GANGARAM K MEDEKAR Vs. ZENITH SAFE MFG CO

JUDGEMENT

(1.) BY this writ petition, the petitioner - workman seeks to challenge Award of the First Labour court at Bombay in Reference (IDA) No. 985 of 1986. By the impugned Award, workman's claim for reinstatement with back wages came to be rejected. Therefore, the present writ petition has been filed.

(2.) FACTS giving rise to this writ petition, briefly, are as follows :

(3.) ON 4th September 1967, petitioner joined as a Painter in the factory of respondent No. 1-Company which, at the relevant time, was a Partnership Firm. On 18th April 1986, services of the petitioner came to be orally terminated. On 28th March 1986, petitioner approached government Labour Officer under the provisions of Industrial Disputes Act, 1947. On 26th April 1986, respondent No. 1-Company addressed a letter to the workman stating that the Peon of the company one Laxman Mhatre had informed the Partner of respondent No. 1 (Shri Panchal) that the petitioner was sitting idle and whistling in the factory without doing any work. Thereupon, shri Panchal, the Partner of the Company had paid a visit to the Department and found the petitioner sitting idle and whistling. That the Partner Shri Panchal thereupon asked the workman as to why he was not performing his work. That on this, the petitioner-workman shouted at the partner and told that he may remove him (the petitioner) from the job because the petitioner was not interested in the job. That thereafter, the petitioner came to the Office and abused Laxman mhatre (Peon) for informing Shri Panchal, the Partner of the Company, about the misconduct. That thereafter the petitioner left the factory and did not report for work till 26th April 1986 when the above letter was addressed by the Company. That the production record indicated that the petitioner was deliberately giving less production despite repeated warnings. That there was no improvement of work as regards the output of the workman. That the petitioner was quarreling with other workers on flimsy grounds. That for the above reasons, the petitioner was not interested in the employment. That in the circumstances, by the said letter, the petitioner was asked to resume within forty eight hours. However, in the last sentence of the letter, the company further mentioned that this offer asking the workman to report within forty eight hours was without prejudice to the right of the Company to take disciplinary action. This letter was received by the workman on 1st May 1986 as deposed in his evidence. On 3rd May 1986, the petitioner addressed a letter to J. P. Panchal, the Partner of respondent No. 1-Company denying the various allegations made by the Company in its letter dated 26th April 1986. By the said letter, the workman pointed out that the above allegations were made by the Company in its letter dated 26th April 1986. By the said letter, the workman pointed out that the above allegations were made by the Company in its letter dated 26th April 1986. By the said letter, the workman pointed out that the above allegations were made by the Company because the company had wrongfully terminated the service after twenty years service and when the company came to realise that the termination was illegal and improper in the sense that due process of law was not followed, the Company wrote letter on 26th April 1986 stating that the workman's services were not terminated, but that he was not interested in the employment. By the said letter dated 3rd May 1986 the workman pointed out that the letter dated 26th April 1986 was an after-thought on the part of the employer and it was devised only to defeat the rights of the workman. By the said letter dated 3rd May 1986, the workman also stated that after 18th april 1986, he has been continuously reporting to the factory for employment, but the same have been denied to him. That the workman received the letter dated 26th April 1986, he has been continuously reporting to the factory for employment, but the same have been denied to him. That the workman received the letter dated 26th April 1986 on 1st May 1986 and immediately on 2nd May 1986, he had reported to the factory for resumption of his duties without prejudice to his rights and contentions, but he was not allowed to resume. This letter was never replied to by the Company. On 22nd May 1986, the workman raised a demand for reinstatement. On 30th july 1986, failure report was filed by the Conciliation Officer because respondent No. 1-Company refused to take part in the Conciliation proceedings. Ultimately, Reference came to be made to the Labour Court. On 13th December 1986, the workman filed statement of claim in which the above facts were reiterated. Thereafter, Written Statement was filed by the Company. In the Written Statement, it was alleged by the Company that the workman was sitting idle and whistling when the Partner of respondent No. 1-Company attended the factory on 18th April 1986 pursuant to the information received from the Peon. As per the statement, the petitioner was asked reason for not performing his work when the petitioner shouted at the Partner. According to the Written Statement, the workman came to the Officer thereafter and also abused the Peon for informing the Partner of respondent No. 1 and in the circumstances, the Company gave a show cause notice on 26th April 1986 which included the above misconduct. According to the Written Statement, the workman never reported for work after 18th April 1986. According to the Company, the workman was not interested in the employment. According to the Written statement filed by the Company, Shri Panchal could not attend the Conciliation proceedings because his wife was sick at the relevant time. According to the Written Statement, the Company has never terminated the services of the workman, but the workman had voluntarily left the services on 18th April 1986. That the workman had expressed on several occasions to his co-workers as well as to Shri Panchal that he was not interested in the employment and in the circumstances, according to the Written Statement, this was a case of voluntary abandonment of service. On the above pleadings, matter came before the Labour Court in evidence. The workman filed an Affidavit in lieu of examination in-chief. In the said Affidavit, the workman averred that he was in the employment for last twenty years. That he has rendered twenty years continuous service. That his record was clean. That on 18th April 1986 when he reported he was not allowed to work. That on 18th April, 1986, his services were orally terminated by Shri panchal, the