SCA/3734/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3734 of 2008 For Approval and Signature: 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 ? ========================================================= RATNABEN SOMABHAI SOLANKI - Petitioner(s) Versus INTRASIN PHARMACEUTICAL CO. - Respondent(s) ========================================================= Appearance : MR.HIREN M MODI for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR KM PATEL for Respondent(s) : 1, MS AVANTI K PATEL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 02/09/2008 ORAL JUDGMENT 1. The petitioner has challenged the award dated 1.6.2007 passed by the learned Labour Court, Nadiad in Reference (LCM) Case No.26 of 1993, whereby the learned Labour Court has rejected the said Reference SCA/3734/2008 2/12 JUDGMENT and has disallowed the relief prayed for by the present petitioner in the said Reference. 2. The petitioner herein is the second party in the said Reference proceeding in Reference (LCM) No.26 of 1993 and she claimed to be workman employed by the respondent. The respondent is originally first party in the aforesaid Reference and is a Limited Company. On perusal of the award, it appears that the petitioner herein approached the learned Labour Court with the case that since last about 18 years, she was working as Safai Kamdar and also doing various miscellaneous work also performing duties of water server in the establishment of the respondent and was being paid Rs.200/- per month towards salary and since she was being paid paltry amount towards wages, which were much less than the prescribed minimum wages, she had made complaint to the Government Labour Officer (G.L.O. for short). The G.L.O. had visited factory premises of the respondent and recorded the statement of the petitioner. She claimed that her service was terminated by oral order with effect from 20.2.1993 and before terminating her service, the respondent had not followed any procedure prescribed by law. In the backdrop of such allegations, the petitioner prayed for relief of reinstatement with full back-wages and other benefits. 3. The respondent herein entered its appearance and filed written SCA/3734/2008 3/12 JUDGMENT statement opposing the claim by the petitioner herein. As per the case of the respondent, the petitioner was residing with her husband who was an employee of the respondent Company as a watchman and it was the petitioner's husband, who was allotted a room/quarter, on the premises of the Company, in his capacity as Company's employee. It is further case of the respondent that the petitioner's husband had developed cancer and as per the case of the respondent - Company, the petitioner was staying with her husband in the said room/quarter allotted by the respondent – Company. It is the further case of the respondent Company that after petitioner's husband developed cancer, the Company, as a goodwill – gesture, continued to pay wages (though he was not actually working), which were being received by his wife i.e. the petitioner on his behalf and so as to provide aid to the ailing working of the Company and his wife, the petitioner, a petty contract (bottle washing contract) was also awarded to the petitioner in November, 1984, however, the petitioner was never employed as a workman by the Company and she was not its employee and by misusing the said arrangement, the petitioner lodged the case against the respondent Company. In backdrop of such assertions, the respondent claimed that there was no employer and employee relationship between the respondent and petitioner and the entire case of the petitioner was concocted. 4. During the proceedings before the learned Labour Court, both the SCA/3734/2008 4/12 JUDGMENT sides produced certain documentary evidence and the deposition of the respondent was recorded. During her deposition, the petitioner appears to have claimed that the respondent Company had also issued Identity card, which contains her name and address etc. Copy of the said identity card was produced on record by the petitioner. In her deposition, the petitioner appears to have asserted that she was working since last about 18 years as Safai Kamadar and also performing misc. works and continued to work as such until got illegally terminated with effect from 20.2.1993. The petitioner also produced copies of certain vouchers and claimed, on the basis of said vouchers, that she was being paid Rs.200/- per month towards the salary. The petitioner also appears to have produced on record copy of the report made by the Government Labour Officer pursuant to his visit on 9.7.1992. It is recorded by the learned Labour Court that except the said documents, no other documentary evidence was produced by the petitioner and except examining herself, the petitioner did not examine any other witness on her behalf. On behalf of the respondent, deposition of Mr. Shaileshbhai R. Shah was recorded at Exhibit 29. On behalf of the respondent, a copy of settlement, arrived at by and between the respondent Company and its workman, was produced on record. Mr. Shaileshbhai Shah in his evidence denied that the petitioner was engaged as workman/employee by the respondent Company and/or that she was ever paid any amount SCA/3734/2008 5/12 JUDGMENT towards the salary by the respondent Company. The said witness of the respondent - Company has, by and large, reiterated assertions made in the written statement. With reference to the document namely identity card produced by the petitioner, the respondent Company offered an explanation that it was issued for the purpose of facilitating ingress and egress in the premises. 