Gujarat High Court
Darshan Vrajlal Kotecha vs Labour Court, Rajkot on 23 June, 2025
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14161 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 14017 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
==========================================================
DARSHAN VRAJLAL KOTECHA
Versus
LABOUR COURT, RAJKOT & ANR.
==========================================================
Appearance:
MS NIYATI M BHATT(6200) for the Petitioner(s) No. 1
MR.VARUN K.PATEL(3802) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 23/06/2025
ORAL JUDGMENT
ORDER IN SPECIAL CIVIL APPLICATION NO.14161 OF
1. Rule returnable forthwith. Learned advocate Mr.Varun
Patel waives service of rule on behalf of the respondent.
2. Since the issue raised in the these petitions are similar,
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
they are being decided by a common judgment. Facts of
Special Civil Application No.14161 of 2022 is taken for
consideration of the disposal of these petitions.
3. This petition is filed under Article 226 and 227 of the
Constitution of India challenging the order dated
16.12.2021 passed in Miscellaneous Application No.12
of 2019 in Reference (L.C.R.) No.72 of 2018 by the
learned Presiding Officer, labour court, Rajkot allowing
the restoration application under Rule 26 A of the
Industrial Disputes (Gujarat) Rule, 1966 and restoration
of the reference being Reference No.72 of 2018 to its
original file.
4. It is the case of the present petitioner that the petitioner
was appointed on the post of Area Sales Manager with
respondent No.2 Company vide appointment letter
dated 15.03.2018 and the petitioner has joined
respondent No.2 Company on 09.04.2018. At the time of
appointment, petitioner was made to understand that he
has to travel around 70 to 80 kms. for the business of
the respondent Company and to provide financial
facility to the farmers. Petitioner was informed that in
addition to the above traveling, petitioner has to handle
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
two districts namely Morbi and Jamnagar without any
remuneration. Petitioner is living with his bed ridden
father who is a stroke patient and ailing mother at
Rajkot. Because of that family background petitioner
had requested the respondent Company to assign the
work as per the terms of appointment, however, instead
of doing so, the Company had started harassing and
discriminating the petitioner by stopping his monthly
expense reimbursement and giving different treatment
in comparison to other employees. Petitioner had
completed the probation period on 08.10.2018,
however, has not received any confirmation from
respondent. On inquiring, the termination order was
passed on completion of six months and nine days
service with effect from 17.10.2018 by delivering back
dated letter dated 11.10.2018. Challenging the said
termination, the dispute was raised before the learned
labour court which culminated into the reference being
Reference (L.C.R.) No.72 of 2018 and the reference was
awarded ex-parte in favour of the petitioner by directing
the respondent employer to reinstate the petitioner on
14.11.2019 directing 20% back wages with relief of
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
reinstatement. Respondent has filed an application
under Rule 26 A of the Industrial Disputes (Gujarat)
Rules praying to set aside the ex-parte award and to
restore the reference. Learned labour court vide order
dated 16.12.2021 has allowed the said application and
restored the original reference and awarded cost of
Rs.10,000/- which is subject matter of challenge before
this Court.
5. Heard learned advocate Ms.Niyati Bhatt for the
petitioner and Mr.Varun Patel for the respondent.
6. Learned advocate Ms.Bhatt submits that with a view to
harass the petitioner, the order of termination was
passed, as the petitioner had declined to travel 240 kms
as the same is dehorse the appointment order. Learned
advocate Ms.Bhatt submits that ample opportunities
have been granted to the respondent No.2 on
16.03.2019, 23.05.2019 and 10.06.2019, to cross-
examine the petitioner and opportunity was granted to
lead the evidence to respondent No.2 on 18.06.2019 and
04.07.2019, however, the respondent failed in availing
the said opportunities. Learned advocate Ms.Bhatt
submits that though summons were duly served,
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
respondent No.2 had shown his reluctance in remaining
present before the Court, therefore, right to cross-
examination as well as right to furnish the evidence
were closed. Learned advocate Ms.Bhatt submits that
though the respondent was aware with regard to order
of closing the stage of cross-examination and to lead the
evidence, the respondent did not challenge the same,
neither filed any application to open the stage. It is
submitted by the learned advocate Ms.Bhatt that due to
non cooperation in conducting the full fledged trial,
learned labour court has awarded the reference in
favour of the petitioner. Learned advocate Ms.Bhatt
submits that on 11.03.2019, the application below
Exh.17 was moved for adjournment to a specific date for
cross-examination of the petitioner which was granted,
however, respondent failed in cross-examining the
petitioner. Learned advocate Ms.Bhatt submits that
thereafter, application below Exh.19 was filed to reopen
the stage which is granted by the learned labour court
by imposing the cost to be paid to the Government
within a period of 15 days and by imposing condition to
cross-examine the petitioner on the same day as the
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
petitioner was presented before the court. Though
petitioner has made an endorsement of seen on the
order subsequently the application below Exh.21 was
moved on 16.03.2019 to decide preliminary issue with
regard to the maintainability of the reference. Learned
labour court has dismissed the said application on
23.05.2019 by imposing a cost to the Government within
a period of 15 days and has observed that respondent
No.2 is non cooperative in conducting the case and not
cross-examining the petitioner, though opportunity was
given. Learned advocate Ms.Bhatt submits that on
23.05.2019, another application below Exh.31 was
moved seeking adjournment to challenge the order
passed below Exh.22 wherein, the learned labour court
has ordered the petitioner to cross-examine the
respondent. Thereafter, another application below
Exh.34 was filed on 10.06.2019 to reopen the right to
cross examine the petitioner which was rejected by
observing the conduct of the respondent, that multiple
opportunity given on 16.03.2019, 23.05.2019 and
10.06.2019, has not been exercised. Thereafter, on
10.06.2019, application was given seeking adjournment
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
for specific date of 18.06.2019 for leading evidence of
the respondent which was granted by the learned
labour court, however, respondent did not present the
evidence and again the adjournment was given on
04.07.2019 to furnish the evidence but even on that day
the respondent had not produced any evidence.
