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Gujarat High Court · body

2025 DIGILAW 518 (GUJ)

Total Solutions v. Jitendra Rameshchandra Vyas

2025-06-20

M.K.THAKKER

body2025
JUDGMENT : M.K. THAKKER, J. 1. Since the issue raised in the all these petitions are similar, they are being decided by a common judgment. Facts of Special Civil Application No.7819 of 2025 is taken for consideration of the disposal of these petitions. 2. The present petition is filed under Article 226 read with Article 14 and 19 (1)(g) of the Constitution of India thereby, challenging the order passed by the learned labour court, Ahmedabad dated 01.10.2024 in Reference T (L.C.A.) No.452 of 2011. 3. It is the case of the present petitioner that the petitioner establishment is engaged in the business of providing investigation solutions for MACP and other Miscellaneous claims of General Insurance Companies. While discharging obligation towards aforesaid Insurance Companies, the petitioner establishment used to and continues to engage service of freelance individuals from available talent tool, on need and case to case basis and the payment is also made on case to case basis. The respondent who is also one of such individual who used to be engaged by the petitioner establishment on task basis, approached the learned labour court through Union claiming the breach of section 25(F), 25(G) and 25(H) of the Act which culminated in the dispute being Reference T (L.C.A.) No.452 of 2011. The said reference was heard ex-parte and award was passed on 17.05.2014 whereby, directions were issued upon the petitioner to reinstate the respondent workman with 25% back wages alongwith continuity of service. As the same was an ex- parte award, therefore, application was filed under Rule 26 A of the Industrial Disputes (Gujarat) Rules, 1966 seeking restoration of reference by setting aside the ex- parte award. The said application was allowed on 30.09.2015 and the reference was restored on a condition to pay the cost of Rs.7,500/-. Petitioner thereafter, appeared and filed a written statement below Exh.19 on 20.07.2017 and has also filed the reply to the production application which was filed by the respondent and was allowed vide order dated 14.03.2019. However, thereafter, the petitioner disappeared from the proceedings and again the award was passed on 01.10.2024 directing the present petitioner to reinstate the respondent with 25% back wages which is subject matter of challenge before this Court. 4. Heard learned advocate Mr.I.G.Joshi for the petitioner. 5. However, thereafter, the petitioner disappeared from the proceedings and again the award was passed on 01.10.2024 directing the present petitioner to reinstate the respondent with 25% back wages which is subject matter of challenge before this Court. 4. Heard learned advocate Mr.I.G.Joshi for the petitioner. 5. Learned advocate Mr.Joshi submits that the respondent individual has not produced any single document to substantiate the claim made in the statement of claim. It is submitted by the learned advocate Mr.Joshi submits that though respondent is not working with the petitioner Company for more than 240 days and has not discharged any obligation under section 25(B) of the ID Act, learned court has committed error in holding illegal termination under section 25(F) of the ID Act. It is submitted by the learned advocate Mr.Joshi submits that respondent individual was working on commission basis and the Company is still ready and willing to take back the respondent individual on commission basis, however, learned labour court has committed an error in awarding the back wages at the rate of 25%. Learned advocate Mr.Joshi submits due to an inadvertent mistake on the part of the advocate, the evidence could not be lead before the learned labour court, however, reasonable opportunity is required to be granted in favour of the petitioner by imposing the cost and by remanding back the reference to the learned labour court. Learned advocate Mr.Joshi submits that in absence of the evidence adduced by the petitioner to establish the claim, learned labour court has committed an error in granting the relief of reinstatement with back wages and therefore, impugned award deserves to be set aside and the reference is required to be remanded back to the learned labour court with appropriate cost. 6. Having considered the arguments advanced by learned advocate Mr.Joshi and on referring the reasons, it emerges from the record that as per the claim made by the respondent, he was serving with the petitioner establishment since last 5 years and getting wages of Rs.10,350/-. His services were terminated on 09.05.2011 without following the procedure under the Act. As the petitioner did not appear before the learned reference court, therefore, the reference was awarded on 17.05.2014 in favour of the respondent by granting the relief of reinstatement with 100% back wages and continuity of service. His services were terminated on 09.05.2011 without following the procedure under the Act. As the petitioner did not appear before the learned reference court, therefore, the reference was awarded on 17.05.2014 in favour of the respondent by granting the relief of reinstatement with 100% back wages and continuity of service. Thereafter, Miscellaneous Application being No.95 of 2015 came to be filed by the present petitioner on the ground that though the advocate was engaged, however, due to inadvertent mistake on the part of the advocate, he did not remain present. It is submitted that the advocate has retired from the matter and he did not inform before filing the retirement pursis and therefore, ex-parte award came to be passed which was sought to be set aside by the petitioner by filing an application for restoration. Learned labour court, with a view to give the chance to lead the evidence has allowed application vide order date 30.09.2015 by imposing a cost of Rs.7500/-. Thereafter, the petitioner appeared before the learned labour court and filed written statement below Exh.19. It is contended by the petitioner in the written statement that the respondent is not a workman, as he was not paid the wages but was paid commission on the basis of the investigation of the claim. The cross-examination was also conducted by the present petitioner and thereafter, the closing pursis came to be filed by the respondent below Exh.28. Thereafter, examination in chief was filed by the witness of the petitioner below Exh.30 namely Gaurav Ramavtar Agrawal, again the petitioner did not appear for the cross-examination therefore, stage of the cross-examination was closed vide order dated 27.09.2022. It is required to be noted herein, that the application below Exh.21 which was filed was though ordered in favour of the respondent on 14.03.2019 directing to produce the muster roll, leave register, identity register alternatively to file the affidavit, the present petitioner has filed an affidavit stating that the documents are old therefore, they are not traceable. To establish the claim, the present respondent has produced the bank statement below mark 26/1 which was not rebutted during the cross-examination of the workman. 7. On the contrary, it is admitted by the respondent workman that the amount mentioned below Exh.26/1 is wages plus incentive which is to be paid to meet with the expenses of the field. To establish the claim, the present respondent has produced the bank statement below mark 26/1 which was not rebutted during the cross-examination of the workman. 7. On the contrary, it is admitted by the respondent workman that the amount mentioned below Exh.26/1 is wages plus incentive which is to be paid to meet with the expenses of the field. It is also admitted by the present respondent that he worked for more than 240 days and his presence used to be recorded in the muster roll which is in the possession of the petitioner. Considering the evidence in the nature of the bank statement as well as the cross-examination, learned labour court has held that there is a master and servant relationship between the petitioner and the respondent. 8. It further emerges from the record that though application below Exh.21 was filed to produce the muster roll, wage register, identity register etc., however, the affidavit below Exh.23 was filed declaring non availability of the documents. The learned advocate Mr.Joshi has submitted before this Court, to consider the documents which are part of record of the petition which is in the nature of bank statement from 22.07.2006 to 28.03.2011 by submitting that there is no continuous entry as claimed by the respondent. This Court is of the view that when the directions were issued by the learned labour court to produce the evidence, affidavit is filed for non availability of the document therefore, this Court would not consider any additional document which is not part of the record before the learned labour court. 9. It is required to be noted herein, that after the stage of cross-examination was closed, the written arguments were submitted by the present petitioner on 02.04.2024, however, no application was filed for opening the stage of the cross-examination or to adduce any evidence on record. The only explanation offered by the present petitioner was that though concerned advocate has informed to produce the evidence, the concerned advocate has not produced the documentary evidence. This Court has referred the decision rendered by the Ap[ex Court in the case of Salil Dutta Vs. T.M. and M.C. Private Ltd. (1993) 2 SCC 185 wherein, Apex Court has held that the advocate is the agent of the party. This Court has referred the decision rendered by the Ap[ex Court in the case of Salil Dutta Vs. T.M. and M.C. Private Ltd. (1993) 2 SCC 185 wherein, Apex Court has held that the advocate is the agent of the party. His acts and statements made within the limits of authority given to him, are the acts and statements of the principal, i.e., the party who engaged him. Though in certain situations, the Court may, in the interest of justice, set side a dismissal order or an ex- parte decree notwithstanding the Negligence and/or misdemeanour of the advocate wherein, it finds that the client was an innocent litigant, but there is no such absolute rule that a party can disown its advocate at any time and seek relief, no such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult. 10. In the instant case, the petitioner is a proprietorship Company and is not a rustic ignorant villager and the firm is managed by educated business men who knows where their interest lie. Though opportunity was given by the learned court by setting aside the ex-parte award and restoring the reference to its original file, the petitioner chose not to cooperate with the court. Having adopted such stance towards the court the petitioner has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware about the nature and significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted. 11. It is submitted by the learned advocate Mr.Joshi that the cost be imposed and reference be remanded back to the learned labour court. In the considered opinion of this Court, the cost can be ordered subject to their being any reasonable ground for not remaining present before the learned court or not adducing any evidence on record. By imposing of cost, the requirement of furnishing sufficient cause cannot be dispensed with. Cost cannot be substituted for absence of reasons to remand back the reference. In the instant case, the petitioner is found to neglect and found to have not acted diligently and remained inactive. By imposing of cost, the requirement of furnishing sufficient cause cannot be dispensed with. Cost cannot be substituted for absence of reasons to remand back the reference. In the instant case, the petitioner is found to neglect and found to have not acted diligently and remained inactive. In that background, no opportunity can be granted in favour of the petitioner, otherwise it would amount to giving premium to the misconduct which was committed and proved. Considering the overall circumstances, this Court is of the view that respondent could not reap the fruits of the award though he twice succeeded before the learned labour court, hence the petition is required to be dismissed with a cost of Rs.20,000/-. 12. The cost shall be deposited before the Registry within a period of two weeks from today. In turn, the Registry shall remit the same in equal shares in the name of the respondents, after due verification. 13. Resultantly these petitions are dismissed with the above directions.