LPA/1277/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1277 of 2008 IN SPECIAL CIVIL APPLICATION NO.18314 OF 2007 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================= 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 ? ========================================= CONVEYOUR TECHNICAL SERVICES - Appellant(s) Versus BUDHIRAM ALAGU HARIJAN - Respondent(s) ========================================= Appearance : MR KISHOR M PAUL for Appellant(s) : 1, None for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER LPA/1277/2008 2/7 JUDGMENT Date : 10/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.M.THAKER) 1. In view of the order made in C.A.No.7755 of 2008, we take up this appeal for hearing on merits. The appeal under clause 15 of Letters Patent is preferred against order dated 04.12.2007. The appellant is the writ-petitioner. 2. The opponent was an employee in the appellant establishment and his service was terminated w.e.f. 28.07.1997. Aggrieved by the said termination, the opponent herein approached the Labour Court by way of Reference (LCA) No.78 of 1998 claiming that his service was illegally terminated and the procedure prescribed by law was not followed. The Labour Court, after issuing notice to the contesting parties, awaited the reply from present appellant, which was not filed for long time. Hence upon an application from the side of the workman, the stage of filing reply by the employer (present appellant), was closed. However, subsequently on an application made by the appellant-employer the request to accept the reply on record was granted by imposing cost. It is pertinent that even after the aforesaid opportunity, no one remained present on behalf of the appellant-employer during the Reference proceedings. Therefore, the Labour Court proceeded further in the matter and passed an Exparte Award dated LPA/1277/2008 3/7 JUDGMENT 18.04.2006. Subsequently the appellant-employer preferred, on 18/21.07.2006, an application under Rule 26-A of the Industrial Disputes (Gujarat) Rules, 1966 with a prayer to set aside the Exparte Award and decide the reference on merits. By order dated 18.11.2006, the Labour Court rejected the said application. Thus, being aggrieved by the Exparte Award dated 18.04.2006 as well as order dated 18.11.2006 rejecting the Misc. Application, the appellant preferred the aforesaid Special Civil Application No.18314 of 2007. The learned Judge, after considering the submissions on behalf of the petitioner and upon examining the Award passed by the Labour Court, rejected the said petition. Hence, present appeal. 3. Mr. K.M.Paul, learned Advocate has appeared on behalf of the appellant and submitted that the appellant is suffering due to fault of its advocate who failed to remain present during the proceedings and the appellant establishment, which has been closed, deserves an opportunity to defend the reference on merits. He also submitted that, at the initial stage, the appellant was required to deposit Rs.10,000/- (Rupees Ten Thousand only) towards cost and subsequently the petition has been rejected. Mr. Paul submitted that when the appellant has already paid substantial amount towards cost, it would be just if the appellant is afforded an opportunity to defend the reference on merits. He also submitted that without sufficient reason or material the Labour Court has LPA/1277/2008 4/7 JUDGMENT granted 75% of back-wages from the date of alleged termination till the date of superannuation, and the said direction is unjustified. He also submitted that the findings by the Labour Court do not have support of any evidence. No other submissions have been made. 4. It is noticed on perusal of the Award that the Labour Court has recorded finding of fact, on the basis of the material available on the record, that the concerned workman had put in service of 240 days in each of the year during his employment and that the service of the workman was terminated without holding any inquiry and/or without following procedure prescribed by law including the procedure prescribed under Section 25-F of the Industrial Disputes Act, 1947 (“the Act”, for short). The respondent workman gave his deposition below Ex.12 and asserted that before the illegal termination he had put in service of 11 years and was ready and willing to report for work, if allowed. The said oral evidence was neither challenged by subjecting the respondent to cross-examination nor it was disproved by the appellant-employer by leading any oral or documentary evidence. Respondent's version remained uncontroverted for long and until the date of Award. The Labour Court has also recorded finding that the action of the employer is vitiated on account of breach of Section 25-F of the Act. 5. So far as the appellant's grievance against the Labour Court's conclusion about respondent having reached the age of LPA/1277/2008 5/7 JUDGMENT superannuation is concerned, it comes out from the Award that the Labour Court has taken into account the deposition of the workman and recorded that as per his deposition on the date of which the deposition was recorded, the age of the workman was 65 years. The said assertion was not challenged and was not disproved before the Labour Court, and even before the learned Judge also no material was put for consideration to dislodge the said conclusion. Under the circumstances, the findings of the Labour Court cannot be faulted. The Labour Court has also recorded that the appellant- employer failed, despite opportunities having been granted, to produce any material to controvert or disprove the assertions of the workman in his oral evidence. Though the appellant-employer had, in its reply, claimed that it was the respondent who had stopped reporting for work and despite requests asking to report for work, the respondent workman failed to report for work, the appellant- employer, however, failed to produce any material much less any cogent evidence to establish its defence. The appellant-employer did not lead any evidence to establish the averments in the reply/written statement and consequently the statements in reply/written statements remained mere unsubstantiated and bald statements. 6. Under the circumstances, it is not possible to find fault with the findings recorded by the Labour Court. On examination of the Award, the findings of the Labour Court appear to be based on LPA/1277/2008 6/7 JUDGMENT uncontroverted material obtaining on record. In our view, the Award does not suffer from any infirmity of law or jurisdiction. 6. When a party to the litigation, despite repeated opportunities by the Court, ignores the proceedings and also fails to cross-examine the opponent as well as to produce any evidence to support its defence-case, it is not just or proper to find fault with the Court in accepting the uncontroverted version of the other side. 7. So far as the direction regarding back wages is concerned, the appellant has not produced any evidence to establish any of its statements in the reply and/or to disprove the evidence of respondent. Hence, it is not possible to hold that the Labour Court's conclusion that respondent's termination is illegal, is incorrect. In such facts and circumstances when the learned Judge declined to interfere with the direction for payment of back wages, we do not see any good reason to interfere with the said decision of learned Judge and direction of the Labour Court. Further, the Labour Court seems to have determined the rate for back wages considering that despite having found that termination was illegal, the Court was not awarding reinstatement in view of closure of the establishment. 8. As regards the submission based on the ground of payment of cost and opportunity to try reference on merits we are LPA/1277/2008 7/7 JUDGMENT of the view that the learned Judge has declined the said prayer considering that 11 long years have already passed since termination of the respondent and it was the appellant who did not participate in or ignored the proceedings. The Labour Court, while examining the Misc. Application, has already recorded that the employer failed to show sufficient cause for not attending the proceedings. The Labour Court, therefore, did not accept the explanation of the employer regarding absence during the proceedings. We do not find any error in the decision of the learned Judge in accepting the said conclusion of the Labour Court. We are not inclined to accept the appeal. Hence, the appeal fails. The present appeal is, therefore, rejected. No order as to cost. [R.M.DOSHIT, J.] [K.M.THAKER, J.] jani