IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 8590 of 2001
For Approval and Signature:
Hon'ble MR.JUSTICE RAVI R.TRIPATHI
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
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AGRICULTURAL PRODUCE MARKET COMMITTEE
Versus
GIRISHKUMAR BABURAO BHAVSAR
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Appearance:
1. Special Civil Application No. 8590 of 2001
MR KM PATEL for Petitioner
MR ALPESH J PATEL for Respondent
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CORAM : MR.JUSTICE RAVI R.TRIPATHI
Date of decision: 09/01/2002
ORAL JUDGEMENT
1.Rule. Mr. Alpesh J. Patel, learned Advocate,
appears and waives service of Rule on behalf of the
respondent.
2.This Court, on 1st October, 2001, adjourned this
matter by passing an order, which reads as under :
“S.O. to 23rd October, 2001 for final disposal.
Leave to replace Annexure `C’ and Mr. A.J.
Patel waives notice in this behalf.”
It is required to be noted that Mr. Alpesh J.
Patel, learned Advocate for the respondent workman, very
well knew about the matter since then. Thereafter, the
order sheet records that the matter is adjourned on six
occasions. However, the Computer Board shows that the
matter is listed for nine times. Mr. Alpesh J. Patel,
learned Advocate for the respondent, submitted that the
matter was adjourned on account of heavy Board as it
could not be taken up by the Court.
3.Today, when the matter is taken up for final
hearing, after the learned Advocate for the petitioner
completed his arguments, Mr. Alpesh J. Patel, learned
Advocate for the respondent, started his arguments and
when he found that the Court is not inclined to accept
his submissions, he made a request for adjourning the
matter for a week for enabling him to file a reply. The
request is not only unreasonable, but, is also not bona
fide inasmuch as after having allowed the learned
Advocate appearing for the petitioner to complete his
arguments, when the Court is not inclined to accept his
submissions, he made this request, which is rejected by
this Court.
4.The present matter is in a very narrow compass.
The respondent-workman was appointed as a peon on 18th
February, 1984 purely on temporary basis. A copy of the
appointment order is annexed at Annexure-A. Thereafter,
the respondent-workman came to be appointed as a watchman
by an order dated 28th February, 1985, a copy of which is
also produced at Annexure-A collectively, page 12. There
is no dispute about the same. It was only in the year
1987, when the respondent-workman was posted to work as a
watchman in the night shift in `Navin Yard’ opened by the
petitioner-Agricultural Produce Market Committee
(hereinafter referred to as “APMC” for short), the
respondent was found to be not punctual and lacking in
sincerity in discharge of duties. He was, therefore,
issued several show cause notices and even warnings.
Since 12th January, 1990, the respondent-workman stopped
reporting for duty. The petitioner-APMC issued show
cause notice dated 15th January, 1990 to show cause as to
why he has remained absent from duty since 12th January,
1990.
5.The respondent-workman filed his reply dated 19th
January, 1990, a copy of which is produced at Annexure-A
collectively, page 15 to the petition, which is also
marked as Exh. 49 of the Labour Court proceedings. The
said reply to the show cause notice makes an interesting
reading. It appears that with a view to see that the
petitioner-APMC assigns him the work of peon, he made all
sorts of averments to the effect that, he belongs to
Bhavsar community; he is single bodied; he is very timid
and what to work as a `night watchman’; he is afraid of
even coming out during night hours; he has no ability to
work as a watchman; he is terribly scared while
discharging duties as a watchman; and, he is having
constant fear that he will be killed by somebody. The
said explanation, after having been received, was replied
by petitioner-APMC vide a letter dated 25/01/1990. The
respondent-workman, then, approached the Labour Court and
the Labour Court, by its judgement and award dated 29th
January, 2001, in Reference (LCH) No. 244 of 1996, with
material contradictory observations and findings, ordered
reinstatement without back wages.
6.The important point on which the Labour Court has
erred is in paragraph 9. The Labour Court has recorded
that, “From the record of the case, it is proved that the
respondent-workman is not given a show cause notice.”
This is not correct on the face of the record inasmuch as
the show cause notice dated 15th January, 1990 is
produced at Annexure-B to this petition, which is marked
as Exh.41 of the Labour Court proceedings. The Labour
Court, then, proceeded to observe that, `no departmental
inquiry is held against the respondent workman and,
therefore, without adopting legal procedure, the
concerned workman is not allowed to attend his duties.’
