Arvindbhai Vasanji Gamit vs Tata Tele Services Ltd. Notice ...
2022 Latest Caselaw 313 Guj

      C/LPA/1686/2017                                     JUDGMENT DATED: 11/01/2022



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 1686 of 2017
                                    In
               R/SPECIAL CIVIL APPLICATION NO. 12506 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                    ARVINDBHAI VASANJI GAMIT
                              Versus
    TATA TELE SERVICES LTD. NOTICE SERVED THROUGH MANAGER
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Appearance:
MR UT MISHRA(3605) for the Appellant(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE NIRAL R. MEHTA
                        Date : 11/01/2022
                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the order dated 4.9.2017 passed by the learned Single Judge in Special Civil Application no.12506/16, the appellant-original petitioner

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has preferred this intra-Court appeal under Clause 15 of the Letters Patent.

2. Following facts emerge from the record of the appeal:-

2.1 It is the case of the appellant-workman that he was working with the respondent-Company and that he has worked for more than 240 days and was illegally and arbitrarily terminated. Record indicates that the appellant raised an industrial dispute which was referred and registered as Reference (LCS) no.5/2008 before the Presiding Officer, Labour Court at Surat which culminated into an ex-parte award, wherein while allowing the Reference, the Labour Court was pleased to direct the respondent to reinstate the appellant with continuity of service and full back wages. Record further indicates that the respondent filed an application for restoration being Restoration Application no.39/2010 before the Labour Court, Surat which came to be dismissed vide order dated 21.3.2014. Being aggrieved by the same, the respondent herein filed a Writ Petition being Special Civil Application no. 12931/14 before this Court challenging the original award as well as the order of rejecting the restoration application. The learned Single Judge of this Court, vide order dated 2.2.2015 after hearing the parties, was

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pleased to allow the Writ Petition and remanded back the proceedings with Labour Court with cost of Rs.7,500/- out of which, Rs.5,000/- was paid to the appellant as cost and rest was to be deposited with the High Court Legal Aid Service.

2.2 The proceedings so remanded were restored back to the file of the Presiding Officer, Labour Court, Surat. The respondent filed its written statement dated 13.4.2015. The Labour Court, after giving an opportunity of being heard and after considering the evidence adduced by both the sides, was pleased to dismiss the Reference and inter-alia came to the following conclusion:-

"22. Keeping in mind the above mentioned judicial pronouncement, it would be useful to note that in the present case also the workman has not produced any document to show that he had worked for 240 days in the 12 months preceding to his termination of service. The workman has not filed any application for production of documents from the opponent. He has also stated during his cross-

examination that he had no document except the document produced at exh.35/1 to show that he was working with the Tata Tele Services. He has also stated that he has no document to show that he had worked for 240 days with the opponent. The workman has also not stated the names or details of the persons who had been

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engaged by the opponent after his termination of service, either in the statement of claim or in the affidavit. Therefore, according to me, the workman has failed to prove that he had worked for 240 days in the preceding year of his termination. Therefore, the workman is not entitled to have protection of the mandatory provisions of the Section 25F or the section 25H of the Industrial Disputes Act, 1947.

Therefore, the workman has failed to prove that his services were terminated illegally by the opponent. Therefore, the workman has failed to prove that his services were terminated illegally by the opponent. Therefore, issue no.2 is replied in negative.

23. As the workman has failed to prove breach of section 25F and 25H of the Industrial Disputes Act, 1947, the workman is not entitled to reinstatement with or without back wages. Therefore, issue no.3 and the reference is replied in negative.

24. For the reasons stated above and considering all the facts and circumstances of this case, I pass following order.

ORDER

Reference is dismissed. No Cost."

2.3 Feeling aggrieved and dissatisfied with dismissal of the Reference, the appellant filed the present Writ Petition before this Court and contended that the impugned order is

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absolutely illegal and deserves to be quashed and set aside and contended as under:-

(a) That the Labour Court has committed an obvious error while rejecting the Reference on the ground that the petitioner has failed to establish that he had completed 240 days.

(b) The Labour Court has further committed an error by not appreciating the fact that the respondent has raised only one contention that there is no master and servant relationship existed between the appellant and the respondent. It was contended that the appellant had produced identity card provided by the respondent and on that ground, it was contended that the Labour Court ought to have allowed the Reference by directing the respondent to reinstate the appellant-original petitioner with continuity of service with full backwages.

(c) It was also contended that the Labour Court has committed further error while rejecting the Reference on the ground that the petitioner has failed to appreciate that he has completed and worked for 240 days with the respondent. It was also contended that the said contention is not raised by the respondent in their written statement and hence, the appellant has not led any evidence

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with regard to proving that he has completed 240 days. It was contended that the appellant- original petitioner has not filed application seeking documentary evidence since the respondent was not providing any evidence even to establish master and servant relationship between the petitioner and the respondent.

(d) It was also contended that the Labour Court has committed gross error of not appreciating the fact that the appellant has established master and servant relationship by producing identity card.

2.4 On the aforesaid grounds, the order of rejection of the Reference was challenged before this Court. The learned Single Judge, by the impugned order, was pleased to dismiss the petition and inter-alia observed thus:-

"4. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.

4.1 The Labour Court has recorded cogent reasons for the issues framed by it. The Labour Court has recorded that there was no legally acceptable material, produced by the concerned workman to establish that he had completed 240 days and/or there was illegal termination. The only document produced on behalf of the workman was in the form of an I-card, which itself indicated that there was

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no employer employee relationship. If the petitioner approaches some customer on behalf of the contractor, he would not be treated to be an authorized man, beyond that, it would not confer any status to the petitioner.

4.2 This Court further finds that, in the written statement filed by the respondent, the details of the petitioner having relationship with some other employer were also mentioned and the same has remained controverted.

4.3 Considering the totality this Court finds that the Labour Court has not committed any error by rejecting the claim of the petitioner and no interference is required by this Court. So far the decision of the Supreme Court India in the case of R.M.Yellatti (supra) as relied by the learned advocate for the petitioner - workman is concerned, not only it would not take the case of the petitioner any further but it would support the case of the employer in the facts of this case. This petition therefore needs to be dismissed.

                 5. For the          above reasons, this
                 petition is        dismissed. Notice is
                 discharged.

2.5 Being              aggrieved   by      the    same,      the        present
        intra-Court appeal is filed.

3. Heard Mr. U.T. Mishra, learned advocate for the appellant and Mr. Dipak R. Dave, learned advocate for the respondent.

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4. Mr. Mishra almost reiterated the contentions which are raised before the learned Single Judge and contended as under:-

4.1 That the appellant has established the relationship of master and servant. Relying upon the identity card at Page 38 of the paper book, Mr. Mishra contended that the appellant has been able to establish the relationship of master and servant.

4.2 It was further contended that the respondent has not examined any witness to prove that there was no relationship of master and servant between the appellant and the respondent. Referring to and relying upon the oral evidence of the appellant, it was contended that even in cross-examination, the aspect of master and servant relationship has been proved.

4.3 It was further contended that the respondent-

management has never raised issue to the effect whether the appellant has completed 240 days or not before the Labour Court and therefore, the appellant did not adduced any evidence to that effect. It was further contended that such contention was Suo Motu raised by the Labour Court which is not permissible.

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4.4 Mr. Mishra has also relied upon the judgment of the Hon'ble Apex Court in the case of Krishi Utpadan Mandli Samiti Vs. Arvind Chaubey, reported in (2002) 9 SCC 549 that the fresh plea whether the appellant has completed 240 days or not cannot be raised for the first time before this Court.

4.5 On the aforesaid grounds, Mr. Mishra contended that the appeal deserves to be allowed and the matter deserves to be remanded back to the Labour Court for its adjudication again on merits more particularly, on the point whether the appellant-workman has completed 240 days or not which according to Mr. Mishra was raised for the first time before this Court and not raised at all before the Labour Court.

5. Per contra, Mr. Dipak R. Dave, learned advocate for the respondent has opposed this appeal. Referring to Paragraph 5 of the written statement which is forming part of the record of this appeal, it was contended by Mr. Dave that it is not true that the appellant- workman has worked for 240 days or more in every year and therefore, it is not correct to say that the Labour Court has considered the issue of 240 days or more Suo Motu.

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5.1 Mr. Dave referring to the copy of the identity card relied upon by the appellant, contended that the said identity card clearly shows that it was on contract. Mr. Dave contended that the salary slip was produced before the Labour Court though not exhibited and the appellant was paid salary by the contractor, namely, Modern Business Solutions through bank. Mr. Dave further contended that even the provident fund was being deducted from the salary of the appellant which was paid by the said contract based upon the provident fund registration of the said contractor. Mr. Dave referring to the cross-examination of the appellant contended that even though in cross-examination, the appellant has stated that he has produced the bank statement, the same has not been produced only with a purpose that if such bank statement is produced, the same proved that he was paid salary by Modern Business Solutions contract and not the respondent. Mr. Dave contended that the respondent has failed to prove master and servant relationship. It was also contended that no evidence was produced by the appellant to even remotely show that he has worked for 240 days in any year.

