This petition is directed against the award dated 8.9.2011 passed by the Labour Court, Amreli in Reference (LCA) No. 23 of 2007 whereby the Labour Court has rejected the said reference. 2. So far as the relevant facts involved in and giving rise to present petition are concerned, it emerges from the record that the petitioner workman raised industrial dispute alleging, inter alia, that her service was terminated w.e.f. 31.12.2006 without following any procedure and without making any payment towards notice pay and/or retrenchment compensation and without affording any opportunity of hearing. The said dispute was referred for adjudication by appropriate Government vide order of reference dated 11.7.2007, which culminated into above mentioned Reference (LCA) No.23 of 2007.
2.1 During the hearing before the Labour Court, the petitioner workman claimed and alleged that she was working under the authority of respondent in multistoried building as Sweeper for 6 hours a day and she was being paid Rs.600/- p.m. towards wages. She alleged that her last drawn wage was at the rate of Rs.1,350/-
p.m. and she was asked to perform duties for 8 hours a day. She also alleged and claimed that she continued to work on such terms for long period until her services came to be terminated w.e.f. 31.12.2006. She also alleged that after her termination, the respondent had engaged other persons to perform the work which she was performing.
2.2 The respondent employer resisted the reference by filing written statement and placing on record relevant documentary evidence. In the written statement, the respondent employer claimed that the allegations made by the petitioner workman were incorrect and baseless. It was also claimed that there are several offices and establishments functioning in the multistoried building and the petitioner was working in most of the offices and establishments in the building. It was also alleged that from most of the establishments and offices, complaints against the petitioner were being made about her conduct. It was also claimed that the petitioner was working only for few hours in a day and that she was discontinued w.e.f. 31.12.2003. On the premise that the petitioner was working only for few hours for cleaning work and was discontinued w.e.f. 31.12.2003 and that her allegation that she had worked with the respondent employer until 31.12.2006 when her service was terminated was incorrect and concocted allegation.
2.3 It is pertinent to note and necessary to mention, at this stage, that during the proceedings before the Labour Court, the respondent employer had placed on record various documents including copy of an order/intimation dated 31.12.2003 discontinuing the petitioner.
The respondent also placed on record copies of several complaints which were received against the petitioner from various offices / establishments functioning in the said multistory building.
2.4 During the proceedings, oral evidence of the petitioner workman was recorded and she did not examine any other witness in support of her case.
She also could not place on record any order (other than the order which was placed on record by respondent employer) terminating her service, much less order terminating her service w.e.f. 31.12.2006 as alleged and claimed by her in her statement of claim as well as in her oral evidence / deposition.
She also could not place anything on record and/or could not state anything in her oral evidence to assail and disprove the order dated 31.12.2003 under which her service was discontinued.
2.5 The respondent employer had also examined a witness viz. one Mr. Vallabhbhai Pethani, whose evidence was recorded below Exh.23. The said witness was subjected to cross-examination by the learned advocate of present petitioner, however, during his cross- examination also, learned advocate for the petitioner could not get anything to assail and/or disprove the order dated 31.12.2003 or to establish that she was terminated w.e.f. 31.12.2006 and not 31.12.2003. Actually, the contrary i.e. the service was terminated w.e.f. 31.12.2003 was established.
2.6 It is also pertinent and necessary to mention that during her own evidence neither the petitioner could establish that she ever worked with the respondent employer after 31.12.2003 nor could such material or detail be extracted from the material placed by the respondent employer and/or evidence of respondent's witness.
3. Mr. Mishra, learned counsel appearing for the petitioner workman, submitted that the Labour Court has committed serious error in rejecting the reference. He also submitted that though it was established that at the time of terminating petitioner's service neither notice was given nor notice pay was paid and any compensation towards retrenchment was also not paid and that her service was not terminated on account of any reported or alleged misconduct after affording her opportunity of hearing and defence, the termination of petitioner's service was illegal and contrary to provisions of the Industrial Disputes Act, 1947 and that therefore, the Labour Court ought to have set aside the said termination.
