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2020 Supreme(Guj) 421
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sonia Gokani, J.
Kantibhai Mafabhai Raval - Petitioner
Versus
The Administrative/Deputy Collector - Respondent
R/Special Civil Application No. 9311, 9312, 9313, 9314, 9315, 9316, 9317, 9318, 9319, 9320, 9321, 9322, 9323, 9324 of 2019
Decided On : 19-02-2020
For the Petitioner: Mr. Keyur A. Vyas
For the Respondent: Ms. Archana R. Acharya
Point of Law:
This provision has been couched in a mandatory form and non-compliance of the same would render the order of retrenchment illegal.
Issue of delay, per se, may not be a ground for the Court to deny the reliefs to the petitioner / claimant / applicant. Since, the same would amount to depriving the petitioners from putting forth his right and non-suit them. The Court or the adjudicating authority, at the best, can mould the relief and can deny some of the benefits, which, he would be, otherwise, entitled had the Reference been made, earlier.
Headnote:
Industrial Disputes Act, 1947 - Civil Procedure Code (Amendment) Act, 1999 - Section 115 - Petitioner was working as daily wager in respondent Trust was working as Security Guard in two shifts one shift started from second shift - According to petitioner completed continuous service of years in respondent Trust sincerely and honestly and no complaint was made against him - According to petitioner was orally terminated on without following due procedure - Petitioner raised an industrial dispute before Labor Court by way of filing Reference - According to petitioner was paid salary by obtaining signature on voucher slip and he has also worked for more than days in every year - In said proceedings petitioner filed Statement of Claim respondent employer denied averments made and contentions raised in said Statement of Claim - Both sides adduced evidence and after hearing both sides and considering evidence oral as documentary Labor Court rejected reference - Hence petitioner has preferred Special Civil Application - Held, Court issued Notice and on service of notice respondent Trust appeared and filed Affidavit through Administrator - Court is contended in reply that petitioner has filed reference after seven years from date of his termination without sufficient or reasonable explanation - Court is contended that Labor Court was justified in rejecting Reference and cogent reasons have been given while rejecting Reference - Court have made application for production of documents which is not decided by Labor Court after fixing it for hearing till it passed Awards and even petitioners workmen were not bothered to make any request to Labor Court to decide said application and direct respondent to produce documents - Before this Court advocate for respondent Trust made concerted efforts for getting material and has disclosed that as per Model Standing Orders records are not to be maintained after years and respondent trust is not having record of Contractor through whom petitioners workmen were engaged and hence respondent trust has nothing to do with petitioners and therefore has shown her inability to bring any record of Contractor as same is not available with respondent Trust - Petitioners did not join contractor as party before Labor Court as well as this Court and no efforts are made by them to produce records from Contractor - Respondent provided copy of records of daily wagers available with them Right to Information Act however except names of four petitioners namely petitioner of Special Civil Application and names of other petitioners are not reflected from said records also - Petitioners have worked for once only in four years -This short details of once having guarded places as provided Right to Information Act despite their reference pending for so many years is completely insufficient material for court to remand matter for purpose of permitting further evidence - Had there been some substantive materials of substantial days this court at best could have directed these matters to be remanded -Court is specific case of respondent Trust that petitioners were engaged by Contractors and respondents had not directly appointed them which otherwise is bound by Trust Act and maintain all documents in accordance with law - In absence of contractor as party and also in absence of any material for breach of Industrial Disputes Act this Court see no reason to interfere - Petitions dismissed (Para14)
Facts of the Case:
Petitioner was working as daily wager in the respondent - Trust. He was working as Security Guard in two shifts, one shift started from 6.00 AM to 2.00 PM and the second shift was from 2.00 PM to 10.00 PM. According to the petitioner, he completed continuous service of 11 years in the respondent Trust, sincerely and honestly and no complaint was made against him. According to the petitioner, he was orally terminated on 12/3/2004 without following due procedure as prescribed under the Industrial Disputes Act, 1947.