6.1. Learned advocate Ms.Bhatt submits that though
opportunities were given to furnish the evidence, but
the respondent did not avail that opportunity and did
not adduce any evidence to negate the claim of the
present petitioner. Learned advocate Ms.Bhatt submits
that after considering the issue of maintainability and
considering the oral arguments advanced by the learned
advocate for the respondent, the reference was awarded
in favour of the present petitioner. Learned advocate
Ms.Bhatt submits that after the award was passed on
14.11.2019, petitioner has informed through e-mail on
02.12.2019 regarding compliance of the orders and
instead of complying with the order passed by the
learned reference court, the application under Rule 26 A
of the Industrial Disputes (Gujarat) Rules, 1966 is filed
seeking restoration of the main reference. Learned
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
advocate Ms.Bhatt submits that learned court has
committed grave error in allowing the application
without considering the fact that though the application
was moved below Exh.34 on 10.06.2019 to reopen the
right of cross-examination of the petitioner and though
the permission was granted by the learned court on
condition to deposit the cost of Rs.5000/-, neither the
cross-examination was conducted nor the payment of
the cost was made. Learned advocate Ms.Bhatt submits
that, learned court, without calling for any cogent and
sufficient reasons has allowed the application only on
the ground that, if no opportunity would be granted to
respondent No.2, then there will be multiplications of
the proceedings and delay, however, the learned court
has not considered that though ample opportunities
were granted to prove the case of respondent no.2, in
absence of availing the said opportunities without any
justification, no relief can be granted in favour of the
respondent. Learned advocate Ms.Bhatt submits that
learned court below, while allowing Miscellaneous
Application for restoration overlooked the aspect that
the termination was held on 17.10.2018 and because of
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
unemployment, all the savings as well as provident
funds has been utilized by the present petitioner in the
legal proceedings and petitioner could reap the fruits of
the award, though succeeded in the year 2018. In that
background learned advocate Ms.Bhatt submits that the
impugned order allowing the application requires to be
interfered with and the award passed in the reference
being Reference (L.C.R.) No. No.72 of 2018 is required
to be restored.
7. Per contra, learned advocate Mr.Varun Patel appearing
for the respondent submits that the petitioner having
the income more than Rs.6,00,000/- has availed the
facility of legal aid committee and though stage of the
cross-examination of petitioner was closed, the learned
court without issuing notice thereafter, has heard the
matter finally. Learned advocate Mr.Patel submits that
while allowing the reference in favour of the
respondent, learned labour court has not examined the
requisite criteria of section 2(s) of the ID Act and
therefore, also the impugned order does not require any
interference. Learned advocate Mr.Patel submits that
establishment has already been closed and the license
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
has been surrendered on 19.06.2023, therefore, also
sufficient opportunity is required to be given in favour
of the present petitioner. Learned advocate Mr.Patel
submits that amount of cost though sent to the present
petitioner by way of demand draft, however, it was not
accepted by the present petitioner and the demand draft
was returned which is deposited before the learned
reference court. Learned advocate Mr.Patel has relied
on the decision rendered by this Court in Special Civil
Application No.20163 of 2023 in Special Civil
Application No.5437 of 2018 and in Letters Patent
Appeal No.654 of 2023 as well as the decision rendered
by the Apex Court in Rafiq & Anr. Munshilal & Anr.
reported in 1981 2 SCC 788 and had submitted that
the contesting party should not suffer for the lapse on
the part of their counsel. In view of the above
submissions, learned advocate Mr.Patel has requested
not to interfere with the impugned decision and to
dismiss the petition.
8. Having considered the arguments advanced by the
learned advocate, it emerges that, the reference was
filed on 26.12.2018 seeking reinstatement with all
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
benefits and declaration of the illegal termination dated
17.10.2018. In the said reference, the contention was
raised in the written statement by the present
respondent that the petitioner was working as an Area
Sales Manager and a Salesman and therefore, he does
not fall under the definition of section 2(s) of the ID Act.
It is further contended that the annual package of the
petitioner was more than Rs.4,00,000/-, therefore, also
the requirement of section 2(s) of the ID Act does not
fulfill by the present petitioner. Learned labour court,
while allowing the reference in favour of the present
petitioner has examined the oral evidence below Exh.16
adduced by the present petitioner wherein, the
petitioner had stated on oath that no other employees
are working under the present petitioner, neither the
petitioner was having any authority to sanction the
leave, to terminate the employees, to issue any warning
letters etc. His work during the course of the
examination in chief has stated that he was completing
the loan formalities by visiting the farmers at their
house and therefore, he falls under the definition of
section 2(s) of the ID Act. It is also contended by the
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
petitioner that, after termination of his service, juniors
to the petitioner namely Prakash Chauhan, Darshan
Pandya and Bhavik Bhatt were continued and therefore,
breach of provision of section 25(G) as well as 25(H) of
the ID Act was alleged. On completion of examination in
chief on 11.03.2018, the reference was differed for
cross-examination of the present petitioner on
16.03.2019, 23.05.2019, 10.06.2019 and thereafter, on
18.06.2019 the application below Exh.69 was given. The
chief examination concluded on 11.03.2019 and
thereafter, matter was kept on 16.03.2019 for cross-
examination of the petitioner. On 16.03.2019, the
application was filed by the present respondent to
decide the preliminary issue with regard to deciding the
fulfillment of the criteria under section 2(s) of the ID
Act. The application is also filed that unless and until
the the preliminary objection is decided, the petitioner
would not be cross-examined by the respondent and
therefore, adjournment was sought which was rejected
by the learned court on 16.03.2019. The preliminary
objection application was also rejected by the learned
court on 23.05.2019 and thereafter, application was
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
filed that the respondent wants to approach before the
High Court, challenging the said order adjournment was
sought, however, stage of the cross-examination was
closed therefore, application below Exh.34 was filed to
reopen the stage of cross-examination which came to be
allowed by the learned court on condition to deposit the
cost of Rs.5000/- on 10.06.2019. On 10.06.2019, learned
advocate has filed an application that they cannot file an
undertaking on behalf of the respondent to deposit the
cost, therefore, cross-examination be permitted without
filing undertaking or without depositing the amount of
the cost. Thereafter, the reference was transferred to
learned labour court No.2 to learned labour court No.1
on 15.10.2019. The learned labour court, considering
the arguments of the present petitioner and the
arguments of the respondent advocate has allowed the
reference by granting the relief of reinstatement with
20% back wages on 14.11.2019. Simultaneously the
recovery application was filed being recovery
application No.27 of 2019 for reimbursement of the
expenses and for bonus amount which was also allowed
in favour of the petitioner which is also subject matter
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
of challenge in Special Civil Application No.14017 of
2022.
9. Considering the totality of the facts, in the opinion of
this Court, the reference is required to be reconsidered
by the learned labour court, as the prima facie
grievance of the employer is that employee is not a
workman, there is no master and servant relationship
and the establishment has been closed. In addition to
that, as workman did not complete 240 days as
admittedly the tenure of service is six months, that also
on probation, therefore, no interference is required in
the impugned order. However, as the petitioner has
incurred expenses for the litigation, while allowing the
restoration application, the cost os Rs.25,000/- is
required to be imposed in addition to the cost imposed
by the learned labour court.
10. Respondent is directed to deposit the cost of Rs.25,000/-
before the learned labour court, Rajkot which shall be
disbursed in favour of the petitioner after due
verification.
11. Resultantly this petitions is dismissed accordingly.
Learned court shall consider the reference in
NEUTRAL CITATION
C/SCA/14161/2022 JUDGMENT DATED: 23/06/2025
undefined
accordance with law, without being prejudiced by the
observation made herein above.
ORDER IN SPECIAL CIVIL APPLICATION NO.14017 OF
In view of the order passed by this Court in Special Civil
Application No. 14161 of 2022, Special Civil Application No.
14017 of 2022 is also dismissed accordingly.
(M. K. THAKKER,J)
NIVYA A. NAIR
