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2016 DIGILAW 405 (GUJ)

Janta Kirana Stores v. Babulal Gayadutt Yadav

2016-02-19

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Hardhad Patel, learned advocate for the petitioner and Mr. P.C. Chaudhary, learned advocate for the respondent-workman. 2. In present petition, the petitioner-employer has brought under challenge award dated 22.05.2006, passed by learned Labour Court, Ahmedabad, in Reference (L.C.A.) No. 948/89, whereby the learned Labour Court has directed the petitioner-employer to reinstate respondent-workman on his original post with continuity of service and to pay 15% back-wages. The petitioner is aggrieved by the said direction. Hence, present petition. 3. At the outset, it is necessary and relevant to mention that the petitioner has taken out the petition about 6 years after the learned Labour Court passed award in Reference (L.C.A.) No. 948/89. 4. So far factual background is concerned, it has emerged from the award and submissions by learned advocate for the petitioner-employer and the respondent-workman that the respondent raised industrial dispute against his alleged termination with effect from 23.03.1989. The dispute came to be referred for adjudication to the learned Labour Court, Ahmedabad. The order of reference came to be registered as Reference (L.C.A) No. 948 of 1989. During the proceedings before the learned Labour Court, the respondent-workman filed his statement of claim and alleged that since last many years, he had been working with the petitioner as Delivery Man at Salary of Rs. 581/- per month. He further claimed that since the benefits available to the workman under the applicable law were not be granted to him, he used to make demand before the petitioner-employer, and therefore, the petitioner-employer orally terminated his service from 23.03.1989. He alleged that at the time of terminating his service, the petitioner-employer did not pay retrenchment compensation. The respondent-workman also claimed that his service was not terminated for any misconduct. The respondent-workman also claimed that his service was arbitrarily terminated in violation of principle of natural justice and without following the procedure prescribed by law. 5. The petitioner-employer opposed the reference by filing its written-statement, wherein present petitioner-employer denied claims and allegations by the claimant-workman. The petitioner-employer stated in his written-statement that the claimant-workman was working with his establishment on and from 11.05.1986 as labourer at Salary of Rs. 5. The petitioner-employer opposed the reference by filing its written-statement, wherein present petitioner-employer denied claims and allegations by the claimant-workman. The petitioner-employer stated in his written-statement that the claimant-workman was working with his establishment on and from 11.05.1986 as labourer at Salary of Rs. 582/- and that the respondent had proceeded on sick-leave (upon submitting certificate issued by ESI Dispensary) for the period from 16.03.1989 to 22.03.1989 and he was supposed to resume his duty with effect from 23.03.1989 with his fitness certificate from ESI dispensary. According to the petitioner-employer, the respondent-workman reported for duty on 23.03.1989 and when he was assigned work, he refused to carry out the job and refused to perform his duty on the ground that he had still not fully recovered and he was not feeling well and he again availed leave and left the store, and thereafter, he did not report for duty. The petitioner-employer also claimed in the written-statement that since the respondent had stopped reporting for work, notice was forwarded to the respondent-workman on 28.03.1989 and he was asked to resume the duty, however, even after the said notice, the claimant-workman did not report for duty. The petitioner-employer also claimed that another notice was issued on 10.04.1989, however, even after the said notice, the claimant-workman did not report for duty. The petitioner-employer further claimed that subsequently when the facts were placed before the Conciliation Officer, the claimant-workman reported for duty on 03.05.1989 and again stopped for reporting duty from 05.05.1989. The petitioner-employer further claimed that the respondent was asked to report for duty by letter dated 08.05.1989 pursuant to which the claimant-workman reported for duty on 10.05.1989, at about 01.00 hour in the afternoon, and again, he stopped reporting for duty from 11.05.1989. After mentioning the said details in its written-statement before the learned Labour Court, the petitioner-employer claimed that reference may be rejected since the service of the claimant-workman is not terminated and it is the claimant-workman, who was stopped reporting for duty. 6. After pleadings were completed, oral and documentary evidence was accepted on record. The deposition of the claimant-workman was recorded at Exh. 18 and deposition of employers witness Mr. J.J. Patel was recorded at Exh. 35 and deposition of Employers witness Mr. Kamleshbhai Jayantibhai was recorded at Exh. 45. 6. After pleadings were completed, oral and documentary evidence was accepted on record. The deposition of the claimant-workman was recorded at Exh. 18 and deposition of employers witness Mr. J.J. Patel was recorded at Exh. 35 and deposition of Employers witness Mr. Kamleshbhai Jayantibhai was recorded at Exh. 45. From the record, it appears that the examination of chief of the said 2 witnesses was recorded and the cross-examination was deferred, and thereafter, cross-examination of Mr. J.J. Patel could not be conducted, since he died and other witness i.e. Kamleshbhai did not remain present before the Court for cross-examination. Under the circumstances, the depositions of said 2 witness were discarded by the learned Labour Court. Thereafter, the learned Labour Court heard submissions by learned advocate for the petitioner-employers and respondent-workman. After considering the evidence on record, rival submissions by contesting parties, the learned Labour Court passed award with above mentioned directions. The said award is under challenge in present petition. 