Gujarat High Court
Falgun Mohanbhai Kankiya vs Central Investigation And Security Pvt ... on 28 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12586 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 1750 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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FALGUN MOHANBHAI KANKIYA
Versus
CENTRAL INVESTIGATION AND SECURITY PVT LTD & ORS.
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Appearance:
MR ADITYA P MISTRI(11315) for the Petitioner(s) No. 1
MR PS GOGIA(2751) for the Respondent(s) No. 2
MRS YOGINI V PARIKH(2163) for the Respondent(s) No. 1
MS NOOPUR V PARIKH(11248) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 28/02/2025
ORAL JUDGMENT
1. Rule returnable forthwith in both petitions. Learned
advocate Ms.Yogini Parikh waives service of Rule on
behalf of respondent no.1 and learned advocate
Mr.P.S.Gogia for respondent no.2 in SCA No.12586 of
2017 and Learned advocate Mr.Aditya Mistry waives
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service of Rule on behalf of respondent no.1 and learned
advocate Mr.P.S.Gogia for respondent no.2 in SCA
No.1750 of 2023.
2. With the consent of the parties, the matter was heard
finally
3. Both the petitions are filed challenging the award passed
by the learned Presiding Officer learned Labour Court,
Porbandar dated 06.02.2017 by which the workman was
granted the lump sum compensation of Rs.21,000/- in
lieu of reinstatement and back wages which was
directed to be paid by the Contractor B.Panikar, who is
the petitioner in SCA No.1750 of 2023.
4. The case of the workman as mentioned in the statement
of claim is that workman was working since 24.04.1992
as a clerk with respondent no.2 i.e Saurashtra Cement
Ltd, Ranavav. Without following due procedure under
the I.D.Act and service came to be terminated from
01.05.1999 and therefore, dispute was raised before the
learned Labour Court. The contractor namely B.Panikar
appeared before the learned Labour Court and
submitted that no termination, as alleged by the
workman, had ever taken place however, the workman
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used to remain on unauthorized leave and though, he
was informed to resume the duty vide communication
dated 18.12.1999 and instead of resuming the duty the
dispute was raised before the Conciliation Officer also
the work was offered vide communication dated
01.04.2000 and it was informed that as there is no work
available for respondent no.2 at Ranavav he shall
resume duty at Baroda office or at Surat office.
4.1. It is contended in the written statement that workman
has abandoned the work and therefore, there is no
breach of section 25F as alleged and as workman was
working under the Contractor B.Panikar it is his duty to
resume the work as and when the work is offered and at
the place where work is available. Learned Labour
Court, after recording the oral evidence of the witness of
both the parties and considering the documentary
evidence, has come to the conclusion that there was no
notice, inquiry or any disciplinary proceedings initiated
for taking unauthorised leave and therefore, there is
breach of section 25F. Considering the conduct of the
workman, that despite he was informed to resume the
duty he did not remain present, the lump sump
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compensation of Rs. 21,000/- was awarded. The
workman has filed petition being SCA No.12586 of 2017
seeking enhancement of compensation however, the
Contractor has filed the petition being SCA No. 1750 of
2023 seeking quashment of impugned award. During the
pendency of the petition, this Court, vide order dated
05.01.2024, has directed the Contractor to pay amount
of Rs.21,000/- which has been awarded to the workman
which was paid by the contractor.
5. Heard learned advocate Mr.Aditya Mistry for the
workman and learned advocate Ms.Yogini Parikh for the
Contractor namely B.Panikar and learned advocate
Mr.Gogia for Saurashtra Cement Ltd, Ranavav.
5.1. Learned advocate Mr.Aditya Mistry submits that
learned Labour Court has committed error in
disbelieving the case of the present workman that he
was working since 1992. Learned advocate Mr.Aditya
Mistry submits that documentary evidence to establish
that he has worked since 1992 was disbelieved by the
learned Labour Court. Learned advocate Mr.Aditya
Mistry relied on the communication dated 03.12.1993
which was produced below Exh.22 wherein, it was
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informed to one M/s Agrawal Printers that draft of
Rs.27,000/- was sent with Mr.Falgun Kanakia who is the
workman. Relying on the said communication, it was
submitted that this evidence suggests that respondent
was an employee since 1992 onwards as claimed
however, learned Labour Court has relied on the cross
examination of the workman wherein, he had admitted
that prior to 1994 for seven years he worked with
advocate Mr.Lakhani and he has been paid wages of
Rs.1,200/-. Learned advocate Mr.Aditya Mistry submits
that infact respondent no.1 has also admitted that
workman has worked from 24.04.1992 to 01.05.1999.
