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2018 DIGILAW 623 (RAJ)

Suresh Kumar v. Union of India through Secretary

2018-02-22

ARUN BHANSALI

body2018
JUDGMENT : ARUN BHANSALI, J. 1. This writ petition is directed against the award dated 12.12.2001 passed by the Labour Court, Udaipur, whereby, the reference made by the appropriate Government has been answered against the petitioner workman. 2. By order dated 24.9.1999 a reference was made to the labour court as to whether the termination of services of petitioner Suresh Chand Mojawat by the respondent Bank was legal and if not to what relief he was entitled. 3. The statement of claim was filed by the petitioner workman inter alia indicating that he was engaged as part-time Class IV employee at Modi Branch of the Bank on 24.5.1993 at the rate of Rs. 22/- per day, he gave his services regularly till 30.4.1994 and, thereafter, he was again engaged at Modi Branch on 1.1.1995, where he continued till May, 1997. It was also alleged that between the period 1.1.1995 to May, 1997, though the work was taken from the petitioner but in the Bank record names of other persons have been recorded, who did not work in the Bank and were employed elsewhere. It was also claimed that from June, 1997 to 7.7.1997 the petitioner worked at Goverdhan Vilas Branch and was suddenly removed on 7.7.1997. It was claimed that petitioner had served for 240 days before his retrenchment and after removal of petitioner, in Kolyari Branch of the Bank other persons were given appointment and that posts were lying vacant at Bapu Nagar and Hiran Magri Sector No. 5 Branches of the Bank. 4. The application was contested by the respondent Bank. It was submitted that the workman had worked at Modi Branch from 28.5.1993 to 18.9.1993 for 56 days and at Goverdhan Vilas Branch from 9.6.1997 to 7.7.1997 for 24 days and in all he had worked for 80 days only. Whereafter, full breakup of the period during which the petitioner had worked intermittently for 80 days was given out and it was submitted that the application deserves to be dismissed. 5. On behalf of the workman, he himself was examined and on behalf of the Bank, officer of the Bank was examined. No documentary evidence was produced on record. During the course of proceedings before the labour court, an application was filed by the petitioner seeking production of documents for the period between May, 1993 to May, 1997. 6. 5. On behalf of the workman, he himself was examined and on behalf of the Bank, officer of the Bank was examined. No documentary evidence was produced on record. During the course of proceedings before the labour court, an application was filed by the petitioner seeking production of documents for the period between May, 1993 to May, 1997. 6. After hearing the parties, the labour court rejected the application for summoning the documents holding that the documents sought to be summoned had no direct or indirect relation with the service related dispute. Whereafter, the Tribunal referring to the cross examination of the workman came to the conclusion that the workman had failed to prove that he had worked for 240 days in a calendar year and consequently rejected the claim. 7. It is submitted by learned counsel for the petitioner that the retrenchment of the petitioner was in violation of provisions of Section 25F, 25H and 25N of the Industrial Disputes Act, 1947 (the Act) and therefore, the labour court was not justified in rejecting the claim made by the petitioner. It was submitted that the petitioner had sought production of certain documents, which prayer was wrongly rejected by the labour court and that also during the course of passing of the award. It was submitted that if the documents were produced, the same would have clearly established the case of the petitioner and, therefore, adverse inference deserves to be drawn against the Bank. With reference to cross examination of the officer of the Bank, it was submitted that in the said statement, wherein, relevance of the documents has been established, non-production of the documents has resulted in labour court recording a wrong finding and, therefore, the award deserves to be set aside. 8. Learned counsel for the respondent supported the award impugned. It was submitted that the respondent Bank in its reply and the affidavit had indicated the specific dates during which the petitioner had worked, which was 80 days only and that also intermittently over a period of five years, however, not a single question was put to the officer in this regard and/or seeking to discredit the evidence led. 9. It was submitted that the respondent Bank in its reply and the affidavit had indicated the specific dates during which the petitioner had worked, which was 80 days only and that also intermittently over a period of five years, however, not a single question was put to the officer in this regard and/or seeking to discredit the evidence led. 9. Further submissions were made that bare reading of the cross examination of the workman itself is sufficient to demolish the case sought to be set up by the workman and, therefore, the award impugned does not call for any interference. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. The labour court after analyzing the oral evidence which came on record, came to the conclusion that the workman failed to prove that he had worked for 240 days in the previous year. A bare look at the cross examination of the workman, certified copy whereof has been produced for perusal of the Court, as the petitioner chose not to file a copy of the said cross examination on record, reveals that the petitioner has indicated that he had worked against some other person, who had gone on leave and then stated that he did not know anything in this regard, he admitted that he worked for 24 days in the year 1997 and stated that he worked only at Goverdhan Vilas Branch. He also conceded that he has worked and has been paid, however, how much money was paid to him he did not remember. The petitioner in his cross examination has not been able to give out anything so as to discredit the stand taken by the respondent Bank regarding petitioner having worked for 80 days only, that also intermittently. 11. Even in the cross examination of officer of the Bank, he was not put any question whatsoever seeking to question the stand taken by the respondent Bank except putting question regarding availability of the documents, which were sought to be summoned by the petitioner. In view thereof, the finding of the labour court with regard to the fact that the petitioner had not worked for 240 days in a calendar year cannot be said to be perverse so as to require interference in the present writ petition. 12. In view thereof, the finding of the labour court with regard to the fact that the petitioner had not worked for 240 days in a calendar year cannot be said to be perverse so as to require interference in the present writ petition. 12. So far as the submission of learned counsel for the petitioner regarding drawing adverse inference against the respondent Bank on account of alleged non-production of the documents is concerned, it would be seen that the labour court did not pass any order during the pendency of the reference ordering for production of documents and even while passing the award the prayer has been rejected and, therefore, in absence of any order of production of documents, no adverse inference could be drawn against the respondent Bank. 13. So far as the rejection of application is concerned, once the case of the petitioner was that he worked as part-time class IV employee , various documents, which were sought to be summoned, apparently had no relation whatsoever with the working of the petitioner and, therefore, the labour court was justified in rejecting the said application. 14. A submission was made by learned counsel for the petitioner that the labour court did not examine the applicability of provisions of Section 25H of the Act, though the same is not dependent on the fact whether the workman had completed 240 days in the previous year and relied on the judgment in Central Bank of India vs. S. Satyam and Others, (1996) 5 SCC 419 . The submission made by learned counsel for the petitioner may have substance, but as already noticed hereinbefore, the only issue referred by the appropriate Government was pertaining to validity of the petitioner's termination and as the question of reemployment under Section 25H was not referred, the labour court essentially was not required to deal with the said aspect inasmuch as what was referred in the present case was dispute relating to termination. Re-employment in terms of Section 25H of the Act presupposes a valid termination in the first instance and, therefore, constitutes a different cause of action and can be gone into by the labour court only if a reference is made in this regard and not otherwise. 15. In view thereof, the said issue sought to be raised by learned counsel for the petitioner also has no substance. 16. 15. In view thereof, the said issue sought to be raised by learned counsel for the petitioner also has no substance. 16. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.