Gujarat High Court
Hemavati Silk Industries vs Lhs Of Manjuben Gopalbhai Rathod on 1 April, 2025
NEUTRAL CITATION
C/SCA/9684/2024 JUDGMENT DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9684 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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HEMAVATI SILK INDUSTRIES
Versus
LHS OF MANJUBEN GOPALBHAI RATHOD & ORS.
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Appearance:
NIYATI D CHAUHAN(9082) for the Petitioner(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5,1.6
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/04/2025
ORAL JUDGMENT
1. This petition is filed under Article 226 and 227 of the Constitution of India and under section 84 of the Bombay Industrial Relations Act, 1946(hereinafter referred to as the "BIR Act"), challenging the order passed by the Industrial Tribunal, Surat in appeal 14 of 2016 confirming the order passed by the learned labour court, Surat in T Application no.113 of 2002 whereby, Page 1 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:15:00 IST 2025 NEUTRAL CITATION C/SCA/9684/2024 JUDGMENT DATED: 01/04/2025 undefined the petitioner was ordered to reinstate the deceased workman with 50% back wages alongwith cost of Rs.2500/-. It is required to be noted herein that during the pendency of the appeal before the industrial Tribunal, the workman died therefore, the present respondents were brought on record being legal heirs and representative of the respondent.
2. It is the case of the present petitioner that the reference was filed by the deceased workman alleging that she was working with the petitioner establishment since 01.01.1993, she was getting monthly wages of Rs.1560/-, her presence was noted in the card and she was also paid leave encashment of Rs.480/- yearly. On demanding the Identity Card, muster roll, leave encashment card and casual leave, her services were terminated from 25.08.2001. As the BIR Act is applicable, therefore, approach letter was sent on 30.01.2010 to the petitioner establishment requesting to revoke the termination order and to reinstate the workman. As the petitioner had not paid any heed to the approach letter therefore, reference came to be filed which was registered as T Application No.113 of 2002.
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NEUTRAL CITATION C/SCA/9684/2024 JUDGMENT DATED: 01/04/2025 undefined 2.1. Learned Labour Court, on considering the evidence adduced by the respective parties, more particularly the cross-examination of the witnesses, awarded the reference in favour of the respondent vide award dated 14.12.2015. The said award was challenged before the learned Industrial Tribunal under section 84 of the BIR Act wherein, the learned Tribunal dismissed the appeal and confirmed the award passed by the learned labour court, which is subject matter of challenge before this Court.
3. Heard learned advocate Ms.Niyati Chauhan for the petitioner and learned advocate Mr.U.T.Mishra for the respondent.
4. Learned advocate Ms.Chauhan submits that the respondent workman was never terminated from the service, however, she abandoned herself from doing the work. Learned advocate Ms.Chauhan submits that the present respondent was habitual of remaining absent and on various occasions, she remained absent from her duties. Learned advocate Ms.Chauhan submits that during the cross-examination of the witness namely workman, it is admitted that she does not recollect that Page 3 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:15:00 IST 2025 NEUTRAL CITATION C/SCA/9684/2024 JUDGMENT DATED: 01/04/2025 undefined since when did she started working with the petitioner and for how many days she continued with the work. It is also admitted by the workman that during the pendency of the reference she was gainfully employed in other establishment wherein, she was doing miscellaneous work. Learned advocate Ms.Chauhan submits that learned labour court has committed error in drawing the adverse inference for not producing the documentary evidence, as the duty is on the workman to prove his case and the onus cannot be shifted on the present petitioner.
4.1. It is submitted by the learned advocate Ms.Chauhan that the reference proceedings were also delayed because the ten years time was taken by the respondent for cross examining the appellant witness. However, without considering any of the submissions made by the present petitioner, learned reference court has awarded 50% back wages with the relief of reinstatement which was confirmed by the learned Industrial Tribunal. Therefore, the same is required to be interfered with and petition deserves to be allowed.
5. On the other hand, learned advocate Mr.Mishra submits Page 4 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:15:00 IST 2025 NEUTRAL CITATION C/SCA/9684/2024 JUDGMENT DATED: 01/04/2025 undefined that the respondent has filed the application below Exh.21 for production of documentary evidence which was though ordered in favour of the respondent, petitioner has not complied with the said order and no evidence was produced before the learned labour court. It is contended by the learned advocate Mr.Mishra that the sole ground of the petitioner establishment that she herself has abandoned the work, appears to be concocted as from the proceedings of the learned labour court it appears that neither any notice was issued calling upon the present respondent for work, nor any inquiry was initiated for the so called habitual absenteeism. Learned advocate Mr.Mishra submits that after serving for more than eight years, the petitioner has terminated the service of the respondent without following due procedure under the Act, therefore, learned reference court is justifying in passing the impugned order, granting 50% back wages with the relief of reinstatement, therefore, no interference is required.
6. Considering the submissions made by the learned advocate for respective parties and the reasons assigned Page 5 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:15:00 IST 2025 NEUTRAL CITATION C/SCA/9684/2024 JUDGMENT DATED: 01/04/2025 undefined by both the Authorities, it emerges that claim was made by the respondent that she was serving with the petitioner establishment since 01.01.1993 and was getting monthly wages of Rs.1560/-. As per the claim of the respondent, the services of the respondent was terminated from 25.08.2001, however, as per the say of the petitioner, the respondent herself has abandoned the service.
6.1. The respondent has produced the approach letter dated 30.01.2002 and has also cross-examined the witness of the petitioner establishment who admitted in his cross-examination that respondent was serving for ten hours daily and was paid wages on making signature on the salary slip. It is stated by the witness that he would produce the salary register and muster roll for the period of 1999-2001. He also admits that for the habitual absenteeism, neither any notices were issued, nor any departmental proceedings were initiated. In addition to the above cross-examination, application was filed below Exh.21 praying for issuance of the directions to produce the muster roll and salary register for the period of 1999-2001 as stated by the witness. However, though Page 6 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:15:00 IST 2025 NEUTRAL CITATION C/SCA/9684/2024 JUDGMENT DATED: 01/04/2025 undefined the witness was directed to produce the said documents during the cross-examination, no documents were produced. Explanation was given that as the house situated at Rustampura collapsed on 20.01.2005, he does not possess any documents. However, fact remains that no notice was issued asking the respondent to remain present or to show cause for absenteeism. 6.2. Learned reference court, after considering the evidence, assigned cogent reasons, granting the benefits of reinstatement with 50% back wages. However, during the pendency of the appeal, respondent died. Therefore, this Court is of the view that if lump sum compensation of Rs.3,50,000/- is awarded towards the full and final settlement of the award, then ends of justice would serve.
7. As this Court did not find any infirmity in the impugned order passed by the learned labour court as well as by the Appellate Court and considering the length of service which is more than eight years, the petitioner is directed to pay the amount of Rs.3,50,000/- towards the lump sum compensation in lieu of the reinstatement as well as back wages towards the full and final settlement. Page 7 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:15:00 IST 2025
NEUTRAL CITATION C/SCA/9684/2024 JUDGMENT DATED: 01/04/2025 undefined
8. The amount shall be paid by the petitioner to the respondent within a period of eight weeks from the date of receipt of the order.
9. Resultantly, this petition is disposed of accordingly.
(M. K. THAKKER,J) NIVYA A. NAIR Page 8 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:15:00 IST 2025