Gujarat High Court
La-Cast Metals And Components Pvt Ltd vs Navsi Vaghat & on 21 September, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/16287/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16287 of 2013
[On note for speaking to minutes of order dated 22/08/2017 in
C/SCA/16287/2013 ]
With
SPECIAL CIVIL APPLICATION NO. 16288 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16290 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16291 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16292 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16293 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16492 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16493 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16494 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16496 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16497 of 2013
LA-CAST METALS AND COMPONENTS PVT LTD....Petitioner(s)
Versus
NAVSI VAGHAT & 1....Respondent(s)
Appearance:
MR DG SHUKLA, ADVOCATE for the Petitioner(s) No. 1
MR DIPAK D JOSHI, ADVOCATE for the Respondent(s) No. 1
MR DIPAK R DAVE, ADVOCATE for the Respondent(s) No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 21/09/2017
ORAL ORDER
Page 1 HC-NIC Page 1 of 38 Created On Sun Sep 24 23:26:54 IST 2017 1 of 38 C/SCA/16287/2013 ORDER Considered the Office Note dated 19.9.2017.
2. It appears that through inadvertence and by mistake, the title of the judgment dated 22.8.2017 (though rendered in present petitions) was described as "SPECIAL CIVIL APPLICATION NO. 16287 of 2013 TO SPECIAL CIVIL APPLICATION NO. 16293 of 2013 With SPECIAL CIVIL APPLICATION NO. 16492 of 2013 TO SPECIAL CIVIL APPLICATION NO. 16498 of 2013".
3. Therefore, the title of the said judgment dated 22.8.2017 be corrected and read as "SPECIAL CIVIL APPLICATION NO. 16287 of 2013 With SPECIAL CIVIL APPLICATION NO. 16288 of 2013 With SPECIAL CIVIL APPLICATION NO. 16290 of 2013 With SPECIAL CIVIL APPLICATION NO. 16291 of 2013 With SPECIAL CIVIL APPLICATION NO. 16292 of 2013 With SPECIAL CIVIL APPLICATION NO. 16293 of 2013 With SPECIAL CIVIL APPLICATION NO. 16492 of 2013 With SPECIAL CIVIL APPLICATION NO. 16493 of 2013 With SPECIAL CIVIL APPLICATION NO. 16494 of 2013 With SPECIAL CIVIL APPLICATION NO. 16496 of 2013 With SPECIAL CIVIL APPLICATION NO. 16497 of 2013".
4. Office is directed to correct the title of the said judgment dated 22.8.2017 accordingly.
Office Note dated 19.9.2017 stands disposed Page 2 HC-NIC Page 2 of 38 Created On Sun Sep 24 23:26:54 IST 2017 2 of 38 C/SCA/16287/2013 ORDER of.
(K.M.THAKER, J.) kdc Page 3 HC-NIC Page 3 of 38 Created On Sun Sep 24 23:26:54 IST 2017 3 of 38 C/SCA/16287/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16287 of 2013 TO SPECIAL CIVIL APPLICATION NO. 16293 of 2013 With SPECIAL CIVIL APPLICATION NO. 16492 of 2013 TO SPECIAL CIVIL APPLICATION NO. 16498 of 2013 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 ?
LA-CAST METALS AND COMPONENTS PVT LTD....Petitioner(s) Versus NAVSI VAGHAT & 1....Respondent(s) Appearance:
MR DG SHUKLA, ADVOCATE for the Petitioner(s) No. 1 MR DIPAK D JOSHI, ADVOCATE for the Respondent(s) No. 1 MR DIPAK R DAVE, ADVOCATE for the Respondent(s) No. 1 MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2 CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 22/08/2017 ORAL JUDGMENT Page 1 HC-NIC Page 4 of 38 Created On Sun Sep 24 23:26:54 IST 2017
4 of 38 C/SCA/16287/2013 JUDGMENT Heard Mr.Shukla, learned advocate for the petitioner company and Mr.Dave, learned advocate for the respondent workmen.
2. In this group of petitions, the company (original opponent before the learned Labour Court) has challenged separate but similar awards passed by the learned Labour Court in separate reference cases whereby the learned Labour Court directed the company to treat them in service/to reinstate the claimants - workmen and to pay 50% backwages. The relevant details i.e. number of petitions and the name of the concerned petitioner, respective reference case filed by the claimant and the date of award passed by the learned Labour Court in each reference case as well as total length of service of the concerned claimant (according to the claim of the company and according to the claimants) are summarized in below mentioned tabular statement:
Sr. SCA No. Name of Reference Date of Total Employee No. Petitioner (LCV) No. Award Years 's Claim of Service 1 16287/13 Kum. Navsi 545/98 06/03/13 About 2 3 yrs.
Vaghat yrs.
2 16288/13 Shri Subhash 535/98 29.4.13 About 2 4 yrs.
Katela yrs.
3 16289/13 Kum. Shantiben 102/97 08/05/13 About 6 1.5 yrs.