5.2 Relying upon the judgment of the Hon'ble Apex Court in the case of State of Uttarakhand & Ors. Vs. Smt. Sureshwati, reported in AIR 2021 SC 923, it was contended by Mr. Dave that as

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the appellant has failed to prove that he has worked for 240 days, the Labour Court was absolutely right in dismissing the Reference in addition to the fact that the appellant has failed to establish master and servant relationship between the appellant and the respondent. Mr. Dave also contended that in facts of this case, as no other view is permissible more so in an intra-Court appeal, this Court may not interfere with the finding of fact based upon the evidence relied upon by the Labour Court and confirmed by the learned Single Judge. Relying upon the judgment of the Hon'ble Apex Court in the case of Boorugu Mahadev and Sons & Anr. Vs. Sirigiri Narasing Rao & Ors., reported in (2016) 3 SCC 343, Mr. Dave contended that the appeal being meritless deserves to be dismissed. In addition to this, it was also contended by Mr. Dave that since 2017, the activities of teleservices have been discontinued by the respondent along with discontinuation of contract and on that ground also, it was contended that the appeal deserves to be dismissed.

6. In rejoinder, Mr. Mishra, learned advocate for the appellant has reiterated that there is total failure on the part of the respondent to show that the identity card issued was not issued by the respondent. Mr. Mishra reiterated that the respondent-management has

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not examined any witness. It was also reiterated that the Labour Court has erred in giving Suo Motu finding that the appellant has not completed 240 days or more in any year which was not even raised by the respondent. It was reiterated that the appeal deserves to be allowed and the matter deserves to be remanded back for its re-adjudication.

7. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

8. Upon hearing the learned advocates appearing for the respective parties and on perusal of the record and proceedings, it clearly appears that the claim raised by the appellant hinges on the identity card produced on record by the appellant. On bare perusal of the identity card, it clearly recites that the appellant was not in service of the respondent, however, was on contract. It is an admitted position that the appellant has not examined anybody to prove the same. The learned Single Judge has rightly come to the conclusion that the same would not confer any status of workmen working with the respondent-management. Upon bare perusal of the said identity card, it clearly shows that there was no employer employee relationship between the appellant and the

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respondent. Considering the written statement at Exh.31 filed in Reference no.5/2008 and more particularly in Paragraph 5 thereof, it clearly shows that it is denied by the respondent that the workman has worked for more than 240 days or more in every year and therefore, it cannot be said that the Labour Court has decided the said issue Suo Motu as tried to be canvassed by the learned advocate for the appellant. Therefore, it cannot be said that it is raised for the first time before this Court.

9. The Hon'ble Apex Court in the case of Smt. Sureshwati (supra), it is held that onus was entirely upon the employee to prove that she had worked continuously for 240 days in preceding 12 months prior to her alleged termination. In the case on hand, the burden of proof that the appellant-workman had worked for 240 days is entirely upon the appellant. As can be seen from the earlier award passed by the Labour Court in claim statement, it has been specifically contended by the appellant workman "that the workman worked for more than 240 days in every year and no departmental inquiry was held against him". Upon considering the material on record, it cannot be said that the issue whether the appellant has worked for more than 240 days in preceding 12 months prior to the alleged termination is

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Suo Motu raised by the Tribunal and/or that it is raised as fresh plea before this Court. The findings arrived at by both the Labour Court as well as the learned Single Judge that the appellant has failed to prove the relationship of employer employee is based on correct reading of the evidence on record and the appellant has not proved the said fact at all. It is also an admitted position that the appellant has chosen not to examine and lead any evidence to establish the relationship of employer employee. From bare reading of the impugned award passed by the Labour Court, it clearly transpires that the appellant was given ample opportunity by the Labour Court. In light of the aforesaid facts emerging in the case on hand, the judgment of the Hon'ble Apex Court in the case of Krishi Utpadan Mandli Samiti (supra) would not be applicable to the facts of the case relied upon by the appellant.

10. It is also noteworthy that having admitted in the cross-examination that the appellant would produce the bank statement, even the bank statement was not produced. In totality of facts therefore, the appellant has miserably failed to prove his relationship of employer employee with the respondent-management and mere existence of identity card issued wherein also, it is mentioned that, the appellant was

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on contract, it cannot be said that there is relationship of employer and employee between the appellant and the respondent. Even at the cost of repetition, it is provided that the contention raised by the appellant that the issue whether the appellant completed more than 240 days in the 12 months preceding to his alleged termination is raised as a fresh plea and/or that the Labour Court has Suo Motu decided the point is de hors the record of the case.

11. Resultantly, all the grounds raised by Mr. Mishra, learned advocate for the appellant deserves to be negatived. The appeal therefore fails and is hereby dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(NIRAL R. MEHTA,J) Maulik