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Gujarat High Court · body

2017 DIGILAW 227 (GUJ)

Ahmedabad New Textile Mills v. Luvkush Vishvanath

2017-01-30

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Mehta, learned advocate, for Nanavati and Nanavati, learned advocates for the petitioner company, and Mr. Mankad, learned advocate for the respondent. 2. In this petition the petitioner company has challenged judgment and order dated 9.9.2005 passed by learned Industrial Court, Ahmedabad in Appeal (IC) No. 115 of 2002 and Appeal (IC) No. 123 of 2002 whereby the learned Industrial Court partly allowed Appeal (IC) No. 115 of 2002 filed by original claimant - workman and directed the company to reinstate the workman with continuity of service and 25% backwages and the learned Industrial Court rejected the Appeal (IC) No. 123 of 2002 which was filed by the company against the judgment and order passed by learned Labour Court in BIR Application No. 258 of 1993. 3. So far as factual backdrop is concerned it has emerged that the respondent herein was working with the present petitioner company in its Weaving Department. According to claim of the respondent he was appointed w.e.f. 5.4.1982 and within short time i.e. on 29.11.1982 the company terminated his service by oral order. He alleged that subsequently on 27.1.1983 he submitted a letter with the request to reinstate him. However, settlement could not be arrived at. Therefore, the respondent invoked Sections 78 and Section 79 of Bombay Industrial Relation Act, 1946 (hereinafter referred to as the "BIR Act") and filed application challenging termination. The said application was registered as T-Application No. 258 of 1983. In his application/statement of claim he claimed that since April 1982 he worked as Weaver in weaving department of the company and if no fault on his part the company terminated his service on 29.11.1982. With such allegation the claimant demanded reinstatement in service with all benefits. 3.1 The opponent company i.e. present petitioner opposed the application and demand of the workman. The company contended that in March - April 1982 it had started new/additional section in weaving department by installing new automatic weaving machine and initially said section was run on trial basis. The company also contended that the claimant was engaged for trial basis i.e. for limited period and specific purpose however, it was noticed that the claimant was not able to run the machine and that therefore he was discontinued. 3.2 Upon conclusion of the pleadings learned Labour Court received and recorded documentary and oral evidence. The company also contended that the claimant was engaged for trial basis i.e. for limited period and specific purpose however, it was noticed that the claimant was not able to run the machine and that therefore he was discontinued. 3.2 Upon conclusion of the pleadings learned Labour Court received and recorded documentary and oral evidence. When the parties concluded their evidence learned Labour Court heard submissions and after considering material available on record and rival submissions, learned Labour Court reached to the conclusion that the termination of the claimant would amount to retrenchment and the said retrenchment was effected without following procedure prescribed by law. Having reached such conclusion learned Labour Court partly allowed the application vide judgment dated 9.10.2002 in said T-application No. 258 of 1983 with direction to the employer to pay Rs. 25,000/- towards lumpsum compensation. 3.3 The claimant filed Appeal against said judgment dated 9.10.2002 passed by learned Labour Court. The said Appeal was registered as Appeal (IC) No. 115 of 2002. The employer also filed Appeal against same judgment by Labour Court. The employer's Appeal was registered as Appeal (IC) No. 123 of 2002. After considering rival submissions and material available on record learned Industrial Court disposed of the said appeal vide common judgment dated 9.9.2005. The learned Industrial Court rejected company's Appeal (IC) No. 123 of 2002 whereas learned Industrial Court partly allowed the Appeal (IC) No. 115 of 2002 filed by the workman and the learned Labaour Court directed the company to reinstate the claimant with 25% backwages and continuity of service. 3.4 Feeling aggrieved by the said judgment dated 9.9.2005 the company filed present petition. The workman i.e. original claimant has not filed any petition against the judgment dated 9.9.2005 passed by the learned Industrial Court. 4. Before proceeding further it is relevant to mention that the Court is informed by learned advocates that during pendency of the proceedings the claimant died in April 2016. when the said information was provided to the company, Civil Application No. 757 of 2007 was filed by the company with the request to implead the heirs of the original claimant - original respondent in the petition. The said application came to be allowed vide order dated 13.1.2017 and the heirs/legal representatives of the deceased respondent are impleaded in present petition as respondent Nos. 1.1 and 1.2. 5. In this factual background Mr. The said application came to be allowed vide order dated 13.1.2017 and the heirs/legal representatives of the deceased respondent are impleaded in present petition as respondent Nos. 1.1 and 1.2. 5. In this factual background Mr. Mehta, learned advocate for the petitioner assailed impugned judgment. He submitted that the learned Labour Court failed to appreciate that the claimant was engaged as apprentice and for trial run of the machine and therefore he could not be considered employee of the company. He further submitted that the performance of the claimant on the newly installed machine was not satisfactory and he was not able to learn the operation of the machine even after passage of 6 months and that therefore after assessment of the claimant's training period, he was not found fit to be appointed as employee of the company and therefore within short period i.e. 6 months he was discontinued and that therefore the said termination would not amount to retrenchment however learned Labour Court failed to appreciate the said position and learned Labour Court proceeded on erroneous premise and reached to the incorrect conclusion that the termination would amount to retrenchment. He submitted that the learned Courts have committed error in holding that the termination was not effected in accordance with law. Learned advocate for the company submitted that the judgments passed by both the Courts deserve to be set aside. He also submitted that the weaving department is closed down since April 2004. He further submitted that upon closure of the company the management was taken over by NTC and subsequently the company is closed down/wound up. 6. Mr. Mankad, learned advocate for the claimant opposed the submissions. He submitted that when the service of the claimant was terminated other persons were continued in service and subsequently the company had engaged other persons and thereby the company committed breach of Section 25G and Section 25H of the Industrial Disputes Act (hereinafter referred to as the "I.D. Act"). He also submitted that the company did not place any material on record to establish that the claimant was engaged as apprentice and that therefore the contention by the company is unjustified and the unsustainable. He submitted that the learned Industrial Court has not committed any error in passing judgment and that therefore petition may not be entertained. 7. He also submitted that the company did not place any material on record to establish that the claimant was engaged as apprentice and that therefore the contention by the company is unjustified and the unsustainable. He submitted that the learned Industrial Court has not committed any error in passing judgment and that therefore petition may not be entertained. 7. I have considered rival submissions and material available on record as well as judgment passed by learned Labour Court and learned Industrial Court. 7.1 So far as factual background is concerned, it has emerged that broadly stated overall facts are not in dispute. It is not in dispute that the claimant was, for the first time, appointed in April 1982. 7.2 It is also not in dispute that the company discontinued the claimant in November 1982. 7.3 Thus, the total tenure of the claimant's service with the company would come to 7 months. 7.4 Therefore, the claimant could not have completed service of 240 days before he came to be discontinued. 7.5 Therefore Section 25F of I.D. Act would not be attracted or applicable in present case. 7.6 The company claimed before the learned Labour Court that the claimant was engaged at the time of trial run and he was engaged on trial basis and at the most the claimant can be termed as apprentice. The company also contended that the claimant was never engaged as employee of the company and that therefore the company was not obliged to follow any procedure, more particularly the company was not obliged to comply condition prescribed under Section 25F or Section 25G or Section 25H of the I.D. Act. 8. However, it is not in dispute that the company could not prove the said contention inasmuch as any contract of apprenticeship or any appointment letter engaging the claimant as apprentice was not placed on record before learned Labour Court. 8.1 In absence of any evidence to support the contention that the claimant was engaged only for trial of newly installed machines and/or he was engaged on trial basis and during trial basis his training was not satisfactory or that the claimant did not complete training satisfactorily, was not placed on record before learned Labour Court and that therefore the company could not prove the said contention. In the result the learned Labour Court did not believe and did not accept the said contention of the company. 8.2 During hearing of present petition also the company could not point out any material from the record to support the said contention. 8.3 In the result the conclusion by learned Labour Court and confirmed by learned Industrial Court that the claimant was engaged as employee of the company cannot be faulted. 9. Besides this, the findings of fact recorded by learned Labour Court are confirmed by the learned Appellate Court i.e. learned Industrial Court. 10. Under the circumstances, this Court would, even otherwise also, not disturb the finding of fact concurrently recorded by the learned Labour Court and learned Appellate Court and this Court, in such circumstances, would not enter into process of reappreciation or reassessment of the evidence. 10.1 This Court does not sit in appeal over concurrent findings of fact recorded by learned Labour Court and confirmed by the learned Appellate Court. The company also could not dispute the fact that after the claimant was discontinued other person was engaged by the company. 10.2 The company also failed to establish that other junior persons in the department were not continued in service while service of the claimant was terminated. 