Ayari months
4 16290/13 Kum. Devlee 547/98 06/03/13 About 4 8 yrs.
Surjee yrs.
Page 2
HC-NIC Page 5 of 38 Created On Sun Sep 24 23:26:54 IST 2017
5 of 38
C/SCA/16287/2013 JUDGMENT
5 16291/13 Shri Shailesh 537/98 30.4.13 About 2 About 3
Dhodi yrs. yrs.
6 16292/13 Kum. Navshi 544/98 06/03/13 About 7 1.5 yrs.
Ramji months
7 16293/13 Shri Kanha 533/98 24.4.13 About 3 About 3
Dhadga yrs. yrs.
8 16492/13 Shri Antu N. 540/98 02/05/13 About 2 About 3
Dhodi yrs. yrs.
9 16493/13 Kum. Barkuben 543/98 19.2.13 About 2 12 yrs.
Devubhai Urade yrs.
10 16494/13 Shri Dilip 534/98 29.4.13 About 6 About 7
Valvi yrs. yrs.
11 16495/13 Shri Navji 98/97 13.5.13 About 4 1 yr.
Pagi months
12 16496/13 Shri Bipin 538/98 02/05/13 About 2 About 3
Dhodi yrs. yrs.
13 16497/13 Shri Raghu 536/98 29.4.13 About 2 About 3
Kachra yrs. yrs.
14 16498/13 Shri Dilipbhai 163/97 13.5.13 About 5 1.5 yrs.
Arjunbhai months
Vaghat
2.1 In view of the fact that learned advocates for the company and the claimants have declared and submitted that the facts and issues involved in captioned petitions, i.e. in the respective reference cases are almost identical and also in view of the fact that learned advocates for the company and the claimants have put forward common and similar submissions in respect of each reference case and awards that the the captioned petitions are decided by this common judgment.
3. So far as the factual background is concerned, it has emerged from the record that Page 3 HC-NIC Page 6 of 38 Created On Sun Sep 24 23:26:54 IST 2017 6 of 38 C/SCA/16287/2013 JUDGMENT the petitioner company has its industrial establishment (factory) at Valsad, Gujarat, wherein the petitioner company is engaged in the activity of manufacturing piston for oil engines.
The respondents were employed by the petitioner company.
3.1 Somewhere in 1997 the respondents in captioned petitions (i.e. original claimants) raised industrial dispute with the allegation that the opponent company (i.e. present petitioner) terminated their service illegally, arbitrarily and without following procedure prescribed by law.
3.2 Appropriate Government referred the dispute for adjudication to learned Labour Court at Valsad. The dispute / reference culminated into above mentioned reference cases.
3.3 In the reference cases, the concerned claimants filed their statements of claim with the allegation that they were regular and permanent employees of the opponent and that they had been working regularly, continuously since more than 3 to 7 years. They claimed that they had worked for more than 240 days in each year. They also alleged that the company did not pay salary and other benefits in accordance with law Page 4 HC-NIC Page 7 of 38 Created On Sun Sep 24 23:26:54 IST 2017 7 of 38 C/SCA/16287/2013 JUDGMENT and that, therefore, they had raised demand for benefit in accordance with law. The claimants also contended that the union representing their interest had served copies to the company intimating that if the demands of the workmen are not satisfied, then the workmen shall be compelled to resort to take recourse to strike the work. The claimants alleged that since they raised demand for benefit in accordance with law, the company victimized them and started tactics of placing them under suspension. The claimants also alleged that since the company continued victimization and the company also did not accept the demands, the workmen resorted to strike on and from 2.10.1996. The claimants also claimed that subsequently, the workmen withdrew / discontinued the strike with effect from 24.7.1997 by serving written intimation to the company that they have discontinued / withdrawn the strike unconditionally and that they should be permitted to report for duty. The claimants alleged in their respective statements of claim, that despite such intimation and request and on 24.7.1997, when they reported to resume their work, the company did not allow them to report for duty and by oral order terminated their service (on 24.7.1997). The claimants contended that before terminating their service the company did not grant opportunity of hearing, did not Page 5 HC-NIC Page 8 of 38 Created On Sun Sep 24 23:26:54 IST 2017 8 of 38 C/SCA/16287/2013 JUDGMENT serve any notice or did not pay salary in lieu of notice and also did not pay retrenchment compensation. The claimants alleged breach of statutory provisions and they also alleged that subsequently, the company had engaged other persons for the same work which they were performing.
3.4 The company opposed the reference cases. The company filed its written statement in respect of each reference cases and contended that the allegations by the claimants are incorrect. While denying the allegation that they were not paid wages in accordance with law, the company contended that it paid salary to the workmen at the rates prescribed under Minimum Wages Act and all other benefits payable in accordance with law were paid to the workmen. The company also claimed that on and from 2.10.1996, the claimants had, in consorted action, resorted to illegal strike and stopped reporting for duty. The company also claimed that the concerned claimants voluntarily abandoned the service and they were not reporting for duty for the reasons best known to them. While denying the allegation that the company terminated their service by oral order on 24.11.1997, the company claimed that it had not terminated the service of the claimants, but the claimants voluntarily stopped reporting for duty.
