Rajaram Rama Hargule vs P.W. Bhuyar, Presiding Officer ...
2002 Latest Caselaw 194 Bom

JUDGMENT

Nishita Mhatre, J.

1. This petition has been filed by the petitioner-workman challenging the Award of the Labour Court dated 19-3-1994 which rejects the reference for reinstatement with continuity of service and full back-wages.

2. The petitioner was employed as a Weaver from 14-11-1981 with respondent No. 2. It was the case of the petitioner that his services were terminated on 11-8-1984 without a notice, charge-sheet or enquiry. Therefore, he approached the Government Labour Officer for redressal of his grievance. Thereafter, the dispute was taken up in conciliation which resulted in failure. A reference was made for adjudication before the Labour Court. Evidence was led before the Labour Court. The petitioner examined himself wherein he stated that on 11-8-1984, he had been refused work by respondent No. 2 and no notice, compensation or charge-sheet was issued to him. In the cross-examination of the workman, it was established that respondent No. 2 had closed down its concern on account of a call given by the Association of Employers (owners) of Power Looms. The petitioner had complained of the closure to the Shop Inspector and had informed him that he had not been given work on account of this on 11-8-1984. He has denied having received any intimation of the establishment being restarted. He has further denied receiving any notice terminating his service and that he had abandoned his services. Respondent No. 2, who is the owner of the establishment, examined himself and deposed that in the year 1984, the Powerloom Industry in the town was closed as there was recession in the Industry. He also stated that on 1-9-1984, the Industry was re-opened and that he had been asked by the Shop Inspector to provide to the petitioner employment. However, as the entire powerloom sector was closed, he could not provide work. He has also stated that he had sent his clerk to the petitioner in order to inform him that the business was restarted. He has further deposed that a letter was sent to the petitioner on 17-9-1984 by Registered Post A.D. calling upon him to report for duty and informing him that in the event he failed to do so, his name would be struck off the muster roll. The witness had also denied in his examination-in-chief that the petitioner had been appointed from 14-11-1981 in his establishment. However, in the cross-examination, he stated that there was an erasure against in the date of appointment in the wage register in respect of the petitioner and admitted that the date of appointment was 13-3-1981. He then contradicted himself in the cross-examination and admitted that he had not in fact called upon the workman in writing to resume duty. He has also admitted that no charge-sheet was given to the petitioner nor was any enquiry held against him for any absence. He has also retracted from the statement made by him in his examination-in-chief that it was due to the workers that the powerloom sector had been closed down. He had also admitted that there was no evidence on record. On the basis of this statement, the Labour Court held that the petitioner had abandoned his duty and therefore, was not eligible for reinstatement.

3. The Labour Court has completely misdirected itself and has arrived at perverse conclusions. Although while considering a matter under Article 226 of the Constitution of India findings of fact recorded by the lower Court should not be disturbed, if the inferences drawn by the Labour Court are based on no evidence, the conclusions will have to be set aside. Despite the evidence to the contrary, the Labour Court has found that the petitioner was issued notice on 17-9-1984 calling upon him to report for duty. There is a categorical admission in the cross-examination of respondent No. 2 that no such letter was sent to the workman. It is not possible to faction how such a finding could be arrived at by the Labour Court that the petitioner had not reported for work despite having been informed about his absence from duty. Further, the Labour Court has accepted the word of respondent No. 2 that he sent a letter by Registered Post to the petitioner on 17-9-1984 calling upon the petitioner to report for duty. The acknowledgment was produced on record. However, the petitioner, was not confronted with this acknowledgment at any point of time and, therefore, it is difficult to accept the finding of the Labour Court that the petitioner had indeed received such a letter. The entire evidence of respondent No. 2 shows that it is a mere afterthought and the petitioner had in fact reported for work on 11-8-1984 when he was refused work. Therefore, the findings of the Labour Court are perverse and must be set aside.

4. The reliance placed by the learned Counsel for the petitioner on the cases of Mafatlal Narandas Barot v. Divisional Controller, State Transport, reported in 1966(I) L.L.J. 437 and D.K. Yadav v. J.M.A. Industires Ltd., is apt. In both these cases, the Apex Court has taken the view that it is necessary to give some opportunity to an employee who is absent from service without reasonable cause and there is no question of automatic removal from service. The Apex Court in the case of D.K. Yadav (supra) wherein it has further emphasised that if no opportunity is given to the workman to justify his absence without leave, it cannot be presumed that he had abandoned his duty. In the present case, no such opportunity was given to the petitioner and, therefore, the conclusion drawn by the Labour Court has to be set aside.

5. Learned Counsel for the respondent places reliance on the case of Dharangadhra Chemical Works Ltd. v. State of Saurashtra & others, in support of his submission that if there is no perversity in the finding of the Labour Court, no interference is called for under Article 226 of the Constitution of India. However, I find that the findings of the Labour Court leave much to be desired and are completely contrary to the evidence on record and are perverse. Further, the judgment of the Apex Court relied on by the learned Counsel for respondent No. 2 in the case of Syndicate Bank v. Gen. Secretary, Syndicate Bank Staff Association, reported in A.I.R. 2000 S.C.W. 2288 also has no application in the present case as in that case, the Apex Court held that the bank had complied with Clause 16 of Bipartite Settlement before terminating the services of the employee. The Apex Court has held that the bipartite settlement had an in-built clause of audi alteram partem and, therefore, the action taken by the Bank could not be defaulted. However, in the present case, not even a semblance of an inquiry was made with the petitioner regarding his absence, much less a domestic enquiry.

6. The learned Advocate for respondent No. 2 submits a presumption must be drawn that the petitioner had received notice dated 17-9-1984 as it was sent to him by Registered Post A.D. in the ordinary course of business. He submits that if such a presumption is drawn under section 114 of the Indian Evidence Act the findings of the Labour Court need not be interfered. But this submission overlooks the admission of the witness of respondent No. 2 that no such letter was sent to the petitioner. Therefore, the question of drawing any presumption does not arise.

7. In the present case, the conduct of respondent No. 2 is far from satisfactory. It is obvious on account of a recession in the powerloom industry the establishment was not working and, therefore, no work was provided to the petitioner on 11-8-1994 when he reported for duty. Respondent No. 2 had in fact illegally terminated the services of the petitioner by refusing him work. The Award of the Labour Court must be set aside. The petitioner is entitled to reinstatement with continuity of service and full back wages. In view of this, petition is allowed. Rule made absolute with costs.