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2025 DIGILAW 535 (GUJ)

Darshan Vrajlal Kotecha v. Labour Court, Rajkot

2025-06-23

M.K.THAKKER

body2025
JUDGMENT : M. K. THAKKER, J. ORDER IN SPECIAL CIVIL APPLICATION NO.14161 OF 2022 1. Rule returnable forthwith. Learned advocate Mr.Varun Patel waives service of rule on behalf of the respondent. 2. Since the issue raised in the these petitions are similar, they are being decided by a common judgment. Facts of Special Civil Application No.14161 of 2022 is taken for consideration of the disposal of these petitions. 3. This petition is filed under Article 226 and 227 of the Constitution of India challenging the order dated 16.12.2021 passed in Miscellaneous Application No.12 of 2019 in Reference (L.C.R.) No.72 of 2018 by the learned Presiding Officer, labour court, Rajkot allowing the restoration application under Rule 26 A of the Industrial Disputes (Gujarat) Rule, 1966 and restoration of the reference being Reference No.72 of 2018 to its original file. 4. It is the case of the present petitioner that the petitioner was appointed on the post of Area Sales Manager with respondent No.2 Company vide appointment letter dated 15.03.2018 and the petitioner has joined respondent No.2 Company on 09.04.2018. At the time of appointment, petitioner was made to understand that he has to travel around 70 to 80 kms. for the business of the respondent Company and to provide financial facility to the farmers. Petitioner was informed that in addition to the above traveling, petitioner has to handle two districts namely Morbi and Jamnagar without any remuneration. Petitioner is living with his bed ridden father who is a stroke patient and ailing mother at Rajkot. Because of that family background petitioner had requested the respondent Company to assign the work as per the terms of appointment, however, instead of doing so, the Company had started harassing and discriminating the petitioner by stopping his monthly expense reimbursement and giving different treatment in comparison to other employees. Petitioner had completed the probation period on 08.10.2018, however, has not received any confirmation from respondent. On inquiring, the termination order was passed on completion of six months and nine days service with effect from 17.10.2018 by delivering back dated letter dated 11.10.2018. Petitioner had completed the probation period on 08.10.2018, however, has not received any confirmation from respondent. On inquiring, the termination order was passed on completion of six months and nine days service with effect from 17.10.2018 by delivering back dated letter dated 11.10.2018. Challenging the said termination, the dispute was raised before the learned labour court which culminated into the reference being Reference (L.C.R.) No.72 of 2018 and the reference was awarded ex-parte in favour of the petitioner by directing the respondent employer to reinstate the petitioner on 14.11.2019 directing 20% back wages with relief of reinstatement. Respondent has filed an application under Rule 26 A of the Industrial Disputes (Gujarat) Rules praying to set aside the ex-parte award and to restore the reference. Learned labour court vide order dated 16.12.2021 has allowed the said application and restored the original reference and awarded cost of Rs.10,000/- which is subject matter of challenge before this Court. 5. Heard learned advocate Ms.Niyati Bhatt for the petitioner and Mr.Varun Patel for the respondent. 6. Learned advocate Ms.Bhatt submits that with a view to harass the petitioner, the order of termination was passed, as the petitioner had declined to travel 240 kms as the same is dehorse the appointment order. Learned advocate Ms.Bhatt submits that ample opportunities have been granted to the respondent No.2 on 16.03.2019, 23.05.2019 and 10.06.2019, to cross- examine the petitioner and opportunity was granted to lead the evidence to respondent No.2 on 18.06.2019 and 04.07.2019, however, the respondent failed in availing the said opportunities. Learned advocate Ms.Bhatt submits that though summons were duly served, respondent No.2 had shown his reluctance in remaining present before the Court, therefore, right to cross- examination as well as right to furnish the evidence were closed. Learned advocate Ms.Bhatt submits that though the respondent was aware with regard to order of closing the stage of cross-examination and to lead the evidence, the respondent did not challenge the same, neither filed any application to open the stage. It is submitted by the learned advocate Ms.Bhatt that due to non cooperation in conducting the full fledged trial, learned labour court has awarded the reference in favour of the petitioner. Learned advocate Ms.Bhatt submits that on 11.03.2019, the application below Exh.17 was moved for adjournment to a specific date for cross-examination of the petitioner which was granted, however, respondent failed in cross-examining the petitioner. Learned advocate Ms.Bhatt submits that on 11.03.2019, the application below Exh.17 was moved for adjournment to a specific date for cross-examination of the petitioner which was granted, however, respondent failed in cross-examining the petitioner. Learned advocate Ms.Bhatt submits that thereafter, application below Exh.19 was filed to reopen the stage which is granted by the learned labour court by imposing the cost to be paid to the Government within a period of 15 days and by imposing condition to cross-examine the petitioner on the same day as the petitioner was presented before the court. Though petitioner has made an endorsement of seen on the order subsequently the