Page 6
HC-NIC Page 9 of 38 Created On Sun Sep 24 23:26:54 IST 2017
9 of 38
C/SCA/16287/2013 JUDGMENT
With such submissions, the company claimed that the reference cases should be dismissed.
3.5 After the contesting parties completed their pleadings, the learned Labour Court received evidence from both sides. Upon conclusion of stage of evidence, the learned Labour Court heard rival contentions. Thereafter, the learned Labour Court considered material available on record and rival contentions and passed impugned awards with above mentioned directions.
4. Mr. Shukla, learned counsel for the company, assailed the awards and submitted that the learned Labour Court has committed serious error in appreciation of evidence and the learned Labour Court has lost sight of several relevant piece of evidence (oral as well as documentary) which has resulted into incorrect conclusions. He further submitted that the impugned awards are based on conjectures, surmises and presumptions and not on evidence and material available on record. According to the company, the learned Labour Court has not taken into account relevant evidence and instead, the learned Labour Court has proceeded on presumptions or misconstruction of evidence. It is vehemently contended that the learned Labour Court failed to take into account the fact that company had addressed several Page 7 HC-NIC Page 10 of 38 Created On Sun Sep 24 23:26:54 IST 2017 10 of 38 C/SCA/16287/2013 JUDGMENT letters to the workmen to report for duty, however, the workmen did not report for work. It is also contended that undisputedly, the workmen had resorted to strike and thereafter, they preferred not to resume duty. The company would claim that actually, the workmen secured employment at other establishments and therefore, they were not interested in resuming duties. According to learned counsel for the company, the learned Labour Court committed serious and material error in ignoring the letters written by the company asking the workmen to report for duty and also in ignoring the fact that the company had not terminated service of the claimants and that the claimants failed to place any evidence on record to establish that the company terminated their service. Learned counsel for the company contended that the claimants voluntarily abandoned the services and that therefore there was neither any question nor any occasion for the company to terminate their service. He submitted that the learned Labour Court committed error in awarding reinstatement with 50% backwages. According to the company, even if the learned Labour Court was convinced to decide the reference cases against the company and to reject the contentions of the company, then also, at the most, the Court could have and ought to have awarded some reasonable compensation instead of Page 8 HC-NIC Page 11 of 38 Created On Sun Sep 24 23:26:54 IST 2017 11 of 38 C/SCA/16287/2013 JUDGMENT awarding reinstatement with 50% backwages. Mr. Shukla, learned counsel for the company relied on the decisions in case of State of Madhya Pradesh v. Arjunlal Rajak [2006 (2) SCC 711], in case of Himanshu Kumar Vidyarthi v. State of Bihar [AIR 1997 SC 3657], in case of Vijay S. Sathaye v. Indian Airlines Ltd. & Ors. [2013 (10) SCC 253] and in case of T.K.Rangarajan v. Government of T.N. & Ors. [2003 (6) SCC 581].
4.1 Per contra, learned counsel for the claimants submitted that the claimants do not dispute the fact that the workmen had resorted to strike to support their legal rights and claim for benefits and salary in accordance with law, however, the claimants / workmen of the company had unconditionally withdrawn the strike on and from 24.7.1997 and declared that they would unconditionally report for work. Learned counsel for the workmen contended that actually, vide communication dated 24.7.1997, the workmen / union had informed the company that the strike is withdrawn unconditionally and that the company should allow the workmen to resume their duty. The learned counsel for the workmen claimed that though the claimants reported for duty on 24.7.1997, the company did not allow the workmen to resume duty and orally terminated their service. According to learned counsel for the Page 9 HC-NIC Page 12 of 38 Created On Sun Sep 24 23:26:54 IST 2017 12 of 38 C/SCA/16287/2013 JUDGMENT claimants, since the service of the claimants have been terminated illegally and arbitrarily and without following any prescribed procedure by law and also in violation of principles of natural justice, the decision by learned Labour Court cannot be said to be incorrect or unjustified or arbitrary. Learned counsel for the claimants submitted that actually, the workmen are aggrieved by denial of backwages to the extent of 50%, however, they have not initiated any proceedings for claiming balance 50%. According to learned counsel for the claimants, the awards do not suffer from any error either of law or jurisdiction and that therefore, the same should not be interfered with. The claimants also contended that this Court, in supervisory jurisdiction, would not enter into process of re- appreciation of evidence and when view taken by the learned Labour Court is based on and supported by evidence on record and in any case it is a possible view in light of evidence on record, there is no justification to interfere with the impugned awards.
5. I have considered rival submissions by the learned advocates for the company and the claimants. I have also considered the material available on record and impugned awards.
