SCA/132/0708 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13207 of 2008 To SPECIAL CIVIL APPLICATION No. 13216 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 ? ============================================= JACOB GAS AGENCY - Petitioner(s) Versus RAMJIBHAI DHULABHAI PARMAR & 1 - Respondent(s) ============================================= Appearance : MR JV JAPEE for Petitioner(s) : 1, MR P C CHAUDHARI for Respondent(s) : 1, None for Respondent(s) : 2, =========================================== CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/11/2008 COMMON ORAL JUDGMENT 1. Heard learned Counsels for both the parties. SCA/132/0708 2/8 JUDGMENT 2. In this group of ten petitions, the employer Jacob Gas Agency has challegned the award and order dated 04.04.2008 passed by the Labour Court in Reference (L.C.A) Nos. 2052 of 1991, 2076 of 1991, 2053 of 1991, 2060 of 1991, 874 of 1992, 2054 of 1991, 2059 of 1991, 2055 of 1991, 2056 of 1991 and 2075 of 1991. The award is also common in all points except the defendents of individual workmen which may not be relevant for deciding this matter. The group of ten petitions was heard together and is being disposed of by this common Judgment and Order, as it contains common question and points to be decided. 3. The facts in brief deserve to be set out as under: 3.1 The respondents in all these petitons raised industrial dispute that they were terminated without following due process of law by the petitioner no.1 and the said industrial dispute was referred to the Court by the Competent Authority. The Labour Court after taking into consideration the rival contentions of the parties came to the conclusion that the workmen were in fact emplyed by the present petitoner, and, therefore, as they had been terminated without following the due preocedure of law, they were ordered to be reinstated with 25% backawages and rejected reference qua M/s Nirmal Enterprise (hereinafter referred to as first party no.2). Being aggrieved and dissatisfied with these awards, the present petitions have been preferred under Articles 227 and 226 of the Constitution of India. 4. Shri J.V. Japee, learned Advocate appearing for the petitioner contended that impugned awards deserve to be quashed and set aside as the Labour Court has erred in not appreciating the fact that the workmen were in fact engaged by the Contractor i.e M/s Nirmal Enterprise and not by the petitioner. The contract between the petitioner and said first party SCA/132/0708 3/8 JUDGMENT no.2 (Nirmal Enterprise) was produced on record and on that basis, clear fact emerge that respondent-workmen were not engaged by the petitioner but they were engaged by the Contractor whose husband was serving as Accountant in the petitioner firm. Shri Japee has invited this Court's attention to the document at Exh. 41 to 61 and submitted that these documents could not have been relied upon by the Labour Court for coming to the conclusion that the workmen were employed by the petitioner firm. The documents are not on the letter head of the petitioner firm and they have been produced by the Accountant who had an easy access to them. Shri Japee further submitted that the written statement filed on behalf of Contractor clearly go to show that the respondent-workmen were employed by the Contractor and they were carrying out distribution of gas bottles as an employee of Contractor only. The Contractor later on while giving evidence changed his version without changing or amending the written statement. Therefore, the said Contractor's evidence could not inspire any confidence. The Labour Court has not only accepted those evidences but has believed it to be true and on that basis, held that the respondent-workmen to be employees and workmen of the petitioner which is an erroneous finding and the same deserves to be quashed and set aside. 5. Shri Japee contended in reply to the contention of the respondent that the Contract at Exh. 23 between the principal and petitoner herein for distribution of gas bottles to indicate that it was not open to the petitioner to enter into any arrangement or contract for the work distribution without prior permission of principal Bharat Petroleum Corporation Ltd, would at the most can be said to be an arrangement between the parties and non-compliance therewith would result in no other consequence, but on that basis it cannot be said that the respondent-workmen were employed by the present petitioner, SCA/132/0708 4/8 JUDGMENT especially when the documents as stated above were not on the letter head of the present petitioner, and the testimony of the Contractor and his wife also do not inspire sufficient confidence to show that they were telling the truth before the Court so as to fasten the liability of the workmen upon the present petitioner. Shri Japee has also attempted to rely on the subsequent documents obtained on 26th November, 2008 along with additional affidavit indicating some payment made to Nirmal Enterprise-the Contractor first party no.2. Shri Japee also relied on the banks statement for the relevant year indicating payment made to the Nirmal Enterprise. Based upon these documents, an attempt is made to show that the version of petitioner before the Labour Court was absolutely just, proper and correct and the Labour Court ought not to have fastened liability of respondent-workmen to the petitioner. Shri Japee fairly admitted that the documents attached to the affidavit starting from page 102 do not form part of the record of the Labour Court naturally as they have been obtained only after the reference was over but that in itself would not militate against the correct position. So far as the correct position is concerned, the workmen-respondent were never employees of the petitioner agency and, therefore, the documents are produced here at this stage under Article 227 only with a view to indicate that their exists record and documents to show that the version of the petitioner was correct before the Labour Court. 