Partner of the Company. That on such oral termination, he had told Shri Panchal that his services cannot be terminated without notice, giving reasons. However, Shri Panchal had told the workman to leave the premises immediately. That accordingly, the workman approached the Government Labour Officer vide Complaint Letter dated 23rd April 1986. A copy of the said letter was also sent to Shri Panchal, the Partner of the Company. That the Company did not participate in the Conciliation Proceedings and, therefore, the Reference came to be made to the labour Court. That on receiving the Complaint letter dated 23rd April 1986 addressed to the government Labour Officer, the Company realised that termination was not proper and in the circumstances, on 26th April 1986, the Company as an after-thought, have a show-cause notice containing reasons and alleged voluntary abandonment of service. That the said letter dated 26th april 1986 was received on 1st May 1986 and accordingly on 3rd May 1986, the workman demanded reinstatement. However, the Company did not reply to the workman's letter demanding reinstatement. In the circumstances, reference came to be made to the Labour Court. In his cross-examination, the petitioner has deposed that when his services were orally terminated there was no worker standing on his side on 18th April 1986. That on 18th April 1986, he had worked for the entire day upto 4. 30 p. m. when his services were terminated orally. That on 18th April 1986 at 4. 30 p. m. , the workman was told orally not to come to duty. That the letter dated 26th April 1986 was received on 1st May 1986 and accordingly, the petitioner went to join his duty, but he was not allowed to join. That in his cross-examination, the workman conceded that he did not go to the Company after receipt of the Company's letter dated 26th april 1986. He has further deposed, however, that the watchman met him. There appears to be some contradiction in the cross-examination/evidence of the workman. In his earlier statements, workman has stated that he went to join duties, but he was not allowed to join. However, in the latter part of the statement, he has stated that he did not go to the Company after receipt of the company's letter. He has further stated that he has not abused the Partner Shri Jayant Panchal on 18th April 1986 and that he had not told Shri Panchal that he was not interested in employment. In the Company's evidence, which is in the nature of an Affidavit in lieu of examination-in-chief, shri Jayant Panchal has deposed that he was looking after day-today working of the Company as well as the factory at Kandivali; that on 18th April 1986 a Peon had informed Shri Panchal that the petitioner was sitting idle and whistling during working hours without performing work; that thereafter Shri Panchal personally visited the Department in which the petition was working and found that he was sitting idle and whistling; that he had asked the petitioner as to why he was not doing his work and wasting time when the workman stated that he was not interested in employment and he could be removed. That thereafter, he also went to the Peon and abused him and threatened him with dire consequences. According to Shri Panchal after 18th April 1986, the workman never reported for work. Shri Panchal has further deposed that under the above circumstances, Company issued show-cause notice to the workman. According to Shri Panchal the workman had wrongly made a Complaint to the Government Labour Officer because the company had not terminated the services of the workman, but had invited the workman to rejoin after forty eight hours from the receipt of the letter dated 26th April 1986. According to Shri panchal, the Company did not take part in the Conciliation proceedings because his wife was admitted to hospital. According to the evidence of Shri Panchal, the workman was not interested at any time in his employment and, therefore, it was a case of voluntary abandonment of service. In his cross-examination Shri Panchal has further admitted that there were six Partners in the company. However, Shri Panchal was the only Partner who was looking after the affairs of the company and the factory. In his evidence Shri Panchal has further stated that on 18th April 1986, he was not sure whether other workmen were also present when the above incident took place. In his evidence he has further stated that one Dilip Mehta, who was a Partner of the company, was looking after the Court work of the Company; that it is possible that the Company had received communication from the Government Labour Officer about the case of the petitioner, but the Company failed to attend the conciliation proceedings. In his evidence Shri panchal has further admitted that he did receive letter by registered A/d regarding the Complaint filed by the petitioner before the Government Labour Officer, but the Company failed to take part in the Conciliation proceedings because he was sick and also because his wife was sick. In his cross-examination, however, Shri Panchal admitted that the letter received with regard to the complaint filed before the Government Labour Officer came to be returned as refused. The said letter bears the signature of Shri Panchal. With this evidence on record, the matter came for final hearing before the Labour Court. The Labour Court, while rejecting the Reference, by the impugned Award has come to the conclusion that there was nothing to indicate in the evidence of the workman that he had reported for work on 19th April 1986 and that the Company did not allow him to do the work. According to the Labour Court, there is ample evidence on record to indicate that some workers were present at the site when the petitioner told Shri Panchal that he was not interested in the employment. The Labour Court came to the conclusion that it is word against word. Shri Panchal has not produced any evidence to show that the workman has failed to attend to work. Similarly, the workman has failed to produce any evidence to show that he reported for work on 19th April 1986. The Labour Court also found that there was no evidence to show that Shri Panchal and/or his wife was sick when the matter was pending before the conciliation Officer. The Labour Court came to the conclusion that in view of the letter dated 26th April 1986 asking the workman to rejoin within forty eight hours, it was clear that there was no case of termination of service and since the workman failed to rejoin, it was clear that this was a case of voluntary abandonment of service. In the above circumstances, the Labour Court rejected the Reference.