court cannot be considered to be perverse or baseless and, therefore, same would not require interference of this court under Article 227 of Constitution of India.
As regards contention raised by learned Advocate Mr. Mehta for employer in Special Civil Application No. 9272 of 2009 in respect to workman Karsan Jivanbhai Patel who expired after reaching age of retirement and his service was terminated on 11.10.1997, at the time when deposition was given by Karsan Jivanbhai Patel, he was aged about 66 years old who has subsequently expired, labour court has awarded Rs.56000.00, being lumsum amount in lieu of reinstatement and back wages for interim period, contention raised by learned Advocate Mr. Mehta is that the award for Rs.56000.00 is on higher side. Learned Advocate Mr. Dave submitted that workman was appointed on 1st April, 1981, last wage drawn by him was Rs.3000.00 per month and his service was terminated on 11.10.1997 and at that time, he was aged about 57 years, therefore, considering length of his service and total interim period and also considering amount of gratuity for the period for which workman remained in service, such amount of compensation awarded by labour court in lieu of reinstatement and back wages for interim period cannot be considered to be unjust, unreasonable and/or on higher side. According to my opinion, Rs.56000.00 which has been awarded by labour court being lumsum amount in favour of workman who has reached age of superannuation, considering age of workman 66 years at the time when his deposition was recorded, contention raised by learned Advocate Mr.Mehta cannot be accepted. On the contrary, labour court has rightly awarded reasonable and just amount in favour of heirs of said workman who has subsequently expired during pendency of reference, therefore, that amount has to be paid by employer to heirs and legal representatives of Karsan Jivanbhai Patel. Therefore, according to my opinion, labour court has not committed any error in awarding lumsum amount in favour of heirs sand legal representatives of said deceased workman. According to my opinion, award made by labour court is just, reasonable and balance award passed by labour court based on facts which are on record, for that, labour court has not committed any error which would require interference of this court in exercise of powers under Article 227 of Constitution of India. Therefore, there is no substance in these groups of petitions filed by employer and employees and same are therefore required to be dismissed.
For reasons recorded above, these petitions are dismissed with no order as to costs.
(H.K. Rathod,J.) Vyas Top