SCA/3733/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3733 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 ? ========================================= MANJIBHAI BABUBHAI AIAS 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 : 17/07/2008 ORAL JUDGMENT SCA/3733/2008 2/12 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 and has disallowed the relief prayed for by the present petitioner in the said Reference. 2. The petitioner herein is the second party of the said Reference proceeding in Reference (LCM) No.26 of 1993 and he 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 he was working as watchman since three years in the establishment of the respondent and was being paid Rs.200/- per month towards his salary and since he was being paid wages at less than prescribed minimum wages, he 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. His service was terminated by oral order with effect from 5.9.1992 and before terminating his services, the respondent had not followed any procedure prescribed by law. In backdrop of such allegations, the petitioner prayed for relief of reinstatement with full back-wages and other benefits. SCA/3733/2008 3/12 JUDGMENT 3. The respondent herein entered its appearance and filed written statement opposing the claim by the petitioner herein. As per the case of the respondent, the petitioner was merely residing with his uncle who was employee of the respondent Company, and it was petitioner's uncle, who was working as a watchman. It is further case of the respondent that the petitioner's uncle had developed cancer and present petitioner was attending his uncle, since he had no child of his own. As per the case of the respondent - Company, the petitioner was therefore staying with his uncle, who was alloted room/quarter by the respondent - Company on the premises of the respondent Company and by misusing said opportunity, 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 sides produced certain documentary evidence and the deposition of the respondent was recorded. During his deposition, the petitioner appears to have claimed that the respondent Company had also issued Identity card, which contains the name and address etc. Copy of the said identity card was produced on record by the petitioner. In his deposition, the petitioner appears to have asserted that he was employed w.e.f. 5.9.1988 SCA/3733/2008 4/12 JUDGMENT and was working as watchman and continued to work as such until got illegally terminated with effect from 5.9.1992. The petitioner also produced copies of certain vouchers and claimed, on the basis of said vouchers that he 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 himself, the petitioner did not examine any other witness on his behalf. On behalf of the respondent, deposition of Mr. Shaileshbhai R. Shah was recorded at Exhibit 23. 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 he was ever paid any amount 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, which inter alia stated that the petitioner was merely permitted to stay, along with his uncle, in the room on the premises of the respondent - Company, since his uncle was suffering from cancer. With reference to the document namely identity card produced by the petitioner, the SCA/3733/2008 5/12 JUDGMENT respondent Company through its witness offered an explanation that it was issued for the purpose of facilitating ingress and egress of the petitioner in the premises as he was permitted to stay with his uncle in the premises. 5. After examining the documentary evidence and oral evidence produced by both the 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 he was employee of the respondent Company and was working as watchman and the learned Court has also held that the petitioner failed to establish that he was working since three years 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 relief prayed for by him and therefore, rejected the Reference. 6. Mr. H.N. Modi, learned advocate has appeared for the petitioner and Mr. K.M. Patel, learned advocate has appeared for the respondent Company. I have heard the learned advocates appearing for the respective parties extensively. 7. Mr. Modi, learned advocate submitted that the petitioner produced SCA/3733/2008 6/12 JUDGMENT copy of the identity card, certain vouchers and the copy of the report of 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 document established that the petitioner herein was working in the respondent Company and was working as watchman. In absence of any evidence, showing that his 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 his termination by oral order passed by the respondent was illegal. He submitted that the award suffers from serious apparent errors. 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, have not been treated as duly proved document inasmuch as they were not duly proved as regards its contents and/or signature and/or veracity and thus, they were not even duly and finally exhibited. He also submitted that during the cross-examination of the respondent Company's witness, he was not cross-examined with regard to the said SCA/3733/2008 7/12 JUDGMENT documents. Mr. Patel, learned advocate also submitted that the petitioner did not examine any witness to corroborate his claim and/or allegations and that therefore, the learned Labour Court has rightly come to the conclusion that the petitioner failed to establish that he was employed by the respondent Company as a watchman and/or that he had worked for three years and/or that he was illegally terminated. 8. 