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Gujarat High Court
Judgename :A.P.RAVANI, C.K.THAKKER
UMAKANT C.ACHARYA - Appellant
Versus
SAURASHTRA CEMENT AND CHEMICALS INDUSTRIES LIMITED,junagadh - Respondent
S.CRI.A. 2676 of .
Decided On : 12/31/1992
Industrial Disputes Act 1947 –Section 25 F, 33 (2) (b) – Labour Court Rajkot – Petitioners were working as turners in the cement and chemical factory of respondent-Company services were terminated by notice was stated in the notice that the management decided to close the mechanical workshop and therefore their services are terminated workmen were also informed that on any working day they may go to the office of the Company during working hours and receive the amount as may be reasonable due to them the notice it is also stated that the Accounts Department was instructed to make payment of one month wages since the workmen were being immediately relieved workmen were informed that if any articles belonging to the Company were with the workmen they should hand over the same and obtain clearance workman felt aggrieved by the order of termination of his service and raised industrial dispute reference being Reference were made by the appropriate Government and the disputes were referred to the Labour Court Rajkot all the three references the dispute was as to whether the workmen should be reinstated on their original posts with full backwages since common questions of facts were involved in all the three references at the request of the parties common evidence was recorded and common judgment and award was passed by the Labour Court –Held, There was ample opportunity given to both the sides to lead evidence. Both the sides should have led evidence which they thought fit. Be it noted that the retrenchment has taken place in the month of Reference was made to the Labour Court was decided some time in 1982 and thereafter the matter has remained pending in this Court for a period of about a decade evidence as regards the fulfilment of conditions precedent to retrenchment would be within the possession and knowledge of the respondent-Company one were to apply the principles of Evidence Act then also it was the duty of the respondent-Company to produce relevant evidence. Even today it is not the case of the respondent-Company that it was not in possession of the evidence as regards fulfilment of the condition precedent to retrenchment the party in possession of best evidence which would throw light on the issue in controversy withholds the same it cannot turn around and submit after a period of about a decade that the case be remanded to the lower forum and that it may be granted an opportunity to lead evidence. On the contrary in such circumstances as laid down by the Supreme Court in the case adverse inference is required to be drawn against such party this case the Supreme Court has inter alia observed that even if the burden of proof does not lie on a party the court may draw adverse inference if he withholds; important document in his possession which can throw light on the facts at issue – Petition is allowed – Rule made absolute accordingly.
( 1 ) THE petitioners were working as turners in the cement and chemical factory of respondent-Company. Their services were terminated by notice dated 5/02/1981 It was stated in the notice that the management decided to close the mechanical workshop from 9-2-1981 and therefore their services are terminated from 6-2-1981. The workmen were also informed that on any working day they may go to the office of the Company during working hours and receive the amount as may be reasonable due to them. In the notice it is also stated that the Accounts Department was instructed to make payment of one months wages since the workmen were being immediately relieved. The workmen were informed that if any articles belonging to the Company were with the workmen they should hand over the same and obtain clearance. Each workman felt aggrieved by the order of termination of his service and raised industrial dispute. Reference being Reference No. 612/81 (Umakant C. Acharya); 826 (Pravinchandra Naran) and 827/81 (Girdhar Karsan Jethava) were made by the appropriate Government and the disputes were referred to the Labour Court Rajkot.
( 2 ) IN all the three references the dispute was as to whether the workmen should be reinstated on their original posts with full backwages. Since common questions of facts were involved in all the three references at the request of the parties common evidence was recorded and common judgment and award was passed by the Labour Court. After hearing the parties the Labour Court ordered to dismiss all the three references as per its award dated 31/12/1982 The petitioners have challenged the legality and validity of this award and they pray to quash and set aside the same and also for other consequential reliefs.
( 3 ) IN the statement of claim filed by the petitioners-workmen it was alleged that they were serving as turners in the company for about twelve years before the termination of their services on 5 with effect from 6-2-1981; that the workmen had replied by notice dated 7/02/1981 and requested the company to continue them in service. But the company did not comply with the same. It was the case of the workmen that there was breach of the provisions of Section 25 F of the Industrial Disputes Act 1947 (hereinafter referred to as the Act ) and they were retrenched unlawfully without complying with the provisions of Section 25-F of the Act. Hence the prayer for reinstatement with full backwages. On behalf of the Company it was contended that since the mechanical workshop of the company which was an independent and separate unit was closed the services of the petitioners were terminated; that the respondent-Company has not committed breach of any of the provisions of Section 25-F of the Act; that after the services were terminated the workmen were offered alternative employment but the workmen have not accepted the same. The workmen as well as the respondent-Company led evidence before the Labour Court. On behalf of the petitioners all the three workmen examined themselves while the respondent-Company examined the factory manager Mr. Rakhi. The Labour Court examined the question as to whether it was a case of illegal termination of service or it was a case of relieving the workmen due to closure of one independent and separate unit of the Company. After hearing the parties the Labour Court came to the conclusion that it was a case of relieving the workmen due to closure of one separate independent unit of the Company and that there was no contravention of any of the provisions of the Act.
( 4 ) IN the aforesaid background the question to be determined is: Is it a case of unlawful retrenchment or is it a case of closure of an independent separate unit of the respondent-Company and therefore the action of the company relieving the workmen is legal and proper. In other words it needs to be examined as to whether mechanical workshop of the company can be said to be an independent separate unit of the company
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