Learned advocate Mr.Aditya Mistry submits that undue
weightage was given on the admission of the present
wokrman during the cross-examination and the learned
Labour Court has considered the work of the workman
from 1994 onwards. Learned advocate Mr.Aditya Mistry
submits that even if 1994 onwards work is considered
then also it transpires that workman has worked for five
years however, meagre amount of Rs.21,000/- was
awarded towards lump sum compensation. Learned
advocate Mr.Aditya Mistry submits that as he was
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working with the respondent no.2 at Ranavav he has
shown unwillingness to work at different place. Learned
advocate Mr.Aditya Mistry submits that on the decision
rendered by the Apex Court in the case of Deepali
Gundu Surwase versus Kranti Junior Adhyapak
Mahavidyalaya (D.ED) and Others reported in 2013
10 SCC 324 and submitted that as per the ratio laid
down by the Apex Court, when the management choses
to reinstate any of the workman such reinstatement can
only be at the place of the concerned workman of his
original employment. Learned advocate Mr.Aditya
Mistry submits that as the work was offered at different
place therefore, the workers would have the right to
deny the work and for that reason also the impugned
award deserves to be set aside.
5.2. Learned advocate Mr.Aditya Mistry submits that as
per the admission of the Contractor, made in written
statement that there is master and servant relation
between the workman and the Contractor and therefore,
the learned Labour Court has rightly held that reference
against respondent no.2 i.e Contractor whereby,
directions were issued to pay lump sum compensation of
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Rs.21,000/-. Learned advocate Mr.Aditya Mistry submits
that as there was no infirmity in the impugned order qua
the directions issued to the respondent Contractor
therefore, petition filed by the Contractor being SCA No.
1750 of 2023 deserves to be dismissed and petition filed
by the workman being SCA No. 12586 of 2017 requires
to be allowed.
6. Per contra, learned advocate Ms.Yogini Parikh for the
Contractor submitted that in the statement of claim, no
averments were made that who has terminated the
service of the petitioner. Learned advocate Ms.Yogini
Parikh submits that as respondent was continuously
remaining absent therefore, he was informed to resume
the duty vide communication dated 18.12.1999. Learned
advocate Ms.Yogini Parikh has referred the
communication dated 15.03.2000 and submitted that
before the Assistant Labour Commissioner also the work
was offered and the workman was informed to resume
the duty from 01.04.2000 at Surat. Learned advocate
Ms.Yogini Parikh submits that even during the pendency
of the petition before this Court also work was offered.
However, respondent has denied the same and
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submitted that as he has reached the age of 50 years
therefore, he is not ready to resume the duty. Learned
advocate Ms.Yogini Parikh submits that conduct and the
behaviour of the petitioner shows that he is not
interested in the work and there is no retrenchment, as
alleged by the workman and therefore, the impugned
award directing the workman to pay lump sum
compensation deserves to be quashed and petition being
SCA No. 1750 of 2023 requires to be allowed.
6.1. Learned advocate Ms.Yogini Parikh submits that
during the cross-examiantion of the workman, he has
stated that against the communication to resume the
duty at Surat he cannot produce any communication to
show that he has shown willingness to resume duty.
Learned advocate Ms.Yogini Parikh submits that during
the cross-examination it is admitted that he did not
apply for any other job except with the respondent no.2
which suggests that he is interested to work with
respondent no.2 i.e Saurashtra Cement Ltd. at Ranavav.
Learned advocate Ms.Yogini Parikh submits that as
there is no work available with respondent no.2 at
Ranavav therefore, offer was given to work at different
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place. Learned advocate Ms.Yogini Parikh further
submits that employer being a Contractor and the
workman being a contractual employee is bound to
resume duty wherever the Contractor offers work
however, in denying the same, no relief can be granted
to the petitioner and therefore, petition filed by the
workman being SCA No.12586 of 2017 is required to be
dismissed.
