S. A. Industries vs Shivramdas Motiram Sant
2021 Latest Caselaw 8121 Guj

      C/SCA/9754/2021                             ORDER DATED: 09/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 9754 of 2021
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                             S. A. INDUSTRIES
                                    Versus
                        SHIVRAMDAS MOTIRAM SANT
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Appearance:
MR YOGI K GADHIA(5913) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                             Date : 09/07/2021
                              ORAL ORDER

1 By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner-employer has filed this petition challenging the judgment and award passed by the Presiding Officer, Labour Court, Navsari, dated 31.12.2019 in Reference (T) No.1/2018 whereby the Labour Court has partly allowed the Reference filed by the respondent-workman and awarded lump-sum compensation of Rs.75,000/- in lieu of reinstatement as also Rs.2,000/- towards cost of the Reference to be paid to respondent-workman.

2 The brief facts of the case are as under:

2.1 It is the case of the respondent-workman that he was working with the petitioner as Manager since last about 13 years and he was carrying on his duties honestly and diligently. He has asserted that he was being paid Rs.27,5000/- towards his monthly salary. He has stated about his services that he was working with other sister concern Company of the petitioner at Mumbai and on a

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request by petitioner-employer he had shifted to Gujarat at Bilimora, District Navsari in the petitioner-Company. Since, he was considered to be faithful to the Company, he was forced to come to Gujarat on assurance of providing him residence. It is further his case that the employer was to give him hike in the salary as also place of residence was to be provided to him. He was further assured not to retire him till he is hale and hearty, and on such an assurance he joined his duty at the aforesaid place in Gujarat with the petitioner. It is further his case that his work was to record presence of workers, making payment to them, getting weighed the goods received in transport, to prepare challans and bills etc. as also he was assigned the work other sister concerned Firm Tidan Fojin. He has asserted in his statement of claims that no work was ever assigned to him either in managerial or supervisory capacity. He was further not allowed to take any independent decision to run the factory. He has asserted that he had no authority to sign the cheque, to recruit/ remove anyone. At the same time, he had no authority to issue any charge-sheet to anyone, to promote anyone or grant any increment. He has asserted that he has fulfilled the definition of 'workman' as defined under section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act').

2.2 Though he has asserted with regard to non-payment of bonus, benefits of Provident Fund etc., he has asserted

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that he was also paid one month salary towards bonus alongwith other workmen of the petitioner. There are other complaints with regard to non-grant of leave and working hours also. There is further complaint with regard to non-payment towards overtime performed by him. At last, he has stated that from 01.09.2017 by oral order his services came to be terminated on the ground that at his instance one other workman has filed case against the employer. However, he has further stated that for the month of August, 2017 no salary has been paid to him, which is illegal. Though he has attempted to serve, he is prevented therefrom. Of course, he has admitted that salary of August, 2017 has been deposited in his account on 07.09.2017. As such other complaints therein are not material for present purpose, and therefore, it has not been referred to in detail hereinabove. Pursuant to the complaints for illegal oral termination, conciliation proceedings initiated and on failure thereof, appropriate Government made Reference to the Labour Court.

3 On filing of the statement of claims as also issuance of notice, petitioner appeared and submitted its written reply vide Exh.9. Over and above general denial, as also assertion that Reference is illegal, it has been stated that even in his erstwhile service, the respondent-workman worked in the capacity of supervisor with the present petitioner and he has joined as Manager and from that day also he was working as Manager. Though there is denial, to each assertions made in

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the statement of claims even oral termination dated 01.09.1970 is also denied. It is further asserted that since services of the respondent-workman was not terminated, there was no question of issuing notice or charge-sheet. It is asserted in the reply that despite intimation in writing to report for duty, respondent-workman has failed to join the same.

4 After recording evidence of respondent-workman, as also the production and proof of certain documents, as no one on behalf of the petitioner entered into the witness box or produced any document in support of assertion, the Labour Court after hearing the parties, passed the order impugned, directing lump-sum compensation of Rs.75,000/- in lieu of reinstatement as also awarding cost of Rs.2,000/- to the respondent-workman.

5 Mr. Yogi Gadhia, learned advocate for the petitioner-

employer submitted that since the respondent-workman was appointed and worked as Manager, he does not fulfill the definition of 'workman' as provided under section 2(s) of 'the Act' and therefore, the Labour Court had no jurisdiction to entertain present Reference. It is further asserted that even according to respondent-workman, at last he was paid salary of Rs.27,500/- and therefore, drawing the attention of the Court to the definition of 'workman' as provided under section 2(s) of 'the Act', it is submitted that respondent- workman has admitted in his cross-examination on behalf of the petitioner that he was looking after overall business of the

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office work of the petitioner and his salary is more than Rs.10,000/-, and therefore, he can be said to have been in a supervisory capacity with a salary of more than Rs. 10,000/- and therefore, he cannot be treated as workman so as to confer jurisdiction to Labour Court determine his reference.

6 It is further submitted that initially the burden is on the respondent-workman to plead and establish that he is 'workman' as defined under section 2(s) of 'the Act' and thereafter that burden shifts on the petitioner-employer, therefore, the burden shifted on the petitioner by the Labour Court is without any support of law and facts and the evidence on record. It is further submitted that the Labour Court has unnecessarily held and shifted the burden on the petitioner to establish that the petitioner has failed to prove that the respondent is not fulfilling the definition of workman, as he was appointed as Manager and he was supervising the work of the petitioner with a salary of more than Rs.10,000/- and therefore, the judgment and award passed by the Labour Court is erroneous and illegal and requires to be interfered with.