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 elaborately dealt with the submissions of petitioner's advocate on the basis of said identity card and has recorded a finding that there is great deal of variance and discrepancy between the assertion made by the petitioner with regard to the date of joining and his 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. It is settled position that when the findings of the fact are recorded by the learned trial Court upon appreciating evidence - documentary or oral then High Court in exercise of power under Article 227 would not re-appreciate the evidence and/or interfere with the findings of the fact unless the same are perverse. Even if for the sake of examining submission made by Mr. Modi, with reference to the said card, the said card is taken into consideration then it comes out that on one hand, the petitioner claimed, SCA/3733/2008 8/12 JUDGMENT in his oral evidence and thereby asserted before the learned Labour Court, that his date of joining in service with respondent Company as watchman was 5.9.1988, whereas on perusal of the identity card it comes out that the date of joining mentioned in the cards is 6.11.1989. The learned Labour Court has taken note of 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 worthy to rely upon 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 of fact recorded by the learned Labour Court, more particularly because any other corroborating evidence - either oral or documentary - contradicting such conclusion is not produced by the petitioner. In view of such discrepancy, the petitioner could have examined any worker of the Company, but he has, as rightly noticed by the Court, failed to explain the discrepancy or to corroborate and prove his claim. 10. At this stage, it is 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, SCA/3733/2008 9/12 JUDGMENT 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 available record, any convincing reason to disagree with the findings recorded by the learned Labour Court. It would not be out of place to note that it is difficult to believe that for three long years, the petitioner, though allegedly continued in the employment of the respondent - Company, would not mark his presence in the muster-roll or would not sign any other document, more particularly, when he was working as a watchman. Thus, on the overall consideration of the matter and from the material obtaining on record of present petition, there does not appear to any strong reason to interfere with the findings of the fact recorded by the learned Labour Court. 11. Further, so far as the the copies of five 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 by the said vouchers, are payment towards salary, because nothing to that effect is mentioned in vouchers. When asked, the petitioner's learned advocate has not been able to show that the SCA/3733/2008 10/12 JUDGMENT signature of the person who has purportedly signed the said vouchers on behalf of the respondent - Company was duly identified by the petitioner. The petitioner does not appear to have even mentioned the name of the person whose signatures appears on the vouchers and the person has not been examined before the learned Labour Court. Thus, the said documents have not been duly established and proved by the petitioner before the Court and they do not appear to have duly accepted or taken on record as evidence inasmuch as they are not duly exhibited. It is not mentioned or certified in the said vouchers that the payments are towards salary/wages of petitioner. Thus, as noted above, the vouchers do not disclose or establish that the amount paid by way of said vouchers was paid towards salary to the petitioner. If a limited Company was paying any amount to any workman towards the salary then it would certainly reflect such payment in their accounts and also in the return filed before the Income Tax Department inasmuch as payment towards the salary would qualify for exemption. Unless the voucher expressly show, 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 interfere with the findings of the fact 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 Manjibhai SCA/3733/2008 11/12 JUDGMENT Somabhai 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 in the petition. 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 he was engaged as a watchman. More so when Labour Court has not accepted such submission and has recoded a different and contrary finding after appreciating and evaluating entire evidence. The learned Labour Court has also taken note of the discrepancy that the name of the petitioner's father is Khimjibhai whereas in the identity card, the name of the Manjibhai Somabhia is mentioned and even in the report of the Government Labour Officer also the name mentioned is Manjibhai Somabhai. The petitioner has tried to explain the said discrepancy by claiming that he was adopted by his uncle Somabhai. However, the learned Labour Court has found it difficult to digest such explanation and has, therefore, not relied upon or not believed such explanation. It is not possible to hold, in light of such facts and discrepancies, that the view taken by the learned Labour Court and conclusion reached by the learned Labour Court are erroneous and are not justified or that they fall in the category of perverse findings and that therefore, it is not possible SCA/3733/2008 12/12 JUDGMENT to interfere with the said findings of the fact recorded by the learned Labour Court and/or with the view taken by the Court in light of such material and facts obtaining on record. 12. 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 and allowed. Hence, the same is rejected. Notice is discharged. No order as to costs. (K.M.THAKER, J.) ynvyas