Vantage Advertising Pvt. Ltd. v. Javedali Kutubali Hashmi
2010-11-30
K.A.PUJ
body2010
DigiLaw.ai
JUDGMENT : K.A. PUJ, J. 1. The Petitioner has filed this petition under Articles 226 and 227 of the Constitution of India praying for quashing and setting aside the award dated 30.1.2010 passed by the Labour Court, Ahmedabad in Reference (LCA) No. 1158 of 2001. 2. This Court has issued notice for final disposal on 1.10.2010. Pursuant to the notice Mr. Murali N. Devnani, learned appeared on behalf of the Respondent. 3. Heard Mr. Mihir Joshi, learned Senior Counsel appearing with Mr. Vimal M. Patel, for the Petitioner and Mr. Murali Devnani, for the Respondent. 4. It is the case of the Petitioner that the Respondent was serving as board repairer cum general labour with the Petitioner. He was required to make boards for advertisement and to work as team member on various sites for the purpose of board/hoardings of the Petitioner Company. The Respondent informed the Petitioner on 5.3.2001 that he is unable to come on bicycle and can only make board at work shop. The Petitioner gave an intra office memo seeking explanation on 8.3.2001 for refusing to work at the site as a team member. The Respondent gave reply informing his inability to go in the field on bicycle as well as his inability to carry out work due to his health problem and, therefore, unable to do the work which he was doing. The Petitioner, thereafter, informed the Respondent to carry out board at Commerce College site. In response to the said letter, the Respondent gave reply that unless and until he was paid the conveyance charges, he was not in a position to go to the field. The Petitioner, therefore, sought an explanation from the Respondent on 17.4.2001 as to why he did not report. The Respondent did not give any reply to the said memo nor he did report for work and abandoned the job. On 8.6.2001, the Respondent though was not terminated from the service, issued notice on the Petitioner urging that he was illegally terminated on 10.4.2001 and called upon the Petitioner for reinstatement. The Petitioner replied to the Respondent's notice and clarified that the Respondent was never terminated and the Petitioner was ready and willing to take work from the Respondent and if yes, whether he was ready to work on the same conditions.
The Petitioner replied to the Respondent's notice and clarified that the Respondent was never terminated and the Petitioner was ready and willing to take work from the Respondent and if yes, whether he was ready to work on the same conditions. Despite this reply the Respondent did not think it fit to work and filed complaint before the Conciliation Officer. Ultimately the dispute was referred to the Labour Court, Ahmedabad being Reference (LCA) No. 1158 of 2001. 5. The Respondent filed statement of claim and the Petitioner filed written statement clarifying that the Petitioner is ready to take work from the Respondent and whether he was ready to work on the same conditions. Thereafter, oral as well as documentary evidence were led. The Respondent in his cross-examination showed his willingness to work. In view of the statement made by the Respondent in the cross-examination the Petitioner gave an application before the Labour Court that the Petitioner was ready to take the Respondent in service. On the said application the Respondent endorsed that he was ready to go for work from 24.1.2005. The Respondent, however, did not report for work and affidavit was filed before the Labour Court that he was not allowed to sign the Muster. After going through on record the Labour Court ultimately passed the award directing the Petitioner to reinstate the Respondent with 50% back wages. 6. It is this order which is under challenge in the present petition. 7. Mr. Joshi, learned Senior Counsel appearing for the Petitioner submitted that the Labour Court has committed an error in directing reinstatement and awarding 50% of back wages. The Petitioner has never terminated the services of the Respondent. On the contrary at every stage the Petitioner was ready and willing to take the Respondent in service. It is the Respondent, who did not report to the work though in the documentary evidence which are produced before the Court were falsely denied by the Respondent and ultimately on the basis of report submitted by the FSL, such documents are proved to be signed by the Respondent.
It is the Respondent, who did not report to the work though in the documentary evidence which are produced before the Court were falsely denied by the Respondent and ultimately on the basis of report submitted by the FSL, such documents are proved to be signed by the Respondent. He has further submitted that the Labour Court has committed a very serious error in holding that the Petitioner was required to conduct an inquiry and give an opportunity to defend the case to the Respondent in respect of the misconduct of absentism by overlooking the fact that the Respondent on his own volition abandoned the job. He has further submitted that there was no oral termination as the Respondent refused to work and there was no question of issuing any notice or paying notice pay. The Petitioner did not terminate the service of the Respondent as alleged. He has, therefore, submitted that the Labour Court has committed serious error in observing that the Respondent's services were terminated without issuance of notice or payment of notice pay and retrenchment compensation. Mr. Joshi further submitted that as per the settled position the Respondent himself abandoned the service, there is no question of his reinstatement or payment of back wages. 8. In support of his submissions he relied on the decision of Rajasthan High Court in the case of Narendra Singh Solanki vs. Raw and Finishing Production and Another, (2001) 3 LLJ 304, wherein it is found that there is no order of termination nor there is any proof on record to show that the Petitioner sought to report on duty and was prevented by the employer from doing so which act of prevention may amount to termination of service. In the absence of any such evidence, finding by the learned Judge that it is a case of abandonment cannot be said to be illegal. The Court, therefore, held that a perusal of the record will show that there is nothing on it to prove any action on the part of the employer to terminate the service of the employee and consequently, it cannot be said to be retrenchment made in violation of the provisions of Section 2(oo) requiring any interference either by the learned Labour Court or by this Court. 9. Mr.
