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2008 DIGILAW 382 (GUJ)

Bashirmiya Najjumiya Malik v. Kaymig Agencies

2008-08-29

K.M.THAKER

body2008
JUDGMENT : K.M. Thaker, J. Aggrieved by award dated 17.5.2002 passed by the labour court, in reference (LCS) No.292 of 87, the petitioner has approached this court. By the said award dated 17.5.2002 the labour court has rejected the reference and has declined to grant relief of reinstatement and/or back wages as prayed for by the petitioner herein. The facts involved in the present petition are that, the petitioner raised an industrial dispute which culminated into reference (LCS) No.292/87. The petitioner was aggrieved by order of termination his service w.e.f. 1.5.87. The petitioner claimed before the labour court that he was employed by present respondent as a deliveryman since 1965 and after long service of almost 22 years, his service was unceremoniously terminated without following any procedure prescribed by law. The petitioner with such allegations approached the labour court and gave his evidence to support his allegation and contentions. Before the labour court the petitioner did not examine any other witnesses. The petitioner, however, produced copy of the identity card in support of his allegation that he was under employment of the respondent. 2. The respondent herein opposed the said reference by filing written statement disputing the allegations made by the petitioner. The respondent herein examined witnesses in support of its case that it was the petitioner, who had on his own volition, stopped reporting for work w.e.f. 18.1.87 and that the respondent had not terminated him. The respondent also claimed that the petitioner had from the respondent withdrawn, as advance, about Rs.5600/- which also have remained unpaid and despite the fact that the respondent made requests to the petitioner to resume work, the petitioner had not reported for work and that therefore, the petitioner was not entitled for the relief prayed for by him. 3. Heard Mr. Hiren Modi for the petitioner and Mr. A.S.Vakil for the respondent. Mr. Modi submitted that the award suffers from the error of non application of mine to the relevant evidence available on record. He submitted that the labour court has erred in rejecting the reference and in declining the relief prayed for by the petitioner. Mr. Modi submitted that the labour court also erred in not appreciating that the defence advanced by the respondent was full of contradiction and the same was not at all acceptable or tenable and yet the labour court has believed the explanation/defence advanced by the respondent. Mr. Modi submitted that the labour court also erred in not appreciating that the defence advanced by the respondent was full of contradiction and the same was not at all acceptable or tenable and yet the labour court has believed the explanation/defence advanced by the respondent. He submitted that the labour court has committed serious error in believing the defence of the respondent which was not only unsupported by any material evidence but was also ex-facie unsustainable. 4. Mr. Vakil for the respondent submitted that it is the petitioner who stopped reporting for work from 18.1.87 and then on 31.8.1987 alleged that his service was terminated w.e.f. 1.5.87. Mr. Vakil submitted the fact that after contending in his statement of claim that his service was terminated w.e.f. 1.5.87, the petitioner gave application Exh.121 in October, 2001 claiming that actually due to inadvertent mistake the date of termination was mentioned as 1.5.87 but in fact he was terminated w.e.f. 19.1.87 and therefore, he may be permitted to amend the statement of claim so as to correct the date 1.5.87 as 19.1.87. Mr. Vakil submitted that the very fact that the said application Exh.121 dated 12.10.2001 came to be preferred after delay of 14 years and that too after certain evidence was recorded, goes to show that the petitioner has been trying to correct the facts and mislead the court. Mr. Vakil submitted that the said application was rightly rejected and the labour court is right and justified in holding that the petitioner himself is not clear about his case and what he wants to prove before the court as regards his termination. Mr. Vakil, besides his this submission, vehemently opposed the petition on the ground of delay and submitted that the petitioner has challenged the impugned award after delay of 6 years and the subject petition is not maintainable on that ground alone. In support of his submission, Mr. Vakil relied upon the judgments of the Hon'ble Apex Court reported in 1998 (6) SCC 549 , 1995 SC 1551, 2000 (6) SCC 1581 and 2007 (2) SCC 112. 5. On perusal of the award, it transpires that the labour court has taken into account all submissions and material available on record on which the petitioner herein sought to rely upon. 5. On perusal of the award, it transpires that the labour court has taken into account all submissions and material available on record on which the petitioner herein sought to rely upon. The labour court has taken into account that the petitioner claimed that his service was terminated w.e.f. 1.5.87 and then after 14 years tried to change his allegation and claimed that his service was terminated w.e.f. 19.1.1987, however, he failed to prove either of the allegations. The labour court has also taken into account that as per the allegations of petitioner, his service was terminated w.e.f. 1.5.87 whereas, the petitioner raised grievance against such alleged termination on 31.8.87. 6. The labour court has also discussed at reasonable length the oral evidence and upon scrutinising the findings in light of the of the evidence, this court is of the view that the findings recorded by the labour court after examination of evidence does not suffer from any error and the findings are correct and justified. 7. Some of the salient details which come out from the oral evidence of the respondent-employer and which have either been not controverted or disproved by the petitioner, do deserve a mention at this stage. 8. The two witnesses (who happen to be the coworkers of the petitioner) out of the total 4 witnesses of respondent have deposed that at the instance of the manager they had gone to petitioner's residence and asked him to resume his duties but he had declined and said that he was not interested in resuming the work and that it was petitioner who had stopped reporting for work and was not asked by anyone to not report for work. 9. It has come on record from deposition of 3rd witness of the respondent that petitioner was found to running his own shop (carrying on partially similar nature of work as that of respondent) in the name and style of "Welcome Gas Service Center". 