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Gujarat High Court · body

2024 DIGILAW 582 (GUJ)

Sunsil v. Ishwarbhai Talsibhai Vasava

2024-03-18

MAUNA M.BHATT

body2024
JUDGMENT : 1. Rule returnable forthwith. Mr. Yogen Pandya, learned advocate waives service of rule on behalf of respondent No.1. 2. The employer has filed this petition challenging the award of Labour Court, Bharuch dated 07.02.2017 in Reference (LCB) No.97 of 2009, wherein, the Labour Court awarded reinstatement of the workman with continuity and 20 % back wages. 2.2. It was the case of the respondent - workman before the Labour Court that he was in service of petitioner-company since 2nd March, 1994 as peon and was drawing salary of Rs. 3500/- per month. He was illegally terminated without any notice, for which, he raised an industrial dispute before the Labour Court Bharuch, registered as Reference (LCB) No. 97 of 2009. The said dispute was adjudicated and upon adjudication, the Labour Court held the termination of workman in breach of provision of Section 25F and thereby, awarded reinstatement with continuity and 20% back wages. Aggrieved by said order, the present petition is filed. 3. Heard Mr. Krutharth K. Desai, learned advocate for the petitioner and Mr.Yogen N Pandya, learned advocate for the respondent. 4. Mr. Desai, learned advocate for the petitioner submitted that the award of Labour Court, Bharuch dated 07.02.2017, is erroneous because there was no proof that the workman was working with the petitioner-company since 1994. The company started its production in the year 1995. Referring to the deposition of workman, learned advocate submitted that the workman had admitted in his deposition at Exh. 21 that no evidence is available to justify that he was working since 1994. On the contrary, the workman admitted that he was paid as daily wager and as and when he was on leave, he was not paid the wages. Most importantly in the ESI slip, the petitioner’s employment code was not mentioned and the code mentioned does not match with the code of the petitioner-company. Learned advocate further submitted that because of the loan taken from the petitioner-company, the workman abandoned the work and stopped coming on his own volition and therefore, it is not the case of illegal termination and thus, there is no violation of section 25 F as held by Labour Court. Further, as referred in the cross-examination of the management witness, the officer went on his own to call the workman back for work and he did not join. Further, as referred in the cross-examination of the management witness, the officer went on his own to call the workman back for work and he did not join. Learned advocate, thus, submitted that the award of Labour Court being erroneous deserves to be quashed and set aside. Learned advocate relied upon the decisions of Hon’ble Supreme Court in the case of (1) Surendaranagar District Panchyat and Anr vs. Gangaben Laljibhai and other reported in (2006) 9 SCC 132 (2) Ranip Nagar Palika Vs. Babuji Gabhaji Thakore (2019) 13 SCC 343 and of this Court in the case of State Bank of India Vs. Jamnagar Jilla Mazdoor Sangh & 3 others reported in R/Special Civil Application No.21833 of 2055, to submit that the primary onus is on the workman to establish that he had completed 240 days in a year. 5. On the other hand, Mr. Pandya, learned advocate for the respondent submitted that the workman worked with the petitioner-company from 1994 to 2008. For establishing the period of service and completion of 240 days, an application seeking production of document was filed, and the same was allowed. However, the petitioner-company failed in producing any document. Thus, primary onus stood discharged by the workman. On the contrary, it was pleaded by the petitioner-company that they had not kept any register or other document, which justifies the completion of 240 days and the period for which the workman had worked. From the cross-examination of management witness at Exh.24, it is evident that the respondent had worked as peon. Therefore, the employment of workman with the petitioner-company is not in dispute. So far as the contention taken before the Labour Court of having taken loan of Rs.10,000/- and on account of non-payment of the said loan, the workman stopped coming, could not be established since there were no documents produced to justify the loan taken. Further, the witness of management admitted that there was no communication made to the workman for joining duties. The management witness stated that he went to call him for work, own his own which the Labour Court had rightly not believed. Moreso, in the cross-examination, it was stated that no notice was given to the workman and thus, the Labour Court had rightly granted reinstatement with back wages. The management witness stated that he went to call him for work, own his own which the Labour Court had rightly not believed. Moreso, in the cross-examination, it was stated that no notice was given to the workman and thus, the Labour Court had rightly granted reinstatement with back wages. Learned Advocate submitted that despite having award in favour of the petitioner, on account of pendency of the petition, could not be implemented. Learned Advocate upon instruction of his client, submitted that considering the time gap, the workman is ready for lump sum compensation. He relied upon the decision in Madhya Bharat Granmin Bank Vs. Panchamala Yadav reported in 2021 Lawsuit (SC) 960. 6. Considering the fact that the employment of workman was not disputed. However, the facts of termination of the workman are in dispute. No document was available to establish loan taken. Further, no evidence was placed on record to establish calling workman back in service. The production started in the year 1995, is of no consequences since the workman was working as peon. Considering the fact that the workman worked since 1994 and had completed 240 days in a year the award of the Labour Court dated 07.02.2017 deserves interference. The workman has also accepted that he was paid on a voucher and for absent days he was not paid. Considering the overall facts and circumstances of this case, and the passage of time passed this Court deems it appropriate to grant lump sum compensation instead of granting reinstatement with back wages as ordered. 7. As per the submission of the learned counsel for the respondent that since the workman is ready to accept the lump sum compensation and in view of the decision of Madhya Bharat Granmin Bank Vs. Panchamala Yadav (supra), this Court deems it appropriate to award lump sum compensation of Rs.2,00,000/- to the workman as in lieu of the award dated 07.02.2017 in Reference (L.C.B) No.97 of 2009. 8. In view of the above, the award of Labour Court is modified by granting Rs.2,00,000/- as lump sum compensation. It is expected that the petitioner-company would make the payment as expeditiously as possible. The petition stands disposed of accordingly. 9. Rule is made absolute to the aforesaid extent.