1. The petition under article 227 of the Constitution of India is directed against award dated 12.10.2011 passed by labour Court, Bhavnagar in reference (LCB) No. 246 of 2002 whereby the labour Court has directed the petitioner to reinstate the respondent workman with continuity and 20% backwages.
2. The facts involved in and giving rise to presentation of petition are that the respondent herein had raised industrial dispute alleging inter alia that his service was illegally terminated by the petitioner. The said dispute was referred by the appropriate government to the labour Court for adjudication. After considering the rival pleadings and evidence and upon considering the submission of the contesting parties the labour Court came to the conclusion that the defence put forward by the petitioner was unsustainable and also unsubstantiated. The labour Court also found that the submissions and evidence put forward by the respondent was credible and that therefore the labour Court declared that the respondent’ service was illegally terminated. Having reached such conclusion the labour Court passed the above mentioned directions. The petitioner is aggrieved by the directions and the award hence present petition.
3. During the proceedings before the labour Court the respondent workman had claimed, in his statement of claim that since 15.10.1985 he was in service with the petitioner and his entire period of service was spotless. He also claimed that his service was terminated with effect from 26th March 2002 by oral intimation. He alleged that after total service of 17 years the employer terminated him without complying any requirement or procedure prescribed by on known to law. He alleged that neither any notice was given nor notice pay was paid nor retrenchment compensation was paid and neither any allegation or charge for any alleged misconduct was also made against him nor any inquiry or disciplinary proceedings were conducted and only by oral intimation he was put out of service with effect from 26.3.2002.
4. The refe22rence was resisted by the employer by filing written statement against the respondents statement of claim. The petitioner employer put up the defence that it had not terminated the service of the respondent in any manner, much less by oral intimation as alleged by the respondent. The petitioner claimed that actually it was the respondent who on his own and voluntarily stopped reporting for duty with effect from 26.3.2002 and did not return for work after 26.3.2002 despite written intimations which were forwarded to him in April 2002 and May 2002. It was also claimed that even a messenger Mr. Samjibhai Somabhai was asked to visit the respondent’s residence and to instruct him to report for work and though the messenger had visited respondent’s residence on 20th June 2002 the respondent did not report for resume his duty and informed the said messenger that he did not want to resume his duties with the petitioner.
5. The respondent workman filed affidavit in lieu of his chief examination as part of his evidence, in addition to the documents which were placed on record by him below exhibit 7. On behalf of the petitioner affidavit in lieu of chief examination of one witness was filed.
6. As mentioned above the labour Court examined the said pleadings and the oral evidence of the petitioner employer and the respondent workman and also examined the documents placed on record by the contesting parties. After examining the entire evidence labour Court found that the petitioner’s defence was baseless and unsubstantiated and was not at all sustainable. the labour Court also found that the petitioner employer had failed to establish that any messenger was asked to visit the respondent at his residence since on one hand the respondent workman had in his evidence expressly denied the said submission and had claimed that no one had visited him at his residence whereas on the other hand the petitioner failed to, or rather conveniently, did not examine said Mr. Samjibhai Somabai who was allegedly asked to visit the respondent at his residence.
The labour Court also found that the petitioner failed to establish that any written intimations asking the respondent to resume duties were sent to the respondent.
The labour Court also noticed that the witness of the petitioner also did not give any evidence about the written intimations and / or about any messenger who was allegedly asked to visit the respondent’s residence to ask him to report for work.
Therefore, the labour Court accepted the respondent’s submission that his service was orally terminated and the said termination was effected in illegal manner because any procedure prescribed by law was not followed.
7. I have heard Mr. Thakar learned advocate for petitioner. He submitted, inter alia, that the labour Court has committed error in not accepting the petitioner’s defence that it was the respondent who stopped reporting for work and petitioner had not terminated his service. He also submitted that despite written intimations and the instructions to report for work through messenger, respondent did not report for work and instead he threatened the messenger Mr. Samjibhai Somabhai of dial consequences. The learned counsel for the petitioner also submitted that the respondent ignored the written requests also and that therefore the direction to reinstate the respondent is arbitrary and unjustified and similarly the direction to pay 20% backwages is also, unjustified and arbitrary. Any other contention has not been raised.
8. After carefully examining the pleadings filed by the parties before the labour Court and upon considering the material on record and after examining the submissions by the learned counsel for the petitioner and after carefully examining the reasons recorded by the labour Court, I do not find any infirmity in the award and / or any error or arbitrariness in the findings of fact and the conclusions recorded by the labour Court or even in the directions passed by the labour Court.
8.1 It is pertinent to note that there is no dispute regarding the date of joining and the date on which the respondent’s employment came to an end and about the total length of service.
8.2 The dispute is on the issue as to how did the respondent’s service come to an end i.e. as to whether respondent voluntarily abounded the service or the petitioner terminated his service by oral intimation.
9. It is not in dispute that the respondent’s service came to an end with effect from 26th March 2002.
9.1 It is also not in dispute that the petitioner had not served any notice or paid any notice pay to the respondent on or before 26.3.2002.
9.2 It is also not in dispute that any allegation or charge of any misconduct was not leveled against the respondent and any disciplinary action was not taken nor any proceedings in the nature of departmental inquiry was conducted against the respondent.
9.3 It is also not in dispute that before the said date i.e. 26.3.2002 the respondent had served with the petitioner for 17 years i.e. since October 1985.