7. Mr. Patel, learned advocate for the petitioner-employer assailed the impugned order and submitted that the learned Labour Court failed to appreciate the fact that time and again the petitioner-employer had requested the respondent-workman to resume his duty, however, it was the respondent, who did not resume for duty. Mr. Patel, learned advocate for the petitioner-employer also submitted that the learned Labour Court failed to appreciate that it was the respondent-workman, who had voluntarily abandon the service and the petitioner-employer had never terminated the service of the respondent. He submitted that the petitioner-employer had made all efforts, by forwarding letters to the respondent, asking him to report for duty; however, the respondent workman did not report for duty and that therefore, the petitioner-employer should not be saddle with any liability for fault of the respondent-workman. Learned advocate for the petitioner also submitted that after filing the petition, the respondent was again asked to report for duty, however, the respondent did not report for duty. Learned advocate for the petitioner-employer submitted that the respondent was not even staying at Ahmedabad and he had left for his native place at U.P. and was never interested reporting for duty, and therefore, also the impugned award directing the petitioner to pay back-wages to the respondent-employer and to reinstate him is unjustified and deserves to be set aside. 8. Per contra, Mr. 8. Per contra, Mr. Chaudhary, learned advocate for the respondent-workman submitted that the service of the respondent-workman was terminated orally with effect from 23.03.1989 and thereafter, when the respondent-workman tried to report for duty, he was not allowed to report for duty or on couple of occasions, he was allowed to work for 1 or 2 days and then again he was terminated, and therefore, the petitioners claim that the respondent did not report for duty cannot and should not be believed. Learned advocate for the respondent-workman submitted that there is no material on record to establish that the said observation by the learned Labour Court is incorrect or unjustified. According to Mr. Chaudhary, learned advocate for the respondent-workman the award does not suffer from any error. 9. Mr. Patel, learned advocate for the petitioner-employer relied on a settlement which, allegedly, was arrived at between the respondent-workman and another employer company named M/s. Monarch Dye stuff Industries Ltd. On the strength of the said settlement, Mr. Patel, learned advocate for the petitioner-employer tried to submit that actually respondent-workman had secured another employment, and therefore, he was not reporting for duty with the petitioners establishment and that his service was terminated by the said other employer with whom he subsequently entered into the settlement. From the award, it appears that the said aspect was placed before the learned labour Court and after examining the settlement and the identity of present claimant-workman, the learned Labour Court finding of fact that the person mentioned in the settlement and the workman concerned in Reference No. 948/89 are different persons. 10. Before this Court, there is no material to establish that the said conclusion by the learned Labour Court is incorrect and perverse and contrary to the correct fact. 11. Any material to establish the identity of the person who entered into the settlement said M/s. Monarch Dye stuff Industries Ltd. and present respondent is not placed on record of the petitioner. 12. Therefore, this Court is neither persuaded nor convinced to interfere with the finding of fact recorded by the learned Labour Court. 13. After examining the material on record, the learned Labour Court has reached to the finding and conclusion that the petitioner-employer failed to establish that the respondent-workman had voluntarily left his service. The learned Labour Court having reached to the said conclusion has directed the petitioner employer to reinstate the respondent-workman. 13. After examining the material on record, the learned Labour Court has reached to the finding and conclusion that the petitioner-employer failed to establish that the respondent-workman had voluntarily left his service. The learned Labour Court having reached to the said conclusion has directed the petitioner employer to reinstate the respondent-workman. 14. So far as said conclusion and direction are concerned, learned advocate for the petitioner has failed to establish, with the help of any evidence on record, that such conclusion by the learned Labour Court is perverse or incorrect. Learned advocate for the petitioner could not bring to the notice of this Court, any evidence from which it could be concluded that it was the respondent-workman who had voluntarily abandoned the service and had stopped reporting for duty on his own volition. 15. If the petitioners claim is correct, then the petitioner-employer could not and should not have any objection or reservation against complying the direction of learned Labour Court to reinstate the respondent-workman. 16. In absence of cogent evidence on record, which can convince the Court to take a view different from the view taken by the learned Labour Court and which can convince this Court that the said conclusion by the learned Labour Court is perverse, this Court would not interfere with the finding of fact recorded by the learned Labour Court. This Court cannot delve into re-appreciation of evidence or this Court would not sit in appeal over the findings of fact and conclusion recorded by the learned Labour Court on the basis of record of the reference. From the record, it has emerged that the learned Labour Court has not committed any error in reaching to and in recording the conclusion against the petitioner and the conclusion recorded by the learned Labour Court are based on material available on record and are supported by cogent reasons. Any material error in the award is not established. 17. So far as direction to pay 15% back-wages is concerned, it is necessary to mention that the petitioner has not placed any evidence on record to establish that the respondent-workman was gainfully employed during the period from March, 1989 to the date of the award. The learned Labour Court has, in its discretion and on the basis of material available on record, considered it appropriate to grant 15% back-wages. The learned Labour Court has, in its discretion and on the basis of material available on record, considered it appropriate to grant 15% back-wages. Any material to interfere with the said discretion by the learned Labour Court is not made out. When any material to demonstrate that the respondent-workman was gainfully employed in the interregnum is not available then this Court would not interfere with the said direction. 18. Thus, on over all consideration of the award, any infirmity is not found in the award and any case to interfere with the award is not made out. 19. At this stage, it is relevant mention that undisputedly respondent-workman has crossed the age prescribed for superannuation. Learned advocate for the respondent-workman relied on the election card and submitted that the year of birth of the respondent-workman is 1956. Thus, the respondent-workman reached 58 years of age in 2014 and 60 years of age in 2016. Under the circumstances, question of actual reinstatement would not survive. With the aforesaid clarification, present petition is rejected. Rule is discharged.