Gujarat High Court
Amulfed Dairy (Formerly Known As Mother ... vs Dilipbhai Ramanbhai Barot on 6 May, 2025
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11433 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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AMULFED DAIRY (FORMERLY KNOWN AS MOTHER DAIRY)
Versus
DILIPBHAI RAMANBHAI BAROT
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Appearance:
GANDHI LAW ASSOCIATES(12275) for the Petitioner(s) No. 1
MR BHARAT SHAH(3345) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 06/05/2025
ORAL JUDGMENT
1. This petition is filed under Article 226 and 227 of the Constitution of India challenging the award passed by the learned reference court in (LCA) No.46 of 2010 dated 08.02.2024 whereby, the learned reference court has partly allowed the reference filed by the respondent workman and directed the petitioner to pay the lump Page 1 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025 NEUTRAL CITATION C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025 undefined sum compensation of Rs.2,00,000/- in lieu of reinstatement and back wages within a period of 60 days from the date of award, or the petitioner was directed to pay the said amount with interest at the rate of 9%.
2. The gist of the case is that the petitioner is running the Dairy and manufacturing and marketing milk and other Dairy products. The respondent has entered with the petitioner employer as a Trainee on 10.12.1994 and thereafter, he was confirmed on the post of Senior Assistant on 15.02.1995 and he was promoted in the Dispatch Department as a Junior Officer on 01.12.2007. It is the case of the present petitioner is that the reference came to be filed before the learned reference court, alleging that the services of the respondent was put an end to on 29.12.2008 without any reasons and without following the due procedure under the Industrial Disputes Act, 1947 (hereinafter referred to as the "ID Act"). The present petitioner appeared before the learned reference court and raised the contentions that the respondent would not fall under the definition of workman and therefore, learned labour court would not have jurisdiction to adjudicate the claim of the Page 2 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025 NEUTRAL CITATION C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025 undefined respondent. It is contended by the present petitioner that the respondent used to watch prohibited movies in his working hours and therefore, he was asked to give an apology with an assurance that the said act would not be repeated in future, however, instead of doing so, the respondent went on leave on 29.12.2008 and 30.12.2008 and thereafter, resumed for half day on 31.12.2008 and again went on leave. It is contended by the petitioner that the respondent was never terminated as alleged from 29.12.2008 therefore, there is no question of illegal retrenchment as alleged by the respondent. Learned reference court, after considering the evidence adduced has awarded the reference in favour of the respondent by granting lump sum compensation of Rs.2,00,000/- which is subject matter of challenge before this Court.
3. Heard learned advocate Mr.Gandhi for the petitioner and learned advocate Mr.Shah for the respondent.
4. Learned advocate Mr.Gandhi submits that during the cross-examination of the workman, he himself has admitted the fact that he was having the powers to supervise the subordinate staff, therefore, as per his own admission he did not fall under the definition of Page 3 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025 NEUTRAL CITATION C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025 undefined workman. Learned advocate Mr.Gandhi submits that on raising the contentions by the present petitioner with regard to the jurisdictional aspect, the onus would be on the respondent workman to establish that he is a workman defined under section 2(s) of the ID Act, however, instead of doing the same, learned labour court has shifted the burden on the present petitioner and held that in absence of any evidence adverse inference is required to be drawn. Learned advocate Mr.Gandhi submits that learned labour court has also committed an error in holding that the respondent was retrenched from the service as the case of the present petitioner from the beginning is that he himself has abandoned the services on being asked to give an apology letter. Learned advocate Mr.Gandhi submits that learned labour court has committed an error in awarding lump sum compensation of Rs.2,00,000/-, therefore, impugned order deserves to be set aside and the petition is required to be allowed.
5. As against the same, learned advocate Mr.Shah submits that the respondent has stated in the statement of claim regarding the nature of work which was further proved Page 4 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025 NEUTRAL CITATION C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025 undefined during the cross-examination wherein, it is admitted by the respondent that his work is to prepare the daily report and to do the clerical work on computer. Learned advocate Mr.Shah submits that so far as the alleged misconduct is concerned, neither there was any departmental inquiry held, nor any chargesheet was issued and the contention of the apology is also not supported by any documentary evidence. Learned advocate Mr.Shah submits that the communication dated 02.01.2009 suggests that the respondent workman has proceeded on leave from 01.01.2009 to 15.01.2009 because of illness of his wife and from the said communication it also emerges that the Casual Leave was granted for two days i.e. on 29.12.2008 and 30.12.2008 and thereafter, half Casual Leave was granted on 31.12.2008 for the second session. Learned advocate Mr.Shah submits that though in the said communication, it is stated that this leave was not accepted, however, it is not disputed that two days leave was granted on 29.12.2008 and 30.12.2008 as well as half day leave was granted for the second session on 31.12.2008. Learned advocate Mr.Shah submits that Page 5 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025 NEUTRAL CITATION C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025 undefined after completing the leave period, when the respondent went to resume the duty, he was not permitted and therefore, his services were orally put an end to by the petition employer. Learned advocate Mr.Shah submits that the respondent was serving with the petitioner employer since 1994 to 2008 i.e. more than 14 years of period and therefore, learned reference court, while holding the termination illegal is justifying in awarding the lump sum compensation of Rs.2,00,000/-. Learned advocate Mr.Shah submits that as no error has been committed by the learned reference court, the petition deserves to be dismissed and the impugned order is required to be confirmed.
