1. The original petitioner – workman in Reference (LCV) No. 451 of 1983 in the Court of Presiding Officer, Labour Court, Vadodara, has preferred this petition under Article 227 of the Constitution of India, challenging the award & order dated 20/7/1993, where under the reference challenging the retrenchment on account of non adherence to the principle of 'last come first go' was rejected and the retrenchment of the workman was held to be just & proper. During pendency of the petition, as the petitioner passed away, his heirs have brought themselves on record for continuing the challenge to the award.
2. The facts in brief leading to filing this petition as could be culled from the memo of petition deserve to be set out as under.
The petitioner-workman joined the respondent company from 15/7/1971 as Setter-Cum-Operator in Automate Department. The two employees – workmen namely Ranchhodbhai Gelabhai and Rameshbahi Jivanlal were given the designation and wages for the post of setter-cum-operator subsequent to the petitioner- workman's appointment, and the wage register and other documents clearly contain these facts. Therefore, it can be said that there can be no dispute with regard to designation and wages being admissible to those two workmen for the post were subsequent to that of the petitioner. The respondent company was constrained to bring about retrenchment after following section 25N of I.D. Act and therefore requisite permission from the competent authority was obtained and retrenchment of about 360 workmen were brought about, including the present petitioner. This retrenchment was subject matter of dispute which was raised and referred to the competent court wherein it was numbered as Reference (LCV) No. 451/1983. The workman contended that the category of setter-cum-operator is the category which is required to be considered for examining the order of retrenchment and challenge to it. Indisputably the workman came to be appointed on 15/7/1971 is the date on which the workman was given designation and wages as setter-cum-operator and even at that time also in the department the two workmen namely Ranchhodbhai Gelabhai and Rameshbhai Jivanlal were drawing wages and holding posts of Turner-Cum-Fitter and when these two workmen made grievances in respect of their wages and designation they were given the benefit admittedly later on in the year 1972 or thereafter. Therefore the principle of last come first go was not followed when the company retrenched the present petitioner in purported exercise of retrenchment with due permission of the competent authority after following due procedure of law under section 25N as it was applicable to the present respondent company.
3. The company put up its stand that the said two employees who have been alleged to be juniors to the petitioner-workman could not have been said to be juniors in any manger as the workmen viz. Ranchhodbhai Gelabhai and Rameshbhai Jivanlal were working in the very department since 1967 as turner-cum-fitter and in the company since 1962 & 1963 respectively. In the department only after automatic machines were brought and when petitioner came to be appointed, both these workmen were in fact carrying out their duties and worked as setter-cum-operator only, but the designation or wages has become insignificant as the retrenchment was to follow on the basis of 'first come last go'. Therefore when the seniority list was prepared and approved the present petitioner – workman was shown to be junior to those two employees which had not been objected to in any manner and when the due procedure as laid down and applicable under section 25N I.D. Act was followed the reference was required to be rejected.
4. The two workmen, viz. Ranchhodbhai Gelabhai and Rameshbhai Jivanlal were examined & cross-examined and during which it has come out in their testimony also that they were given wages and designation after the recruitment and appointment of the present petitioner in that category. They were working in that department and carrying out the work has remained undisputed. Based upon this evidence the Labour Court came to the conclusion that the two employees-workmen who were said to be juniors were not juniors in fact and hence there was no illegality or irregularity in retrenching the present petitioner and accordingly the order was upheld and reference was rejected. Being aggrieved and dissatisfied with the said judgment & award the present petition is preferred under Article 227 of the Constitution of India. During pendency of the petition the petitioner passed away and hence his heirs have continued the proceeding by bringing themselves on record.
5. Learned advocate for the petitioner invited this Court's attention to the clear admission coming on record in the form of testimony of two employees that the two employees-workmen were given designation and even wages only after the recruitment and appointment of present petitioner-workman. Therefore so far as the category of setter-cum-operator is concerned, the documentary evidence indicate clearly that the petitioner was senior to those two fellow workmen who have merely been projected orally to have been working as setter-cum-operator as the documentary evidences indicate entirely a different scenario. Therefore the Labour Court was not justified in accepting the oral testimony of the two workmen, viz. Ranchhodbhai Gelabhai and Rameshbhai Jivanlal to be working prior to petitioner and on that basis the retrenchment ought not to have been brought about by the employer against the present petitioner-workman.
6. Learned advocate for the petitioner contended that the Labour Court could not have overlooked the documentary evidences which unequivocally indicate that the workman i.e. petitioner's appointment was earlier than those two workmen who were given the designation subsequent to the present petitioner's appointment in that category of setter-cum-operator. The testimony of two witness of the management also go to show that atleast out of two one was required to sent to Bombay for obtaining additional skill and training whereas no such skill training was undergone so far as the case of the present petitioner is concerned. All these factors would collectively indicate that retrenchment of present petition was contrary to provisions of law and hence same was required to be quashed and set aside.
7. Learned advocate for the petitioner fairly submitted that there was no controversy that there was permission granted by competent authority, but the factors of scenario in category could not have been overlooked by the Labour Court and on that basis the retrenchment ought to have been declared to be illegal and in violation of principle of section 25G of I.D. Act.