10. The 4th witness Mr. Gheewala had deposed that respondent had made efforts to ask the petitioner to report for work but he did not. Mr. Gheewala also repeated the details of evidence of the two witnesses who had gone to petitioner's residence to ask him to report for work. Mr. Gheewala categorically denied the suggestion that petitioner was terminated on 18.1.1987 by oral order. Mr. Dilipbhai and Mr. Mr. Gheewala also repeated the details of evidence of the two witnesses who had gone to petitioner's residence to ask him to report for work. Mr. Gheewala categorically denied the suggestion that petitioner was terminated on 18.1.1987 by oral order. Mr. Dilipbhai and Mr. Rameshchandra have deposed that petitioner refused to resume his work. It transpires that the petitioner has not been able to contradict and disprove any of the 4 witnesses. 11. Further, by taking note of averments in Exh.121, the labour court has recorded, and rightly, that the petitioner does not appear to be clear or certain even about date of alleged termination in as much as after having alleged in the complaint (to the ACL) dated 31.8.1987 and in the claim statement that he was terminated w.e.f. 1.5.1987 the petitioner sought to change that version after 14 years and claimed that he was terminated w.e.f. 18.1.1987 and it shows that the petitioner is not coming out clean with true facts and is trying to swing or drift with details that come on record with progress in proceedings. 12. Considering the said reasoning of the labour court, no fault can be found in the reasoning and conclusions of the labour court. 13. While on this point, the labour court has also taken note of the muster-roll which, as recorded by the learned court, showed that the petitioner was marked absent from 19.1.1987. The labour court has also recorded that the order below Exh.121 was challenged by way of petition being special civil application No.1908 of 2002 and was rejected. 14. It is also pertinent that on behalf of the respondent, Mr. Rameshbhai and Mr. Dilipbhai were examined who deposed before the labour court that despite being called for work, the petitioner had refused to resume his work and it was he who had stopped reporting for work. 15. When the petitioner has not been able to contradict or disprove the evidence of the said two witnesses who happened to be his co-workers, if the defence of the respondent is believed by the court and it is held by the court that the petitioner has not been able to prove his allegation and/or has not been able to disprove or rebut the evidence of the respondent, no fault can be found with such conclusion of the labour court. 16. 16. The labour court has recorded findings of fact arrived at after appreciating the evidence available on record and the petitioner's advocate has not been able to successfully assail the said findings. He has not been able to show anything from the record of the petition which would persuade the court to take any view different from the view taken by the labour court and/or disprove any of the findings recorded by the labour court. The petitioner's advocate has also not been able to successfully contend that the award of the labour court suffers from any error of law or jurisdiction. 17. Besides this, the contention of Mr. Vakil that the petition does not deserve to be entertained in view of the inordinate delay is also a valid contention. 18. It is settled position that law would not come to the rescue of an indolent and a negligent litigant. In present case, the petitioner has approached this court after delay of almost 6 years to challenge the award passed by the court rejecting the reference. The petitioner has tried to explain the said delay by filing further affidavit pursuant to the order of this court wherein the court observed that the petitioner had not satisfactorily explained the delay. In the said further affidavit also, the petitioner has not been able to successfully explain the delay. It is claimed by the petitioner that he was not in position to immediately prosecute the petition against the award because of ill-health of his son and financial difficulties. However, on perusal of the affidavit, it appears that the ill health of the petitioner's son is a situation which, as claimed by petitioner, is prevailing since last 15 years and that therefore, the petitioner is not justified in advancing the case for inordinate delay for 6 years in preferring the petition. In times of easy access to legal aid, the ground of financial difficulty is also not strong enough to overlook 6 years' delay. 19. At this stage, it is necessary to refer to the judgments of the Hon'ble Supreme Court. In the judgment in the case between Uttaranchal Forest Department Corporation v. Jabar Singh, reported in 2007 (113) FLR 1 (SC) the Hon'ble Apex Court has held :- "39. We are unable to countenance the above submission of Mr. Mehta and Mr. 19. At this stage, it is necessary to refer to the judgments of the Hon'ble Supreme Court. In the judgment in the case between Uttaranchal Forest Department Corporation v. Jabar Singh, reported in 2007 (113) FLR 1 (SC) the Hon'ble Apex Court has held :- "39. We are unable to countenance the above submission of Mr. Mehta and Mr. Sangal insofar as it relates to the non-maintainability of writ petition and the delay and laches. It is not in dispute that the effective alternative remedy was not availed by many of the workmen as detailed in paragraphs supra. The termination order was made in the year 1995 and the writ petitions were admittedly filed in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches. We have already referred to the decision of this Court in U.P. State Spinning Co. Ltd. v. R.S.Pandey and Anr. (supra). This Court speaking through Arijit Pasyat, J. has held in categorical terms that writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act unless exceptional circumstances are made out." 20. In the case between New Delhi Municipal Council v. Pansing and Others, the Hon'ble Apex Court has held, "9. It has been pointed out by this court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore, AIR 1967 SC 993 . There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyrimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. See State of Orissa v. Arun Kumar. 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. In that case the petition had been dismissed for delay alone. See State of Orissa v. Arun Kumar. 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone." 21. The subject petition does not deserve to be entertained on ground of inordinate delay. However, this court, in view of the explanation of petitioner, considered it appropriate to not to reject the petition only on the ground of limitation and therefore, has examined the petition on merits also. Even upon examining the contention on merits and in light of the evidence available on record, this court could not find anything to upset the conclusions recorded by the labour court. On careful examination of labour court's appreciation of evidence and the award and after considering the material on record and as a result of foregoing discussion, it appears that the labour court has not committed any error and there is no justification to interfere with the award. Hence, present petition fails and is disposed of as dismissed. Notice discharged. Petition dismissed.