5. After examining the documentary evidence and oral evidence produced by both sides and upon considering the submissions made by the learned advocates of the respective parties, the learned Labour Court came to the conclusion that the petitioner failed to establish that she was employee of the respondent Company and was working as Safai Kamdar and the learned Court has also held that the petitioner failed to establish that she was working since last about 18 years i.e. since 1975 with the respondent Company. Further, after considering the evidence available on record, the learned Labour Court also came to the conclusion that the petitioner was not entitled for the relief prayed for by her and therefore, rejected the Reference. 6. Heard Mr. H.N. Modi, learned advocate for the petitioner and Mr. K.M. Patel, learned advocate for the respondent Company. 7. Mr. Modi, learned advocate submitted that the petitioner had produced a copy of the identity card, certain vouchers and a copy of the SCA/3734/2008 6/12 JUDGMENT report of the visit carried out by the Government Labour Officer dated 9.7.1992. In view of the said evidence, the learned Labour Court could not have disbelieved the claim of the petitioner and ought not to have rejected the Reference. Mr. Modi, learned advocate submitted that the said documents established that the petitioner herein was working in the respondent company and was its employee working as Safai Kamdar and also doing miscellaneous work. In absence of any evidence, showing that her services were terminated after following procedure prescribed by the law, the relief prayed for by the petitioner ought to have been granted, more so because it was duly shown that her termination by oral order of the respondent was illegal. He submitted that the award suffers from serious apparent errors. 8. On the other hand, Mr. Patel, learned advocate appearing for respondent - Company supported the finding recorded by the learned Labour Court in the impugned award. Mr. Patel, learned advocate submitted that the vouchers of which reference is made by the petitioner do not substantiate the claim that the amounts reflected therein were paid towards wages. In fact, a closer look at the said vouchers, Mr. Patel claimed, shows that the amount appears to have been paid for miscellaneous and sundry expenses and on the basis of said vouchers, it cannot be believed that the payments made by virtue of said vouchers was towards wages. Mr. Patel, learned advocate also submitted that the SCA/3734/2008 7/12 JUDGMENT petitioner did not examine any witness to corroborate her claim and/or allegations and that therefore, the learned Labour Court has rightly come to the conclusion that the petitioner failed to establish that she was employed by the respondent Company as a Safai Kamadar and/or that she had worked for 18 years and/or that she was illegally terminated. 9. Mr. Modi, learned advocate has heavily relied upon the copy of the identity card allegedly issued by the respondent Company. The learned Labour Court has dealt with the submissions on behalf of petitioner on the basis of said identity card and has recorded a finding that there is great deal of variance and discrepancy between the assertions made by the petitioner with regard to the date of joining and her designation etc. and the details mentioned in the said card. While perusing the said identity card (Annexure B, page 19), the finding of the learned Labour Court does not appear to be erroneous. 10. It is settled position that when the findings about facts are recorded by the learned trial Court upon appreciating evidence documentary and/or oral - then the High Court in exercise of power under Article 227 would not re-appreciate the evidence and/or interfere with the findings fact unless the same are arbitrary, irrational or perverse. Even if for the sake of examining submission made by Mr. Modi, a closer look at the said card is taken then it comes out that on SCA/3734/2008 8/12 JUDGMENT one hand, the petitioner claimed, in her claim statement and oral evidence ( since the petitioner has not produced copy of the claim statement and/or copy of the deposition the Court has to refer to the copy of award only) and thereby asserted before the learned Labour Court, that she had been working with the company as Safai Kamdar since last 18 years, which would mean since 1975, whereas on perusal of the identity card it comes out that the date of joining (mentioned in the said card) is 6.11.1989. 11. The learned Labour Court has taken note of the said discrepancy and preferred to not rely upon the said document in absence of any other corroborating document or oral evidence. The learned Court has on examining the said document recorded finding that the claim based on the said document was not acceptable and/or worthy to rely on and upon considering the findings recorded by the learned Labour Court, this Court does not find any good reason to interfere with the said findings about facts recorded by the learned Labour Court, more particularly because any other corroborating evidence either oral or documentary - which may contradict such conclusion is not produced by the petitioner. In view of such discrepancy, the petitioner could have examined any worker of the Company, but she has, as rightly noticed by the Court, failed to explain the discrepancy or to corroborate and prove her claim. This discrepancy is more relevant in view of the contract document SCA/3734/2008 9/12 JUDGMENT (Mark 77/1) produced by the respondent on the record before Labour Court to substantiate the submission that she was awarded a contract for short duration so as to help her in terms of distress, and the date of the contract is said to be 6.11.1989. 