Ramesh Petappa Soma vs Soma Textile Mills And Industries Ltd
2024 Latest Caselaw 560 Guj

Gujarat High Court

Ramesh Petappa Soma vs Soma Textile Mills And Industries Ltd on 22 January, 2024

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      C/SCA/507/2021                               JUDGMENT DATED: 22/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 507 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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

2     To be referred to the Reporter or not ?                            No

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

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

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                          RAMESH PETAPPA SOMA
                                  Versus
                  SOMA TEXTILE MILLS AND INDUSTRIES LTD.
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR PRABHAKAR UPADYAY(1060) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 22/01/2024

                             ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Prabhakar Upadyay,

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learned advocate waives service of rule on behalf of respondent.

2. Considering the issue involved and with the consent of both the parties, the matter is taken up for final disposal.

3. This petition is filed seeking following reliefs:

"12(a) Your Lordship be pleased to issue writ of mandamus, or writ of certiorari or any other writ, order or direction, directing the order dated 02.01.2017 passed by the learned Industrial Court, Ahmedabad in Appeal (I.C) No.8/16 and order and award dated 21.09.2019 passed by the Industrial Court in Review Application No.1/17 are illegal, improper, arbitrary and contrary to the evidence on record and be further pleased to quash and set aside the same.

(b)Your Lordship be pleased to direct the respondent to reinstate the petitioner on his original post with continuity of service along with all consequential benefits and full backwages at least from the order passed by the learned Labour Court.

(c) Your Lordships be pleased to grant such other and

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further relief as may be deemed fit in the interest of justice."

4. Facts in brief are as under:

4.1. The petitioner is a workman working with the respondent

- Mill Company. It was case of the workman before the Labour Court that for non-grant of permanent pass, he raised dispute under the provisions of BIR Act by filing BIR Application No. 91/2011. During pendency of the said application, he came to be terminated and, therefore, dispute was raised under the provisions of Bombay Industrial Relations Act (BIR Act) by filing BIR(T)Application No.91 of 2011. Upon adjudication, the Labour Court, Ahmedabad by order dated 29.04.2016 awarded reinstatement to the workman with continuity of service, without backwages. Against the award of Labour Court, Ahmedabad dated 29.04.2016, the respondent

- Mill Company preferred an appeal under Section 84 of the BIR Act and the same came to be allowed by order dated 02.01.2017. The Labour Court by order dated 02.01.2017 in Appeal (I.C.) No.8 of 2016 quashed and set aside the order dated 20.04.2016 in Reference (T) Application No.91 of 2011.

Against the order dated 02.01.2017, in Appeal (I.C.) No.8 of 2016, the petitioner workman preferred Review Application No. 1 of 2017, which came to be rejected by order dated

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21.09.2019. Aggrieved by order dated 02.01.2017 and the order dated 21.09.2019, the present petition is filed.

5. Heard Mr. P.C. Chaudhari, learned advocate for the petitioner and Mr. Prabhakar Updayay, learned advocate for the respondent.

6. Mr. Chaudhari, learned advocate for the petitioner submitted that the order dated 02.01.2017 and the order in Review Application dated 21.09.2019 is erroneous since the evidence produced by the workman in support of his claim was ignored. Relying upon the documents produced before the Labour Court during adjudication of T Application No.91 of 2011, he submitted that the workman had produced attendance register, the receipt issued by the Union, Gate Pass and statement recorded by the police authority during the incident of fire in the Mill Company. The Labour Court has erred in observing that the document particularly, the workers gate pass, the receipt by the Union and the attendance card does not bear signature or the stamp of respondent - Mill Company. In gate pass, the shift and designation of workman is written. All the gate passes are signed and not disputed by the Mill Company. Further, the petitioner - workman was working as a weaver and therefore, the contention that he was appointed through contractor for miscellaneous work is erroneous. From

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the statement taken by police authority on the incident of fire, in Mill Company on 27.10.2010, it is evident that the workman was working as weaver in the mill Company. The workman's statement was taken pursuant to suggestion of the supervisor Shri Chintan. Therefore, the appeal order dated 02.01.2017, is erroneous.

6.1. However, since petitioner - workman is not authorised to file Review Application under the BIR Act, the order dated 21.09.2019 in Review Application No.2 of 2017 is appropriate. Since, the appeal order dated 02.01.2017 in Appeal (I.C.) No.8 of 2016 is erroneous and contrary to the evidence on record, the same deserves to be quashed and set aside. Most importantly in the cross-examination of witness of Mill Company, he had not denied statement of workman recorded during the incident of fire in the year 2010.

