Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 1089 (GUJ)

Sun Metal Industries v. Sushilkumar Shrivastav

2016-06-13

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mrs. Parikh, learned advocate for the petitioner, and Mr. Raval, learned advocate for the respondent. 2. In present petition, the petitioner has challenged award dated 16.9.2003 passed by the learned Labour Court, Ahmedabad in Reference (LCA) No. 2273 of 1994 whereby learned Labour Court has directed the petitioner to reinstate the respondent in service on his original post with 50% backwages. 3. So far as factual background is concerned, it has emerged from the record and from the submissions by learned advocate for the petitioner that on the allegation that his service is illegally terminated, the respondent raised industrial dispute which was referred by the appropriate government for adjudication to the learned Labour Court, Ahmedabad. The dispute was registered as Reference (LCA) No. 2273 of 1994. 3.1 The respondent filed statement of claim before the learned Labour Court wherein he alleged that he was working with the opponent establishment since last several years and his service came to be illegally terminated without following any procedure prescribed by law and at the relevant time, his salary was Rs. 35 per day. He also alleged that his service was terminated without any fault on his part and without following any procedure prescribed by law. He alleged that his service was terminated on and from 7.4.1994. With said allegation, the respondent demanded that he should be reinstated with consequential benefits. 3.2 The reference was opposed by the petitioner herein who filed its written statement. The respondent opposed the reference and the demand of the workman essentially and mainly on one ground viz. that the respondent was not appointed by it and the respondent was not in its employment at any point of time and relationship of employer and employee did not exist between the petitioner establishment and the respondent workman. The petitioner also denied that the respondent was paid salary at Rs. 35 per day and it was claimed that there was no relationship of employer and employee with the respondent and that therefore, any question of paying any salary and/or terminating his service did not arise so far as the petitioner establishment is concerned. The allegations and statement of claim were denied by the respondent and it was also denied that the establishment had terminated the respondent's service w.e.f. 7.4.1994. The allegations and statement of claim were denied by the respondent and it was also denied that the establishment had terminated the respondent's service w.e.f. 7.4.1994. 3.3 During the hearing before the learned Labour Court, the claimant and the employer led oral and documentary evidence. Subsequently, learned advocates for the contesting parties submitted their rival contentions and after considering the submissions by the learned advocates for the contesting parties, the learned Labour Court passed the award with aforesaid directions, which are impugned in present petition. 4. During the proceedings of this petition, the petitioner and the respondent have, respectively, filed reply affidavit and affidavit in rejoinder. 5. Mrs. Parikh, learned advocate for the petitioner, submitted that the learned Labour Court failed to appreciate the fact that the claimant had not mentioned in his statement of claim that he was working as turner and it was, for the first time, in his deposition, that he declared that he was working as turner. She submitted that the petitioner establishment is engaged in foundry work and it does not have any lathe machine and that therefore, there was no question of engaging a turner in its establishment. She also submitted that the claimant failed to place any material, except identity card, on record to establish that he was employed by the petitioner establishment. She further submitted that the said identity card and its veracity were disputed by the petitioner, however, the learned Labour Court chosen to rely on the said document and proceeded to record findings of fact on the basis of such document which was disputed by the petitioner. She further submitted that the petitioner had placed on record attendance register and pay register and it was also shown from the said document that the said documents did not contain name of the respondent, however, the learned Labour Court failed to appreciate that aspect and committed error in brushing aside the documents namely, attendance register and pay register. She also submitted that the petitioner had placed on record certificate of Chartered Accountant whereby the Chartered Accountant certified that there is no lathe machine in the establishment of the petitioner. She also submitted that though the respondent was never employed by the petitioner and he had never worked with the petitioner, the learned Labour Court has directed the petitioner to reinstate the respondent and to pay 50% backwages. She also submitted that though the respondent was never employed by the petitioner and he had never worked with the petitioner, the learned Labour Court has directed the petitioner to reinstate the respondent and to pay 50% backwages. According to the learned advocate for the petitioner, the conclusions recorded by the learned Labour Court are erroneous and without supporting evidence and the directions passed by the learned Labour Court are arbitrary and unjustified. 6. During his repetitive submissions, Mr. Raval, learned advocate for the respondent, repeatedly emphasized one aspect namely that in a petition against the award, this Court would not sit in appeal and would not re-appreciate the evidence whereas the submissions by the petitioner would require re-appreciation of evidence and that therefore, the petition does not deserve to be and should not be entertained. He referred to the reply affidavit wherein also the same contention is raised and submitted that the petitioner has failed to establish its case by leading any evidence and that the learned Labour Court has not committed any error in arriving at the conclusions which are recorded. Relying on the decision by Hon'ble Apex Court in case of Deepali Gundu Sarwase, learned advocate for the petitioner submitted that the learned Labour Court found that the termination is illegal and that in such cases, ordinarily, reinstatement with backwages would be proper relief and that therefore, the learned Labour Court has not committed any error in granting reinstatement and backwages. 7. I have considered the submissions by learned counsel for the petitioner and the respondent. I have also examined the material on record which comprises statement of claim of the workman, written statement by the petitioner, deposition of the respondent and one Mr. H.B. Modi of the petitioner establishment as well as reply affidavit and affidavit in rejoinder. I have also examined the award impugned in present petition. 8. During his deposition, the claimant alleged that he was working with the petitioner since last 4 years and his service came to be terminated by oral order on 7.4.1994 and at the relevant time, he was paid salary @ Rs. 35 per day. During his deposition, the respondent also asserted that since last four years, he was working with the petitioner establishment as a turner. 35 per day. During his deposition, the respondent also asserted that since last four years, he was working with the petitioner establishment as a turner. He alleged that when his service was terminated by oral order, the petitioner neither served notice nor paid salary in lieu of notice and did not pay retrenchment compensation and also did not follow the procedure prescribed by law. 9. It is relevant to note that during his cross examination, the respondent denied the suggestion that there was no lathe machine in the petitioner establishment. During his cross examination, the respondent also clarified that the identity card which he placed on record before the learned Labour Court contains signature of Mr. Arunkumar Modi or Mr. Mukeshkumar Modi Yas the employer. He accepted that the identity card did not contain signature of Mr. H.B. Modi - the owner, but it reflected signature of his son Mr. Mukeshkumar Modi or Mr. Arunkumar Modi as the employer. He also denied the suggestion that he had forged or fabricated the identity card. He mentioned during his cross-examination that he has studied upto 10th standard and understands little bit English and he also deemed that the signature on the identity card was put by him. Mr. H.B. Modi was examined as witness of the petitioner. He claimed that he is the owner of the petitioner establishment. He claimed that the respondent was not employed by the petitioner. He also claimed that the petitioner was engaged in foundry work i.e. melting and casting metals and brass and it did not have lathe machine. He, however, during his cross-examination accepted that the identity card contains rubber stamp of the petitioner establishment and that though the petitioner establishment used to issue identity card to other workers, he would not be in position to place on record identity card issued to other workers. 9.1 The learned Labour Court examined the said evidence and also examined the documents namely, the identity card which was placed on record by the claimant workman as well as the attendance register, pay register and Chartered Accountant's certificate placed on record by the employer. 9.1 The learned Labour Court examined the said evidence and also examined the documents namely, the identity card which was placed on record by the claimant workman as well as the attendance register, pay register and Chartered Accountant's certificate placed on record by the employer. 9.2 When the award is examined, it emerges that for deciding the Issues No. 1 and 2, the learned Labour Court has extensively discussed the merits and demerits of the documentary evidence placed on record by both the sides, i.e. the identity card as well as Chartered Accountant's certificate and the pay register/attendance register. 9.3 While dealing with the identity card placed on record by the respondent claimant and petitioner's objection against the said document, the learned Labour Court has discussed at length the relevant aspects. The learned Labour Court examined the petitioner's objection against the said identity card namely that the document is forged or fabricated. While dealing with the said objection, the learned Labour Court has taken note of the fact that the identity card undisputedly reflects signature of one of the sons of the owners and the signature on the identity card was put at the place marked and it was made in that capacity "employer". The learned Labour Court also took into account the fact that the identity card bears a rubber stamp mark with the petitioner's name, signature and photograph of the claimant workman and signature of one of the sons of the owner-employer. The learned Labour Court while dealing with the objection of the employer has also observed that to demonstrate or to establish that identity card was not genuine or was forged or fabricated, the petitioner could have placed on record documents of other workmen so that comparison would be possible. The learned Labour Court has also taken note of the fact that the witness of the petitioner categorically stated that he will not place any other identity card and that while refusing to place any other identity card on record, the petitioner did not offer any reason and did not express any justification for the said refusal. In this background, the learned Labour Court recorded finding of fact that the petitioner failed to establish that said document was forged or fabricated. In this background, the learned Labour Court recorded finding of fact that the petitioner failed to establish that said document was forged or fabricated. The learned Labour Court also recorded that when the document (identity card) was placed on record and when it was not proved that it was forged or fabricated, there was no reason or justification for the Court to disbelieve and rejected the said document. 9.4 In this context, it is also relevant to note that it is not the case of the petitioner that the signature on the identity card was not of one of the sons of the owner namely Mr. Mukeshkumar H. Modi. The said Mr. Mukeshkumar H. Modi was not examined and it was not claimed by him that it is not his signature. In this background, at the time of hearing of the petition, the petitioner now cannot be heard to say that the learned Labour Court should not have taken into account the said signature on identity card. In this view of the matter, the conclusion and finding recorded by the learned Labour Court with regard to identity card cannot be faulted. 