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2016 DIGILAW 876 (GUJ)

Range Forest Officer v. Dahyabhai Ajubhai Borana

2016-04-22

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Borot, learned AGP for the petitioner. 2. So far as respondent is concerned the cause list reflects that though the process is served to the respondent, no one has entered appearance on behalf of the respondent. 3. In view of the fact that the petition is pending since 2011 and since 5 years the respondent has not entered appearance, the Court deems it appropriate to proceed with the final hearing of the matter instead of adjourning the hearing on account of nonappearance of the respondent. Therefore the Court has proceeded to hear and decide the matter on merits and heard the submissions by learned AGP. 4. In present petition the petitioner has challenged the award dated 24.5.2010 passed by learned Labour Court at Surendranagar in Reference (LCS) No. 19 of 2001 whereby the learned Labour Court directed the petitioner to reinstate the respondent without any back wages or without any consequential benefits. 5. So far as factual background is concerned it has emerged from the record and from the submissions by learned AGP that the respondent workman raised industrial dispute against alleged termination of his service. Appropriate government referred the dispute for adjudication to the learned Labour Court vide order of reference dated 31.1.2001. The reference was registered as Reference (LCS) No. 19 of 2001. 5.1 During the proceedings before learned Labour Court the respondent - claimant filed statement of claim with the allegation that he was working as Chowkidar since last 8 years with the petitioner and that when his service was discontinued he was working as Chowkidar at forest area within limits of village Shiyani and that his salary was Rs. 1000/- per month. He also alleged that he had worked for more than 240 days and his service was terminated without following any procedure prescribed by law and that the termination of his service was in violation of Section 25F, 25G and 25H of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act"). 6. The petitioner opposed the reference by filing written statement at exh. 9. The petitioner claimed that the respondent was engaged only for short duration and the allegation that he was working since 8 years is incorrect. 6. The petitioner opposed the reference by filing written statement at exh. 9. The petitioner claimed that the respondent was engaged only for short duration and the allegation that he was working since 8 years is incorrect. It was also claimed by the petitioner that the respondent was engaged on ad hoc and daily wage basis and he was not engaged after following procedure for selection and recruitment and he was not appointed on any vacancy. According to the petitioner the respondent was engaged for casual work on daily wage basis. The petitioner also claimed that the respondent had stopped reporting for duty and had voluntarily left the service. 7. After stage of pleadings was completed the petitioner placed on record before the learned Labour Court certain documents including statement which reflected the details of total number of days for which the respondent was engaged and the details related to the work done by the respondent. Thereafter the oral evidence of the workman was recorded at exh. 8 and on behalf of the petitioner deposition of Mr. Zala, was recorded. 8. After the stage of evidence was concluded learned Labour Court heard the submissions by learned advocate for present petitioner and the claimant workman and after considering the contentions, material available on record and the facts of the case, learned Labour Court reached to the findings that the service of the petitioner was terminated illegally. 8.1 In view of such conclusion learned Labour Court considered it appropriate to direct the petitioner to reinstate the respondent. Learned Labour Court however, declined to grant any consequential benefits including back wages. 9. The petitioner is aggrieved by the said award and direction, hence present petition. 10. Mr. Barot, learned AGP vehemently argued and submitted that the impugned award is unsustainable. He referred to the document dated 9.8.2000 and claimed that by the said communication the respondent was asked to report for work at Samdhiyala plot of Vadhvan range. However, the respondent did not report for duty at the said place. He also submitted that the respondent had voluntarily stopped reporting for duty. The learned AGP reiterated that the appointment of the respondent was irregular and that there was no vacancy on permanent establishment. 11. I have considered the submissions by learned AGP. However, the respondent did not report for duty at the said place. He also submitted that the respondent had voluntarily stopped reporting for duty. The learned AGP reiterated that the appointment of the respondent was irregular and that there was no vacancy on permanent establishment. 11. I have considered the submissions by learned AGP. Since no one has appeared for the respondent I have considered the material on record and the details mentioned in the statement of claim and the submissions before the labour Court and the award impugned in present petition. 