Finding of the Court:
Court issued Notice and on service of notice respondent Trust appeared and filed Affidavit through Administrator - Court is contended in reply that petitioner has filed reference after seven years from date of his termination without sufficient or reasonable explanation - Court is contended that Labor Court was justified in rejecting Reference and cogent reasons have been given while rejecting Reference - Court have made application for production of documents which is not decided by Labor Court after fixing it for hearing till it passed Awards and even petitioners workmen were not bothered to make any request to Labor Court to decide said application and direct respondent to produce documents - Before this Court advocate for respondent Trust made concerted efforts for getting material and has disclosed that as per Model Standing Orders records are not to be maintained after years and respondent trust is not having record of Contractor through whom petitioners workmen were engaged and hence respondent trust has nothing to do with petitioners and therefore has shown her inability to bring any record of Contractor as same is not available with respondent Trust - Petitioners did not join contractor as party before Labor Court as well as this Court and no efforts are made by them to produce records from Contractor - Respondent provided copy of records of daily wagers available with them Right to Information Act however except names of four petitioners namely petitioner of Special Civil Application and names of other petitioners are not reflected from said records also - Petitioners have worked for once only in four years -This short details of once having guarded places as provided Right to Information Act despite their reference pending for so many years is completely insufficient material for court to remand matter for purpose of permitting further evidence - Had there been some substantive materials of substantial days this court at best could have directed these matters to be remanded -Court is specific case of respondent Trust that petitioners were engaged by Contractors and respondents had not directly appointed them which otherwise is bound by Trust Act and maintain all documents in accordance with law - In absence of contractor as party and also in absence of any material for breach of Industrial Disputes Act this Court see no reason to interfere.
Result: Petitions dismissed
ORDER :
1. Since common question of law and facts arise in this group of petitions, they are being heard, decided and disposed of by this common Order.
2. Facts are taken from the Special Civil Application No.9311 of 2011, for the purpose of adjudication of the issue involved in all these petitions :-
2.1. The petitioner was working as daily wager in the respondent - Trust. He was working as Security Guard in two shifts, one shift started from 6.00 AM to 2.00 PM and the second shift was from 2.00 PM to 10.00 PM. According to the petitioner, he completed continuous service of 11 years in the respondent Trust, sincerely and honestly and no complaint was made against him. According to the petitioner, he was orally terminated on 12/3/2004 without following due procedure as prescribed under the Industrial Disputes Act, 1947 (hereinafter shall be referred to as “the Act” for convenience). According to him, the post of Security-cum-Guard is still available in the respondent trust. Under the circumstances, the petitioner raised an industrial dispute before the Labour Court, Palanpur by way of filing Reference (LCP) No.121 of 2011. According to the petitioner, he was paid salary by obtaining signature on voucher slip and he has also worked for more than 240 days in every year. In the said proceedings, the petitioner filed Statement of Claim. The respondent employer denied the averments made and contentions raised in the said Statement of Claim. Both the sides adduced the evidence and after hearing both the sides and considering the evidence, oral as well as documentary, the Labour Court rejected the reference. Hence, the petitioner has preferred Special Civil Application No.9311 of 2019 for the following main prayers :-
“12(B). The Honorable Court may be pleased to call for the record and proceedings of the reference case being no.121 of 2011 from the labour court at Palanpur and on perusing the same may be allowed;
(C). The Honourable court may be pleased to quash and set-aside or modified the order passed by labour court, Palanpur in Reference (LCP) case no.121 of 2011 dated 31/3/2018.”
2.2. Similar is the case in all other petitions.
2.3. This Court issued Notice and on service of the notice, the respondent Trust appeared and filed Affidavit-inreply through Administrator Mr.S.J. Chavda. It is contended in the reply that the petitioner has filed reference after seven years from the date of his termination without sufficient or reasonable explanation. It is contended that the Labour Court was justified in rejecting the Reference and cogent reasons have been given while rejecting the Reference. It is contended that the Labour Court has not only rejected the reference on the ground of delay in preferring the reference, but, also considered the merits of the matter. The Labour court has taken note of the fact that delay makes the dispute dead and hence, such dispute cannot be entertained. Relying on various decisions of this Court and the Apex Court, it has urged that the delay is fatal to the case of the petitioner. It is also contended that the petitioner has preferred the present petition after inordinate delay of seven years and the delay has not been explained satisfactorily. It is contended that the petitioner was appointed as a daily wager and was not appointed on regular sanctioned post. He was called for miscellaneous work and that too during festivity. He never worked continuously in any year for 240 days. It is contended that as the petitioner was daily wager, no notice or compensation as required under the Act has been given. His work is not permanent in nature and there is no post of Security Guard. It is denied that he was in continuous employment till he was terminated. It is contended that the petitioner not being regular employee, there is no question of issuance of any chargesheet nor is there any question of violation of Section 25F, 25G and 25H of the Industrial Disputes Act. In support of the above contentions, reliance is