application below Exh.21 was moved on 16.03.2019 to decide preliminary issue with regard to the maintainability of the reference. Learned labour court has dismissed the said application on 23.05.2019 by imposing a cost to the Government within a period of 15 days and has observed that respondent No.2 is non cooperative in conducting the case and not cross-examining the petitioner, though opportunity was given. Learned advocate Ms.Bhatt submits that on 23.05.2019, another application below Exh.31 was moved seeking adjournment to challenge the order passed below Exh.22 wherein, the learned labour court has ordered the petitioner to cross-examine the respondent. Thereafter, another application below Exh.34 was filed on 10.06.2019 to reopen the right to cross examine the petitioner which was rejected by observing the conduct of the respondent, that multiple opportunity given on 16.03.2019, 23.05.2019 and 10.06.2019, has not been exercised. Thereafter, on 10.06.2019, application was given seeking adjournment for specific date of 18.06.2019 for leading evidence of the respondent which was granted by the learned labour court, however, respondent did not present the evidence and again the adjournment was given on 04.07.2019 to furnish the evidence but even on that day the respondent had not produced any evidence. 6.1. Learned advocate Ms.Bhatt submits that though opportunities were given to furnish the evidence, but the respondent did not avail that opportunity and did not adduce any evidence to negate the claim of the present petitioner. Learned advocate Ms.Bhatt submits that after considering the issue of maintainability and considering the oral arguments advanced by the learned advocate for the respondent, the reference was awarded in favour of the present petitioner. Learned advocate Ms.Bhatt submits that after considering the issue of maintainability and considering the oral arguments advanced by the learned advocate for the respondent, the reference was awarded in favour of the present petitioner. Learned advocate Ms.Bhatt submits that after the award was passed on 14.11.2019, petitioner has informed through e-mail on 02.12.2019 regarding compliance of the orders and instead of complying with the order passed by the learned reference court, the application under Rule 26 A of the Industrial Disputes (Gujarat) Rules, 1966 is filed seeking restoration of the main reference. Learned advocate Ms.Bhatt submits that learned court has committed grave error in allowing the application without considering the fact that though the application was moved below Exh.34 on 10.06.2019 to reopen the right of cross-examination of the petitioner and though the permission was granted by the learned court on condition to deposit the cost of Rs.5000/-, neither the cross-examination was conducted nor the payment of the cost was made. Learned advocate Ms.Bhatt submits that, learned court, without calling for any cogent and sufficient reasons has allowed the application only on the ground that, if no opportunity would be granted to respondent No.2, then there will be multiplications of the proceedings and delay, however, the learned court has not considered that though ample opportunities were granted to prove the case of respondent no.2, in absence of availing the said opportunities without any justification, no relief can be granted in favour of the respondent. Learned advocate Ms.Bhatt submits that learned court below, while allowing Miscellaneous Application for restoration overlooked the aspect that the termination was held on 17.10.2018 and because of unemployment, all the savings as well as provident funds has been utilized by the present petitioner in the legal proceedings and petitioner could reap the fruits of the award, though succeeded in the year 2018. In that background learned advocate Ms.Bhatt submits that the impugned order allowing the application requires to be interfered with and the award passed in the reference being Reference (L.C.R.) No. No.72 of 2018 is required to be restored. 7. Per contra, learned advocate Mr.Varun Patel appearing for the respondent submits that the petitioner having the income more than Rs.6,00,000/- has availed the facility of legal aid committee and though stage of the cross-examination of petitioner was closed, the learned court without issuing notice thereafter, has heard the matter finally. 7. Per contra, learned advocate Mr.Varun Patel appearing for the respondent submits that the petitioner having the income more than Rs.6,00,000/- has availed the facility of legal aid committee and though stage of the cross-examination of petitioner was closed, the learned court without issuing notice thereafter, has heard the matter finally. Learned advocate Mr.Patel submits that while allowing the reference in favour of the respondent, learned labour court has not examined the requisite criteria of section 2(s) of the ID Act and therefore, also the impugned order does not require any interference. Learned advocate Mr.Patel submits that establishment has already been closed and the license has been surrendered on 19.06.2023, therefore, also sufficient opportunity is required to be given in favour of the present petitioner. Learned advocate Mr.Patel submits that amount of cost though sent to the present petitioner by way of demand draft, however, it was not accepted by the present petitioner and the demand draft was returned which is deposited before the learned reference court. Learned advocate Mr.Patel has relied on the decision rendered by this Court in Special Civil Application No.20163 of 2023 in Special Civil Application No.5437 of 2018 and in Letters Patent Appeal No.654 of 2023 as well as the decision rendered by the Apex Court in Rafiq & Anr. Munshilal & Anr. reported in 1981 2 SCC 788 and had submitted that the contesting party should not suffer for the lapse on the part of their counsel. In view of the above submissions, learned advocate Mr.Patel has requested not to interfere with the impugned decision and to dismiss the petition. 