Page 10
HC-NIC Page 13 of 38 Created On Sun Sep 24 23:26:54 IST 2017
13 of 38
C/SCA/16287/2013 JUDGMENT
6. It is not in dispute that the workmen had resorted to strike w.e.f. 2.10.1996. The claimants themselves have admitted in their respective statements of claim that to support their claim for wages and benefits in accordance with law, they had resorted to strike.
7. The claimants have alleged that the company had started harassing and victimizing the workmen by placing them under suspension only because the workmen had started demanding their rights in accordance with law and that therefore, they were compelled to resort to strike.
7.1 The claimants, however, contended that the strike was unconditionally withdrawn by the workmen/union on 24.7.1997 and all workmen (including the claimants) had reported for duty. They also claimed that in the written communication of even date (i.e. 24.7.1997) addressed to the company, the workmen/union had declared that they have withdrawn the strike unconditionally and they are reporting for duty and they should be allowed to resume their duty. However, the company did not allow the claimants to resume their duties and orally informed them that their service are terminated.
7.2 On this count, it is relevant to note at this Page 11 HC-NIC Page 14 of 38 Created On Sun Sep 24 23:26:54 IST 2017 14 of 38 C/SCA/16287/2013 JUDGMENT stage that the company, from initial stage, i.e. from the time when it filed its written statement before the learned Labour Court, continuously contended and repeatedly asserted that it did not terminate the service of the claimants either on 24.7.1997 by oral order or on any other date in any manner.
8. The consistent plea and defence of the company before the learned Labour Court as well as in support of present petitions has been that the company never terminated service of the claimants. The company continuously and consistently claimed and contended that it is the claimants who stopped reporting for duty and have voluntarily abandoned the service.
9. So far as the company's case based on plea that it is the claimants who had voluntarily abandoned the service is concerned, it is necessary to note that the company did not conduct any domestic inquiry or even any other proceedings against the workmen for alleged absentism or for alleged abandonment of service or to treat alleged absentism as loss of lien if so provided and permissible under standing orders. In nutshell the company did not take and has not taken any steps against the workmen (1) for alleged absence (treating it as Page 12 HC-NIC Page 15 of 38 Created On Sun Sep 24 23:26:54 IST 2017 15 of 38 C/SCA/16287/2013 JUDGMENT misconduct) and/or (2) for loss of lien (if so permissible under applicable standing orders) on ground of continuous absence and/or (3) for resorting to illegal strike and/or (4) for getting declared the strike illegal and unjustified and/or for (5) treating alleged absence as "abandonment".
9.1 The company also did not grant any opportunity of hearing.
9.2 In this context, it is also relevant to note that at any stage, the company did not take any steps or did not initiate any proceedings to get the strike declared illegal.
9.3 It is undisputed fact that the competent Court has until now not declared the strike illegal and/or unjustified. There is no declaration by the competent court with regard to the strike.
9.4 Under the circumstances, it cannot be assumed, in any case, it cannot be held and Court cannot proceed on the ground, that the strike was illegal and unjustified.
Page 13
HC-NIC Page 16 of 38 Created On Sun Sep 24 23:26:54 IST 2017
16 of 38
C/SCA/16287/2013 JUDGMENT
9.5 However, since the issue related to
illegality or otherwise of the strike is not
involved in present case, the Court would refrain from making further observation with regard to legality and propriety or otherwise of the strike.
10. So far as the petitions are concerned, the relevance of strike is restricted to the fact that undisputedly the workmen had resorted to strike from 2.10.1996, however, the claimants have also contended that the strike was withdrawn by the workmen / union on 24.7.1997.
10.1 It is pertinent to note the fact that the union had addressed letter dated 21.7.1997 to the company informing that the strike is unconditionally withdrawn w.e.f. 24.7.1997 and that the workmen will resume duty on 24.7.1997 is not in dispute.
10.2 The said letter was even received by the company. The company has not denied receipt of the said letter dated 21.7.1997.
10.3 Actually, the company has accepted and admitted that the said letter was received by the company.
Page 14
HC-NIC Page 17 of 38 Created On Sun Sep 24 23:26:54 IST 2017
17 of 38
C/SCA/16287/2013 JUDGMENT
10.4 The fact that the workmen of the company
continued the strike from 2.10.1996 to 24.7.1997 is not in dispute.
10.5 At the same time, it is also not in dispute that the company did not get and has not got the strike declared illegal and the company has not initiated any proceedings against the employees for having resorted to strike or even for absentism from 2.10.1996 to 24.7.1997. Any action of whatsoever nature either for resorting to strike or on ground of absentism or on ground of other misconduct have not been initiated or undertaken by the company against the workmen.
10.6 On the contrary, the company has actually claimed and asserted that it has never taken any steps against the workmen and it has neither imposed any penalty against the workmen for resorting to strike and/or for absentism or for any misconduct nor it has not terminated the service of the claimants for such reasons/on such grounds.
