GURJARGRUVERS PVT LIMITED Vs. AKBARKHAN HAVALDARKHAN

JUDGEMENT

(1.) Heard learned advocate Mr. Thakar for the petitioner and Mr. D.G. Chauhan, learned advocate who is appearing for the respondent workman. By means of this petition under Article 227 of the Constitution of India, the petitioner has challenged the legality, validity and propriety of the award dated 24.8.1993 made by the labour court wherein the labour court has set aside the order of termination dated 10th November, 1984 and granted reinstatement in service with 50 per cent of the back wages for the intervening period with continuity of service and other consequential benefits. On 4th October, 1994, while admitting the petition, this court has granted interim relief in terms of para 5(B) of the petition. Alongwith the petition, the petitioner has produced copy of the statement of claim, written statement, oral evidence of the parties, written arguments, seniority list and award. Learned advocate Mr. Thakar has read over entire award before this Court and he submits that the labour court has committed gross error in passing such an award against the petitioner; that the work has been reduced in the tracing department and, therefore, these three workmen were offered alternative work in the new project department by passing order dated 11th October, 1984 and the workmen concerned ought to have reported for duty on 15th October, 1984 but the workmen after receiving the order of transfer, refused to work in the new project department and, therefore, by letter dated 9th November, 1984, services of said three workmen were terminated with effect from 10th November, 1984 by the petitioner. He also submitted that the provisions of section 25-F of the ID Act, 1947 were complied with by the petitioner at the time of terminating the services of the said three workmen. It was his submission that in their statement of claim, the workmen had not raised the contention about the breach of the provisions of section 25-G of the ID Act, 1947 and that is how, the petitioner has not been able to give any answer and could not produce any material to satisfy the requirement of section 25-G of the ID Act, 1947 and, therefore, the conclusion of the labour court on the issue that the provisions of section 25-G of the ID Act, 1947 have been violated is the basic error which is required to be corrected by this court. He read over entire deposition of all three workmen and evidence of the witness for the petitioner and emphasized the contradictory statements made by the workmen in their examination in chief as well as the cross examination and submitted that looking to the conduct of the workmen, at one point of time, it was said by them that the order of transfer is not received and subsequently, they are saying that the order of transfer has been received by them and they refused to work on the new project department. Therefore, under such circumstances, no relief can be granted in favour of the workmen who had made contradictory statements before the labour court. He also submitted that if the contention about the breach of sec. 25-G of the ID Act, 1947 would have been raised by the workmen concerned, then, the petitioner would have got an opportunity to satisfy the labour court concerned that there is no violation of the provisions of the said section by producing necessary material in that regard. According to him, since that contention was not raised, the petitioner has not been able to produce material in that regard. He also submitted that the labour court has committed error in coming to the conclusion that such termination is amounting to punishment. According to him, in fact, there is no punishment imposed by the petitioner. According to him, this was not the case of the petitioner before the labour court. He also read over the averments made by the workmen in their statement of claim. In short, it is his contention that the labour court has erred in concluding that the impugned order of termination is punitive. It is also his submission that the labour court has erred in concluding that the petitioner has committed breach of section 25-G of the ID Act, 1947. It is, therefore, his submission that the labour court ought not to have made the award of reinstatement. He submitted that after the award was made by the labour court, offer was made by the petitioner without prejudice to the rights and contentions of the workmen to resume the duties but the respondents have not resumed the duties. According to him, these are the subsequent development which are required to be considered by this Court while examining the award made by the labour Court. This statement made by Mr. Thakar was objected by Mr. Chauhan by submitting that the workmen were ready to resume the duties in response to the offer made by the petitioner but when they had in fact gone for reporting, they were prevented at the Gate of the premises. However, this court is such alleged development, disputed by the other side and is examining the award made by the labour court on the basis of the evidence on record.

(2.) This court has to consider as to whether the award made by the labour court is within its jurisdiction and competence or not. While this court was dictating the oral judgment in the open court, in the midst of the dictation, learned advocate for the petitioner also made a submission after obtaining leave of this Court that the tracing department has been closed since 1987. As regards this contention about the closure of the tracing department in the year 1987, this Court asked one question to the learned advocate for the petitioner as to whether any such contention has been raised by the petitioner before the labour court or not at the relevant point of time; whether any assertion in that regard has been made by the petitioner or its witness while the evidence was recorded before the labour court or not and whether such contention was raised by it during the course of arguments or not. After consuming about ten minutes and verifying the record, learned advocate for the petitioner clearly submitted that no such contention has been raised by the petitioner in its pleadings before the labour court, no such whisper has been made by its witness in his evidence before the labour court and it was not submitted even during the course of arguments before the labour court. In view of such clear answer, this contention raised for the first time before this court has to be ignored. Same is, therefore, ignored by this Court. Learned advocate Mr. Chauhan has submitted that the deposition of the witness for the petitioner was recorded before the labour court on 23rd December, 1991 wherein it was admitted by him that at the time of termination of the present workmen, 80 workmen were working with the company and today also, 80 workmen are still working with the company. In respect of that contention of Mr. Chauhan, learned advocate Mr. Krishnan for the petitioner has clarified that they are working in the new project department and in view of that clarification made by Mr. Krishnan, it was further clarified by Mr. Chauhan that in the oral evidence of the witness for the petitioner, this has not been clarified but it was simply said that today also, 80 workmen are working with the petitioner company. Except these submissions, no other submissions were made by the learned advocate appearing for the petitioner. No decision has been cited by the learned advocate for the petitioner for consideration of this Court. As regards grant of 50 per cent back wages for the intervening period, no submission has been made by the learned advocate for the petitioner.

(3.) While supporting the award made by the labour court, learned advocate Mr. Chauhan submitted that the the order of termination passed by the employer was violative of section 25-G of the ID Act, 1947 and rule 81 of the ID (Gujarat) Rules, 1966. He also submitted that this order was passed by the employer only on the ground that the workmen were not prepared to work in the new project department and that is how the order has been passed only against the present three workmen and excepting the present workmen, no other workmen were retrenched by the employer and therefore, it was amounting to punishment by the employer without following the procedure according to law and, therefore, labour court was right in holding that it was violative of sec.25-G of the ID Act read with rule 81 of the Rules framed under the said Act. He also submitted that the labour court was right in appreciating the evidence on record produced by the parties.According to him, before the labour court, no documentary evidence has been produced by the petitioner to justify the reduction in work in tracing department and, therefore, the conclusions drawn by the labour court on the basis of the evidence on record are just and proper and the same would not require any interference of this court. According to him, unless it is successfully established by the petitioner that the labour court has committed any jurisdictional error and/or any procedural irregularity or that the findings given by the labour court are contrary to the facts on record or that such findings are perverse, this court cannot interfere with such findings of fact while exercising the powers under Article 227 of the Constitution of India.