Chandulal Manilal & Co vs Dineshkumar Kunwarji Bihol
2021 Latest Caselaw 5831 Guj

     C/SCA/6671/2008                             JUDGMENT DATED: 11/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6671 of 2008


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

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1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          CHANDULAL MANILAL & CO
                                  Versus
                       DINESHKUMAR KUNWARJI BIHOL
================================================================
Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
APPEARANCE DELETED(23) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 11/06/2021

                             ORAL JUDGMENT

1. The present petition is filed under Articles 226 and 227 of

the Constitution of India challenging the impugned award

dated 12.10.2007 passed by the Labour Court, Ahmedabad in

Reference (L.C.A.) No.544 of 2005, whereby the Labour Court

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has directed the petitioner - employer to reinstate the

respondent - workman with 25% back wages.

2. It is contended by the petitioner that the respondent has

filed the reference by filing statement of claim and the

petitioner has also filed written statement vide Exhibit 7. It is

further contended that thereafter the evidence of the workman

was recorded and he was cross-examined. It is also contended

that the petitioner has filed purshis before the Labour Court on

06.10.2005 vide Exhibit 8 that without right and prejudice if

the workman wanted to resume duty, he may do so and in the

said purshis the workman's representative put a remarks that

he is ready and willing to resume duty. It is contended that in

spite of that the workman did not report on duty though he

was informed on 13.12.2005 which is at Exhibit 89. It is

contended that the muster roll was also produced vide Exhibit

90 wherein the workman was shown as absenting. It is also

contended that even in the month of November-December

2005 as well as January-February, April-May and June 2006, the

workman did not report on duty. According to the petitioner,

though there is sufficient material to show that the workman

was not reported on duty, the Labour Court has erroneously

granted the reference directing the petitioner to reinstate the

workman with 25% back wages.

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2.1 According to the petitioner, the finding recorded by the

Labour Court is contrary to the evidence on record and the

affidavit filed by the petitioner was never controverted and still

reinstatement with 25% of back wages has been granted. It is

also contended that the services of the workman has never

been terminated. It is contended that the workman was able to

get better employment and on his own he left the services and

he was not interested in the employment. According to the

petitioner, all these facts have not been considered by the

Labour Court in passing the impugned award which requires to

be interfered with by this Court. The petitioner has prayed to

quash and set aside the impugned award passed by the Labour

Court and allow the present petition with costs.

3. After issuance of the notice, the respondent was

represented by the advocate, but, thereafter, none has

appeared on behalf of respondent. The respondent was

individually served with the notice, however, he did not appear

during the course of the hearing.

4. Heard Mr.U. T. Mishra, learned advocate for the petitioner

at length through video conferencing.

5. Mr.U. T. Mishra, learned advocate for the petitioner has

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vehemently submitted the same facts which are narrated in

the memo of petition and also submitted that there is rival

contention regarding the fact as to whether the workman left

the service voluntarily or employer has terminated him from

the service.

6. Mr.U. T. Mishra, learned advocate for the petitioner has

submitted that to clarify the fact, the further affidavit has been

filed by the employer at page no.90, which has not been

denied by the workman. While inviting the attention of the

Court to the further affidavit, he has submitted that the

employer has issued registered letter dated 05.05.2008 to the

respondent to resume his duty, but the respondent did not

report for duty and, thereafter, again petitioner - employer has

sent another registered letter dated 10.05.2008 to the

respondent - workman and yet he did not appear. He has

submitted that the employer has tried to reinstate the

workman, but he did not join the duty and it appears that he

has only interested in 25% back wages which has been

granted by the Labour Court vide award dated 12.09.2007. He

has submitted that the Labour Court has committed serious

error of facts and law in passing the impugned award in favour

of the respondent by directing the employer to reinstate the

workman with 25% back wages. He has submitted that the

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Labour Court has committed serious error of facts and law in

not appreciating the fact that the workman was not terminated

by the employer and the workman himself has left the job

voluntarily and, therefore, the impugned award is not

sustainable in the eyes of law. He has prayed to allow the

present petition and quash and set aside the impugned award

passed by the Labour Court.

7. Having considered the materials placed on record and

the contentions raised by Mr.U. T. Mishra, learned advocate for

the petitioner, it is an admitted fact that the workman was

serving in the petitioner - firm. It is undisputed fact that the

controversy was arosed in the year 2004 between the parties.

According to the workman, he was terminated without

following due process of law and he was ready to serve in the

firm. However, whenever, he was visited the shop, he was

denied to serve thereof. Against this stand of the workman, the

stand of the employer is that they have issued letters to the

workman to resume duty, but the workman did not comply

with the same and he himself has left the service.

8. Now, according to the observations made by the Labour

Court, the Labour Court has believed the version of the

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workman and shifted the burden on the employer and granted

reinstatement with the back wages of 25%. Now, on perusal of

the evidence on record, it appears that the workman in his

deposition has clearly admitted that he has received letters

from the employer for joining his service. It also appears from

his evidence that even at the time of re-conciliation

proceedings, the employer has invited him to join the service.

Of course, the stand of the workman is that whenever he has

visited the shop for joining the duty, he was denied. However,

considering the documentary evidence, it appears that except

the bare words, the workman has not produced any

documentary evidence to substantiate his say that he was

denied to serve. He could have written a communication

thereof and placed the same on records. At this juncture, it is

pertinent to note that even during the pendency of this

petition, the employer has filed affidavit to the effect that the

employer has never denied the workman to do the work, rather

they have informed the workman to resume his duty. It is

pertinent to note that in the present case, the workman has

been duly served, however, he has chosen not to appear

before the Court. It is also pertinent to note that when the

deposition of the workman was recorded in the year 2005, his

age was approximately 49 years. That means, at present, he

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has already crossed the retirement age. Therefore, there is no

question of reinstatement. It also appears from the recorded

that opportunities have been provided by the employer to the

workman to join the service by issuing registered post letter,

but instead of complying with the same, the workman has not

reported on duty. Of course, it is his bare statement that he

has visited the shop of the employer for service, but he was

orally denied. Against the bare words of the workman, the

employer has produced documentary evidence on record. The

documentary evidence needs to be accepted rather than, the

bare oral words of the workman.

9. In view of the aforesaid facts, it clearly appears that the

Labour Court has committed serious error of facts and law in

granting the prayer to the workman and, therefore, the

impugned award needs to be set aside. At this stage, it needs

to be observed that this Court has passed the order dated

13.03.2009, whereby, the employer was directed to deposit

payment of back wages and on such depositing being made,

direction was issued to the registry to invest the amount in

Fixed Deposit in any Nationalized Bank for a period of two

years. The said amount is required to be refunded to the

petitioner herein.

C/SCA/6671/2008 JUDGMENT DATED: 11/06/2021

10. In view of the above, the present petition needs to be

allowed and accordingly, it is allowed. The impugned award

dated 12.10.2007 passed by the Labour Court, Ahmedabad in

Reference (L.C.A.) No.544 of 2005 is hereby quashed and set

aside. The amount, if any, deposited by the petitioner before

the registry shall be refunded to the petitioner along with the

interest accrued thereof, after proper verification. Rule is made

absolute. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL