1. Heard learned advocate for the parties.
2. The petitionerthe respondent in Reference (LCS) No.309/92 have approached this Court by way of this petition under Articles 226 and 227 of the Constitution of India, challenging the order and award passed by the Presiding Officer, Labour Court, Surendranagar in Reference (LCS) No.309/92 on 15/09/2000 partly allowing the reference and declaring that the action of the petitioneremployer in discharging the workmanrespondent herein above with effect from 15/01/2000, is illegal, contrary to law and hence he was required to be reinstated. However, the wages for the period from 15/01/1989 to 30/04/1992 were not granted on account of workman approaching and raising the dispute and qua the period thereafter, 20% of backwages is granted on workman's testimony qua his being engaged in some remunerative activities and cost of Rs.500/.
3. The facts in brief leading to this petition as could be culled out there from deserves to be set out as under :
4. The workman had to raise industrial dispute as though he was serving since five years prior to date of termination, his services were terminated intermittently, without following due procedure of law with effect from 15/01/1989. The dispute was referred to the competent Court, where it was numbered as Reference (LCS) No.309/92. The Court after recording its findings qua illegality of the order of termination and recording justification for not granting wages from 15/01/1989 to 30/04/1992 and for granting only 20% of back wages, partly allowed the reference and directed the reinstatement of the workman with costs of Rs.500/ vide order dated 15/09/2000.
5. The learned advocate for the petitioner invited this Court's attention to the entire award and submitted that the Court ought to have appreciated the fact that the workman abandoned the services on his own accord and on whatever days he was available for assignment of work, the work was given to him and hence the burden, which is cast upon the employer to prove its case, could not have been cast legally looking to the catena of decisions of the Supreme Court, wherein it is unequivocally held that the workman is under an obligation to prove his case of breach of Section25 F of the Industrial Disputes Act, 1947 and when the case is madeout, the Court could pass further consequential orders. In the instance case, the documentary evidences were available on record, which were indicative of the fact that the workman was presented himself intermittently and as and when the workman presented, the wages were paid. The workman did not come to duty after the year 1988 and hence, it was not the case of retrenchment and it was the case of abandoning of workman. In the matter, when the workman did not establish his case for breach of Section25 F, G and H, the Court could not passed the order of reinstatement and even 20% of backwages.
6. Learned advocate for the petitioner relying on the decision of the Apex Court in case of Bharat Sanchar Nigam Limited V/s. Man Singh reported in 2012 (1) SCC page 558, and submitted that without prejudice to the aforesaid submission, in case if it was a finding of the Court acceptable in law that the termination of workman is incorrect or illegal then, also reinstatement as a matter of course, would not have followed, looking to the conduct of the workman as the workman did not bother to raise dispute right from the socalled termination. The delay in raising the dispute has remained unexplained and therefore, in case if the Court is not inclined to accept the submission canvassed for assailing the order impugned, the Court may atleast modify the award and grant some lumpsum compensation in lieu of reinstatement and backwages that may satisfy the requirement of justice and equity.
7. Learned advocate appearing for the respondentworkman strongly resisted this petition and submitted that this petition is though said to have been filed under Article 226 of Constitution of India, the respondents have chosen not to join the Labour Court as a party and therefore, this petition is not maintainable as it is filed under Article226 of the Constitution of India as it is directly hit by the observation of this Court in case of “(The) Bhagyodaya CoOperative Bank Limited Vs. Natvarlal K. Patel And Anr., reported in 2011 (3) GLH (FB) 39”, The order impugned contains specific findings qua breach of Section25 F, 25G and 25H and when this Court is examining the order impugned under Article 227, then, the very limited scope of examining the availability, which may not persuade this Court to interfere with the findings of facts, which came to be recorded by the Court in the first instance after observing the witnesses and their say. The Court has clearly observed that the version of abandoning of job is not acceptable as the requisite procedure of such an eventuality, namely issuance of notice to be treated the workman as abandoning his job is not followed. When such findings is recorded, this Court may not interfere with the same in exercise of the power under Article 227 of the Constitution of India.
8. To support his contentions, learned advocate for the respondentworkman has relied upon the following decisions.
1. Kheda District Panchayat V/s. Jashubhai Devabhai Gohel, reported in 2006 (3) G.L.R. Page 2591.
2. Executive Engineer (Stores), R. & B. Division, Ahmedabad V/s. Harsha M. Jani, reported in 2007 (3) G.L.R. Page 1858.
9. Learned advocate for the workman further contended that the Court has clearly recorded glaring contention in the stand of the employer as could be seen from the written statement filed by the employer, which would indicate that the employer could not make out its case of workman abandoning the employment. The workman has constantly claimed that his services were terminated with effect from 15/01/1989, whereas the employer in written statement has comeout with two versions qua workman services. At one stage the employer has stated that the workman did not continue after 1987 and in the very statement, it is mentioned that he was working till August, 1988. This contention is correctly noted by the Court based upon the testimony of the workman, his crossexamination and the testimony of the witnesses of the management. This Court while exercising the power under Article 227 of the Constitution of India, may not interfere with the same findings and the petition may therefore be dismissed.
10. Learned advocate for the workman in alternative submitted that in case, if the Court is not inclined to accept the submission qua sustaining the order impugned in this petition as it is, then the workman would be satisfied if lumpsum compensation in lieu of order of reinstatement is granted and he has received specific instructions telephonically that to make this statement before this Court, that appropriate lumpsum compensation be granted.
11. The Court has heard learned advocate for the parties and perused the award impugned. The Court is of the considered view that the findings recorded by the labour Court cannot be said to be incorrect finding so far as the contention in version of the employer is concerned. But, the fact remains to be noted that employer admitted to produce the record available to it and therefore, labour Court could not have proceeded on a presumption that the employer withholding any record. So far as the fact remains to be noted that the workman did not apply of his own accord in any manner calling upon the employer to produce the record available to it to make his case good, this cannot be treated to be a strong ground in favour of the workman so as to accept the workman's case entirely. However, the Court is of the considered view that few findings, which are not required to be interfered are that the findings qua the nonobservation of the Rule81 of Gujarat Industrial Disputes Rules, not publishing the list in any manner and when the workman has pleaded breach of Section25 F, G, H and also N and when it is held that the seniority list is not produced or not published or displayed on the notice board, indicating who is the junior most, whose services are required to be retrenched and when the labour Court has not accepted the theory of abandoning of job, then the findings qua breach of provisions of Section25 F cannot be disturbed in exercise of powers under Article 227 of the Constitution of India.
12. The workman's advocate has unequivocally submitted to the Court under the instructions of the workman that the workman would be satisfied in case if the order of reinstatement and backwages is substituted by way of monetary compensation.
13. In light thereof and in view of the decision of Apex Court and in peculiar facts of this case, where the workman has not resisted the petition and insisted for order of reinstatement, it would be most appropriate and proper for justice and equity that the order of reinstatement is substituted by that of compensation or else it may not answer the Court's conscious and equity.
14. Hence, the order of reinstatement and backwages is substituted by that of awarding compensation, which is quantified to Rs.35,000/ (Rupees Thirty Five Thousand only). The amount of compensation be paid within 15 days from the date of receipt of this order, failing which it shall be paid with interest @ 9% p.a., which will start accruing from the expiry of 15 days from the date of receipt of this order, till it is actually paid. The petition thus, partly allowed. No order as to costs. Rule is made absolute to the aforesaid extent.
Rathod...
[S.R.Brahmbhatt, J.]