SHARDA CHEMICALS Vs. FULAJI BABAJI

JUDGEMENT

(1.) Heard the learned Advocate, Mr.Dipak R. Dave, on behalf of the petitioners and learned Advocate, Mr.T.R.Mishra, appearing for respondents.

(2.) In this matter, initially, this Court has issued rule returnable on 1st week of November,2004 and ad-interim relief granted was remained continued by order dated 28th June,2004. This Court by order dated 20th February,2004 directed to petitioners to deposit Rs.10,000/- being Rs.2500/- per workman towards probable cost. That amount has been deposited by petitioners on 4th March,2004. According to prayer made in petition, petitioners have challenged award passed by Labour Court, Ahmedabad dated 9th May,2001 in Reference No.1217 of 1990 and order passed on Misc. Application No.348 of 2001 dated 25th June,2003 in Reference No.1217 of 1990. The services of respondents terminated by petitioners. According to respondents, services were terminated with effect from 28th January,1990. Therefore, dispute was raised against present petitioners by respondents. The Reference No.1217 of 1990 decided by Labour Court, Ahmedabad on 5th March,1997 in absence of petitioners and directed to the petitioners to reinstate all respondents in service with continuity and also to pay full back-wages of interim period. The Labour Court, Ahmedabad in ex-parte award has come to conclusion from record that notices issued by Court has been served to the petitioners. In spite of that fact, the petitioners were remained absent and no Advocate was engaged by them or no representative of petitioners was remained present when matter was taken up for hearing. Therefore, in absence of petitioners, Labour Court, Ahmedabad has decided the matter ex-parte. Against that ex-parte award, Misc. Application No.239 of 1997 preferred by petitioners under Rule 26-A of Gujarat Industrial Disputes Rules,1966. The Labour Court has considered the submission of petitioners and allowed Misc. Application by order dated 28th January,1998 and set aside ex-parte award dated 5th March,1997 with cost of Rs.500/- to each workman. Thereafter, it is necessary to note that date has been fixed in order itself by the Labour Court for further hearing of main reference on 23rd March,1998. The Labour Court has also clearly mentioned that date to be noted by respective parties for further hearing. Thereafter, again reference was decided by Labour Court, Ahmedabad and petitioners were again remained absent. In para.5, Labour Court has observed that after allowing the restoration application, notices were issued to petitioners vide Exh.23 and that notices were served vide Exh.24, 25, 26, and 27. Even though petitioners remained absent. Therefore, their right to cross-examine and to lead evidence has been closed by Labour Court. Ultimately, matter was heard by Labour Court in absence of petitioners and passed final order on 9th May,2001 granting reinstatement with continuity of service with full back-wages of interim period and with cost of Rs.500/- to be given to Union. Thereafter, again Misc. Civil Application No.348 of 2001 was preferred by petitioners " Sharda Chemicals and Delta Hydro Carbon. An affidavit in support of application was filed by one Sukumar Gunvantlal Parikh along with Anneuxre-A pointing out certain decisions in support of their application. Then, Labour Court has decided Misc. Civil Application No.348 of 2001 on 25th June,2003 dismissing said application and confirming the earlier award dated 9th May,2001 with cost of Rs.2000/-. These two orders are under challenge by petitioners before this Court.

(3.) Learned Advocate, Mr.Dave, appearing for petitioners raising contentions that joint reference by four persons against four companies is not maintainable. He also raised contention that respondents " workmen left the job and there was no termination from their side. He also submitted that out of four workmen, only one person " Fulaji Babaji gave evidence. Except that, no other person has given evidence. He also submitted that initial onus upon workman to prove unemployment. Therefore, Labour Court has committed error in granting reinstatement as well as full back-wages of interim period. He relied upon one decision of Punjab and Hariyana High Court reported in 1995 II LLJ 166 in case of Daljeet & Co. (P) Ltd. Vs. State of Punjab and others. He submitted that in said decision, the Punjab & Hariyana High Court has held that if disputes is raised against three companies as employer, then, Labour Court is bound to determine which of the three companies was actual employer. Therefore, matter was remanded back to Labour Court by the Punjab & Hariyana High Court. Relying upon said decision, he submitted that Labour Court has granted reinstatement against first party as mentioned in terms of reference. Except that, no other submission is made by learned Advocate, Mr.Dave.