6. Having considered the arguments advanced by the learned advocate for the respective parties, it emerges that petition is filed merely on the basis of two grounds i.e. (1) respondent does not fall under the definition of workman; (2) respondent himself has abandoned the services, therefore, no retrenchment as alleged in the statement of claim. To examine the above two grounds, if one would peruse the records, then it emerges that the appointment of the petitioner was made on 10.12.1994 Page 6 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025 NEUTRAL CITATION C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025 undefined as a Senior Assistant and he was communicated by way of communication dated 19.01.1995 that he would be employed as a Trainee with the petitioner Dairy and for that medical checkup was asked for. Appointment as a Senior Assistant was given from 01.03.1996 and the several conditions were mentioned in the appointment letter dated 20.03.1996, thereafter, on 10.05.1997, he was confirmed as a Senior Assistant and subsequently promoted as a Junior Officer with effect from 01.12.2007.
6.1. The statement of claim suggests that present petitioner has categorically stated that he was working as a Junior Officer in dispatch department from 01.12.2007 and doing the clerical work. He had also claimed in the statement of claim that he was not having any authority of appointment, neither any powers to supervise the work of the subordinates. To rebut this evidence, neither petitioner has placed any documentary evidence on record, nor examined any witness in support of the contention that the respondent does not fall under the definition of workman. The reliance was placed on the cross-examination of the respondent Page 7 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025 NEUTRAL CITATION C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025 undefined wherein, at one point he states that he was supervising the work of three employees, however, in the next line during the cross-examination, petitioner himself has placed on record the nature of work that is preparation of the chalans, daily report and doing clerical work on computer. In the opinion of this Court merely incidental duties to supervise the work when the main duties are clerical in nature, will not convert the employment into one in supervisory capacity. The nomenclature of the post does not automatically brings the status of the person as a Supervisor. To arrive at findings whether the person is workman or not, even if, he is designated as a Supervisor, the nature of work performed is a relevant factor. From the case on hand it appears that the employee was doing mainly a clerical work and was occasionally discharging some duties of supervisory nature does not mean that the person is Supervisor so as to take him away from the ambit of the workman defined under section 2(s) of the ID Act. The status is determined from the primary duties of the employees and the dominant purpose, aim and object of the employment. In absence of any rebuttal evidence, Page 8 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025 NEUTRAL CITATION C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025 undefined learned reference court is justifying in holding that the respondent is a workman. This Court is of the view that when the workman has shown the nature of the duties and has satisfied the requirement of being employed in the capacity of the workman, the burden of proof is necessarily on the employer to take his case out of the act by reasons of the exclusion. Therefore, in absence of any evidence adduced by the management, to make good preliminary objection, that the person in respect for whole reference was made was not a workman. Petitioner has neither placed on record any evidence, nor examined any witness, therefore, also learned labour court was justifying in holding that the respondent was a workman and hence the learned labour court would have jurisdiction to adjudicate the claim.
7. Other contentions with regard to abandoning the duty on demanding the apology letter for watching blue films is concerned, it emerges that neither the said communication seeking apology was placed on record, nor any show cause notice or departmental inquiry was held. It also emerges from the record that respondent went on leave due to sickness of his wife and the Casual Page 9 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025 NEUTRAL CITATION C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025 undefined Leave was granted and on completing the leave period, he tried to resume the duty, however, he was not permitted as per the uncontroverted claim of the respondent workman. Learned labour court, after holding the termination illegal has considered the length of service of the present petitioner i.e. 14 years and the statement of workman with regard to the unemployment from 1994 to 2008 which is not controverted by the petitioner as well as on ascertaining the age of the workman i.e. 52 years in the year 2010, has awarded lump sum compensation of Rs.2,00,000/- in lieu of reinstatement as well as back wages. Therefore, this petition being devoid of merits deserves to be dismissed.
8. Resultantly, this petition is dismissed and the award passed by the learned reference court in (LCA) No.46 of 2010 dated 08.02.2024 is hereby confirmed.
(M. K. THAKKER,J) NIVYA A. NAIR Page 10 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu May 08 2025 Downloaded on : Sat May 10 15:47:20 IST 2025