6. Shri Japee further contended that documents which have been relied upon by the Labour Court were not obtained legitimately by the Contractor as it could be seen from his testimony that the custody of those documents was itself to be dubious and the Contractor had misused his position. He was not required to produce those confidential documents which the petitioner in his solemn trust upon the Contractor had entrusted to him. The Contractor has produced those documents and SCA/132/0708 5/8 JUDGMENT thereby has acted malafide against the petitioner company. The documents cannot be said to be proved though they are exhibited. Shri Japee fairly admits that admission of those documents have never been challegned by the petitioner in any forum . 7. Shri Chaudhry appearing for the respondent-workmen on Caveat has taken this Court through the evidence and testimony of the witnesses including the present petitioner and submitted that the Labour Court's award being very just and proper needs no interference by this Court under Article 227 of the Constitution of India. Shri Chaudhary has stated that non-framing of issue with regard to their real employer in the column of issues in itself would not be so fatal as to admit the petitons as a reference to the finding from the reasoning portion of the judgment, it can well be seen that the Labour Court has in fact addressed itself to this specific issue in the judgment, the objection if any, with regard to non-framing of the same issue more articulately under the portion of issue would be of no consequense. 8. Shri Chaudhray further submitted that the testimony of the petitioner and his cross-examination itself would go to show that the version put forward by the petitioner with regard to its liability or non liability qua respondent has not been proved. This assertion is made time and again but the petitioner has miserably failed in producing any document whatsoever to support his version. The workmen have unequivocally claimed that they have been working since long in the organisation and the dates are mentioned in the respective name and this statement has not been challenged by either of petitioner or the original Contractor who was party in the reference. Therefore, that is to be treated as an acceptance on their side and there is no dispute with regard to length of services and there cannot be also with regard to SCA/132/0708 6/8 JUDGMENT unceremonious termination without following due procedure of law. The only issue which was raised was that of their employer-employee relationship. In view of this, the award does not call for any interference and the same is deserves to be dismissed. 9. This Court has heard learned Counsels and perused the documents produced on the record. The petitioner gas agency has entered into a Contract and Agreement with Bharat Petroleum Corporation Ltd. which is produced at Exh. 23. In that Contract, a clause is there with regard to faithful performance by the parties. In that clause 23, the relevant clause is extracted hereinbelow. 23(C) Except with the previous written consent of the Corporation---- (i) the Dictributor shall not enter into any arrangement, contract or understanding whereby the operations of the Distributor hereunder are or may be controlled carried out and/or financed by any other person firm or Company, whether directly or indirectly and whether in whole or in part: 10. Under this clause, the present petitioner was prevented from entering into any arrangment, Contract or even understanding of any kind for operation of the distributor or distributing work may be controlled, carried out or financed by any other person, firm or company with directly or indirectly whether whole in/or any part. The workmen admittedly say that all distributions of Gas Bottles to the consumers. The Counsel of the petitioner has attempted to wriggle out of this clause by putting his submission that at the most absence of consent of principal would render the petitioner guilty of breach of contract with Bharat SCA/132/0708 7/8 JUDGMENT Petroleum Corporation Ltd. But this it itself would not amount to establishing relationship of employee-employer between the petitioner and the respondent-workmen. The Counsel is correct to some extent but the entire controversy needs to be viewed from the angle that when the gas distribution agency is restricted and prevented with such a restrictive clause and when it has come out in the testimony of the petitioner that every day in the relevant year, the gas bottles to the tune of 85 to 100 were being distributed and coupled with the fact that he did not produce any documents indicating who were responsible for the distribution work and the fact that the distribution work is ongoing today also, one would have to accept the finding of the Labour Court. Therfore, Nirmal Enterprise- Contractor; was indeed a boggy which did not pass the scrutiny of the case as the petitioner has miserably failed in pointing out any document whastosever indicating that how the distribution work was being carried out. On the contrary, the version which has come out in the testimony of the petitioner that the consumers who are registered connection holder come on their own for filling the gas bottles is highly untenable and unbelievable to say the least. The testimony of the petitioner reading as a whole would show that at many times he has promised to produce documents in support of his assertion. But ultimately, those documents have not come forward on the record so as to justify the version of the employer. As against this, the documents produced by the so called Contractor go to show that they bore the signatures of the present petitioner and the blank vouchers would go to show the function of the present petitioner. Be that as it may, the findings of the Labour Court in respect of the respondent being workmen of the petitioner cannot be said to be suffering from any illegality to cause any interference under Article 227 of the Constitution of India. The rest of the award cannot be said to be perverse or erroneous as to reference the same especially when the issue before the Labour Court SCA/132/0708 8/8 JUDGMENT was that all the -employee are the workmen and especially when the version of the workman with regard to service rendered earlier has remained unchallenged. The petitions therefore, deserve to be dismissed in limine and accordingly they are dismissed. There shall be no order as to costs. The office is directed to place the copy of this order in each matter. (S.R.BRAHMBHATT, J.) niru*