1. By way of this petition under Article 227 of the Constitution of India, the petitioner - workman has prayed for an appropriate writ, order and/or direction, quashing and setting aside the impugned judgement and award dated 03/07/2009 passed by Labour Court, Valsad in Reference (LCV) No.472 of 1999, by which, the Labour Court, Valsad has dismissed the said Reference.
2. The petitioner was serving with the respondent. The petitioner raised industrial dispute challenging his alleged termination /retrenchment from 07/11/1998, which was referred to Labour Court, Valsad, which was numbered as Reference (LCV) No.472 of 1999. Before the Labour Court, it was specific case on behalf of the petitioner that his services has been terminated from 07/11/1998 without issuing any notice/ notice pay / retrenchment compensation and that to he has not been issued any charge-sheet and his termination was in breach of Section 25(F), 25(G) and 25(H) of the Industrial Disputes Act.
3. The Reference was resisted by the respondent by submitting that as such there was no termination/ retrenchment by the respondent-Management and despite the number of opportunities and notices issued upon the petitioner to resume the duty, he did not resume the duty on one ground and another and even before Conciliation Officer also, he was called upon to resume the duty, he has not resumed the duty. Hence, there is no question of committing breach of Section 25(F), 25(G) and 25(H) of the Industrial Disputes Act by the respondent as alleged by the petitioner. On appreciation of evidence, the learned Labour Court has held that it was the petitioner, who did not resume the duty and there was no termination by the respondent and consequently the Labour Court dismissed the said Reference. Being aggrieved by and dissatisfied with the judgement and award passed by the Labour Court, the petitioner has preferred the present petition under Article 227 of the Constitution of India.
4. Mr.P.C.Chaudhari, learned advocate appearing on behalf of the petitioner has vehemently submitted that the Labour Court has materially erred in dismissing the Reference. It is further submitted that it was case on behalf of the respondent that the petitioner has abandoned the work, in that case also, it was incumbent on the part of the respondent to hold inquiry against the petitioner and admittedly in the present case, neither there was any charge-sheet nor inquiry has been initiated against the petitioner and, therefore, Labour Court has materially erred in dismissing the said Reference.
5. Mr.Chaudhari, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of Hon'ble Supreme Court of India, rendered in the case of M/s.Scooters India Ltd. V/s. M.Mohammad Yaqub and another reported in 2001 LLR 54 = AIR 2001 SC 227 as well as in the case of Mahamadsha Ganishah Patel & Anr. V/s. Mastanbaug Consumers' Co-Op. Wholesale & Retail Stores reported in 1998 I CLR 1205 as well as in the case of Gangaram K. Medekar V/s. Zenith Safe Manufacturing Company and others reported in 1996(1) L.L.N. 703. By making above submissions and relying upon above decisions, it is requested to admit the present petition.
6. Heard Mr.Chaudhari, learned advocate appearing on behalf of the petitioner at length and considered the impugned judgement and award passed by the Labour Court. At the outset, it is required to be noted that on appreciation of evidence, the Labour Court has specifically found that though number of Notices were issued to the petitioner to resume the duty, the petitioner did not resume the duty on one ground or the another and, therefore, there was no retrenchment/ termination by the respondent. It is also specifically found by the Labour Court that even before the Conciliation Officer also, the respondent called upon the petitioner to resume the duty. However the petitioner did not resume the duty. Thus, when despite number of notices the petitioner did not resume the duty, it cannot be said that there was any termination/ retrenchment by the respondent. When there was no termination / retrenchment by the respondent, there is no question of following any procedure under Section 25(F), 25(G) and 25(H) of the Industrial Disputes Act. Under the circumstances and in the facts and circumstances of the case, it cannot be said that the Labour Court has committed any error and/or illegality in dismissing the Reference, which calls for interference of this Court in exercise of power under Article 226 of the Constitution of India.
7. Now so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of M/s.Scooters India Ltd. (Supra), the same shall not be applicable to the facts of the present case. In the case before the Hon'ble Supreme Court, it was categorically found by the Labour Court that the workman had not been allowed to resume the duty and, thereafter, the Management pleaded that it was case of abandonment of duty, in that case, Hon'ble Supreme Court observed that action of the Management is in violation of the principles of natural justice.
Even the decision of the Bombay High Court in the case of Gangaram K. Medekar (supra), it will not be applicable to the facts of the present case. In the case before the Bombay High Court, the Bombay High Court found that it was clear case of termination of service for misconduct and not abandonment of service.
Even in the case of Mahamadsha Ganishah Patel & Anr. (supra) it was found by the Bombay High Court that employee was on month's leave and thereafter he was not reported for duty on expiry of leave and he reported for duty about a month thereafter, but employer did not allow him to join duty. In the aforesaid facts and circumstances of the case, Bombay High Court held that even in case of abandonment of service, inquiry was necessary and in the absence of the same, it is held that the employer failed to establish abandonment of the service and the Bombay High Court found that there was termination of service.
8. Considering the aforesaid facts and circumstances of the case and for the reasons stated hereinabove, there is no substance in the present petition, which deserves to be dismissed and is accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti Top