10. Thereafter, the learned Labour Court dealt with the attendance register and pay register. At the outset, the learned Labour Court has recorded finding of fact that the petitioner conveniently produced only some of the attendance registers and pay registers which related to some of the months during the period from 1990 to 1992 but month-wise documents (attendance registers and/or pay registers) were not placed on record. Further, the learned Labour Court has recorded that the petitioner placed the said document on the record after the chief examination and cross-examination of the workman was concluded and that therefore, the workman never got any opportunity to lead any evidence or offer any explanation with regard to the said document. The learned Labour Court has recorded that the deposition of the workman was concluded on 5.12.2012 whereas the petitioner placed the said document on record on 6.8.2001 and that therefore, the workman never got opportunity to say anything with regard to said document. In this background, learned Labour Court has recorded that the petitioner failed to establish evidentiary value of the said document in accordance with law. In this background, learned Labour Court has recorded that the petitioner failed to establish evidentiary value of the said document in accordance with law. Therefore, the petitioner's claim that the said document did not reflect name of the petitioner cannot be taken as conclusive evidence to hold that the respondent was never employed by the petitioner and there was no relationship of employer and employee between the establishment and the claimant. In light of these facts and circumstances, the said conclusion and finding of fact also cannot be faulted. 11. So far as the issue related to lathe machine is concerned, learned Labour Court has taken note of the fact that even in the written statement the petitioner had not claimed and asserted that it did not have any lathe machine at any point of time in its establishment. The learned Labour Court has taken note of the convenient silence maintained by the petitioner in its written statement with regard to lathe machine and about the fact that the said defence or excuse was subsequently raised by the petitioner as an afterthought. So far as so called certificate said to have been given by the Chartered Accountant is concerned, the Chartered Accountant was not examined and probative value of the said document was not established and the document was not proved in accordance with law. 11.1 A glance at the award brings out that the learned Labour Court has dealt with each and every contentions and dispute raised by the petitioner and has also dealt with the evidence available on record. The learned Labour Court has also recorded cogent, sufficient and satisfactory reasons in support of its conclusion and finding of fact and the reasons recorded by the learned Labour Court are duly supported by relevant evidence. 11.2 In this view of the matter, it cannot be said that the findings recorded by the learned Labour Court are perverse. The learned advocate for the petitioner has failed to establish that the finding of fact and conclusions recorded by the learned Labour Court are perverse. 12. On overall view of the matter, it cannot be said that the learned Labour Court has committed any error in rendering the award and/or in appreciating and analyzing and evaluating the documentary and oral evidence on record and/or examining facts and circumstances in light of such evidence. The award does not suffer from any infirmity. 12. On overall view of the matter, it cannot be said that the learned Labour Court has committed any error in rendering the award and/or in appreciating and analyzing and evaluating the documentary and oral evidence on record and/or examining facts and circumstances in light of such evidence. The award does not suffer from any infirmity. 12.1 At this stage, it is relevant to take note of the order dated 3.2.2004 passed by the Court while admitting the petition. The said order reads thus:- "Mrs. Parikh for the petitioner states that the petitioner is ready to offer work to the respondent workman but since there is no lathe machine, other work shall be assigned to him. She furthers states that the petitioner has also, as per the letter, dated 11.12.2003, offered reinstatement to the concerned workman. 2. Hence, RULE. Ad interim relief in terms of para 7B so far as it relates to the backwages and the reinstatement is not stayed with the clarification that it would be open to the petitioner to allot other work to respondent workman without prejudice to the rights and contentions in this petition." 12.2 From the said order, it also emerges that the Court had taken into account the claim of the petitioner that there is no lathe machine. Even after taking into account the said documents of the petitioner, the Court did not grant any interim relief against the direction to reinstate the workman. The interim relief is restricted only qua backwages. 12.3 For the foregoing reasons and in light of above discussed facts coupled with the fact that the Court has not stayed the operation of the order directing reinstatement of the workman, there would not be any reason or justification to interfere with the said direction at this stage, more so when the learned advocate for the petitioner has failed to establish any error or infirmity in the findings of fact recorded by the learned Labour Court. 13. So far as the issue related to backwages is concerned, the learned Labour Court has taken note of the fact that the workman asserted that he was never employed in the interregnum and he remained unemployed. 13. So far as the issue related to backwages is concerned, the learned Labour Court has taken note of the fact that the workman asserted that he was never employed in the interregnum and he remained unemployed. However, the learned Labour Court has taken note of the fact that the respondent possesses technical qualification and technically qualified person like the respondent would not have remained unemployed in the interregnum, having taken note of such position, the learned Labour Court has awarded 50% backwages and denied balance 50% backwages. In this view of the matter, the petitioner's challenge against the backwages cannot sustained. 14. At this stage, learned counsel for the petitioner and the respondent came out with allegation and counter allegations with regard to the period subsequent to the award and the petitioner alleged that the respondent never reported for work though he was asked to resume duty whereas learned advocate for the respondent disputed the said fact and alleged that the respondent had gone to report for duty, but he was not allowed to do so. These aspects are beyond the scope of the petition which is restricted to the challenge against the award. If there are any issues with regard to any situation period after the date of the award, the parties may deal with the same in appropriate proceedings. With aforesaid observations, the petition is not accepted and the same is hereby disposed of. Rule is discharged. Ad-interim/interim relief, if any, granted earlier, stands vacated. No order as to costs.