Gujarat High Court
Amulfed Dairy (Formerly Known As Mother ... vs Dilipbhai Ramanbhai Barot on 6 May, 2025
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11433 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
✔
==========================================================
AMULFED DAIRY (FORMERLY KNOWN AS MOTHER DAIRY)
Versus
DILIPBHAI RAMANBHAI BAROT
==========================================================
Appearance:
GANDHI LAW ASSOCIATES(12275) for the Petitioner(s) No. 1
MR BHARAT SHAH(3345) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 06/05/2025
ORAL JUDGMENT
1. This petition is filed under Article 226 and 227 of the
Constitution of India challenging the award passed by
the learned reference court in (LCA) No.46 of 2010
dated 08.02.2024 whereby, the learned reference court
has partly allowed the reference filed by the respondent
workman and directed the petitioner to pay the lump
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
sum compensation of Rs.2,00,000/- in lieu of
reinstatement and back wages within a period of 60 days
from the date of award, or the petitioner was directed to
pay the said amount with interest at the rate of 9%.
2. The gist of the case is that the petitioner is running the
Dairy and manufacturing and marketing milk and other
Dairy products. The respondent has entered with the
petitioner employer as a Trainee on 10.12.1994 and
thereafter, he was confirmed on the post of Senior
Assistant on 15.02.1995 and he was promoted in the
Dispatch Department as a Junior Officer on 01.12.2007.
It is the case of the present petitioner is that the
reference came to be filed before the learned reference
court, alleging that the services of the respondent was
put an end to on 29.12.2008 without any reasons and
without following the due procedure under the Industrial
Disputes Act, 1947 (hereinafter referred to as the "ID
Act"). The present petitioner appeared before the
learned reference court and raised the contentions that
the respondent would not fall under the definition of
workman and therefore, learned labour court would not
have jurisdiction to adjudicate the claim of the
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
respondent. It is contended by the present petitioner
that the respondent used to watch prohibited movies in
his working hours and therefore, he was asked to give
an apology with an assurance that the said act would not
be repeated in future, however, instead of doing so, the
respondent went on leave on 29.12.2008 and 30.12.2008
and thereafter, resumed for half day on 31.12.2008 and
again went on leave. It is contended by the petitioner
that the respondent was never terminated as alleged
from 29.12.2008 therefore, there is no question of illegal
retrenchment as alleged by the respondent. Learned
reference court, after considering the evidence adduced
has awarded the reference in favour of the respondent
by granting lump sum compensation of Rs.2,00,000/-
which is subject matter of challenge before this Court.
3. Heard learned advocate Mr.Gandhi for the petitioner
and learned advocate Mr.Shah for the respondent.
4. Learned advocate Mr.Gandhi submits that during the
cross-examination of the workman, he himself has
admitted the fact that he was having the powers to
supervise the subordinate staff, therefore, as per his
own admission he did not fall under the definition of
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
workman. Learned advocate Mr.Gandhi submits that on
raising the contentions by the present petitioner with
regard to the jurisdictional aspect, the onus would be on
the respondent workman to establish that he is a
workman defined under section 2(s) of the ID Act,
however, instead of doing the same, learned labour
court has shifted the burden on the present petitioner
and held that in absence of any evidence adverse
inference is required to be drawn. Learned advocate
Mr.Gandhi submits that learned labour court has also
committed an error in holding that the respondent was
retrenched from the service as the case of the present
petitioner from the beginning is that he himself has
abandoned the services on being asked to give an
apology letter. Learned advocate Mr.Gandhi submits
that learned labour court has committed an error in
awarding lump sum compensation of Rs.2,00,000/-,
therefore, impugned order deserves to be set aside and
the petition is required to be allowed.
5. As against the same, learned advocate Mr.Shah submits
that the respondent has stated in the statement of claim
regarding the nature of work which was further proved
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
during the cross-examination wherein, it is admitted by
the respondent that his work is to prepare the daily
report and to do the clerical work on computer. Learned
advocate Mr.Shah submits that so far as the alleged
misconduct is concerned, neither there was any
departmental inquiry held, nor any chargesheet was
issued and the contention of the apology is also not
supported by any documentary evidence. Learned
advocate Mr.Shah submits that the communication
dated 02.01.2009 suggests that the respondent
workman has proceeded on leave from 01.01.2009 to
15.01.2009 because of illness of his wife and from the
said communication it also emerges that the Casual
Leave was granted for two days i.e. on 29.12.2008 and
30.12.2008 and thereafter, half Casual Leave was
granted on 31.12.2008 for the second session. Learned
advocate Mr.Shah submits that though in the said
communication, it is stated that this leave was not
accepted, however, it is not disputed that two days leave
was granted on 29.12.2008 and 30.12.2008 as well as
half day leave was granted for the second session on
31.12.2008. Learned advocate Mr.Shah submits that
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
after completing the leave period, when the respondent
went to resume the duty, he was not permitted and
therefore, his services were orally put an end to by the
petition employer. Learned advocate Mr.Shah submits
that the respondent was serving with the petitioner
employer since 1994 to 2008 i.e. more than 14 years of
period and therefore, learned reference court, while
holding the termination illegal is justifying in awarding
the lump sum compensation of Rs.2,00,000/-. Learned
advocate Mr.Shah submits that as no error has been
committed by the learned reference court, the petition
deserves to be dismissed and the impugned order is
required to be confirmed.