8. Having considered the arguments advanced by the learned advocate, it emerges that, the reference was filed on 26.12.2018 seeking reinstatement with all benefits and declaration of the illegal termination dated 17.10.2018. In the said reference, the contention was raised in the written statement by the present respondent that the petitioner was working as an Area Sales Manager and a Salesman and therefore, he does not fall under the definition of section 2(s) of the ID Act. It is further contended that the annual package of the petitioner was more than Rs.4,00,000/-, therefore, also the requirement of section 2(s) of the ID Act does not fulfill by the present petitioner. It is further contended that the annual package of the petitioner was more than Rs.4,00,000/-, therefore, also the requirement of section 2(s) of the ID Act does not fulfill by the present petitioner. Learned labour court, while allowing the reference in favour of the present petitioner has examined the oral evidence below Exh.16 adduced by the present petitioner wherein, the petitioner had stated on oath that no other employees are working under the present petitioner, neither the petitioner was having any authority to sanction the leave, to terminate the employees, to issue any warning letters etc. His work during the course of the examination in chief has stated that he was completing the loan formalities by visiting the farmers at their house and therefore, he falls under the definition of section 2(s) of the ID Act. It is also contended by the petitioner that, after termination of his service, juniors to the petitioner namely Prakash Chauhan, Darshan Pandya and Bhavik Bhatt were continued and therefore, breach of provision of section 25(G) as well as 25(H) of the ID Act was alleged. On completion of examination in chief on 11.03.2018, the reference was differed for cross-examination of the present petitioner on 16.03.2019, 23.05.2019, 10.06.2019 and thereafter, on 18.06.2019 the application below Exh.69 was given. The chief examination concluded on 11.03.2019 and thereafter, matter was kept on 16.03.2019 for cross- examination of the petitioner. On 16.03.2019, the application was filed by the present respondent to decide the preliminary issue with regard to deciding the fulfillment of the criteria under section 2(s) of the ID Act. The application is also filed that unless and until the the preliminary objection is decided, the petitioner would not be cross-examined by the respondent and therefore, adjournment was sought which was rejected by the learned court on 16.03.2019. The preliminary objection application was also rejected by the learned court on 23.05.2019 and thereafter, application was filed that the respondent wants to approach before the High Court, challenging the said order adjournment was sought, however, stage of the cross-examination was closed therefore, application below Exh.34 was filed to reopen the stage of cross-examination which came to be allowed by the learned court on condition to deposit the cost of Rs.5000/- on 10.06.2019. On 10.06.2019, learned advocate has filed an application that they cannot file an undertaking on behalf of the respondent to deposit the cost, therefore, cross-examination be permitted without filing undertaking or without depositing the amount of the cost. Thereafter, the reference was transferred to learned labour court No.2 to learned labour court No.1 on 15.10.2019. The learned labour court, considering the arguments of the present petitioner and the arguments of the respondent advocate has allowed the reference by granting the relief of reinstatement with 20% back wages on 14.11.2019. Simultaneously the recovery application was filed being recovery application No.27 of 2019 for reimbursement of the expenses and for bonus amount which was also allowed in favour of the petitioner which is also subject matter of challenge in Special Civil Application No.14017 of 2022. 9. Considering the totality of the facts, in the opinion of this Court, the reference is required to be reconsidered by the learned labour court, as the prima facie grievance of the employer is that employee is not a workman, there is no master and servant relationship and the establishment has been closed. In addition to that, as workman did not complete 240 days as admittedly the tenure of service is six months, that also on probation, therefore, no interference is required in the impugned order. However, as the petitioner has incurred expenses for the litigation, while allowing the restoration application, the cost os Rs.25,000/- is required to be imposed in addition to the cost imposed by the learned labour court. 10. Respondent is directed to deposit the cost of Rs.25,000/- before the learned labour court, Rajkot which shall be disbursed in favour of the petitioner after due verification. 11. Resultantly this petitions is dismissed accordingly. Learned court shall consider the reference in accordance with law, without being prejudiced by the observation made herein above. ORDER IN SPECIAL CIVIL APPLICATION NO.14017 OF 2022 In view of the order passed by this Court in Special Civil Application No. 14161 of 2022, Special Civil Application No. 14017 of 2022 is also dismissed accordingly.