7. On the other hand, Mr. Upadhyay, learned advocate for the respondent - Mill Company submitted that the appeal order dated 02.01.2017 in Appeal (I.C.) No. 8 of 2016 is appropriate since admittedly the petitioner was appointed through contractor and was doing miscellaneous work. Onus is on the workman to establish his employment with respondent Mill-Company the order is appropriate. The Industrial Court has rightly observed that no documentary evidence was

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produced by the workman in relation to his employment by the respondent and therefore, the order dated 02.01.2017 is appropriate. In support, he relied upon the decision of Hon'ble Supreme Court in the case of Bhavnagar Municipal Corporation Etc. vs. Jadeja Govubha Chhanubha reported in 2014(16) SCC 130. He submitted that the Labour Court in the order dated 29.04.2016 has erroneously considered the documents which were not containing stamp and signature of the respondent Mill Company. Admittedly, none of the document which has been produced by the workman bares the stamp and signature of the Mill Company and, therefore, there is no authenticity of the said document. The documents that is the receipt given by the Union to a workman is of no consequences because the same has been issued since the petitioner workman is member of that Union. He, therefore, submitted that the order dated 02.01.2017 is appropriate and no interference is called for.

8. Considered the submissions and the decision relied upon. Undisputedly, the petitioner workman raised a dispute for non- grant of permanent pass and during pendency of the said dispute his services came to be terminated for which he raised a dispute, registered as T. Application No.91 of 2011 before the Labour Court, Ahmedabad. The Labour Court, Ahmedabad after taking into consideration the evidence on record and on

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the fact that the respondent Mill-Company failed to produce any documents in support of contractual appointment, allowed the application in part and awarded reinstatement with continuity of service without backwages. The award was passed on 29.04.2016. In the Appeal (I.C.) No. 8 of 2016, challenging award dated 29.04.2016, the Industrial Court allowed the appeal and quashed and set aside the order dated 20.04.2016. The Industrial Court discarded the evidence led by the petitioner - workman that they were not signed by the respondent and therefore, it cannot be believed that the workman was employee of respondent. The Industrial Court observed that no documentary evidence was produced by the workman to establish that he was working with Mill Company and, therefore, the contention of the respondent that he was an employee of the contractor was believed by the Industrial Court and the appeal was allowed.

9. In the opinion of this Court there were several evidence produced by the workman wherein along with the receipt given by the Union there are documents in the nature of workers gate pass where name of the workman has been written. All the gate pass are signed by the Head of the Department, however, the name of the respondent - Mill Company is not stated. In the cross-examination, it was not denied that they were not signed by the Head of the

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Department of the Mill Company. Further, the attendance card also reflects the name of the workman and all the attendance card are signed. The wage register was also produced. Most importantly, the document, in nature of public document is the statement recorded by the police authority dated 27.10.2010. The said statement was recorded on account of incident of fire took place in the weaving department of the Mill Company. In the statement, it is recorded that the workman was present along with other co-workers and at that time, the fire took place. It also refers that upon fire the incident was informed to supervisor Shri Chintan and the statement of the workman has been taken upon instruction of Shri Chintan. Further, it cannot be ignored that in the cross-examination of witness of Mill Company, this incident was not denied. No documents was produced by Mill Company to establish that workman was working under the contractor. The workman in cross- examination had stated that he was not getting attendance pass, Hajri card, pay slip, and other documents. Reliance placed of P.F. slip of subsequent period, in the opinion of this Court, is of no consequences because it would be relevant for gainful employment of workman.

10. In view of the above facts and reasons, particularly, the non- consideration of the document produced by the petitioner workman, following order is passed,

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(i) The order of Industrial Court dated 02.01.2017 is quashed and set aside.

(ii) The Industrial Court is directed to consider the evidences a fresh produced by the workman and to pass appropriate orders in accordance with law.

(iii) It is open for both the parties to raise their contentions in accordance with law.

(iv) This Court has not gone into the merits of the matter and it is open for the Industrial Court to pass appropriate orders in accordance with law preferably within the period of three months. It is expected that both the parties shall cooperate with the proceedings.

11. With the above directions, the petition stands disposed of. Rule is made absolute to the aforesaid extent.

(MAUNA M. BHATT,J) NAIR SMITA V.