9. Mr. Joshi further relied on the decision of the Apex Court in the case of Viveka Nand Sethi vs. Chairman, J & K Bank Ltd. and Others, (2005) 5 SCC 337 wherein it is held that, it may be true that in case of imposition of voluntary retirement on the basis of conduct amounting to abandonment of service, the principles of natural justice were required to be complied with but the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do amounts to sufficient compliance with the requirements of the principles of natural justice. 10. Based on above referred judgments as well as factual matrix Mr. Joshi has urged that the award passed by the Labour Court deserves to be quashed and set aside. He, however, submitted that by showing good gesture to the Respondent and by way of compensation the Petitioner is ready and willing to pay sum of Rs. 1 lac to the Respondent. 11. Mr. Devnani, learned advocate appearing for the Respondent, on the other hand, has submitted that the Labour Court has considered all aspects of the matter and passed an order of reinstatement with 50% back wages. Since the award is passed on the basis of facts and evidence on record, the Court while exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India should not interfere in the said award. He has further submitted that the Respondent has raised the dispute before the Labour Court that he has not abandoned the services of the Petitioner. On the contrary, the Petitioner orally terminated services of the Respondent without issuance of any notice or payment of notice pay as well as retrenchment compensation and hence the Labour Court has held that the said termination order, is illegal and while quashing and setting said the said termination order directed the Petitioner to reinstate the Respondent with 50% back wages. He has further submitted that the Respondent has never refused to work and hence the termination of the Respondent without affording any opportunity of hearing was in violation of the principle of natural justice.
He has further submitted that the Respondent has never refused to work and hence the termination of the Respondent without affording any opportunity of hearing was in violation of the principle of natural justice. The factual findings given by the Labour Court should not be interfered with by this Court in writ jurisdiction. The disputed question of fact should not be gone into, especially when the competent Labour Court after examining the documents as well as evidence on record has given a specific finding. He has further submitted that the Respondent is not interested in any compensation. On the contrary the Respondent is very keen to work in the Petitioner establishment and hence the order of reinstatement as well as 50% back wages should not be interfered with. 12. Having heard learned Counsels appearing for the parties and having considered their rival submissions in light of the statutory provisions as well as decided case law on the subject, the Court is of the view that the Labour Court has committed an error in passing the order of reinstatement with 50% back wages. There is enough material on record which indicates that the Respondent has not shown any willingness to work. On the contrary, the Respondent has imposed condition to provide conveyance allowance and he has refused to come on bicycle to the place where work was to be carried out. It is further found that the handwriting expert has given his opinion in respect of the letters written by the Respondent. The documents on record clearly indicate that the Respondent has himself abandoned the work and hence there is no question of compliance of Section 25-F, 25-G or 25-H of the Industrial Disputes Act. The case law relied upon by Mr. Joshi would also support the case of Petitioner. It is clearly held in the case of Narendra Singh Solanki vs. Raw and Finishing Production (supra) that when the workman out of his own volition abandons the work there is no question of payment of retrenchment compensation. There is also no violation of principles of natural justice when the workman abandons the service. These aspects of the matter were not properly appreciated by the Labour Court and straightway directions were issued for reinstatement with 50% back wages. This part of the order of the Labour Court is, therefore, quashed and set aside. 13.
There is also no violation of principles of natural justice when the workman abandons the service. These aspects of the matter were not properly appreciated by the Labour Court and straightway directions were issued for reinstatement with 50% back wages. This part of the order of the Labour Court is, therefore, quashed and set aside. 13. However, looking to the facts and circumstances of the case and considering the offer made by the Petitioner, the amount of Rs. 1 lac is awarded to the Respondent by way of compensation which the Petitioner shall pay to the Respondent by an account payee cheque at the Respondent's address within one month from today. 14. Subject to the aforesaid directions and observations this petition is accordingly allowed without, to the above extent, any order as to costs.