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Gujarat High Court · body

2009 DIGILAW 288 (GUJ)

State of Gujarat v. Kantilal Ghelabhai

2009-04-21

K.M.THAKER

body2009
Judgment K.M. Thaker, J.—Heard Mr. N.J. Shah learned Asst. Government Pleader and Mr. Paul learned Advocate for the respondent. With the consent of and at the request of the parties petition is heard and disposed of finally. 2. Rule. Mr. Paul learned Advocate waives service of notice of Rule on behalf of the respondent. 3. The respondent herein raised an industrial dispute about illegal termination of his service. He alleged that he was engaged by the petitioner since 22.5.1969 and his service was illegally terminated with effect from 10.12.1987. He claims that at the time of his illegal termination he was being paid daily wage @ Rs. 22.75 paisa per day. The respondent alleged that before effecting termination no procedure prescribed by law was followed. 4. The dispute raised by the respondent culminated into reference being (LCR) No. 235 of 1995. The respondent filed his statement of claim to the aforesaid effect, however the petitioner ignored the notice issued by the Court and neglected the proceedings. Though the notice was duly served (labour Court has taken into account report of bailiff which clarified that the notice was served on 11th August, 1995), the petitioner herein did not file any written statement. The deposition of the respondent was recorded, however there was no one on behalf of the petitioner to subject the respondent to cross-examination and respondent’s evidence remained undisputed and uncotroverted. Thereafter respondent gave an application requesting the Court to close the stage of cross-examination. The order to that effect was passed. Even at that stage no one from the petitioner’s side cared to attend the proceedings and after failure in filing written statement the petitioner failed to produce any witness/oral evidence also. Thus, upon request of the respondent, the stage of petitioner’s oral evidence was also closed. An application was given on behalf of the petitioner to permit cross-examination of the respondent and though the same was granted, no one thereafter conducted cross-examination of the respondent and no one even cared to produce any oral evidence on behalf of the petitioner. Hence, the assertion and evidence of the respondent in all manner remained uncontroverted, undisputed and unchallenged and it was not disputed. Subsequently nobody attended the proceedings even to advance argument wherein the petitioner could have at least dealt with assertion by the respondent. Hence, the labour Court was left with no alternative but to pass an award. 5. Hence, the assertion and evidence of the respondent in all manner remained uncontroverted, undisputed and unchallenged and it was not disputed. Subsequently nobody attended the proceedings even to advance argument wherein the petitioner could have at least dealt with assertion by the respondent. Hence, the labour Court was left with no alternative but to pass an award. 5. Even after the award was rendered the petitioner did not even care to move an application under Rule 26-A of the Industrial Disputes (Gujarat) Rules 1966. The reference which was made in 1995 came to be decided in 2007 and during this entire period not a single officer got time to attend the hearing and defend the interest of the petitioner. 6. By impugned award the labour Court has directed the petitioner to pay 60% of backwages, after calculating backwages on the basis of recommendation of Shri Daulatbhai Parmar i.e. G.R. dated 17.10.1988 and pay said 60% of backwages to the respondent by calculating it up to the age on which the respondent crossed age of 58 years. Aggrieved by the said direction the petitioner has approached this Court. 7. The petitioner has crossed age of superannuation. The labour Court has, thus, not granted reinstatement. Only 60% backwages are awarded. 8. Without clarifying that the petitioner had not filed written statement, Mr. N.J. Shah learned Asst. Government Pleader referred to and relied upon a statement which was allegedly filed by the petitioner during the conciliation proceedings and he tried to rely upon the averments made in the said statement which was filed before the conciliation officer. It is an undisputed position that neither written statement was filed by petitioner, nor the cross-examination of workmen was conducted and no evidence was led by the petitioner. 9. Mr. N.J. Shah learned Asst. Government Pleader has attempted to assail an award on diverse grounds submitting, inter alia, that the award is erroneous and unjustified. He has also submitted that the award is beyond the scope of order of reference and that labour Court has failed to take into account that the reference was delayed by 7 years. Except the said 3 submissions no other submissions have been made. 10. Mr. Paul learned Advocate for the respondent has defended the award and submitted that there is no illegality as claimed by the petitioner in the award. Mr. Except the said 3 submissions no other submissions have been made. 10. Mr. Paul learned Advocate for the respondent has defended the award and submitted that there is no illegality as claimed by the petitioner in the award. Mr. Paul learned Advocate for the respondent submitted that the labour Court’s obligation was to decide the award on the basis of material available before it and when no contention including any contention on the ground of delay and/or scope of reference was raised, labour Court was not obliged to consider the same. Mr. Paul learned Advocate for the respondent submitted that the respondent had put-in work for 240 days almost in every year of his tenure with the petitioner and that the petitioner had even given an application seeking production of documents which was not honoured by the petitioner therefore the labour Court was constrained to draw adverse inference. He submitted that there was clear breach of Section 25(F). 