Gujarat High Court
Hemavati Silk Industries vs Lhs Of Manjuben Gopalbhai Rathod on 1 April, 2025
NEUTRAL CITATION
C/SCA/9684/2024 JUDGMENT DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9684 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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HEMAVATI SILK INDUSTRIES
Versus
LHS OF MANJUBEN GOPALBHAI RATHOD & ORS.
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Appearance:
NIYATI D CHAUHAN(9082) for the Petitioner(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5,1.6
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/04/2025
ORAL JUDGMENT
1. This petition is filed under Article 226 and 227 of the
Constitution of India and under section 84 of the
Bombay Industrial Relations Act, 1946(hereinafter
referred to as the "BIR Act"), challenging the order
passed by the Industrial Tribunal, Surat in appeal 14 of
2016 confirming the order passed by the learned labour
court, Surat in T Application no.113 of 2002 whereby,
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the petitioner was ordered to reinstate the deceased
workman with 50% back wages alongwith cost of
Rs.2500/-. It is required to be noted herein that during
the pendency of the appeal before the industrial
Tribunal, the workman died therefore, the present
respondents were brought on record being legal heirs
and representative of the respondent.
2. It is the case of the present petitioner that the reference
was filed by the deceased workman alleging that she
was working with the petitioner establishment since
01.01.1993, she was getting monthly wages of Rs.1560/-,
her presence was noted in the card and she was also
paid leave encashment of Rs.480/- yearly. On demanding
the Identity Card, muster roll, leave encashment card
and casual leave, her services were terminated from
25.08.2001. As the BIR Act is applicable, therefore,
approach letter was sent on 30.01.2010 to the petitioner
establishment requesting to revoke the termination
order and to reinstate the workman. As the petitioner
had not paid any heed to the approach letter therefore,
reference came to be filed which was registered as T
Application No.113 of 2002.
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2.1. Learned Labour Court, on considering the evidence
adduced by the respective parties, more particularly the
cross-examination of the witnesses, awarded the
reference in favour of the respondent vide award dated
14.12.2015. The said award was challenged before the
learned Industrial Tribunal under section 84 of the BIR
Act wherein, the learned Tribunal dismissed the appeal
and confirmed the award passed by the learned labour
court, which is subject matter of challenge before this
Court.
3. Heard learned advocate Ms.Niyati Chauhan for the
petitioner and learned advocate Mr.U.T.Mishra for the
respondent.
4. Learned advocate Ms.Chauhan submits that the
respondent workman was never terminated from the
service, however, she abandoned herself from doing the
work. Learned advocate Ms.Chauhan submits that the
present respondent was habitual of remaining absent
and on various occasions, she remained absent from her
duties. Learned advocate Ms.Chauhan submits that
during the cross-examination of the witness namely
workman, it is admitted that she does not recollect that
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since when did she started working with the petitioner
and for how many days she continued with the work. It
is also admitted by the workman that during the
pendency of the reference she was gainfully employed in
other establishment wherein, she was doing
miscellaneous work. Learned advocate Ms.Chauhan
submits that learned labour court has committed error
in drawing the adverse inference for not producing the
documentary evidence, as the duty is on the workman to
prove his case and the onus cannot be shifted on the
present petitioner.
4.1. It is submitted by the learned advocate Ms.Chauhan
that the reference proceedings were also delayed
because the ten years time was taken by the respondent
for cross examining the appellant witness. However,
without considering any of the submissions made by the
present petitioner, learned reference court has awarded
50% back wages with the relief of reinstatement which
was confirmed by the learned Industrial Tribunal.
Therefore, the same is required to be interfered with
and petition deserves to be allowed.
5. On the other hand, learned advocate Mr.Mishra submits
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that the respondent has filed the application below
Exh.21 for production of documentary evidence which
was though ordered in favour of the respondent,
petitioner has not complied with the said order and no
evidence was produced before the learned labour court.
It is contended by the learned advocate Mr.Mishra that
the sole ground of the petitioner establishment that she
herself has abandoned the work, appears to be
concocted as from the proceedings of the learned labour
court it appears that neither any notice was issued
calling upon the present respondent for work, nor any
inquiry was initiated for the so called habitual
absenteeism. Learned advocate Mr.Mishra submits that
after serving for more than eight years, the petitioner
has terminated the service of the respondent without
following due procedure under the Act, therefore,
learned reference court is justifying in passing the
impugned order, granting 50% back wages with the
relief of reinstatement, therefore, no interference is
required.
6. Considering the submissions made by the learned
advocate for respective parties and the reasons assigned
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by both the Authorities, it emerges that claim was made
by the respondent that she was serving with the
petitioner establishment since 01.01.1993 and was
getting monthly wages of Rs.1560/-. As per the claim of
the respondent, the services of the respondent was
terminated from 25.08.2001, however, as per the say of
the petitioner, the respondent herself has abandoned the
service.
6.1. The respondent has produced the approach letter
dated 30.01.2002 and has also cross-examined the
witness of the petitioner establishment who admitted in
his cross-examination that respondent was serving for
ten hours daily and was paid wages on making signature
on the salary slip. It is stated by the witness that he
would produce the salary register and muster roll for the
period of 1999-2001. He also admits that for the habitual
absenteeism, neither any notices were issued, nor any
departmental proceedings were initiated. In addition to
the above cross-examination, application was filed below
Exh.21 praying for issuance of the directions to produce
the muster roll and salary register for the period of
1999-2001 as stated by the witness. However, though
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the witness was directed to produce the said documents
during the cross-examination, no documents were
produced. Explanation was given that as the house
situated at Rustampura collapsed on 20.01.2005, he
does not possess any documents. However, fact remains
that no notice was issued asking the respondent to
remain present or to show cause for absenteeism.
6.2. Learned reference court, after considering the
evidence, assigned cogent reasons, granting the benefits
of reinstatement with 50% back wages. However, during
the pendency of the appeal, respondent died. Therefore,
this Court is of the view that if lump sum compensation
of Rs.3,50,000/- is awarded towards the full and final
settlement of the award, then ends of justice would
serve.
7. As this Court did not find any infirmity in the impugned
order passed by the learned labour court as well as by
the Appellate Court and considering the length of
service which is more than eight years, the petitioner is
directed to pay the amount of Rs.3,50,000/- towards the
lump sum compensation in lieu of the reinstatement as
well as back wages towards the full and final settlement.
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8. The amount shall be paid by the petitioner to the
respondent within a period of eight weeks from the date
of receipt of the order.
9. Resultantly, this petition is disposed of accordingly.
(M. K. THAKKER,J)
NIVYA A. NAIR
