Abhishek Industrial Service Pvt. ... vs Nathabhai Bhagwanjibhai Rathod
2022 Latest Caselaw 6224 Guj

    C/SCA/10438/2017                           JUDGMENT DATED: 13/07/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10438 of 2017
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 12842 of 2017
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 2325 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                Sd/-
================================================================
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 ?

================================================================
                 ABHISHEK INDUSTRIAL SERVICE PVT. LTD
                                Versus
              NATHABHAI BHAGWANJIBHAI RATHOD & 2 other(s)
================================================================
Appearance-SCA No.10438 of 2017
MR PS GOGIA(2751) for the Petitioner(s) No. 1
MR TR MISHRA(483) for the Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1,3

Appearance-SCA No.12842 of 2017
MR TR MISHRA(483) for the Petitioner
MR PREMAL R JOSHI(1327) for the Respondent(s) No.1
MR PS GOGIA(2751) for the Respondent No.2

Appearance-SCA No.2325 of 2018
MR PREMAL R JOSHI(1327) for the Petitioner
MR TR MISHRA(483) for the Respondent No.1
MR PS GOGIA(2751) for the Respondent No.2
================================================================

    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE


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      C/SCA/10438/2017                              JUDGMENT DATED: 13/07/2022




                              Date : 13/07/2022

                             ORAL JUDGMENT

1. RULE. Learned Advocate Mr.T.R.Mishra waives

service of Rule on behalf of respondent No.1 and learned Advocate

Mr.Premal Joshi waives service of Rule on behalf of respondent

No.2 in Special Civil Application No.10438 of 2017, learned

Advocate Mr.Premal Joshi waives service of Rule on behalf of

respondent No.1 and learned Advocate Mr.P.S.Gogia waives

service of Rule on behalf of respondent No.2 in Special Civil

Application No.12842 of 2017 and learned Advocate Mr.T.R.Mishra

waives service of Rule on behalf of respondent No.1 and learned

Advocate Mr.P.S.Gogia waives service of Rule on behalf of

respondent No.2 in Special Civil Application No.2325 of 2018.

2. These three petitions are challenging the same award

of the Labour Court, Junagadh dated 02.02.2017 in Reference (T)

No.101 of 2006. The petitioner of Special Civil Application

No.10438 of 2017 is a contractual employer, the petitioner of

Special Civil Application No.2325 of 2018 is a principal employer

and Special Civil Application No.12842 of 2017 is filed by the

workman. By the impugned award, the Labour Court has ordered

reinstatement of the workman without back wages and therefore,

employers have filed the petitioners for setting aside the order of

reinstatement with continuity in service, whereas the workman has

challenged the award on the ground of non-grant of any back

C/SCA/10438/2017 JUDGMENT DATED: 13/07/2022

wages.

2.1 It is a case where the workman was working as a

tanker driver and on account of his remaining absent, was issued

with the show cause notice and after issuance of show cause

notice, as the explanation offered by the workman was not

acceptable to the contractual employer, his services were

terminated.

3. Learned Advocates appearing for the employers jointly

submitted that the impugned award is required to be interfered

with on the ground that the respondent was given opportunity to

explain absenteeism and in his explanation to the show cause

notice, he has given general reply about ill-health of his parents

and thereafter death in the family, which precluded him from

attending his duties. He had also given reasons of ill-health of his

children. It is argued that such explanation could not be accepted

by any standards. Moreover, in the reply itself, the workman has

admitted about his misconduct of remaining absent and therefore,

as he has admitted, there was no requirement of any further

proceeding in the name of departmental inquiry as the same would

be an exercise in futility. It is argued that the reasons mentioned

by the workman cannot be accepted to be genuine as in the reply to

the show cause notice, he has stated about ill-health of the family

members, whereas in the statement of claim, he has resorted to a

different stand of he himself being medically unfit.

C/SCA/10438/2017 JUDGMENT DATED: 13/07/2022

3.1 It is further argued that even before the Labour Court,

the workman has not been able to place anything on record to

substantiate and justify his absence from duty.

3.2 It is submitted that though the proceedings which were

challenged before the Labour Court were show cause notice and

the order of dismissal passed by the contractual employer and

there being no other evidence led by the workman, still without any

basis, the Labour Court has proceeded to hold that the workman

was employee of the principal employer and therefore directed

both the principal and the contractual employer to reinstate the

workman.

3.3 It is also submitted that by the conduct of the workman

himself, it can be seen that he has accepted the order of dismissal

as he has received demand draft towards his dues.