6. Having considered the arguments advanced by the
learned advocate for the respective parties, it emerges
that petition is filed merely on the basis of two grounds
i.e. (1) respondent does not fall under the definition of
workman; (2) respondent himself has abandoned the
services, therefore, no retrenchment as alleged in the
statement of claim. To examine the above two grounds,
if one would peruse the records, then it emerges that the
appointment of the petitioner was made on 10.12.1994
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
as a Senior Assistant and he was communicated by way
of communication dated 19.01.1995 that he would be
employed as a Trainee with the petitioner Dairy and for
that medical checkup was asked for. Appointment as a
Senior Assistant was given from 01.03.1996 and the
several conditions were mentioned in the appointment
letter dated 20.03.1996, thereafter, on 10.05.1997, he
was confirmed as a Senior Assistant and subsequently
promoted as a Junior Officer with effect from
01.12.2007.
6.1. The statement of claim suggests that present
petitioner has categorically stated that he was working
as a Junior Officer in dispatch department from
01.12.2007 and doing the clerical work. He had also
claimed in the statement of claim that he was not having
any authority of appointment, neither any powers to
supervise the work of the subordinates. To rebut this
evidence, neither petitioner has placed any documentary
evidence on record, nor examined any witness in
support of the contention that the respondent does not
fall under the definition of workman. The reliance was
placed on the cross-examination of the respondent
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
wherein, at one point he states that he was supervising
the work of three employees, however, in the next line
during the cross-examination, petitioner himself has
placed on record the nature of work that is preparation
of the chalans, daily report and doing clerical work on
computer. In the opinion of this Court merely incidental
duties to supervise the work when the main duties are
clerical in nature, will not convert the employment into
one in supervisory capacity. The nomenclature of the
post does not automatically brings the status of the
person as a Supervisor. To arrive at findings whether the
person is workman or not, even if, he is designated as a
Supervisor, the nature of work performed is a relevant
factor. From the case on hand it appears that the
employee was doing mainly a clerical work and was
occasionally discharging some duties of supervisory
nature does not mean that the person is Supervisor so as
to take him away from the ambit of the workman defined
under section 2(s) of the ID Act. The status is
determined from the primary duties of the employees
and the dominant purpose, aim and object of the
employment. In absence of any rebuttal evidence,
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
learned reference court is justifying in holding that the
respondent is a workman. This Court is of the view that
when the workman has shown the nature of the duties
and has satisfied the requirement of being employed in
the capacity of the workman, the burden of proof is
necessarily on the employer to take his case out of the
act by reasons of the exclusion. Therefore, in absence of
any evidence adduced by the management, to make
good preliminary objection, that the person in respect
for whole reference was made was not a workman.
Petitioner has neither placed on record any evidence,
nor examined any witness, therefore, also learned labour
court was justifying in holding that the respondent was a
workman and hence the learned labour court would
have jurisdiction to adjudicate the claim.
7. Other contentions with regard to abandoning the duty on
demanding the apology letter for watching blue films is
concerned, it emerges that neither the said
communication seeking apology was placed on record,
nor any show cause notice or departmental inquiry was
held. It also emerges from the record that respondent
went on leave due to sickness of his wife and the Casual
NEUTRAL CITATION
C/SCA/11433/2024 JUDGMENT DATED: 06/05/2025
undefined
Leave was granted and on completing the leave period,
he tried to resume the duty, however, he was not
permitted as per the uncontroverted claim of the
respondent workman. Learned labour court, after
holding the termination illegal has considered the length
of service of the present petitioner i.e. 14 years and the
statement of workman with regard to the unemployment
from 1994 to 2008 which is not controverted by the
petitioner as well as on ascertaining the age of the
workman i.e. 52 years in the year 2010, has awarded
lump sum compensation of Rs.2,00,000/- in lieu of
reinstatement as well as back wages. Therefore, this
petition being devoid of merits deserves to be dismissed.
8. Resultantly, this petition is dismissed and the award
passed by the learned reference court in (LCA) No.46 of
2010 dated 08.02.2024 is hereby confirmed.
(M. K. THAKKER,J)
NIVYA A. NAIR