10.7 In this background, it is relevant to note that before the learned Labour Court, the company placed on record letters (of which the learned counsel for the company made reference). It is pertinent that the said letters were addressed Page 15 HC-NIC Page 18 of 38 Created On Sun Sep 24 23:26:54 IST 2017 18 of 38 C/SCA/16287/2013 JUDGMENT between 14.10.1996 and 25.12.1996 whereas any letter allegedly written between January 1997 to 24.7.1997 was not placed on record. The learned counsel for the company accepted that during said period any letter was not addressed to the workmen.
10.8 It is true that the company seems to have placed on record (before the learned Labour Court) a letter dated 9.8.1997 addressed by the company to the union in pursuance of the union's letter dated 21.7.1997.
10.9 However, what is important and interesting is the undisputed fact that after 24.7.1997 (i.e. after the strike came to be withdrawn), the company did not address a single letter to the workmen stating that though the company has not terminated service of concerned workmen / claimants, he is/they are not reporting for duty even after 24.7.1997 and that he/they should report for duty.
10.10Any letter instructing the workmen to report for work or in case of failure in reporting for work, appropriate action will be taken, has not been addressed by the company to any workmen/claimant after 24.7.1997.
Page 16
HC-NIC Page 19 of 38 Created On Sun Sep 24 23:26:54 IST 2017
19 of 38
C/SCA/16287/2013 JUDGMENT
10.11The list of correspondence addressed by the company to the workmen / union (which was placed on record before the learned Labour Court) is available on record of the petitions at Annexure- D. 10.12From the said list of documents, it comes out that the company had not addressed any letter to the claimants after 24.7.1997.
11. In this background, the Court inquired from the learned counsel for the company as to whether any letter asking the workmen to report for duty was addressed by the company after 24.7.1997.
11.1 In reply, learned counsel for the company fairly accepted that any letter after 24.7.1997 to the workmen/claimants was not addressed. He, however, referred to letter dated 9.8.1998 which was addressed to the union, however, the said letter does not answer the query nor does it render help to company against workmen's case inasmuch as none of the aspects mentioned above came out from said letter.
11.2 Under the circumstances, there is no material on record to support the case of the company that the workmen had not reported for duty on 24.7.1997.
Page 17
HC-NIC Page 20 of 38 Created On Sun Sep 24 23:26:54 IST 2017
20 of 38
C/SCA/16287/2013 JUDGMENT
12. In light of the fact that the union/workmen claimed that the strike was unconditionally withdrawn w.e.f. 24.7.1997 and in light of the fact that the company did not allow the workmen to resume their respective duties on and after 24.7.1997 and terminated their service by oral order on 24.7.1997 without following procedure prescribed by law, it is appropriate to take into account observations by Hon'ble Apex Court in case of D.K.Yadav v. J.M.A. Industries Ltd and the decision in case of Punjab Land Development Reclamation Corp. Ltd. v. Presiding Officer [1997 (3) SCC 682].
12.1 In this context, it is appropriate to recall that the strike (from 2.10.1996 to 24.7.1997) is not declared illegal. It is also relevant to recall that any action is not taken by the company against the workmen for having resorted to strike from 2.10.1996 to 24.7.12997 or for absentism during said period.
12.2 Not only this, but any action against the workmen have not been taken for alleged absentism after 24.7.1997 and/or on the ground that the workmen/claimants have voluntarily abandoned the service after 24.7.1997 (or even before 24.7.1997).
Page 18
HC-NIC Page 21 of 38 Created On Sun Sep 24 23:26:54 IST 2017
21 of 38
C/SCA/16287/2013 JUDGMENT
12.3 Of course, Mr. Shukla, learned counsel for the company relied on one letter dated 1.9.1997 addressed by the company to one of the claimants in response to the demand notice issued by the said workman asking the company to allow him to report for duty.
12.4 In the said communication, the company maintained the defence that it has not terminated service of the workmen and any question of payment of wages does not arise, however, if the workman wants to resume duty, then, he/she may do so unconditionally and foregoing the demand for backwages.
13. In this background, it is relevant to turn to the award.
14. The learned Labour Court has taken into account above mentioned factual aspects including the fact that the strike was withdrawn w.e.f. 24.7.1997 and that the learned Labour Court has also taken into account the evidence by the workmen who categorically claimed in her deposition that she had gone to the company to resume her duty, however, the company did not allow her to resume duty and instead addressed a letter to the union asking the union to submit Page 19 HC-NIC Page 22 of 38 Created On Sun Sep 24 23:26:54 IST 2017 22 of 38 C/SCA/16287/2013 JUDGMENT the list of workmen and learned Labour Court has also taken into account the fact related to the letter dated 1.9.1997 addressed by the company to the workmen.
14.1 After having taken into account entire documentary and oral evidence available on record, the learned Labour Court reached to the conclusion that the workmen/union had withdrawn the strike unconditionally and that the workmen had reported for duty after withdrawal of strike, however, the company did not permit the workmen to resume duty and the said refusal by the company amounts to termination of service by the claimants.
