SCA/5024/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5024 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= NATRAJ CERAMIC & CHEMICALS INDUSTRIES LTD. - Petitioner Versus MANIBHAI G BHATT - Respondent ================================================= Appearance : MR YATIN SONI for Petitioner :MR NIRAJ J SHAH for Petitioner : NOTICE SERVED for Respondent: MR MUKESH B DAVE for Respondent: ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 19/12/2008 ORAL JUDGMENT Heard learned counsel for the petitioner. Rule. Shri M B Dave, learned counsel for caveator-respondent waives service of notice of rule. The matter is fixed forthwith with the consent of the counsels for the parties. 1. The employer petitioner has approached this Court SCA/5024/2008 2/9 JUDGMENT under Article 227 of the Constitution of India challenging the award dated 11/1/2008 passed by the Presiding Officer, Labour Court, Jamnagar in Reference (LCJ) No. 535/1990 where under the respondent workman is ordered to be reinstated on his original post and awarded 25% of the back wages with Rs.1000/- cost. 2. It was a case of the workman before the Labour Court that he was working as Peon in the petitioner company since 1982 on a salary of Rs.456/- per month and without any rime or reason his services were terminated w.e.f. 7/5/1986. As his services were terminated from 7/5/1986 without following due process of law the said termination was per se illegal and therefore, he was entitled to be reinstated with full back wages on the original post. The petitioner below exhibit-5 produced its written statement seriously contesting the claims made by the respondent workman. It was a stand taken by the petitioner that the workman had never been retrenched but he was transferred from Jamnagar to Jamkhambhaliya under the order dated 7/5/1986 which he has termed to be his retrenchment. As there is no retrenchment and no termination there is no question of maintaining the reference itself. The Labour Court after taking into consideration rival contentions of the parties decided the reference on 12/10/1999 ordering that the reference was partly allowed and the workman was ordered to be paid Rs.1500/- by way of compensation and Rs.200/- towards cost. This award passed in reference of 12/10/1999 was challenged by the workman in Special Civil Application No. 3805 of 2002. Said writ petition came to be disposed SCA/5024/2008 3/9 JUDGMENT of by this Court (Coram: R.S. Garg, J) vide order dated 29/6/2007. The Court held that if the Court below was of the opinion that the workman did not work for 240 days or more days acquiring said status then the Court below was required to reject the claim and if the Court was of the opinion that he had worked for 240 or more days the Court below should have taken into consideration the effect of Section 25-F of the I.D. Act. While observing such the Court remanded the matter with a direction that it should have allowed the parties to lead further evidence and if workman makes an application for production of the official records would be summoned by the Labour Court. In case the establishment says that they do not have the said records, then, the Court shall take note of the fact while recording findings in the matter. After giving due opportunity of hearing to the parties, the learned Court below shall decide the matter afresh in accordance with law and the observations made aforesaid preferably within eight moths from the date of appearance of the parties. This order was made on 29/6/2007. 3. Pursuant to this order of remand the Labour Court afforded opportunities to both the sides and passed the order as stated herein above which is impugned in the present petition under Article 227 of the Constitution of India. 4. Shri N.J. Shah for Shri Yatin Soni for the petitioner contended that the Labour Court ought not to have granted the back wages as all along right from the day of SCA/5024/2008 4/9 JUDGMENT filing of the written statement it was the stand of the petitioner that the workman had never been retrenched and as he was transferred form Jamnagar to Jamkhambhaliya on 7/5/1986. He on his own accord did not remain present nor did he report at Jamkhambhaliya as per the transfer order. In this view of the matter even today also the petitioner is ready & willing to reinstate the petitioner and they are not in fact challenging the award so far as the reinstatement is concerned. The award is challenged on the ground that the back wages ought not to have been granted. Though there is no proper and justifiable finding with regard to completion of 240 days also, but counsel has submitted that, as the stand of the company is very clear that the workman had never been retrenched the matter could confined only to the back wages part. In view of this, he submitted that granting of back wages can not be said to be justified from any angle. 5. Shri MB Dave for the caveator workman submitted that the workman was not in a position to keep his body & soul together at Jamkhambhaliya in a meager salary that was being paid and therefore, it was absolutely beyond his capacity to go and report at Jamkhambhaliya. He submitted that the award can not be interfered with as it was a duty cast upon the present petitioner to prove before the Court that the retrenchment was justified. On the contrary the record indicate that the petitioner company has miserably failed in establishing their case with regard to justifying the retrenchment as it could be seen from para-6 of the order passed by this Court. The SCA/5024/2008 5/9 JUDGMENT issue was with regard to retrenchment and applicability of Section 25-F of the I.D. Act only. He further submitted that the workman is ready & willing to receive his all legitimate dues but he is unable to report at Jamkhambhaliya, the place of his transfer. He submitted that as he was not permitted to discharge his duties at Jamkhambhaliya where the office is still continue and where still there is work available, the back wages to the tune of 25 % can not be said to be unjustified so as to call for interference under Article 227 of the Constitution of India. Shri Dave further submitted that as Jamkhambhaliya is 60 kms away from Jamnagar and as his families are residing in Jamnagar workman will have to spend money in commuting between Jamnagar and Jamkhanbhaliya which was very prohibitive and therefore he was unable to accept the transfer at Jamkhambhaliya. He has further submitted that he was ready & willing to work at Jamkhambhaliya provided the company provides him residential accommodation at Jamkhambhaliya like it is done in case of other employees. He produced report of the Inspector indicating that at Jamnagar office atleast one person is still working. He is not disputing the stand of the company that in Jamnagar right from the year 1986 only 2 persons were working, out of which the petitioner was the one worked as peon and another was a clerk. Lastly without prejudice to the aforesaid submissions, counsel for the respondent workman submitted that, if in case the company is not willing to reinstate him at Jamnagar only, then he is ready & willing to receive his terminal benefits that may be admissible to him and on that basis SCA/5024/2008 6/9 JUDGMENT the litigation be put an end to. 6. This Court has heard learned counsels for the parties and perused the award impugned. It deserves to be noted that all along it was never the case of the respondent workman that his transfer from Jamnagar to Jamkhambhaliya sought to be effected on 7/5/1986 was illegal, malafide, perverse, or for victimising the workman. In absence of such foundation laid in statement of claim and in absence of any such plea pressed into service before the Court below the counsel's submission with regard to entitlement of workman to hold on to the post of peon at Jamnagar only can not be considered to be just & proper. Had this been the case of victimization and malafide transfer for compelling the workman to give up his job, then, it would have been the foundation of the workman in the pleadings in the first instance itself. The entire controversy has been precipitated at all the level as if the workman had solemnised to be serving at Jamnagar only and he was non-transferable. If the case of the workman was non- transferable, then also the case could have been couched by the counsel for the workman to that effect but he could not point out any provision under the law as to whether the transfer from Jamnagar to Jamkhambhaliya was ever illegal or contrary to law or in violation of any service conditions. Assuming for the sake of examining this contention that the transfer was not in consonance with law, then also there ought to have been a specific plea and the Court ought to have been called upon to decide the same in light of the relevant provisions. The SCA/5024/2008 7/9 JUDGMENT Court can decide the same only when there was proper foundation laid in the statement of claim and the demand of notice for dispute. The counsel for the workman has failed in producing or pointing out anything from the statement of claim or there after indicating that the transfer dated 7/5/1986 had been illegal, contrary to law or even mala fide. Without there being any specific plea there can not be any finding and rightly there is no finding to that effect. It appears that the workman had presumed that he has a right to be there at Jamnagar and he was non-transferable and therefore without challenging the transfer before appropriate forum by appropriate proceeding he has granted status of non transferability unto himself and chosen not to remain present at Jamkhambhaliya, that is the place of his transfer. 7. The written submissions placed on record on page-72 of the compilation also go to show something that the transfer order which was sought to be effected on 7/5/1986 had never been complied with and thereafter workman did not remain present for discharging his duties at Jamkhambhaliya even for a day. He did visit Jamkhambhaliya on 2 or 3 occasions but only for the purpose of discussions. As against this the petitioner company has proved on record that it did send letters calling upon the respondent workman to report at Jamkhambhaliya as at Jamnagar the original 2 persons, i.e. respondent and one more person, were no more required and as per requirement of the company he was required to be posted at Jamkhambhaliya. The original SCA/5024/2008 8/9 JUDGMENT award passed in 1999 therefore had taken into consideration the over all facts & circumstances and awarded Rs.1500/- compensation but that award has been set aside by this Court and the mater was remanded only on the ground of proving retrenchment to be correct or incorrect. The counsels submission with regard to workman's inability to work at Jamkhambhaliya therefore can not be a valid ground for supporting the award and in the award there is no finding with regard to malafide transfer. The Court has proceeded only on the footing that if the workman was retrenched and retrenchment was bad, it was for compliance of section 25-F of the I.D. Act. The award therefore is only with regard to recording finding of non compliance with section 25-F rendering the so called retrenchment bad in eye of law and on that premises the operative portion has been cast which also do not specifically show that the workman had to be reinstated on the original place and post. This Court hasten to add here that the operative portion does say that the workman is ordered to be reinstated on original post. Thus the same can not be interpreted as if it was an order of reinstatement to the same place only. The post of peon could be at Jamkhambhaliya, could be at Jamnagar. In absence of specific direction the workman is to be there at Jamnagar only can not be culled out therefrom especially in absence of any pleading or finding with regard to transferability of the workman. 8. The council for the petitioner has submitted that this petition is confined only to the award of back wages and SCA/5024/2008 9/9 JUDGMENT when in proper interpretation of the award indicate that transferability was not under challenge, this Court is of the opinion that granting of 25 % back wages also would be giving premium to the workman's conduct of not reporting for duty at Jamkhambhaliya and treating himself to be non-transferable without being in a position to justify his stand. 9. This Court is therefore inclined to modify the award with regard to granting of 25 % back wages as the findings of the Labour Court have proceeded on the premises that there was a retrenchment. The award therefore is required to be modified. The workman would not receive any amount towards back wages. The award for reinstatement to the post of Peon irrespective of place of work can not be disturbed in view of the specific giving up of the challenge to the reinstatement. The petition therefore is required to be partly allowed and accordingly it is partly allowed. Rule made absolute to the aforesaid extent only. However, there shall be no order as to cost. [ S.R. BRAHMBHATT, J ] /vgn