Ushaben Balakrishna vs Gujarat Heavy Chemicals Limited ...
2023 Latest Caselaw 3433 Guj

      C/SCA/7307/2023                            ORDER DATED: 27/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 7307 of 2023

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                        USHABEN BALAKRISHNA
                               Versus
                GUJARAT HEAVY CHEMICALS LIMITED (GHCL)
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR. SALMAN S KHAN(9496) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                            Date : 27/04/2023

                             ORAL ORDER

1. This petition is filed challenging the order dated 30.11.2021 passed by the Labour Court, Ahmedabad, in Reference (LCA) No. 100 of 2015, wherein the Labour Court, Ahmedabad rejected the reference made by present petitioner.

2. Facts in brief are as under:

2.1 That the petitioner joined service of the respondent -company on 07.04.1993, as Administrator-cum-Clerk. It is case of the petitioner that thereafter under order dated 12.03.1999, the service of the petitioner came to be terminated by the respondent - company without issuance of show cause - notice or holding any departmental inquiry, thereby there is violation of principles of natural justice. The petitioner being aggrieved by termination, raised industrial dispute being Reference (LCA) No. 1161 of 1999, wherein, the Labour Court under order dated 07.04.2004, directed

C/SCA/7307/2023 ORDER DATED: 27/04/2023

the respondent company to reinstate the petitioner in service with 100% back wages. Aggrieved by the order dated 07.04.2004 passed in Reference (LCA) No. 1161 of 1999, the company filed Writ Petition being Special Civil Application No. 10190 of 2004. This Court under order dated 14.12.2004, partly allowed the petition and held as under:

"6. Consequently, while upholding the award of the Labour Court with respect to reinstatement, considering the overall facts and circumstances and at the concession of the counsel for the respondent, it is provided that the respondent shall be entitled to reinstatement with 80 per cent back wages instead of 100 per cent as provided by the Labour Court.

7. Subject to the above modification, the award of the Labour Court is upheld. Rule is made absolute to the above limited extent with no order as to costs.

8. Now that the petition is also disposed of, it is expected that the petitioner shall reinstate the respondent as expeditiously as possible and preferably within two weeks from today."

2.2 It is case of the petitioner that pursuant to direction by this Court in Special Civil Application No. 10190 of 2004, the petitioner came to be reinstated, vide order dated 14.12.2004. The petitioner joined service of the respondent - company on 02.05.2005. However, by keeping grudge and with ulterior motive, the petitioner was transferred to Jafrabad, Amreli, Unit, which is in very remote

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area. It is further case of the petitioner that the said transfer was punitive in nature. Against the order of transfer, the petitioner made representation dated 29.12.2005, and the same was rejected on the ground of administrative exigency. Despite, joining service at Jafrabad, the petitioner was not allowed to work as per her post and thereafter, her services came to be terminated by order dated 14.12.2005, without any show cause notice and without holding any departmental inquiry. Being aggrieved by the said termination order dated 14.12.2005, once again, reference was raised before Labour Court being reference (LCA) No. 100 of 2015 and the same came to be rejected by judgment and award dated 30.11.2021 on the ground of delay. Aggrieved by the judgment and award dated 30.11.2021, present petition is filed.

3. Heard learned advocate Mr. Salman Khan for the petitioner. He submitted that judgment and award dated 30.11.2021, passed in Reference (LCA) No. 100 of 2015 is bad in law on the following grounds.

(i) That as per decision of the Hon'ble Supreme Court in the case of Prabhakar Vs. Joint Director Sericulture Department and Ors., reported in 2015(15) SCC 1, delay occasioned in preferring the reference of industrial dispute is required to be ignored.

(ii) Referring to the cross - examination of the Officer of the Company, he submitted that though the Officer was in service, he deposed that he is not aware about the termination of present petitioner. He in his cross examination also pleaded ignorance about joining of the petitioner upon reinstatement. He thus submitted that the action of respondent - company terminating services of the

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present petitioner is in violation of principles of natural justice. From the record also, it is suggestive of vengeance full action against the petitioner and therefore, the order dated 30.11.2021 of Labour Court, Ahmedabad deserves to be set aside.

4. Considered the submissions and decision relied upon. Undisputedly, the reference was filed after delay of more than 9 years. The Labour Court has observed referring to the cross examination that there is nothing on record to suggest that the petitioner was terminated from services. It is also not on record or no document is produced by the petitioner in support of her case that upon transfer to Jafrabad, she had joined service. It is also observed that she in her deposition had stated that for joining service at Jafrabad, no written communication was made by her. Even, deposition at Exh.90, of one of the officers who was working at Jafrabad stated that he is not aware about petitioner joining duty at Jafrabad. So, these are all disputed questions of facts, which would be very difficult to ascertain, after belated period of 9 years. It is also recorded in the cross examination of the petitioner that when she went to Jafrabad to join duty, as she was not allowed to join, she left the place with her husband. No transfer order has been placed on record by the petitioner. The Labour Court categorically observed that from the year 2005 to 2014, not a single document was placed on record justifying her joining duty or not permitting her to join duty. Even the decision relied upon by the learned advocate for the petitioner has been considered by the labour court observing that the same would apply when the documents for justification of claim and delay would be available.

5. Further, in the decision relied upon, it is held that generally, if

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the documents are available, the delay caused in preferring the reference may have to be considered. In the present case, there is categorical finding that no document available to justify the claim preferred by the petitioner before the Labour Court. Moreover, though the onus lies on the petitioner to establish her case, she failed in proving her case by leading necessary evidence, therefore, I do not see any error, which needs interference of this Court.

6. In view of above, this petition lacks merits and deserves to be rejected and is rejected summarily. No order as to costs.

(MAUNA M. BHATT,J) prk