The court reconsidered the determination of employee status under the Industrial Disputes Act, emphasizing the need for a proper inquiry into workman classification due to termination disputes.

JUDGMENT :

M. K. THAKKER, J.

ORDER IN SPECIAL CIVIL APPLICATION NO.14161 OF 2022

1. Rule returnable forthwith. Learned advocate Mr.Varun Patel waives service of rule on behalf of the respondent.

2. Since the issue raised in the these petitions are similar, they are being decided by a common judgment. Facts of Special Civil Application No.14161 of 2022 is taken for consideration of the disposal of these petitions.

3. This petition is filed under Article 226 and 227 of the Constitution of India challenging the order dated 16.12.2021 passed in Miscellaneous Application No.12 of 2019 in Reference (L.C.R.) No.72 of 2018 by the learned Presiding Officer, labour court, Rajkot allowing the restoration application under Rule 26 A of the Industrial Disputes (Gujarat) Rule, 1966 and restoration of the reference being Reference No.72 of 2018 to its original file.

4. It is the case of the present petitioner that the petitioner was appointed on the post of Area Sales Manager with respondent No.2 Company vide appointment letter dated 15.03.2018 and the petitioner has joined respondent No.2 Company on 09.04.2018. At the time of appointment, petitioner was made to understand that he has to travel around 70 to 80 kms. for the business of the respondent Company and to provide financial facility to the farmers. Petitioner was informed that in addition to the above traveling, petitioner has to handle two districts namely Morbi and Jamnagar without any remuneration. Petitioner is living with his bed ridden father who is a stroke patient and ailing mother at Rajkot. Because of that family background petitioner had requested the respondent Company to assign the work as per the terms of appointment, however, instead of doing so, the Company had started harassing and discriminating the petitioner by stopping his monthly expense reimbursement and giving different treatment in comparison to other employees. Petitioner had completed the probation period on 08.10.2018, however, has not received any confirmation from respondent. On inquiring, the termination order was passed on completion of six months and nine days service with effect from 17.10.2018 by delivering back dated letter dated 11.10.2018. Challenging the said termination, the dispute was raised before the learned labour court which culminated into the reference being Reference (L.C.R.) No.72 of 2018 and the reference was awarded ex-parte in favour of the petitioner by directing the respondent employer to reinstate the petitioner on 14.11.2019 directing 20% back wages with relief of reinstatement. Respondent has filed an application under Rule 26 A of the Industrial Disputes (Gujarat) Rules praying to set aside the ex-parte award and to restore the reference. Learned labour court vide order dated 16.12.2021 has allowed the said application and restored the original reference and awarded cost of Rs.10,000/- which is subject matter of challenge before this Court.

5. Heard learned advocate Ms.Niyati Bhatt for the petitioner and Mr.Varun Patel for the respondent.

6. Learned advocate Ms.Bhatt submits that with a view to harass the petitioner, the order of termination was passed, as the petitioner had declined to travel 240 kms as the same is dehorse the appointment order. Learned advocate Ms.Bhatt submits that ample opportunities have been granted to the respondent No.2 on 16.03.2019, 23.05.2019 and 10.06.2019, to cross- examine the petitioner and opportunity was granted to lead the evidence to respondent No.2 on 18.06.2019 and 04.07.2019, however, the respondent failed in availing the said opportunities. Learned advocate Ms.Bhatt submits that though