14.2 The learned Labour Court also reached to the conclusion that such action of the company amounted to illegal termination, inasmuch as its refusal would amount to illegal termination.
14.3 It is also pertinent to note that the learned Labour Court has not only taken into account the letter dated 1.9.1997 addressed by the company to the workmen but the learned Labour Court has also taken into account the letters dated 14.10.1996, 22.10.1996 and 29.10.1996 i.e. letters addressed by the company during the period when strike continued. In light of the evidence on record and Page 20 HC-NIC Page 23 of 38 Created On Sun Sep 24 23:26:54 IST 2017 23 of 38 C/SCA/16287/2013 JUDGMENT the facts of the case, more particularly the stand of the company viz. that it has not terminated service of the claimants coupled with the fact that the workmen had withdrawn the strike w.e.f. 24.7.2007 and upon declaring their willingness to resume duty, they had reported for duty and also having regard to the statement of attendance by the workmen, there is no reason or justification to interfere with the direction to treat the workmen/claimants in service/to reinstate them.
15. When the company itself claims that it has not terminated their service, then company's objection to treat the workmen/claimants in service cannot be entertained or sustained and said direction cannot be disturbed.
16. At this stage, it would be appropriate to turn to the decision on which the learned counsel for the company placed reliance.
16.1 So far as the decision in case of State of Madhya Pradesh v. Arjunlal Rajak (supra) is concerned, it emerges from the facts recorded and considered by Hon'ble Apex Court in the decision that the claimant in the said decision was engaged at different time in different departments/places of forest department of State Page 21 HC-NIC Page 24 of 38 Created On Sun Sep 24 23:26:54 IST 2017 24 of 38 C/SCA/16287/2013 JUDGMENT of Madhya Pradesh. In paragraph No.3 of the decision, Hon'ble Apex Court has observed that the learned Labour Court has failed to take into account that the division / department where the claimant was engaged was wound up since July 1992 and that the learned Labour Court passed the award directing reinstatement without having regard to the fact that the unit was wound up. From the facts involved in the said decision, it emerges that the set of facts involved in the said case are materially different from the facts of this case and that therefore, the said decision does not render any assistance to the company in present group of petitions. In present case, the company is, undisputedly, a going concern and it continues its activities / business which would mean that other persons have been engaged in place of the claimants for the work which the claimants used to perform. According to the workmen, the said action of company i.e. engaging other workmen while their employment continues because even according to the company their services have not been terminated - amounts to unfair labour practise.
16.2 In present case, it has emerged that
(a) Any action in accordance with law have not been taken against the workmen by the company;
Page 22
HC-NIC Page 25 of 38 Created On Sun Sep 24 23:26:54 IST 2017
25 of 38
C/SCA/16287/2013 JUDGMENT
(b) Even the action in accordance with law for discontinuing the service of the claimants on the ground of voluntarily abandonment is also not taken by the company [see the decision in case of D.I.Yadav v. JMA Industries Ltd. {1993 (3) SCC 259}];
(c) Undisputedly, any action on the ground that the workmen resorted to strike and/or workmen unauthorizedly remained absent or on the ground of any misconduct have also not been taken against the workmen.
At the same time, the company did not call for explanation from the workmen and did not grant opportunity of hearing to the workmen or did not follow procedure prescribed by law / model standing orders. Under the circumstances, the said decision would not applicable in present case.
16.3 So far as the decision in case of Himanshu Kumar Vidyarthi v. State of Bihar (supra) is concerned, in the said decision, Hon'ble Apex Court took into account that daily wagers have no right to posts if they were not appointed in accordance with law and their disengagement from service cannot be treated as retrenchment. In present case, the learned Labour Court has, on appreciation of evidence, found that there was nothing on record to establish or even Page 23 HC-NIC Page 26 of 38 Created On Sun Sep 24 23:26:54 IST 2017 26 of 38 C/SCA/16287/2013 JUDGMENT demonstrate that the workmen were not regular / permanent workmen and/or that they were daily wagers. The said claim/allegation was not proved. That is the finding of fact recorded by learned Labour Court. Therefore, said decision cannot help the company.
16.4 Besides this, in the decision in case of L. Robert D'souza v. Executive Engineer, Southern Railway & Anr. [(1982) 1 SCC 645], Hon'ble Apex Court observed that:-
"27. There is no dispute that the appellant would be a workman within the meaning of the expression in S. 2 (s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over twenty years. Therefore, the first condition of Section 25-F that appellant is a workman who has rendered service for not less than one year under the Railway administration, an employer carrying on an industry, and that his service is terminated which for the reasons hereinbefore given would constitute retrenchment. It is immaterial that he is a daily rated worker. He is either doing manual or technical work and his salary was less than Rs. 500/- and the termination of his service does not fall in any of the excepted categories. Therefore, assuming that he was a daily rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of S. 25-F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre-conditions to valid retrenchment, the order of termination would be illegal and invalid."
