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2022 Supreme(Online)(Guj) 3478
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 10438 of 2017 With R/SPECIAL CIVIL APPLICATION NO. 12842 of 2017 With R/SPECIAL CIVIL APPLICATION NO. 2325 of 2018 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed No
| 1 | Whether Reporters of Local Papers may be allowed to see the judgment ? | No |
| 2 | To be referred to the Reporter or not ? | No |
| 3 | Whether their Lordships wish to see the fair copy of the judgment ? | No |
| 4 | Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? | No |
ABHISHEK INDUSTRIAL SERVICE PVT. LTD Versus NATHABHAI BHAGWANJIBHAI RATHOD & 2 other(s)
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Appearance-SCA No.10438 of 2017 MR PS GOGIA(2751) for the Petitioner(s) No. 1 MR TR MISHRA(483) for the Respondent(s) No. 1 MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 1,3 Appearance-SCA No.12842 of 2017 MR TR MISHRA(483) for the Petitioner MR PREMAL R JOSHI(1327) for the Respondent(s) No.1 MR PS GOGIA(2751) for the Respondent No.2 Appearance-SCA No.2325 of 2018 MR PREMAL R JOSHI(1327) for the Petitioner MR TR MISHRA(483) for the Respondent No.1 MR PS GOGIA(2751) for the Respondent No.2 ================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE Date : 13/07/2022
ORAL JUDGMENT
1. RULE. Learned Advocate Mr.T.R.Mishra waives service of Rule on behalf of respondent No.1 and learned Advocate Mr.Premal Joshi waives service of Rule on behalf of respondent No.2 in Special Civil Application No.10438 of 2017, learned Advocate Mr.Premal Joshi waives service of Rule on behalf of respondent No.1 and learned Advocate Mr.P.S.Gogia waives service of Rule on behalf of respondent No.2 in Special Civil Application No.12842 of 2017 and learned Advocate Mr.T.R.Mishra waives service of Rule on behalf of respondent No.1 and learned Advocate Mr.P.S.Gogia waives service of Rule on behalf of respondent No.2 in Special Civil Application No.2325 of 2018.
2. These three petitions are challenging the same award of the Labour Court, Junagadh dated 02.02.2017 in Reference (T) No.101 of 2006. The petitioner of Special Civil Application No.10438 of 2017 is a contractual employer, the petitioner of Special Civil Application No.2325 of 2018 is a principal employer and Special Civil Application No.12842 of 2017 is filed by the workman. By the impugned award, the Labour Court has ordered reinstatement of the workman without back wages and therefore, employers have filed the petitioners for setting aside the order of reinstatement with continuity in service, whereas the workman has challenged the award on the ground of non-grant of any back wages.
2.1 It is a case where the workman was working as a tanker driver and on account of his remaining absent, was issued with the show cause notice and after issuance of show cause notice, as the explanation offered by the workman was not acceptable to the contractual employer, his services were terminated.
3. Learned Advocates appearing for the employers jointly submitted that the impugned award is required to be interfered with on the ground that the respondent was given opportunity to explain absenteeism and in his explanation to the show cause notice, he has given general reply about ill-health of his parents and thereafter death in the family, which precluded him from attending his duties. He had also given reasons of ill-health of his children. It is argued that such explanation could not be accepted by any standards. Moreover, in the reply itself, the workman has admitted about his misconduct of remaining absent and therefore, as he has admitted, there was no requirement of any further proceeding in the name of departmental inquiry as the same would be an exercise in futility. It is argued that the reasons mentioned by the workman cannot be accepted to be genuine as in the reply to the show cause notice, he has stated about ill-health of the family members, whereas in the statement of claim, he has resorted to a different stand of he himself being medically unfit.
3.1 It is further argued that even before the Labour Court, the workman has not been able to place anything on record to substantiate and justify his absence from duty.
3.2 It is submitted that though the proceedings which were challenged before the Labour Court were show cause notice and the order of dismissal passed by the contractual employer and there being no other evidence led by the workman, still without any basis, the Labour Court has proceeded to hold that the workman was employee of the principal employer and therefore directed both the principal and the contractual employer to reinstate the workman.
3.3 It is also submitted that by the conduct of the workman himself, it can be seen that he has accepted the order of dismissal as he has received demand draft towards his dues.
3.4 It is lastly submitted that in reply to the statement of claim, the petitioners had raised contention that in case the departmental inquiry is held to be defective, in that case, the petitioners-employers be given an opportunity to lead evidence before the Labour Court to prove misconduct. Despite this, the Labour Court has not passed any order in that regard.
3.5 Learned Advocates for the petitioners relied upon decision of the Apex Court