8. Learned advocate appearing for respondent company contended that the evidence on record have clearly established that the petitioner-workman also did not challenge in any manner the fact that the workmen i.e. Ranchhodbhai Gelabhyai and Rameshbhai Jivanlal were in fact working in the department and were carrying out the work as setter-cum-operator. The petitioner-workman has attempted to indicate by leading evidence to establish the fact that said two employees-workmen were subsequently given the designation and wages attached to the post. That in itself would not be so material as to vitiate the action of retrenchment which was in consonance with provision of section 25N of I.D. Act.
9. Learned advocate for the respondent company relying upon the decision of the Apex Court in case of The Cawnpore Tannery Ltd, Kanpur Vs. Guha and Others, reported in AIR 1967 S.C. pg. 667, contended that the designation of the employee workman is not significant when it is otherwise established that the workmen were in fact working and carrying out their duties of the post. Therefore in the instant case also when the evidences led by two workmen on behalf of the company that they were in fact discharging their duty even prior to the appointment of the petitioner-workman, then, the ratio laid down by the Apex Court in The Cawnpore Tannery Ltd (supra) would have complete applicability to the facts of the case on hand and therefore the petition is required to be dismissed.
10. Learned advocate for the respondent company thereafter invited this Court's attention to the judgment & award, unequivocal testimony of the petitioner- workman in the form of his admission that when the permission was obtained from the competent authority in terms of provision of section 25N of I.D. Act, the seniority list was produced wherein petitioner-workman was admittedly shown to be junior and as that has gone without a demur the workman did not have any justification to raise dispute thereafter when the retrenchment permission was granted. The petitioner workman has also not come out very clearly by denying that there was an attempt to file writ petition and in fact writ petition was filed and had failed to yield any result.
11. This Court heard learned advocates for the parties, perused the petition as well as the accompanying documents. The fact remains to be noted that this petition is filed under Article 227 of the Constitution and therefore this Court would not undertake any examination or re-examination of the evidence on record. This Court is therefore required to keep in mind the fact that the alternatives operating in examining the award would not permit in any manner re-appreciation of the evidence and the evidence as they have been appreciated by the Labour Court will have to be taken as they are for examining the challenge to the award and order of the Labour Court. The submissions canvassed on behalf of the workman though appears to be attractive at the first instance but close perusal of the evidences and the reasoning adopted by the Court persuade this Court to hold that there exists no infirmity in the reasoning of the Labour Court for rejecting the reference.
12. The petitioner-workman was absolutely right in contending that the workman was given the designation of setter-cum-operator and the wages were also paid to him since inception of his employment with the respondent company, i.e. 15/7/1971. the petitioner- workman is also correct in establishing the fact that the two fellow employees, namely Ranchodbhai Gelabhai and Rameshbhai Jivanlal were given designation as well as wages admissible to this post only after they agitated and admittedly after the petitioner's appointment as setter-cum-operator. In other words the workman could have developed this submission to its logical conclusion to indicate that there existed no categorywise seniority list which is incumbent upon the employer to be maintained in terms of Rule 81 of the Industrial Disputes (Gujarat) Rules, 1966, but the workman's failure in making out a case on this line and when there was no specific contention with regard to seniority list and or there was no dispute with regard to seniority list which was subject matter of scrutiny by competence authority who was prima facie entrusted with the work of approving the retrenchment of persons mentioned in the list, and when all these factors have gone without demur, those factors would have to be appreciated while examining the challenge to the reasoning of the award of the Labour Court under Article 227 of the Constitution of India. It is undisputed that the two workmen namely Ranchhodbhai Gelabhai and Rameshbhai Jivanlal were far seniors so far as the employment in the company is concerned. They were recruited in the year 1962 and 1963 respectively as it has come out on record that, the petitioner workman came to be appointed in the year 1971. Had there been a case where the company was to retrench workmen by adopting seniority list as per the categorization, then, there was surely a case on the part of the petitioner to successfully agitate the grievance qua retrenchment. But it is no one's case that there was watertight classification or characterization so far as these post is concerned namely setter-cum-operator. Though the fact remains that the wages were different but it is also not the case of the present petitioner before SCA/1728/1994 10/10 JUDGMENT the Labour Court that those two employees did not carry out their duties as setter-cum-operator prior to retrenchment of the present workman. Labour Court has observed that the petitioner could not examine or bring as witness any other workman to justify or to controvert or to raise doubt with regard to testimony given by the said two workmen before the Labour Court. Had there been a challenge to the category or the retrenchment was based upon categorywise then it would have assumed different colour altogether. The Court hasten to add here, this Court need not go into this realm any further, as the reasoning adopted the Labour Court appears to be just and proper for rejecting the reference. Hence the petition preferred under Article 227 of the Constitution is required to be dismissed and is accordingly dismissed as there appears to be no miscarriage of justice or there is no action necessitated for this Court in interfering with the order in award passed by the Labour Court. Accordingly the petition is dismissed. Rule discharged. Interim relief if any granted earlier shall stand vacated. However there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn