1. Heard learned advocates for the parties.
2. The petitioner – first party employer in Reference (LCA) No. 31 of 2000 in Labour Court, Ahmedabad has approached this Court under Articles 226 and 227 of the Constitution of India challenging the award and order passed by the Labour Court on 1.11.2003 allowing the reference of the workman and ordering his reinstatement with continuity of service and granted 50% of back wages and Rs.1000/- towards cost.
3. The facts in brief leading to filing this petition as could be culled out from the memo of petition are as under:
The workman – respondent herein above, was constrained to raise Industrial Dispute as, though he was serving with the petitioner since last 5 years as per his own say, preceding the date of termination, when he went on leave, which was duly sanctioned by the officer, in January, 1999 and when he reported for resumption of duty on 8.3.1999, he was not permitted to resume his duties and thus, without any rhyme or reason and without following any procedure of law, his services were terminated. The termination was viewed as illegal and hence, the dispute was raised. The notice was sent through Union, the copy could not be produced before the Court. The authority referred the matter to the Competent Court wherein, it was numbered as Reference (LCA) No. 31 of 2000. The statement of claim contained narration of the grievance and written statement containing denial thereof. The petitioner took a specific stand that the respondent workman was never employed by petitioner and there exists no employee – employer relationship. The Court after recording its finding came to the conclusion that the relationship of employer and employee is established and hence, allowed the Reference with direction of reinstatement with 50% of back wages and Rs.1000/- cost and said award and order is impugned in this petition under Articles 226 and 227 of the Constitution of India.
4. Learned advocate for the petitioner contended that the Labour Court has failed in appreciating the position of law under which, there was no basis for arriving at a conclusion that the workman established his claim of being employed by the petitioner. The documentary evidences were sufficient to persuade the Court to hold that the workman was not employed in employment with the petitioner.
5. Learned advocate for the petitioner contended that tenuous evidence of I-card without signature of the workman on the same, was sufficiently challenged to be got up, was made basis for discarding the evidences adduced by the petitioner in form of wage register and attendance register, which were even not challenged to be incorrect or got up in any manner, therefore, in light of these evidences, there was no room left to the Labour Court but come down to the conclusion as it is done and hence, the order is suffering from patent perversity, which is vitiated the same and therefore, same is required to be quashed and set aside.
6. Learned advocate for respondent workman contended that the workman was not issued any documentary evidences which would support the claim of workman qua he is being employed by the petitioner when the workman has said in his testimony that the workman was not issued any documentary evidence and only I-card was issued then, the court's finding based upon such I-card needs no interference by this Court and petition is required to be rejected.
7. Learned advocate for respondent contended that this petition is filed under Article 226 of the Constitution of India and as the Labour Court is not joined, the petition is not maintainable. Hence, on this ground also, the petition may be dismissed.
8. Learned advocate for the respondent invited this Court's attention to the testimony of the workman as well as management witness and contended that the management witness did not deposed from his knowledge as he was not appointed and workman was continued since 1992 and therefore, the documentary evidences were required to be produced by the employer to justify its stand. The non-production of the documents would therefore render the version of the employer impermissible so as to hold in favour of the employer and Court has rightly discarded said documents in form of I-card, which was issued by the employer, as it cannot have been got up or prepared by employee and it is not the stand of the petitioner employer that the said I-card is got up one and when the employer petitioner did not even lodge any complaint alleging forgery against the workman or made any complaint in the nature of criminal offence punishable under Sections 406, 407 etc. and any action on the part of the employer in this behalf, persuade this court to dismiss this petition. The Labour Court's finding otherwise need no interference.
9. Learned advocate for the respondent submitted that there are ingenious methods and way and way for defeating just and proper claim of the workman and claim is one glaring example of such unsuccessful attempt and when the court i.e. Labour Court has recorded finding of facts, this court may not interfere under Articles 226 and 227 of the Constitution of India.
10. This Court is of the considered view that the petition is required to be allowed and Labour Court's order is required to be quashed and set aside for the following reasons namely:-
(I) The fact remains to be noted that the workman has in his statement of claim pinned his case to illegal termination without making any other pleadings so as to bring in the alternative submission that might have been available to the workman. It is the say of the workman right from the beginning as could be seen from the statement of claim that his termination was illegal termination and the workman was not able to prove his case as he remained on leave, which was duly sanctioned and when he resumed for duty, he was not permitted to resume his duty. This factor are required to be born in mind while examining the evidence on record. In other words, one can safely conclude that the workman assailed the termination as workman was though served since 1992, was unceremoniously discharged or dismissed without holding inquiry or without following any procedure of law.
(II) The workman's claim and assertion was completely denied by the employer in the written statement, therefore, the Labour Court was required to frame specific issue qua examining the rival contention of the parties as to whether there existed relationship of employer and employee between the parties. The other factors with regard to termination were therefore, not addressed at all by the Court as they were not raised and sought to be raised at any point of time.
(III) The entire issue thus, hitched upon the dispute qua the relationship between two i.e. employer and workman. The question was therefore, dependent upon the appreciation of evidence adduced by both the sides.
(IV) The Court is of the considered view that this petition though styled as petition under Article
226 of the Constitution of India, the nonjoinder of the Court as a party would dis-entitled the petitioner for filing this petition under Article 226 also, as held by Full Bench of this Court in case of The Bhagyodaya Co-operative Bank Limited Vs. Natvarlal K. Patel and Anr., reported in 2011 (3) GLH (FB) 89 but fact remains to be noted that petition is also filed under Article 227, as Article 227 is invoked, the Court is required to consider the impugned order and award as per the provisions of Article
227 of the Constitution of India. Howsoever the scope is available, would require to be invoked for examining the award and if award is found to be perverse or resulted into miscarriage of justice, then, the same would be still within the propriety to be quashed and set aside.
(V) The Labour Court was in fact, called upon to adjudicate upon the claim made by the parties, The Labour Court, therefore, was under an obligation to record its clear finding qua the relationship of employer and employee between the parties and justification for arriving at such conclusion. In the instant case, the Labour Court was in fact obliged to record its specific findings as to how and what circumstances the three evidences adduced namely document 16/1, 16/2 and 16/3 being attendance register, wage register and I-card of other employee and when all the three documents have remained unchallenged by the workman and his advocate, the Labour Court could not have discarded the same. The discarding of evidence without assigning any reason would amount to abdicating its duty and jurisdiction, resulted into patent perversity, which cannot be continence by this Court under Article 227 of the Constitution of India. The error of assessment qua the case pleaded, is clear discarding of evidence without assigning any reason and accepting the evidence, which was completely and absolutely challenged, as could be seen from the testimony of both the witnesses i.e. management as well as workman himself. The workman had not put any question qua challenging the veracity and genuineness of three documents adduced by the management and when management has contended that workman was never employee and workman had contended that he was working with petitioner since 1992, nothing prevented the workman from calling upon the management to produce evidences if the workman was having no evidence and Court could not on its own ordered production of documents i.e. wage register from 1992 and if such registers were not produced, then, there was some scope for drawing some adverse inference against the employer but in absence of this exercise on the part of the workman or here in that matter, on the part of the Court itself, and court's accepting the evidence in form of I-card, which did not have bear the signature of the workman himself, would in my view, amount to not exercising the jurisdiction which was vested in the court and court was under an obligation to address itself to this issues for coming to the conclusion that there existed relationship of employer and employee between the petitioner and workman.
(VI) The workman has stated time and again that he was in employment of the petitioner since 1992 but did not produce any evidence whatsoever nor did he call upon the management to produce other evidence wherefrom it could have been made out that workman was in employment to prove his case.
(VII) The workman has in fact put question and cross-examination of the management witness and it has been brought on record that there was a PF payment and other allowances and formalities were performed, then, it is the duty of the workman to produce such evidence qua employee, then normal observations of the court on this formalities qua workman, could have one of the ground but this factor is to be viewed from the angle that the workman could not produce nor could he called upon the employer to produce all these things, which might not in his favour. Be that as it may. The court did not interfere or appreciate and reappreciate the evidence and come the conclusion on the ground that the Labour court did not take the due care while adducing and dealing with it evidences, which resulted into passing of the award, which in my view, cannot be sustained under Article 227 of the Constitution of India and therefore, same is required to be quashed and set aside and accordingly, the impugned award and order is quashed and set aside.
11. In the result, the petition is allowed. Rule is made absolute. There shall be no order as to costs.
12. At this stage, Shri Koshti, learned advocate appearing for the workman submitted that as the court has come to the conclusion that the Labour Court has not addressed itself to the evidences, the matter be remanded back to the Court for deciding it afresh. This contention is strongly opposed by learned advocate appearing for the petitioner. The Court is of the view that remanding of the matter would permit the retrial, which is not permissible under law. Hence, request for remanding the matter to Labour Court is rejected.
(S.R.BRAHMBHATT, J.) pallav