11. Mr. N.J. Shah, learned Asst. Government Pleader, while referring to the statement filed before the conciliation officer, tried to rely upon the averments made in the statement to the effect that the petitioner has addressed letter dated 18.2.1989, i.e. after more than one year of respondent’s termination asking him to report for work. Mr. N.J. Shah learned Asst. Government Pleader also claimed on the basis of the said statement before the conciliation officer that the work for which the respondent was of seasonal nature. 12. During his submission Mr. N.J. Shah learned Asst. Government Pleader has not been able to substantiate any of his contentions. So far as the contention on ground that the work for which the respondent was engaged was seasonal. Mr. N.J. Shah learned Asst. Government Pleader has not been able to point out any material from record which would show that the respondent was being engaged in seasonal work only. Mr. Paul learned Advocate for the respondent has rightly submitted that the respondent was engaged regularly every year and in almost every year of his tenure with the petitioner, the respondent has put in work for 240 days and that therefore the theory of seasonal work does not hold good and cannot be said to have been proved. Mr. N.J. Shah learned Asst. Mr. N.J. Shah learned Asst. Government Pleader has not been able to show any material from the record to substantiate the submission that the respondent was engaged for only seasonal work, hence it cannot be accepted. So far as the issue of completion of 240 days of work with respondent is concerned it appears that the respondent produced certain documents on the basis of which the labour Court calculated the working days of the respondent. It is difficult to ascertain from the said details that the respondent had put in work for 240 days in the last 12 months since the details show that from 1.10.1987 to 9.12.1987 the respondent had put in work for 62.5 days, however bifurcation of the working days from 10.1.1986 to 30.9.1987 is not available and 195 working days’ work is shown for the period from 1.10.1986 to 30.9.1987 while the relevant period would between 10.12.1987 and 9.12.1986. 13. This Court is not able to agree with the submission of Mr. Paul that if any contention as regards details in raising dispute and preferring reference is not raised then the labour Court cannot and should not decide the said issue at all. In fact when labour Court is proceeding to decide a matter in absence of the other side then it becomes obligation of the trial Court to at least into account the apparent factual-cum-legal issues; though of course on the basis of material available on record, while deciding the issue of granting relief. In present case it was an undisputed position of fact that as per respondent’s claim he was terminated with effect from 10.12.1987 whereas order of reference was made in 1995 and that therefore, there was no question of not raising the contention when it was apparent that there was delay of about 8 years. Under the circumstances labour Court was obliged to take into account the said delay in raising industrial dispute and in preferring the reference. It is an undisputed position that labour Court has not taken the said aspect into account. 14. Furthermore there was no reference and/or on the basis of G.R. dated 17.10.1986 i.e. the order of reference did not refer any demand on the basis of G.R. dated 17.10.1986 and therefore there was no occasion for the labour Court to bring in picture, while deciding issue of granting relief, the G.R. dated 17.10.1986. 14. Furthermore there was no reference and/or on the basis of G.R. dated 17.10.1986 i.e. the order of reference did not refer any demand on the basis of G.R. dated 17.10.1986 and therefore there was no occasion for the labour Court to bring in picture, while deciding issue of granting relief, the G.R. dated 17.10.1986. As per the case of the respondent his salary at the time of his termination was Rs. 22.75 per day. No other material including any material about respondent’s entitlement for benefits under G.R. dated 17.10.1986 was available. Under the circumstances the decision of the labour Court to grant benefits on the basis of G.R. dated 17.10.1986 is not justified. 15. In light of the aforesaid discussion the order of the labour Court directing 60% backwages to the respondent until he reached the age of 58 years is not disturbed. However, the calculation will be made from the date of notice given by the respondent i.e. 8.3.1994. and the calculation of wages shall be made on the basis of the salary which the respondent was drawing at the time of his termination i.e. at the rate of Rs. 22.75 per day. The direction requiring petitioner to make calculation on the basis of G.R. Dated 17.10.1986 is set aside, however it is clarified that it will be open for the respondent to independently claim the said benefit in accordance with law and this direction will not come in way of the respondent if he can otherwise prove and justify his claim for benefits in accordance with G.R. dated 17.10.1986. The rest of the award is not disturbed. The petition is accordingly partly allowed. Rule made absolute to the aforesaid extent. No costs. The petitioner shall make payment to the respondent within four weeks from today.