7 He has drawn attention of the Court to the cross-examinations of witness- Dipakbhai Gamanbhai Rathod in Reference (LCN) No.2 of 2018 and witness- Jayshreeben Dipakbhai Rathod in Reference (LCN) No.40 of 2017, and attempted to contend that present respondent-workman was working in managerial capacity with the petitioner. Therefore, it is submitted that

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respondent cannot be termed as workman, conferring jurisdiction on the Labour Court to decide the Reference. He has further contended that the services of the respondent- workman was never terminated but he has abandoned the work and therefore his termination cannot be said to be in breach of any of the provision of 'the Act' and therefore Reference is required to be rejected. To support his such assertion, Mr. Gadhia, learned advocate for the petitioner has drawn the attention of the Court to page No.28 that he was offered to resume his duty as he was not terminated but he has abandoned the services.

8 So far as reference to cross-examinations of Dipakbhai Gamanbhai Rathod in Reference (LCN) No.2 of 2018 and Jayshreeben Dipakbhai Rathod in Reference (LCN) No.40 of 2017 is concerned, since said cases were altogether different and those witnesses were not even examined in the present case, the evidence recorded in another cases cannot be looked into by the Court while determining the impugned judgment and award in the present case, and therefore, the said argument is hereby rejected.

9 Drawing attention of the Court with regard to abandonment of services, reliance is placed at page no.28 of present compilation, which is communication addressed to the Assistant Labour Commissioner during the course of conciliation, he has offered the same, however, if at all the case of abandonment is to be believed, the petitioner has

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never produced or proved any communication requesting the respondent-workman to resume the duty, and therefore, the said assertion in respect of abandonment of work is concerned, has no legs to stand and therefore, the said contention is also rejected.

10 On the issue of shifting of burden of proof he has relied on the decision in the case of Essar Project Limited Vs. N.D. Jagdishwara, rendered in Special Civil Application No.6290 of 2005 by the Coordinate Bench of this Court, more particularly para Nos.3 and 5 thereof, to submit that initially the burden is on the workman to plead and prove that he fulfills definition of 'workman' under section 2(s) of 'the Act' and if it is proved by the workman, the burden would shift on employer to disprove the same. On similar line another decision has been relied upon in the case of Ingersoll Rand India Limited vs. Dineshbhai Kacharabhai Patel, rendered in Special Civil Application No.5320 of 2015 by the Coordinate Bench of this Court, more particularly, para Nos.5 to 8 thereof. He has further relied on decision on the same line in the case of Kishorebhai Sunderji Mistry vs. Assistant Labour Commissioner (Central), rendered in Special Civil Application No.658 of 2015 by the Coordinate Bench of this Court, to submit that employee must fulfill the definition of workman so as to make reference to the Central Government Industrial Tribunal.

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11 Having heard Mr. Yogi Gadhia, learned advocate for the petitioner, considering the impugned judgment and award as also the depositions and other material annexed with the petition, it is clear that thought the petitioner employer has filed written reply to the reference filed by the respondent- workman, petitioner has not entered into witness box to lead any evidence on his behalf or have given any opportunity to the respondent-workman to prove his case by cross- examining him, as also to disprove his defence raised by way of written reply. In short, written reply submitted to the Reference cannot be taken into consideration, as it has not been translated into evidence by entering into the witness- box. Therefore, when reply has to be eschewed from the consideration, except the cross-examination on behalf of the petitioner, nothing fruitful is brought on the record even to assert, by the petitioner that the respondent is not fulfilling the definition of workman or he is not illegally terminated. Keeping in mind these facts, if the reasonings and findings recorded by the Labour Court is considered, the case pleaded by the respondent-workman appears to be unchallenged.

12 Drawing the attention of the Court to the admissions by the respondent-workman in the cross-examination on behalf of the petitioner, it is submitted that respondent-workman admitted to have administered the whole office as also the factory, therefore be cannot be held to be workman as defined under section 2(s) of 'the Act'. Assertions in the examination- in-chief on oath, more particularly, in para No.3 thereof to the

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effect that nature of his work is purely and mainly in clerical capacity and he was having no independent authority to run or control the factory. It is asserted in the examination-in-chief by the respondent-workman that he had no authority to sign the cheque on behalf of the petitioner, no authority to recruit/ remove anyone, issue notice or charge-sheet to anyone, to promote or give any increment to anyone. In short, it has come in evidence that he had no administrative or supervisory authority to run the petitioner factory or office. To such unequivocal assertion in the examination-in-chief, there is even no denial put to such assertion in the cross- examination of the witness. Thus, there is clear evidence on record, which is unchallenged that he had never acted either in the managerial capacity or in a supervisory capacity. Except nomenclature to his designation to which there is no denial at all and therefore, if respondent asserts that he was either in a manager and/or supervisory capacity drawing salary of more than prescribed limit, therefore, he is not fulfilling the definition of workman and therefore, the Labour Court has no jurisdiction to entertain the reference, the Labour Court rightly shifted the burden on assertion by the petitioner that he is not fulfilling the definition of workman to lead evidence and prove it before the Court. As observed earlier since no one has entered the witness box on his behalf, there is no evidence at all and at the same time, from the cross- examination of the respondent-workman it has not even attempted to prove that he was working in the capacity of

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manager or supervisor not fulfilling the definition of workman under section 2(s) of 'the Act'.

13 Therefore, the judgments, on which reliance is placed by learned advocate for the petitioner as referred to hereinabove, which is determined based on the evidence led before the Court, which is missing so far as present case is concerned, neither on facts nor even on principles enunciated therein it is helpful to the petitioner.

14 Even otherwise, when only Rs.75,000/- is awarded as lump-

sum compensation in lieu of reinstatement, I see no reason to interfere with the finding of facts recorded based on clear evidence having no infirmity either on facts or on law and therefore, this petition is hereby rejected summarily.

(UMESH A. TRIVEDI, J) MEHUL