9.4 The petitioner has, even while alleging that the respondent voluntarily left the service, failed to mention any reason as to why a person would give a employment after serving for 17 years, particularly when there are no allegations against him and when his past service record also does not contain any adverse report, and when even at the end of trial there is no evidence to show that at the relevant time the respondent was employed elsewhere.
9.5 It is pertinent that the petitioner claimed that it had forwarded 4 notices / intimations by way of communications dated 2.4.2002, 22.4.2002, 14.5.2002 and 31.5.2002, asking the respondent to report for duty.
10. However, what is interesting to note, on this count is the fact that the petitioner did not, and could not, place on record copy of even a single letter out of the said 4 letters.
10.1 The petitioner also did not, and could not, place on record any evidence to demonstrate that the said 4 letters or even any one of the said 4 letters was duly dispatched and served on and received by the respondent.
10.2 Although the respondent categorically stated in his deposition that he had not received any letter from the petitioner, any evidence either of service of the said letters to the respondent could be placed on record by the petitioner and even any material to show that even a single letter out of the said 4 letters was even dispatched from its office / establishment was placed on record.
10.3 Thus, the said defence or claim put forward by the petitioner was not established and proved by the petitioner before the labour Court.
10.4 Even the copies of the alleged letters were not placed on record by the petitioner.
11. When, in face of such facts the labour Court reached the conclusion that the petitioner failed to establish that it had forwarded any intimations asking the respondent to report for work, then such finding of fact cannot be said to be incorrect or unjustified, much less perverse or arbitrary.
12. The petitioner further claimed that it had asked a messenger i.e. one Mr. Samjibhai Somabhai to visit the respondent at his resident and asked him to report for work and that the said messenger had visited the respondent at his residence on 20th June 2002.
13. In his evidence the respondent denied that said Samjibhai had ever visited him at his residence and / or had at any place or at any time asked him, on behalf of the petitioner, to report for work.
14. Despite such denial by the respondent, the petitioner did not examine, as its witness, said Samjibhai Somabhai.
14.1 Thus, the said allegation remained completely unsubstantiated and that therefore it would not have any evidentary value and cannot be treated as anything more than bald and unsubstantiated allegation.
15. Thus, when the labour Court held that the said allegation or defence cannot be accepted, any fault cannot be found with such conclusion, particularly in absence of any evidence.
16. The forgoing discussion brings out that the petitioner could not establish that the respondent had voluntarily abonded the employment.
17. Despite such position of evidence, when the learned counsel for the petitioner assailed the findings of the labour Court and the directions, this Court with a view to testing petitioner's submission and defence from different perspective, asked the learned counsel as to whether the petitioner had asked the respondent to report for and resume duties during the conciliation proceedings, because that was the first stage and first opportunity available to the petitioner to establish its bonafide and its defence that it had not orally terminated respondents service by the respondent was not reporting for duty, however the learned Counsel candidly admitted that the petitioner had not made such offer or submission at the stage of conciliation.
17.1 This Court then asked the learned counsel for the petitioner as to whether the petitioner had seized the second opportunity or the opportunity at the second stage i.e. the stage of filing written statement and whether it had made the said offer to the respondent in the written statement and in response to the said quarry also the learned counsel for the petitioner had to admit that such submission was not made in the written statement as well.
17.2 If at all the petitioner was right in its defence that it had not terminated the respondent’s service and it had actually addressed intimations asking the respondent to report for work then in the reply to the respondent’s notice dated 8.7.2002 asking the petitioner to reinstate him, the petitioner would have immediately asked him to report for duty or at least in conciliation proceedings the petitioner would have and could have asked the respondents in presence of the conciliation officer to report for duty and in any case it could have and if its bonafides were clear it should have made such offer at least in the written statement. But the petitioner did not make such offer in the written statement as well.
18. All these aspects go to establish that the defence of the petitioner was incorrect and unjustified.
18.1 The Court with a view to examining the bonafides asked the petitioner's advocate, at the time of hearing of present petition, as to whether the petitioner was ready to reinstate the respondent and was ready to allow him to report for work during the hearing of the petition. At this stage also and in reply to the said suggestion again the petitioner’s advocate submitted that petitioner was not ready to reinstate the respondent.
18.2 Thus, when the petitioner could not prove that it had forwarded written intimation to the respondent and / or that it had asked a messenger to visit the respondent and asked him to resume duties and that it was the respondent who did not report for work, then the conclusion recorded by the labour Court that the petitioner failed to prove that the respondent had abandoned the employment and when the respondent had on 8th July 2002 forwarded written notice to the petitioner asking the petitioner to reinstate him and then prosecuted the reference for almost 9 years, the conclusion that the respondent’s claim that his service was illegally terminated cannot be dismissed or rejected.
18.3 Thus, when the labour Court accepted the case of the respondent, the said conclusion does not warrant any interference.
19. As regards the backwages the labour Court has taken into account the length of respondent’s service i.e. 17 years of service with the petitioner and also taken into account that the respondent remained unemployed and after considering the relevant factors when the labour Court considered it appropriate to award 20% backwages, then, having regard to the facts of the case, this Court is not inclined to interfere with the said decision of the labour Court.
20. The petitioner has failed to make out any ground against the award and has failed to assail the findings recorded by the labour Court and / or the directions passed by the labour Court. The petitioner has failed to show any material from the record which could convince this Court that the finding recorded by the labour Court are perverse or arbitrary or contrary to evidence on record. Any infirmity or error of law or jurisdiction are not established and therefore the petition fails and does not deserve to be accepted. Therefore, petition is hereby rejected.
(K.M.THAKER,J.) Suresh*