(emphasis supplied) 16.5 In view of the finding of fact recorded by the learned Labour Court, the contentions sought to be raised by the company on the ground that the claimants were daily wagers and/or reliance Page 24 HC-NIC Page 27 of 38 Created On Sun Sep 24 23:26:54 IST 2017 27 of 38 C/SCA/16287/2013 JUDGMENT placed by the company on the decision in case of Himanshu Kumar Vidyarthi v. State of Bihar (supra) does not take the company's case further. The facts in present case are altogether different from the factual background considered by Hon'ble Apex Court in case of Himanshu Kumar Vidyarthi v. State of Bihar (supra). Thus, the said decisions do not help the company.
16.6 So far as the decision by Hon'ble Apex Court in case of Vijay S. Sathaye v. Indian Airlines Ltd. & Ors. (supra) is concerned, it is relevant to recall that in present case, the learned Labour Court has, after proper appreciation of oral and documentary evidence, reached to the finding of fact that after withdrawal of strike, the workmen had reported for duty, however, they were not allowed to report for duty and their service came to be terminated with oral instructions. The facts involved in said decision are also materially different from the facts of this case and from the findings of facts recorded by the labour Court.
17. At this stage, it is relevant to note that actually, the contentions and/or the decisions relied on by the company do not render assistance in any manner to the case of the company in view of the fact that the company has all along Page 25 HC-NIC Page 28 of 38 Created On Sun Sep 24 23:26:54 IST 2017 28 of 38 C/SCA/16287/2013 JUDGMENT continuously and consistently claimed and contended that it has never terminated service of the claimants.
18. Actually, the company has placed on record a statement which reflects the attendance of the workmen during the period from May 2015 to June 2017 i.e. during the period after the learned Labour Court rendered the award. The details mentioned in the statement submitted on record by the company gives out that the workmen had reported for duty but the company engaged them only intermittently as per the requirement.
18.1 The statement placed on record by the company gives out that the workmen had reported for duty after the award and they actually worked with the company after the date of award and the said fact militates against the claim of the company that after the withdrawal of the strike and/or after the award, the workmen never reported for duty.
18.2 In light of said details, it comes out that the objection against the direction to treat the workmen in service is unjustified.
19. Besides this, what is important is that the company itself repeatedly, continuously and consistently raised the contention that it has Page 26 HC-NIC Page 29 of 38 Created On Sun Sep 24 23:26:54 IST 2017 29 of 38 C/SCA/16287/2013 JUDGMENT not terminated service of the claimants and if the said contention and defence of the company is correct (and if it is to be believed), then, there cannot be any objection on part of the company so far as the direction to reinstate the claimants or to treat the claimants in service is concerned.
19.1 Under the circumstances, even otherwise, there is no justification to interfere with the direction to reinstate the claimants.
20. This would leave behind the company's objection against the direction to pay 50% backwages.
20.1 It is pertinent to note that the learned Labour Court itself has denied backwages for the period during which undisputed the strike continued i.e. for the absence of the workmen from duty during the period between 2.10.1996 to 23.7.1997.
20.2 Further, for the period after 24.7.1997, the learned Labour Court has awarded only 50% of backwages (from 24.7.1997 i.e. the date on which the workmen had reported after duty for withdrawing the strike).
Page 27
HC-NIC Page 30 of 38 Created On Sun Sep 24 23:26:54 IST 2017
30 of 38
C/SCA/16287/2013 JUDGMENT
20.3 In this context, it is necessary to note that there is dispute between the company and the claimants inasmuch as the company contends that the workmen did not report for duty after 24.7.1997 whereas the claimants contended that they had reported for duty but they were not allowed to resume duty.
20.4 The said aspect is taken into account by the learned Labour Court and on appreciation of material available on record, the learned Labour Court has rejected the claim and allegation by the company.
20.5 On this count, it is pertinent to note that the company has admitted the fact that except addressing one letter dated 1.9.1997 to the workmen, any intimation were never issued by the company to concerned claimants asking them to report for duty or calling for explanation from the workmen as to why they have not been reporting for duty.
20.6 Moreover, even from the letter dated 1.9.1997, it comes out that the company insisted that the workmen should report for duty unconditionally and without insisting for payment of wages.
Page 28
HC-NIC Page 31 of 38 Created On Sun Sep 24 23:26:54 IST 2017
31 of 38
C/SCA/16287/2013 JUDGMENT
20.7 In this view of the matter, more particularly in light of the insistence by the company that they should unconditionally resume their duty, the conclusion by the learned Labour Court that the workmen were not allowed to resume duty and company refused to permit them to resume duty cannot be faulted.
