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Gujarat High Court · body

2016 DIGILAW 1614 (GUJ)

Sainath Travels v. Babulal Ratilal Dandia

2016-08-03

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Gogia, learned advocate for the petitioner. 1.1 Though served, the respondent has not entered appearance. 1.2 It appears that even in response to the notice as to interim relief, the respondent did not remain present. In view of absence of the respondent, the Court had passed order dated 12.4.2007 directing the office to issue fresh notice of rule so as to enable the respondent to enter appearance or engage an advocate. However, even after the order dated 12.4.2007 and despite service of fresh process of rule, the respondent did not enter appearance. Therefore, the Court passed order dated 26.6.2007 and confirmed the ad-interim relief. Even thereafter the respondent has not entered appearance. 2. So far as relevant facts are concerned it has emerged from the record that the respondent raised Industrial Dispute against present petitioner on the allegation that present petitioner illegally terminated his service. Appropriate government referred said dispute for adjudication to learned Labour Court at Jamnagar. The dispute was registered as Reference (LCJ) No. 171 of 1995. 3. Before the learned Labour Court respondent filed his statement of claim and alleged that the opponent employer terminated his service without following procedure prescribed by law. He also alleged that he was working with the opponent as Driver and he was paid salary of Rs. 33/- per day and the employer orally terminated his service on 12.8.1994 without any fault on his part and without granting opportunity of hearing and without following procedure prescribed by law. 4. The opponent employer i.e. present petitioner resisted the reference. 5. In his reply the opponent employer (i.e. present petitioner) denied the allegations by the claimant and claimed that it was the claimant who left the service and voluntarily stopped reporting for work without permission and without informing any reason. The opponent employer also claimed that the establishment came into existence for the first time in August 1993 and that the claimant was engaged w.e.f. 3.1.1994. The opponent employer also claimed that after 9.8.1994 the claimant did not report for work. On inquiry it was learnt that he had secured another job with higher salary and therefore he was not reporting for work. The opponent employer also claimed that after 9.8.1994 the claimant did not report for work. On inquiry it was learnt that he had secured another job with higher salary and therefore he was not reporting for work. The opponent employer also claimed that after 9.8.1994 the claimant had come to the office and had collected his salary and conveyed that since he has secured another job he does not want to continue in service (with the opponent). In the written statement the opponent employer also claimed that the work which the claimant was performing is still available and if the claimant wants to report for work he may do so and the opponent (present petitioner) has no objection to allow him to resume his duty. 6. After the stage of pleading was completed the contesting parties led evidence and upon conclusion of the stage of evidence learned Court heard the submissions by learned advocate for the contesting parties. Thereafter the learned Labour Court considered the submissions and material available on record and passed the award which is impugned in the present petition. 7. Learned Labour Court held that the claimant's termination was effected without following procedure prescribed by law. Therefore, learned Labour Court directed the opponent employer to reinstate the claimant with 50% back-wages. 8. Mr. Gogia, learned advocate for the petitioner employer submitted that the learned Labour Court failed to take into account the facts and evidence available on record. He submitted that the learned Labour Court failed to appreciate that it was the claimant who had voluntarily stopped reporting for duty from 9.8.1994 after working for about 6/7 months. He submitted that before the claimant stopped reporting for duty he had not worked for 240 days and total tenure of his service with the employer was about 7 months. Mr. Gogia, learned advocate also submitted that after abandoning service the claimant had accepted service with another employer viz. A.N.F.O. Blast and he was drawing salary to the tune of Rs. 500/- and therefore he left the service with the petitioner. Mr. Gogia, learned advocate referred the document at page 48A which is a voucher and reflects payment of salary to the tune of Rs. 2250/- to one Mr. Gaffarbhai Osmanbhai. (It is claimed that the claimant had changed his name to Mr. Gaffarbhai Osmanbhai from Babulal Ratilal Dadiya). 500/- and therefore he left the service with the petitioner. Mr. Gogia, learned advocate referred the document at page 48A which is a voucher and reflects payment of salary to the tune of Rs. 2250/- to one Mr. Gaffarbhai Osmanbhai. (It is claimed that the claimant had changed his name to Mr. Gaffarbhai Osmanbhai from Babulal Ratilal Dadiya). With the help of the said document the learned advocate for the petitioner submitted that the claimant had secured employment with A.N.F.O. Blast and therefore he had voluntarily stopped reporting for work (with present petitioner). However, learned Labour Court did not appreciate the said facts and the documents and instead passed impugned award and that therefore the award deserves to be set aside. Mr. Gogia, learned advocate for the petitioner further submitted that the claimant owns a car which he has been plying as 'taxi' and he earns income however, learned Labour Court failed to appreciate the said fact also and committed error in awarding 50% back-wages. In support of the submissions learned advocate for the claimant relied on certificate issued by the transport authority. 9. As mentioned earlier no one has entered appearance for the respondent. 10. I have considered the submissions by learned advocate for the petitioner and the material available on record. I have also considered the award passed by the learned Labour Court. 10.1 On reading the award it comes out that the learned Labour Court examined the submissions of the petitioner employer that it had not terminated the service of the respondent. On this count learned Labour Court has discussed relevant aspects under issue Nos. 1 to 3. Learned Labour Court has noted that the petitioner failed to prove that the workman had come to the office of the petitioner and said that he had secured better employment and therefore he is not interested in continuing service (with the petitioner). 