11.1 The respondent raised industrial dispute with the allegation that he was working with the petitioner since about 8 years and that his service was illegally terminated without following procedure prescribed by law. 11.2 In the written statement before learned Labour Court the petitioner had defended the reference case only on the ground that it was the respondent who had, on his own volition, stopped reporting for duty and thereby voluntarily abandoned the service. Any dispute with regard to the total number of days for which the respondent had worked and/or against the respondent's claim that he had worked for 240 days was not raised in the written statement filed before the learned Labour Court. 11.3 On reading the award it comes out that even the witness of the petitioner had accepted that the respondent was engaged for miscellaneous and casual work from time to time. He, however denied that the respondent was working since last 8 years. The witness of the petitioner stated that the respondent was engaged on "need basis" for casual and miscellaneous work. The witness of the petitioner did not dispute the respondent's claim that he had worked for more than 240 days in preceding 12 months. The witness of the petitioner also accepted and admitted that the petitioner never paid retrenchment compensation to the respondent. 11.4 Actually after examining the evidence available on record more particularly the statement reflecting details of the days for which the respondent had worked, the learned Labour Court recorded that the respondent had worked for 240 days in preceding 12 months and during his tenure in one year had had worked for 312 days. 11.4 Actually after examining the evidence available on record more particularly the statement reflecting details of the days for which the respondent had worked, the learned Labour Court recorded that the respondent had worked for 240 days in preceding 12 months and during his tenure in one year had had worked for 312 days. 11.5 Learned Labour Court also examined the nature of activity of present petitioner and decided the petitioner's objection in light of the decision by larger bench and rejected the petitioner's objection that the defendant did not fall within the purview of term 'industry' as defined under Section 2(j) of the Act. 11.6 Learned labour Court also reached to the conclusion that the respondent was 'workman' as defined under Section 2(s) of the Act. 11.7 In view of the fact that witness of the petitioner had admitted that the respondent was engaged by the petitioner and also considering the fact that witness of the petitioner had accepted that the petitioner had not paid any compensation to the respondent and having regard to the details mentioned by the petitioner in the statement, learned labour Court reached to the conclusion that (a) the respondent was employed by the petitioner (b) the respondent had worked for more than 12 months with the petitioner (c) the respondent had worked for 312 days in one year (d) the petitioner had not paid compensation when the respondent was discontinued. 12. In this background it is necessary to consider the claim of the learned AGP. 12.1 It is claimed by the petitioner that the respondent voluntarily abandoned the service and he had on his own volition stopped reporting for duty. 13. Now, so far as the said claim and submission is concerned it is relevant to note that the petitioner failed to place any material on record that when the respondent allegedly stopped reporting for duty, any notice or any intimation was given to the respondent and his explanation for remaining absent without permission was called for. 14. 13. Now, so far as the said claim and submission is concerned it is relevant to note that the petitioner failed to place any material on record that when the respondent allegedly stopped reporting for duty, any notice or any intimation was given to the respondent and his explanation for remaining absent without permission was called for. 14. There is nothing on record to establish that the petitioner had given any intimation to the respondent, when he allegedly voluntarily stopped reporting for duty, and he was not asked and was not called upon to explain his unauthorized absence from duty and/or to show cause as to why he remained absent without prior permission and/or to show cause as to why action should not be taken against him for unauthorized absence. 14.1 There is also nothing on record to show that the petitioner had taken any action against the respondent for not reporting for duty and remaining absent from duty without permission. 14.2 Besides this, any intimation does not appear to have been given to the respondent that if he does not report for duty then it will be presumed that he voluntarily abandoned the service. 15. Without establishing any aspect, the petitioner claimed in the written statement that the respondent had voluntarily stopped reporting from duty. From the discussion in the award it also comes out that the witness of the petitioner did not establish the fact that the respondent was not reporting for duty and that he had on his own volition stopped reporting for duty. 15.1 Actually without taking any steps and without any intimation and without calling for reply or without granting opportunity of hearing the petitioner assumed and on mere assumption it jumped to the conclusion that the respective has abandoned the service. 