7. Considering the submissions made by the learned
advocate for the parties and the evidence adduced
suggests that the workman was employee of the
Contractor and the Contractor i.e B.Panicher was used
to pay wages to the workman. As per the admission
made by the Contractor in paragraph 6 of the written
statement, the Contractor was having control and
supervsion over the work of the workman. The workman
has claimed that he was working since 1992. This Court
has referred the cross-examination of the workman
wherein, he admits that prior to 1994 for seven yearshe
worked with advocate Mr.Lakhani and was getting the
wages of Rs.1200/-. Reliance which was placed by the
workman of the communication dated 03.12.1993 if one
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would perused then it reveals that one draft was sent
with workman which to be delivered to one M/s Agarwal
Painters. The communication itself would not be
conclusive evidence to show that workman was an
employee before 03.12.1993, more particularly, when
workman himself has admitted in his cross-examination
that he was working prior to 1994 somewhere else. As it
was assertion of the workman that he worked since 1992
onwards it is duty cast on him to prove the same. In
absence of any other communication which clearly
suggests the work which was done by the petitioner
from 1992 onwards the learned reference court has
rightly concluded that petitioner has not worked as
alleged from 1992 but has worked from 1994.
7.1. As it is established that petitioner was working for
respondent no.2 the next question arising for
consideration is that whether any termination, as
alleged, by the Contractor has ever taken place. This
Court has perused the communcation dated 18.12.1999
wherein the Contractor has informed to the workman
that "as per our records you are absent in yourself
without leave. You are requested to report to this office
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on or before 29.12.1999 to enable us to protect job" as
against the aforesaid communication, workman has
informed to the Contractor on 28.12.1999 that he did
not remain absent without leave and he resumed the
duty at 8-o-clock and if he would not be permitted to
resume duty at Porbandar then he would take legal
action against the Contractor. This communication
suggests that some proceeding has been initiated under
the I.D.Act. Thereafter, another communication was
produced by the Contractor below Exh.21 informing to
resume duty at Surat as there is no requirement at
Saurashtra Cement Ltd, Ranavav. He was also given an
option to resume duty at Baroda office however,
thereafter, he did not resume duty neither any evidence
was adduced that he went to resume duty but was not
permitted.
7.2. In addition to that, during the pendency of the
proceedings before the Conciliation Officer he was
offered to resume the duty however, he insisted to
resume the duty at Saurashtra Cement Ltd., Ranavav
who is respondent no.2 as per the admission made by
the workman during the cross-examination. As the
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workman was working under the Contractor, the
Contractor would have right to ask the workman to do
work at available place. The workman would not have
any right for resistence of doing work at a particular
place. Even during the pendency of the petition, the
work was offered by the Contractor however, learned
advocate for the workman has submitted that as he
reached to the age of 50 years therefore, he is not
interested to do any work. The act and conduct of the
workman suggests that he is only having the interest in
compensation and not in the work. So far as the
retrenchment is concerned, this Court is of the view that
workman fails to establish that he was terminated from
the service, as per the communication dated 18.12.1999
workman himself has abandoned work and thereafter,
did not resume the duty despite work was offered. In the
opinion of this Court if the workman is not ready to do
work, he would not be entitled to any relief as claimed in
the petition.
7.3. It transpires that the offer of reinstatement to the
workman was not accepted and in that scenario he is not
entitled to any relief or any back wages. This conduct of
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the workman supports the version of the employer that
the workman has abandoned the work and never
reported back to his duty and it was clearly not a case of
termination by the employer. Whenever an employer
offers to reinstate the workman at any stage of the
dispute or proceeding and if the workman does not
accept the offer, even without prejudice to his rights and
contentions, he will not be entitled to continue his claim
for reinstatement in the proceedings and he will also be
not entitled to claim any back wages from the date of
such offer, conditional or unconditional. The workman
must first accept the offer of such reinstatetment in
employment and thereafter continue to contest for the
relief of back wages, if any. In the instant case, the
employer has made offer of employment to the workman
but it was not accepted by the workman and in that
background, this Court is of the considerable opinion
that the workman is not entitled to get any relief or back
wages at all.
8. In view thereof, the petition being SCA No. 12586 of
2017 filed by the workman is dismissed. Rule is
discharged. The petition being SCA No.1750 of 2023
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filed by the Contractor is hereby allowed Rule made
absolute.
8.1. The impugned award passed by the learned Presiding
Officer learned Labour Court, Porbandar dated
06.02.2017 directing to pay lump sum compensation of
Rs.21,000/- is also set aside. The amount paid to the
workman pursuant to the order dated 05.01.2024 is
directed to be returned to the Contractor within a period
of 4 weeks from the date of receipt of this order.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
