Usha Extrusion vs Kiritbhai Kuberbhai Solanki
2021 Latest Caselaw 4908 Guj

        C/SCA/6460/2010                                        JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 6460 of 2010


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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                                USHA EXTRUSION
                                      Versus
                          KIRITBHAI KUBERBHAI SOLANKI
================================================================
Appearance:
MR PRATIK P THAKKAR(6097) for the Petitioner(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                               Date : 31/03/2021

                               ORAL JUDGMENT

1. The petitioner - employer has challenged the award

dated 01.01.2010 passed by the Labour Court No.5,

Ahmedabad in Reference (L.C.A.) No.643 of 2004

whereby the Labour Court has partly allowed the

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reference and directed the petitioner herein to reinstate

the respondent - workman with 50% back wages from

01.06.2004.

2. It is contended by the petitioner that it is

proprietorship dealing in manufacturing of Aluminum

Collapsible Tubes and the respondent - workman joined

as helper in printing department in the petitioner from

19.11.1999. It is further contended by the petitioner that

respondent left the premises without intimating or

informing any one and he was absent till 30.06.2001. It is

also contended by the petitioner that on 01.07.2001, the

workman has given written resignation to the petitioner

which was accepted. It is contended by the petitioner that

on 15.03.2004, the respondent has filed the complaint to

the Labour Comissioner and, thereafter, he issued a

demand notice on 10.12.2004 through the Shram Shakti

Labour Union alleging that the respondent was orally

terminated without giving any reasons on 01.07.2002

and demanded full back wages and continuity of service.

It is contended that in the said reference, the statement

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of claim was filed by the respondent and the petitioner

has also filed written statement with the averment that

the workman has voluntary left the job in the year 2001

and it has produced the document showing that the

resignation was tendered in 2001 and the same was was

accepted and the workman had also taken benefits in lieu

of such resignation. It is contended that though all these

documentary evidence produced by the Labour Court, the

Labour Court has erroneously granted the prayer in

favour of the workman which is not in consonance with

the facts and documentary evidence on record. It is also

contended that the entire award is erroneous on facts and

law and, therefore, the said award is required to be

quashed and set aside.

3. Heard Mr.Pratik Thakkar, learned advocate for the

petitioner through video conferencing. Though served,

nobody has appeared on behalf of the respondent.

4. Mr.Pratik Thakker, learned advocate for the

petitioner has submitted the same facts which are

narrated in the memo of petition. He has submitted that

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the petitioner was proprietary firm and now, it is not in

existence and the workman did not appear before the

Court. He has submitted that as per the workman, he was

terminated on 01.07.2001 and he did not file any

reference till 31.05.2004 and there is a delay of two

years. He has also submitted that on 01.07.2001, the

workman has resigned the service and his resignation was

accepted which is at page-24 and he was paid requisite

amount which is at page-25. While referring to the award,

he has submitted that the Labour Court has erroneously

not accepted the documentary evidence produced by the

petitioner. He has submitted that there is documentary

evidence to show that the amount was paid to the

petitioner as per the cash voucher which has signed by

the workman. According to him, the reasoning given by

the Labour Court is not sustainable in the eyes of law.

5. Having considered the submissions canvassed by

the learned advocate for the petitioner and considering

the materials placed on record, it clearly transpires that

there is no dispute to the fact that the workman was

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engaged with the petitioner and after his alleged oral

termination, he has filed the reference in the year 2004.

On perusal of the impugned award, it appears that the

Labour Court has heavily relied on the deposition of the

witness of the employer that he had no knowledge. Now,

on perusal of the cross-examination of the workman, it

transpires that he had accepted that there is his signature

on the resignation letter. According to him, the content of

the resignation is not written by him and his signature

was taken on blank paper. He has admitted the fact that

his signature was obtained on voucher, but according to

him, it was a blank and the signature was obtained by

Uditbhai, Manager. He has accepted that he has not made

any complaint before any authority as his signature was

on blank paper. The workman has also admitted that from

01.07.2001 till 16.03.2004, he has not served any legal

notice to the petitioner. He has submitted that from July

2001, he was maintaining his family by doing

miscellaneous labour work. On perusal of his own

evidence, it clearly transpires that the signature on the

voucher as well resignation letter is of the workman.

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6. It also appears from the record that the Manager

Uditbhai has been examined at Exhibit 19 wherein he has

categorically stated that the workman left the job on

01.07.2001 and, thereafter, he remained present till

30.06.2001 and on 01.07.2001, he came for tendering his

resignation and accordingly, his resignation was accepted

and necessary amount was paid to him and he was also

issued necessary certificate pertaining to his work with the

institution. He has stated that since the workman was

resigned from 01.07.2001, there was no case for

terminating his service orally on 01.07.2001. He has

stated that Rs.2,350/- and Rs.2,025/- paid to the

workman by vouchers on which there is a signature of the

workman. During his cross-examination, he has stated

that the workman has worked in the institution for one

year. He has stated that for absence in the job, no notice

has been issued to the workman and no departmental

inquiry was carried out. He has accepted that in the

resignation letter, there is no date. It is also stated that

he has no knowledge regarding the contents of the said

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document. He has stated that there is no averment

regarding the acceptance of the resignation. He has stated

that there was no relieve order issued to the workman. He

has stated that they are paying the amount to the

workman on vouchers.

7. Thus, on perusal of the evidence of the witness of

the firm, it clearly appears that the person who is

manager, has no knowledge regarding the contents of the

so-called resignation letter and the amount paid. Now, on

perusal of the so-called resignation letter at Exhibit 23,

there is no specific date for issuance or tendering the

resignation with the affidavit. Of course in the letter at

Exhibit 24, the date i.e. 01.07.2001 is mentioned, but the

witness who has been examined by the petitioner has no

knowledge regarding the contents thereof. It appears

from Exhibit 24 that there is signature of one Ushaben

Gupta, who is said to be proprietor of the firm and has

authority for acceptance of the resignation, has not

examined by the institution. Whereas, the person who has

been examined has no knowledge regarding the contents

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of Exhibit 24. At the same time, on perusal of the

vouchers, it appears that the amount of Rs.2350/- was

paid is of leave encashment and bonus in the year 2001,

whereas, in the second voucher, it is reflected that since

he has resigned from the service, as a gracious, he has

been paid Rs.2025/- for his two years' service. The

witness examined on behalf of the firm has no knowledge

regarding both these vouchers. Thus, the contention

raised by the petitioner regarding so-called resignation

letter as well as payment of amount are not proved.

8. It is pertinent to note that the contents of the

workman, in the cross-examination by the employer,

regarding his signature being taken on blank form has not

been challenged and, therefore, the version of the

petitioner herein is not believable and is rightly believed

by the Labour Court. However, on perusal of the award, it

appears that the relief granted to the workman is

regarding payment of 50% back wages is not justifiable.

Considering the evidence on record, especially the

admission on the part of the workman that during

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interregnum period he has maintained his family by doing

miscellaneous work. He was not unemployed. No back

wages is liable to be paid to the workman since the

workman was earning and, therefore, he is not entitled for

any back wages. Of course he is entitled with continuity of

service from the date of filing of the reference before the

Court.

9. In view of the aforesaid facts and circumstances of

the case, the present petition is liable to be allowed

partly.

10. Resultantly, the petition is partly allowed. The

impugned award dated 01.01.2010 passed by the Labour

Court, Ahmedabad in Reference (L.C.A.) No.643/2004 is

modified to the extent that instead of 50% back wages,

only the petitioner shall paid 10% back wages to the

workman and other reliefs granted regarding

reinstatement and continuity of service is confirmed.

Sd/-

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