12. At this stage, it is also relevant to take note of the fact that a copy of the settlement arrived at by and between respondent Company and its workman was placed on record of the learned Labour Court. It was the case of the respondent - Company that the said settlement was signed by all the employees - workmen of the respondent - Company, however, the name and signature of the petitioner did not figure anywhere in the said settlement. In the submission of the respondent - Company, the said factual aspect clinches the fact that the petitioner was not in the employment of the respondent - Company. The learned Labour Court has, after examining the said settlement, accepted the said submission of the respondent - Company and on this count also, this Court could not find, from the available record, any convincing reason to disagree with the findings recorded by the learned Labour Court. 11. It would not be out of place to note that it is difficult to believe that for 18 long years, the petitioner, though allegedly continued in the employment of the respondent - Company, would not mark her presence in the muster-roll or would not sign any other document, more SCA/3734/2008 10/12 JUDGMENT particularly, when she was, as claimed by her, working as a Safai Kamdar. Thus, on the overall consideration of the matter and from the material obtaining on record of present petition, there does not appear to be any strong reason to interfere with the findings of the fact recorded by the learned Labour Court. 13. Further, so far as the the copies of different vouchers are concerned, it is pertinent that on perusal of the said copies of the vouchers, it is not possible to come to the conclusion that the amounts shown as paid under the said vouchers were paid towards salary, because nothing to that effect is mentioned in vouchers. The petitioner does not appear to have even mentioned the name of the person whose signature appears on the vouchers and the person has not been examined before the learned Labour Court. As claimed on behalf of the respondent, the said documents have not been duly established and proved by the petitioner before the Court and they do not appear to have been duly accepted or taken on record. It is not mentioned or certified in the said vouchers that the payments are towards salary/wages of petitioner. On the contrary one of the vouchers i.e. voucher No..73, dated 15.5.1991 is ex facie for payment towards miscellaneous items e.g. Kerosene, Niarma Soap, light repairing etc. Thus, as noted above, the vouchers do not disclose or establish that the amounts paid by way of the said vouchers were paid towards salary to the petitioner. When a limited SCA/3734/2008 11/12 JUDGMENT Company pays any amount to any workman towards the salary then it would certainly reflect such payment in their accounts and also in the Income-Tax returns filed before the Income Tax Department inasmuch as payment towards the salary would qualify for exemption. Unless the vouchers expressly demonstrate, from the details mentioned therein, that the amounts mentioned therein were paid towards salary, it would not be possible to infer that the said payment was towards salary and/or to interfere with the findings about facts recorded by the learned Labour Court. So far as the report of the visit carried out by the Government Labour Officer on 9.7.1992 is concerned, it is true that the name of one petitioner is mentioned by the Government Labour Officer in his report dated 24.7.1992, however, perusal of the said report does not disclose that the Government Labour Officer had recorded any statement of the petitioner on 9.7.1992 as claimed by the petitioner. On the basis of the said solitary material, in absence of other corroborating evidence, it is hazardous to presume at this stage that the petitioner herein was in the employment of the respondent - Company and that she was working since about 18 years (i.e. since 1975) and engaged as a Safai Kamadar. More so when Labour Court has not accepted such submission and has recorded a different and contrary finding after appreciating and evaluating entire evidence. It is not possible to hold, in light of such facts and discrepancies, that the view taken by the learned Labour Court and SCA/3734/2008 12/12 JUDGMENT conclusion reached by the learned Labour Court are erroneous and are not justified or that they fall in the category of perverse findings. Therefore, it is not possible to interfere with the said findings about the facts recorded by the learned Labour Court and/or with the view taken by the Court in light of the material and facts obtaining on record. 14. As noted hereinabove, this Court is not able to take any different view from the findings recorded by the learned Labour Court, more particularly, because the petitioner has failed to examine any independent witness and to produce any independent or corroborating evidence. The petitioner has failed to give any cogent and strong ground or justification to interfere with the findings of fact recorded by the learned Labour Court and that therefore, the petition challenging the said award, does not deserve to be accepted. Hence, the same is rejected. Notice is discharged. No order as to costs. (K.M.THAKER, J.) ynvyas