16. In this view of the matter the petitioner's claim that the respondent had voluntarily left the service is not believed by the learned Labour Court and when the learned Labour Court recorded the finding of fact in light of the evidence on record then there is no bases or justification for this Court to reach to different conclusion, more so when any material is not available on record of this petition to persuade the Court to take different view. 16.1 Since the petitioner failed before learned Labour Court to establish that the respondent had voluntarily stopped reporting for duty the said contention cannot be accepted at this stage and this Court, in absence of any evidence, cannot upturn the findings of fact recorded by the learned Labour Court. 17. As mentioned earlier the learned AGP tried to bring to the notice of the Court a communication dated 9.8.2000. 17.1 However, there is nothing coming out from the award to establish that the said communication was placed on record before the learned Labour Court and/or that the respondent was confronted with the said letter, during the respondent's cross examination. In this view of the matter the said material cannot be taken into account as it was not on record before the Labour. 18. Any material is not available on record which would establish, even suggest, that the respondent had voluntarily abandoned the service. 18.1 Though in view of the fact that after the Court admitted the petition, the respondent has never appeared before the Court, and he has not even entered appearance in this proceedings and despite the fact that the Court has not granted any interim relief, the respondent does not appear to have made any attempt to resume duty on the strength of the award. The respondent has not come forward with any application claiming benefit under Section 17-B of the Act. 18.2 From the said facts, one would be tempted to assume that there is some substance in the claim of the petitioner viz. that the respondent is not interested in resuming duty. 18.3 However, in view of the fact that any evidence to support such claim was not placed before the learned Labour Court and in view of the fact that the learned Labour Court has not accepted such contention, this Court, in absence of any cogent evidence and merely on inference, cannot reach to the conclusion different than the conclusion recorded by the learned Labour Court. 18.4 In this view of the matter, it emerges from the record that the petitioner failed to establish its case before the learned Labour Court and it is not possible to find any fault with the conclusion by the learned Labour Court that the respondent's service was terminated by the petitioner and that since retrenchment compensation was not paid, the termination of the service was illegal. 19. 19. As mentioned earlier, it has emerged from the discussion by the learned Labour Court in the impugned award and from the observations by the learned Labour Court that, (a) the respondent was employed by the petitioner; (b) the respondent had worked with the petitioner for more than 12 months; (c) In one year, the respondent had worked for 312 days in a year and in preceding 12 months the respondent had worked for more than 240 days and that (d) the service of the respondent was discontinued, and (e) at the time when the service of the respondent was discontinued, retrenchment compensation was not paid despite the fact that the respondent had worked for more than 12 months or for more than 240 days in proceeding 12 months, (f) consequently, the termination of the respondent was in breach of Section 25-F of the Act. 20. The said findings of fact recorded by the learned Labour Court are based on admission by the petitioner's witness or in light of other evidence available on record and in light of the fact that the petitioner failed to establish before the learned Labour Court that the respondent had voluntarily abandoned the service. Under the circumstances, there is neither any material nor any justification to interfere with the impugned award. 21. On reading the award, it comes out that the learned Labour Court has not committed any error and the award does not suffer from any infirmity. 22. It is pertinent that the learned Labour Court has not granted any backwages. The learned Labour Court has also not passed any direction granting continuity of service or other consequential benefits. The learned Labour Court has merely passed the order directing the petitioner to reinstate the respondent i.e. the direction granted by the impugned award is for reinstatement simplicitor without benefit of backwages and without benefit of continuity of service and without any other benefit. Moreover, since 2011, though the Court admitted the petition, any interim relief is not granted. Under the circumstances, there is no reason to interfere with the direction passed by the learned Labour Court and to set aside the impugned award. In the result, the petition fails and deserves to be rejected and is, accordingly, rejected. The respondent is entitled for reinstatement on his original post i.e. as daily wager without continuity of service and without backwages. In the result, the petition fails and deserves to be rejected and is, accordingly, rejected. The respondent is entitled for reinstatement on his original post i.e. as daily wager without continuity of service and without backwages. With aforesaid observations and clarifications, present petition stands disposed of. Rule is discharged.