10.3 In this view of the matter the findings and conclusions by learned Labour Court and confirmed by the learned Industrial Court about breach of Section 25G and Section 25H of the I.D. Act, cannot be faulted. 11. When it is shown that the findings about breach of statutory provision which are recorded by the learned Labour Court and learned Appellate Court are justified and do not suffer from any error or infirmity, then in that event the decision by learned Labour Court declaring the termination of the claimant service illegal, cannot be faulted. 11.1 In this background only the question which would arise or survive is about appropriate relief would arise. 12. It has emerged from the record that after considering relevant facts and circumstances learned labour Court considered it appropriate to award Rs. 25,000/- as lumpsum compensation instead of directing the company to reinstate the claimant. The said decision by the learned Labour Court is set aside by the learned Industrial Court in the appeal and learned Industrial Court, directed the company to reinstate the claimant and to pay 25% backwages. 25,000/- as lumpsum compensation instead of directing the company to reinstate the claimant. The said decision by the learned Labour Court is set aside by the learned Industrial Court in the appeal and learned Industrial Court, directed the company to reinstate the claimant and to pay 25% backwages. Learned Industrial Court rendered the said decision in September 2005. Unfortunately, the fact that the department was closed w.e.f. April 2004 is not taken into account by the learned Industrial Court. 12.1 The company's submission that the weaving department cam to be closed down w.e.f. April 2004 is not disputed by the leaned Counsel for the respondent. The said fact clarifies that the direction to reinstate the claimant is improper. Despite such fact learned Industrial Court passed said direction. Therefore, the said direction cannot be sustained and is required to be set-aside and modified. 12.2 Besides the fact that the department where the claimant was appointed was closed down in April 2004, it has also emerged from the record that subsequently the company was taken over by NTC and thereafter the operations of the company have been closed down by NTC. Therefore, also the question of reinstatement does not survive. 13. In this context it should also be taken into account that the total tenure of service of the claimant comes to only 7 months. 14. True it is that the company had not complied the condition prescribed by statutory provision at the time when service of the claimant was discontinued. However, the fact that the claimant worked only for 7 months with the company cannot be ignored. 15. In this background issue about appropriate relief has to be considered. 16. In this context, Mr. Mankad, learned advocate for the claimant would submit that the claimant died in April 2016 and that therefore, the direction passed by learned Labour Court with regard to backwages may not be disturbed. 17. On this count the Court is informed that the compensation awarded by the learned Labour Court i.e. Rs. 25,000/- has been deposited by the company with the registry of this Court. 18. In this background the Court called for calculation of 25% backwages (in view of the direction passed by the learned Industrial Court). 17. On this count the Court is informed that the compensation awarded by the learned Labour Court i.e. Rs. 25,000/- has been deposited by the company with the registry of this Court. 18. In this background the Court called for calculation of 25% backwages (in view of the direction passed by the learned Industrial Court). In response to the said direction by the Court the company has placed on record calculation of wages to the extent of 25% in accordance with order of learned Industrial Court. From the said statement it has emerged that 25% backwages would come to Rs. 1,52,492/-. 19. Under the circumstances the Court is of the view that if the company is directed to pay additional Rs. 75,000/- (i.e. in addition to Rs. 25,000/- awarded by learned Labour Court) making total of Rs. 1 Lakh by way of lumpsum compensation to the heirs of the deceased workman then it would balance the equity and would also meet the ends. 20. Therefore, following order is passed:- "(A) The petition is partly allowed and impugned judgments and order by the learned Labour Court and learned Industrial Court are partly set aside and modified. (B) In addition to Rs. 25,000/- awarded by the learned Labour Court as lumpsum compensation the company is directed to pay additional amount of Rs. 75,000/- i.e. total Rs. 1 Lakh towards lumpsum compensation to the claimant. (C) Such amount shall be paid by Account Payee Cheque within 3 months from the receipt of certified copy of this order. (D) If, for sake of convenience, the company wants to withdraw Rs. 25,000/- deposited by it and pay said amount of Rs. 1 Lakh by Single Account Payee Cheque to the heirs of the claimant (petitioner) then company may be permitted to withdraw the said amount after payment of Rs. 1 Lakh to the claimant. (E) The company shall withdraw Rs. 25,000/- after payment of Rs. 1 Lakh to the claimant within aforesaid time limit. (F) Upon such payment the judgment and order passed by learned Labour Court and learned Trial Court shall stand partly set aside and modified with aforesaid direction." The petition stands partly allowed. Rule is made absolute to the aforesaid extent. Orders accordingly. Petition Partly Allowed.