3.4 It is lastly submitted that in reply to the statement of

claim, the petitioners had raised contention that in case the

departmental inquiry is held to be defective, in that case, the

petitioners-employers be given an opportunity to lead evidence

before the Labour Court to prove misconduct. Despite this, the

Labour Court has not passed any order in that regard.

3.5 Learned Advocates for the petitioners relied upon

decision of the Apex Court in case of Central Bank of India Ltd.

C/SCA/10438/2017 JUDGMENT DATED: 13/07/2022

Vs. Karunamoy Banerjee, reported in AIR 1968 SC, 266, to

contend that where guilt is admitted by the employee, there is no

need for conducting a departmental inquiry.

3.6 Reliance is also placed on the decision of the Apex

Court in case of Vijay S.Sathaye Vs. Indian Airlines Limited &

Ors., reported in (2013) 10 SCC, 253, to substantiate the case of

the petitioners that where employee does not join duty and remains

absent for long then such absence is required to be treated as

misconduct. However, if such absence is for a very long period

then it may amount to voluntary abandonment of service and

thereby service comes to an end automatically without any order

required to be passed by the employer.

4. As against this, learned Advocate for the workman has

drawn attention of this Court to the reply given by the employers

and submitted that a contradictory stand is taken in the reply as in

the reply, it is stated that the workman is simply discharged from

his service and therefore, there is no requirement of any charge

sheet whereas order, which was challenged before the Labour

Court, clearly is an order of dismissal pursuant to alleged

misconduct.

4.1 It is submitted that the workman has worked for more

than 10 years and has completed 240 days of service. Moreover,

from the show cause notice itself, no clarify as to what the

C/SCA/10438/2017 JUDGMENT DATED: 13/07/2022

petitioner has to show cause against, is coming out as there are no

details with regard to days of absenteeism.

4.2 It is submitted that once the workman has offered his

explanation and if such explanation is not acceptable, it is

incumbent upon the employer to conduct a departmental inquiry as

the workman may have compelling reasons preventing him from

attending duty like hospitalization, etc. For the purpose, learned

Advocate for the respondent placed reliance on the decision of the

Apex Court in case of Krushnakant B.Parmar Vs. Union of

India & Anr., reported in (2012) 3 SCC, 178.

4.3 It is submitted that there is non-following of principles

of natural justice as the show cause notice is highly deficient. Not

only that, pursuant to the reply of the workman, no further action

has been taken and simply, order of dismissal has been passed.

4.4 Insofar as receiving of the demand draft is concerned,

it is submitted that the workman has clearly denied to have

received or encashed the demand draft and therefore, it was the

burden of the employers to establish as to whether dues have been

paid by encashing demand draft issued by them.

5. Having heard learned Advocates for the parties and

having perused documents on record, it appears that the workman

was served with the notice dated 20.07.2004 (Exh.54) calling upon

the workman to show cause for his absence between July 2003 to

C/SCA/10438/2017 JUDGMENT DATED: 13/07/2022

June 2004 on several occasions and therefore, was negligent

towards his duty. Again another show cause notice was issued on

09.12.2004 indicating that his attendance record shows very high

absenteeism in the past one year and therefore, to show cause as to

why his name should not be struck off from muster (Exh.47). It is

pertinent to observe that both the show cause notices have been

issued by the contractual employer and the workman has

responded on 20.12.2004 (Exh.49), giving his explanation about

prolonged ill-health of the mother and death of his father and

thereafter, death of the mother, as a result of which to attend social

responsibility, has not been able to attend duty. Thereafter, by

order dated 25.12.2004, the contractual employer served the

workman with the dismissal order, stating that reply submitted by

the workman was not acceptable and reasons mentioned were not

justifying the nature of absenteeism. Along with the letter of

dismissal, demand draft was also forwarded to the respondent for

an amount of Rs.8,450/- on 07.09.2005.