21. The direction awarding 50% backwages is required to be considered in this background.
21.1 So as to support his submission that the direction granting backwages is unjustified, learned Counsel for the petitioner company submitted that even after the award the claimants did not report for duty despite the fact that the company offered work to the claimants. The learned counsel for the petitioner relied on the statement which, purportedly reflects the details of the days during which the claimants worked with the company between May 2015 to June 2017.
21.2 On the strength of the details in the statement learned Counsel for the petitioner claimed that after rendition of the award the company called the claimants for work as and when the work is available. However claimants did not report for duty.
Page 29
HC-NIC Page 32 of 38 Created On Sun Sep 24 23:26:54 IST 2017
32 of 38
C/SCA/16287/2013 JUDGMENT
21.3 From the submission it emerges that the
company actually did not reinstate the claimants but invited the claimants intermittently i.e. on as - and - when - required basis.
21.4 The company resorted to such practice and arrangement probably because in the interregnum alternative arrangement was made by the company by engaging other workmen in place of the claimants for executing the jobs which the claimants used to perform.
21.5 Learned counsel for the claimants submitted that when this Court, upon admitting the petitions, stayed the operation of the award, the claimants had filed application seeking payment of last drawn wages in accordance with Section 17(B) of the I.D. Act. He further submitted that since the company did not want to pay last drawn wages to the claimants during pendency of the petition, the company submitted that it will re- engage the workmen however subsequently the company did not reinstate the workmen but resorted to practice of calling workmen on need basis and thereby the company deprived the workmen of last drawn wages during pendency of the petition.
Page 30
HC-NIC Page 33 of 38 Created On Sun Sep 24 23:26:54 IST 2017
33 of 38
C/SCA/16287/2013 JUDGMENT
21.6 Whatever may be the reason or circumstances in the background, the fact remains that in present proceedings any order directing the company to pay last drawn wages during pendency of the petition is not passed. The company claims and alleges that the workmen did not report for work. The workmen asserts that they had reported to resume their duty but were not reinstated. Be that as it may, in present proceedings issue with regard to wages for the period after date of award is not under consideration.
21.7 In present proceedings this court is concerned with the wages awarded by the learned labour court for the period from 24.7.1997 to the date of award i.e. 6.3.2013.
21.8 For the said period learned labour court has awarded 50% backwages.
21.9 From the award it has emerged that the claimants had specifically asserted that they were not gainfully employed during the interregnum.
21.10Any evidence to establish that the claimants were gainfully employed was not placed before Page 31 HC-NIC Page 34 of 38 Created On Sun Sep 24 23:26:54 IST 2017 34 of 38 C/SCA/16287/2013 JUDGMENT learned labour court.
21.11Under the circumstances having regard to the facts of the case learned labour court considered it appropriate to award 50% backwages.
21.12So far as the direction regarding backwages is concerned learned counsel for the workmen relied on the decision in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) (2013) 10 SCC 324. In the said decision Hon'ble Apex Court has observed, inter alia, that:-
"38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
Page 32
HC-NIC Page 35 of 38 Created On Sun Sep 24 23:26:54 IST 2017
35 of 38
C/SCA/16287/2013 JUDGMENT
38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees."
21.13Having regard to the fact that any case to interfere with the direction to reinstate the claimants is not made out and also having regard Page 33 HC-NIC Page 36 of 38 Created On Sun Sep 24 23:26:54 IST 2017 36 of 38 C/SCA/16287/2013 JUDGMENT to the fact that the company itself continuously asserted that it had not terminated service of the claimants and also having regard to the fact that the learned labour court has, after appreciation of evidence, not accepted such claim and instead reached to the findings of fact that the workmen reported for work however they were not allowed to resume duty and that such refusal by the company amounted to termination of service without following procedure prescribed by law, this court is not inclined to interfere with the direction regarding backwages.
21.14Any reason or circumstances to convince the court to set aside the direction to pay the backwages as directed by the learned labour court or even to reduce the quantum of backwages awarded by the learned labour court is not made out.
21.15Upon examination of the award and the findings of fact recorded by the learned labour court in light of material available on record this Court has found that the award does not suffer from any infirmity. Learned labour court has not committed any error of law or jurisdiction.
21.16The finding of fact recorded by the learned Page 34 HC-NIC Page 37 of 38 Created On Sun Sep 24 23:26:54 IST 2017 37 of 38 C/SCA/16287/2013 JUDGMENT labour court are based on and supported by the evidence on record. It cannot be said that the finding of fact recorded by the learned labour court are perverse or without support of evidence. Learned labour court has recorded sufficient and cogent reason in support of its conclusion.
21.17The petitioner has failed to make out any case against the findings of fact recorded by the learned labour court and / or final direction and conclusion by the learned labour court.
In the result the petitions fail and the impugned awards do not warrant any interference. Therefore, the petitions are rejected. Rule is discharged. Orders accordingly.
Sd/-
(K.M.THAKER, J.) kdc/Bharat Page 35 HC-NIC Page 38 of 38 Created On Sun Sep 24 23:26:54 IST 2017 38 of 38