10.2 Learned labour Court has also observed that the claimant had served notice dated 13.8.1994 however the employer did not give any reply to the demand notice. 10.3 At the time of hearing of this petition learned advocate for the petitioner could not dispute the said observation by learned Labour Court in view of the fact that the petitioner employer had not given any reply to the claimant's notice. 10.3 At the time of hearing of this petition learned advocate for the petitioner could not dispute the said observation by learned Labour Court in view of the fact that the petitioner employer had not given any reply to the claimant's notice. If the petitioner genuinely wanted to and was ready to re-engage the claimant then it would have replied the notice and in reply to the demand notice it would have said that his service was not terminated and he may resume duty however such reply was not given by the petitioner employer. 10.4 In that view of the matter the reasons recorded by the learned Labour Court cannot be faulted. 10.5 The learned Labour Court has further observed that the petitioner employer claimed that the respondent had voluntarily stopped reporting for work however in such circumstances and in such cases also employer should conduct an inquiry to establish that the claimant voluntarily abandoned the service and lost lien however the petitioner employer failed to do so and therefore it has to be held that the service of the claimant was terminated without following procedure prescribed by law. 10.6 The learned Labour Court has also observed in the award that the petitioner failed to place any evidence on record to prove that the undertaking was established for the first time on 1.8.1993. The learned Labour Court has also noted that in 1994 the claimant alleged that he was working with the petitioner employer since last 3 years and that therefore it was necessary for the undertaking to establish that it was established for the first time in 1993 and started activities in August 1993 however petitioner establishment failed to place any document to support its case. 11. At the time of hearing of this petition also learned counsel for the petitioner employer could not show the registration of certificate issued under Bombay Shops and Establishment Act and therefore there is no basis or justification to find any fault with the order and finding recorded by the learned Labour Court. 11.1 Learned Labour Court has also observed in the award that even if the claim of the employer was accepted then tenure of service of the claimant would be from 1.8.1993 to 11.8.1994. 11.1 Learned Labour Court has also observed in the award that even if the claim of the employer was accepted then tenure of service of the claimant would be from 1.8.1993 to 11.8.1994. It is also observed by learned Labour Court that the employer has also failed to place any evidence on record to establish that the claimant was engaged by it for the first time on 3.1.1994 and that therefore there was no basis to reject the claimant's submissions that he was in service with the petitioner employer since last more than 3 years. Having regard to the said findings of fact learned Labour Court also taken into account the fact that the petitioner did not place attendance register or wage register on record and merely submitted a statement with reference to attendance of the worker. The petitioner employer, thus, failed to establish that respondent employee had not worked for 240 days and that therefore there was no ground to reject the workman's claim that he worked for more than 240 days in preceding 12 months. 11.2 Learned Labour Court has also observed and recorded that actually in the written statement it was not the case even of the employer that the claimant had not worked for 240 days and that in the written statement the employer put forward limited defence that it was the claimant who had stopped reporting for work. Besides the said findings of fact learned Labour Court also recorded certain other findings of fact and observations. There is no material on record to convince the Court to disregard the said findings of fact and/or to reach any other conclusion different from the conclusion recorded by the learned Labour court. 12. In this background learned advocate failed to establish that the order directing the petitioner employer to reinstate the claimant is unjust or arbitrary. When, according to the findings of fact recorded by the learned Labour Court, it is established that the claimant had not voluntarily left service and the petitioner employer also failed to establish his claim that the claimant has stopped reporting for work voluntarily and when it is not in dispute that at the time when the service of claimant was discontinued any domestic inquiry was not conducted and retrenchment compensation was not paid there is no reason or justification to disturb the order directing the petitioner employer to reinstate the claimant. 13. 13. This leaves behind the issue with regard to the direction to pay 50% back-wages. 13.1 On this count the submission by learned advocate for the petitioner appears to be justified. The petitioner has placed on record document (voucher) said to have been issued by the establishment named A.N.F.O. Blast which shows payment of salary to Mr. Gaffarbhai Osmanbhai. The petitioner has also placed vouchers dated 1.9.1996, 1.10.1996, 1.11.1996, 1.12.1996, 1.1.1997, 1.2.1997 and 5.3.1997 etc. The petitioner employer has also placed on record certificate by regional transport officer certifying that one Mr. Gaffarbhai Osmanbhai is owner of the motor car bearing registration No. GJ. 10 U.501. 14. In view of the said document which establishes that the concerned claimant was not examined with the said undertaking and he was also owner of a vehicle and also having regard to the fact that the claimant had admitted that he was plying said vehicle and earning Rs. 300/- per trip, the direction awarding 50% back-wages is unjust and unsustainable and the said direction deserves to be set aside. 15. In view of the foregoing discussion and for the aforesaid reasons following order is passed:-- "As an upshot of the discussion, the order directing petitioner to reinstate the claimant is not disturbed and the said direction is confirmed however order directing petitioner to pay 50% back-wages to the claimant is set aside." Accordingly the petition is partly allowed and impugned order is partly set aside. Rule is made absolute to the aforesaid extent. Orders accordingly.