6. In the opinion of the Court, the Labour Court, after

considering the aforesaid factual matrix, was justified in coming to

conclusion that the petitioners-employers have not conducted

proper inquiry as is required before terminating services of the

workman. The explanation, if not acceptable to the employer, then

it was incumbent for the employer to issue charge sheet specifying

charges against the workman. In the facts of the case, as is evident

C/SCA/10438/2017 JUDGMENT DATED: 13/07/2022

from the documents exhibited, the show cause notice did not

indicate specific charge of absenteeism as no period was specified

as such. It was, in the opinion of the Court, an incomplete show

cause notice, to which the respondent workman had no occasion to

file his response as expected by the employer, meaning thereby

when the show cause notice /charge was not specific enough for

the workman to respond to specifically, inquiry by issuing specific

charge sheet was necessary. In the facts of the case, nature of

allegations made in the show cause notice were sufficient for the

workman to make out as to what response he has to give to such

show cause notice. In the opinion of the Court, therefore, in

absence of proper departmental inquiry, the Labour Court was

justified to conclude that there is breach of Section 25(G).

7. The Court has perused the award of the Labour Court,

where based on evidence of the workman, has concluded that the

workman has rendered service of more than 240 days , 12 months

prior to the order of termination. Over and above, the respondent

workman was working since 1994 with the contractual employer as

a tanker driver till the order of termination, thereby has rendered

10 years of services.

8. With regard to reliance placed by learned Advocate for

the petitioners on the decision of the Apex Court in case of

Karunamoy Banerjee (supra) to contend that where there is an

admission, departmental inquiry would be an exercise in futility,

C/SCA/10438/2017 JUDGMENT DATED: 13/07/2022

the Court finds that the nature of reply given by the petitioner

cannot be termed to be an admission. Moreover, from para-18 of

the aforesaid judgment, it appears that the inquiry had commenced

and charges were also farmed against the workman and in answer

to the charges levelled against the workman, guilt was admitted.

As observed hereinabove, in the facts of this case, no charge sheet

has been issued so as to enable the workman to assess the charge

and respond thereto.

9. With regard to reliance placed by learned Advocates for

the petitioners on the decision of the Apex Court in case of Vijay

S.Sathaye (supra) to submit that absence from duty for a very long

period amounts to voluntary absenteeism and would bring to an

end the service automatically without there being any order by the

employer, the Court is of the opinion that in the facts of this case,

nothing has come on record to indicate the length of absenteeism

as neither show cause notice nor order of dismissal would indicate

as to for what period, the workman had remained absent.

Moreover, the employers have passed a specific order of dismissal

on the ground of absenteeism and therefore, there is no automatic

end of service as was the case in the cited judgment.

10. Insofar as submission regarding workman being

employee of the principal employer, it would be appropriate to

refer to the impugned award, where, in para-9.8, simplicitor a

conclusion is drawn that the respondent is the workman of the

C/SCA/10438/2017 JUDGMENT DATED: 13/07/2022

principal employer. It is pertinent to observe that when the entire

cause of action was based on the show cause notice issued by the

contractual employer, reply to the show cause notice was

addressed by the workman to the contractual employer and the

order of dismissal also being passed by the contractual employer

and all these documents being part of record, an error is

committed by the Labour Court in merely relying upon oral

evidence of the workman and that too to the extent that the

workman was driving tanker, which was of the ownership of the

principal employer. This, in the opinion of the Court, was not

sufficient evidence to establish relation of master-servant with the

principal employer and the workman. Moreover, as is observed

from the reference made which is for the purpose of reinstatement

with back wages, there was no issue with regard to whether

contract between the contractual employer and the principal

employer was sham or bogus. In absence of such issue, the Labour

Court appears to have misdirected itself in drawing such a

conclusion and issuing direction accordingly. It is also necessary to

observe that in the issues framed, burden is directly shifted upon

the principal employer to establish as to whether the workman was

employee of the contractual employer. Such an issue, without

there being any reference made to the Labour Court and merely on

presumption, was not in consonance with the reference. In that

view of the matter, the Court is inclined to interfere to the extent of

the conclusion drawn by the Labour Court of holding that the

C/SCA/10438/2017 JUDGMENT DATED: 13/07/2022

workman was employee of the principal employer, thereby

direction of reinstatement is modified to the extent that the

contractual employer shall reinstate the workman as per the final

order of the impugned award.

11. Insofar as issue of back wages is concerned, the Labour

Court has assigned proper reasons by applying principle of "no

work no pay" and has therefore, refused back wages. The Court

does not find any reason to interfere with the finding of the Labour

Court in this connection.

12. In view of the aforesaid reasonings, Special Civil

Application No.10438 of 2017 and Special Civil Application

No.12842 of 2017 stand dismissed. Rule is discharged. No order

as to costs. Special Civil Application No.2325 of 2018 stands partly

allowed. Rule is made absolute to the aforesaid extent. No order

as to costs.

(A.Y. KOGJE, J) SHITOLE