Both these observations are unwarranted inasmuch as when
it is clear from the record of the case that the
respondent-workman himself stopped reporting for duty.
Further, the show cause notice issued by the
petitioner-APMC is replied by him, the reply is already
on record as discussed hereinabove. There is no question
of petitioner-APMC having not followed the legal
procedure and not allowing the respondent-workman to
resume his duties.
7.It is surprising that the Labour Court, without
taking into consideration as to what is the controversy
involved in the case, has observed in the same paragraph
as under :
“The concerned workman has worked as a peon and
watchman from 20th February, 1984 to 18th
January, 1990 continuously with the first party
institution and, therefore, he has completed more
than 240 days service.”
It is difficult to appreciate as to what is the
significance of these observations. The question of the
respondent-workman having worked for 240 days was not at
all before the Labour Court. It seems that the learned
Judge of the Labour Court, without any application of
mind to the facts of the case by a force of habit, made
such observations. It seems that after having reached to
the conclusion that the Court is to pass an order for
reinstatement, the reasons are supplied. The second part
of paragraph 9 of the judgement and award reads that,
“When an employee has worked for more than 240 days in a
year, then, only after following the provisions of the
Industrial Disputes Act, 1947, a step of terminating the
services of the workman can be taken against the
workman.”
Without appreciating the real controversy
involved in the matter, namely, whether it was the
respondent-workman, who stopped reporting for duty of his
own or the petitioner-APMC restrained him from reporting
and without taking into consideration that the respondent
workman has not only admitted in reply to the show cause
notice, but has also admitted in the deposition before
the Labour Court, a copy of which is also produced in the
petition, being Exh.10 (Annexure-C, page 19). In the
said deposition, the relevant portion reads as under :
“The present case is filed so as to get the
services as a peon. It is true that I am not
ready to work as night watchman. It is true that
I had worked as a night watchman in the
institution.”
The learned Judge of the Labour Court being
unmindful of the contents of the deposition of the
respondent-workman has held that as the first party has
not held the departmental inquiry, the action of not
allowing the respondent-workman to report for duty is
unreasonable, illegal and violative of principles of
natural justice. In the same breath, the learned Judge
of the Labour Court has observed that, “However, the
concerned workman has not remained present on duty since
12th January, 1990 of his own, is proved and, therefore,
the concerned workman is not entitled for the back
wages.”
All these findings show that the impugned
judgement and award of the Labour Court is nothing, but,
a clear case of non application of mind and is without
appreciating the documentary as well as oral evidence
produced on the record and, therefore, the same is
required to be quashed and set aside.
8.Mr. K.M. Patel, learned Advocate appearing for
the petitioner-APMC, relied upon the judgement of the
Apex Court reported in 1999(7) SCC 332, 2001(1) SCC 424
and also a judgement of this Court, reported in 2001 (3)
GLR 2045, wherein one of the aforesaid judgement of the
Apex Court is followed. Mr. K.M. Patel submitted that
the present judgement and award is not only misconceived,
but, the same has resulted in miscarriage of justice.
9.Mr. Alpesh J. Patel, learned Advocate appearing
for the respondent-workman, submitted that though he was
appointed as a watchman by a letter dated 28th February,
1985, he was assigned duties as peon in the office, by an
order dated 5th November, 1986. A copy of that office
order is placed on record. He also produced a statement
about the working of the respondent-workman in the
petitioner-APMC and by relying upon it, he contended that
though the respondent-workman was appointed as a
watchman, the petitioner-APMC has utilised his services
as peon. He submitted that it was not open for the
petitioner-APMC to post him as a night watchman at Navin
Yard. He, therefore, contended that the judgement and
award of the Labour Court awarding reinstatement to the
respondent-workman is just and proper and the same is
required to be upheld by this Court.
10.Mr. Alpesh J. Patel, learned Advocate for the
respondent-workman, also relied upon a judgement of the
Apex Court in the matter between D.K. Yadav and J.M.A.
Industries Limited, reported in 1993 (II) LLJ 696. The
said judgement of the Apex Court has no application to
the facts of the present case as there is nothing common
to the facts of the present case and the facts of that
case.
11.In view of the aforesaid discussion, the present
petition is allowed. Rule is made absolute with no order
as to costs.
(Ravi R. Tripathi, J.)
kamlesh*