3.1 During hearing of present petition, it was repeatedly inquired from the learned advocate for the petitioner as to whether there was any material to substantiate the claim that the petitioner's service was terminated w.e.f. 31.12.2006 as claimed and alleged by her.
On this count, the learned advocate for the petitioner had, on couple of occasions, requested for time to place on record the document, if available, to support the said claim and allegation of the petitioner.
At the request of learned advocate for the petitioner, time was granted and proceedings were adjourned on couple of occasions.
However, despite opportunity having been granted, learned advocate for the petitioner could not place any material on record of present petition during hearing before this Court to substantiate and support the allegation that the petitioner's service was terminated w.e.f. 31.12.2006.
3.2 The petitioner also could not place on record any material to disprove the respondent's claim that actually petitioner's service was terminated under order dated 31.12.2003.
3.3 Furthermore, even in the statement of claim filed by her, the petitioner alleged and asserted that her service was terminated w.e.f. 31.12.2006.
This Court has examined the copy of the statement of claim, which is at Annexure – A (page-7) wherein in paragraphs No.1 and 2 as well as in paragraph No.4 the petitioner repeatedly alleged and asserted that her service was terminated w.e.f. 31.12.2006.
Besides this, the petitioner had, during the course of proceedings before the Labour court, filed affidavit in lieu of oral evidence wherein also she alleged and asserted that her service was terminated w.e.f. 31.12.2006.
3.4 It is undisputed position of fact that the petitioner had never raised any dispute against her termination w.e.f. 31.12.2003.
Differently put, the termination of her service w.e.f.
31.12.2003 has never been challenged by the petitioner.
It is also relevant to note that from December-2003 until December-2006, the petitioner did not challenge the order dated 31.12.2003 passed by the respondent employer whereby her service was discontinued.
Subsequently, when the petitioner raised the dispute, she raised dispute alleging that the termination was effected in December-2006.
In the subject reference, she did not mention anything about the termination order dated 31.12.2003 and about termination of her service with effect from the said date.
In this way, the said order dated 31.12.2003 has remained unchallenged until now.
4. On the other hand, the petitioner could not establish before the Labour Court that,
[a] her service was terminated w.e.f. 31.12.2006 (and not from 31.12.2003); and
[b] she also could not place on record the termination order dated 31.12.2006 by which her service was allegedly terminated in December-2006 by the respondent employer; and
[c] not only the petitioner ever questioned or challenged the order dated 31.12.2003 terminating her service, but she also could not successfully assail and disprove the respondent's assertion that her service was terminated under order dated 31.12.2003; and
[d] the petitioner also could not establish, in any manner whatsoever, that she had worked with the respondent employer after 31.12.2003 till 31.12.2006; and
[e] even during hearing of present petition, despite opportunities having been granted, the petitioner failed to place on record the order dated 31.12.2006.
4.1 In this factual background, the Labour Court has held that though the petitioner alleged that her service was terminated w.e.f. 31.12.2006, she failed to establish and prove that she had worked with the respondent employer from 31.12.2003 until 31.12.2006 and/or that her service was terminated w.e.f. 31.12.2006.
Differently put, the Labour Court has held that the petitioner failed to establish allegations and submissions made by her in the statement of claim and in her oral evidence.
4.2 On the other hand, the respondent employer established, particularly on the strength of the order dated 31.12.2003, that petitioner's service was terminated on and from the said date i.e. 31.12.2003 and the said termination order was not and has not been challenged.
Even in the subject reference, the said termination order was not under challenge.
5. Under the circumstances, it cannot be said that the Labour Court has committed any error in rejecting the reference. The impugned award does not suffer from any infirmity, much less any error of law and/or jurisdiction. The petitioner has failed to establish her allegations and contentions and the learned advocate for the petitioner could not show anything from the material on record to convince the Court that the decision of Labour Court is contrary to the evidence on record or perverse or arbitrary.
The petition, therefore, fails and deserves to be rejected and is hereby rejected. The petition stands disposed of accordingly.
(K.M.Thaker, J.) kdc