{"id":48728,"date":"2004-01-20T00:00:00","date_gmt":"2004-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gurjargruvers-pvt-ltd-vs-akbarkhan-havaldarkhan-on-20-january-2004"},"modified":"2018-08-19T09:37:55","modified_gmt":"2018-08-19T04:07:55","slug":"gurjargruvers-pvt-ltd-vs-akbarkhan-havaldarkhan-on-20-january-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gurjargruvers-pvt-ltd-vs-akbarkhan-havaldarkhan-on-20-january-2004","title":{"rendered":"Gurjargruvers Pvt. Ltd. vs Akbarkhan Havaldarkhan on 20 January, 2004"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gurjargruvers Pvt. Ltd. vs Akbarkhan Havaldarkhan on 20 January, 2004<\/div>\n
Bench: H Rathod<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 1.     Heard learned   advocate  Mr.    Thakar  for  the
\n      petitioner and Mr.  D.G.  Chauhan, learned  advocate  who
\n      is appearing  for  the  respondent  workman.  By means of
\n      this petition under Article 227 of  the  Constitution  of
\n      India,   the  petitioner  has  challenged  the  legality,
\n      validity and propriety of the award dated 24.8.1993  made
\n      by  the  labour  court  wherein  the labour court has set
\n      aside the order of termination dated 10th November,  1984
\n      and  granted reinstatement in service with 50 per cent of
\n      the back wages for the intervening period with continuity
\n      of service and other  consequential  benefits.    On  4th
\n      October,  1994,  while admitting the petition, this court
\n      has granted interim relief in terms of para 5(B)  of  the
\n      petition.   Alongwith  the  petition,  the petitioner has
\n      produced  copy  of  the  statement  of   claim,   written
\n      statement,   oral   evidence   of  the  parties,  written
\n      arguments, seniority list and award.    Learned  advocate
\n      Mr.   Thakar has read over entire award before this Court
\n      and he submits that the labour court has committed  gross
\n      error  in  passing  such an award against the petitioner;
\n      that the work has been reduced in the tracing  department
\n      and,   therefore,   these   three  workmen  were  offered
\n      alternative work in the new project department by passing
\n      order dated 11th October, 1984 and the workmen  concerned
\n      ought to have reported for duty on 15th October, 1984 but
\n      the  workmen  after  receiving  the  order  of  transfer,
\n      refused to  work  in  the  new  project  department  and,
\n      therefore,  by  letter dated 9th November, 1984, services
\n      of said three workmen were terminated  with  effect  from
\n      10th November, 1984 by the petitioner.  He also submitted
\n      that  the  provisions  of section 25-F of the ID Act, 1947
\n      were complied with by  the  petitioner  at  the  time  of
\n      terminating the  services  of the said three workmen.  It
\n      was his submission that in their statement of claim,  the
\n      workmen had not raised the contention about the breach of
\n      the  provisions  of  section 25-G of the ID Act, 1947 and
\n      that is how, the petitioner has not been able to give any
\n      answer and could not produce any material to satisfy  the
\n      requirement  of  section  25-G  of  the ID Act, 1947 and,
\n      therefore, the conclusion of  the  labour  court  on  the
\n      issue  that the provisions of section 25-G of the ID Act,
\n      1947 have been violated  is  the  basic  error  which  is
\n      required to  be  corrected  by  this court.  He read over
\n      entire deposition of all three workmen  and  evidence  of
\n      the   witness  for  the  petitioner  and  emphasized  the
\n      contradictory statements made by  the  workmen  in  their
\n      examination in chief as well as the cross examination and
\n      submitted  that looking to the conduct of the workmen, at
\n      one point of time, it was said by them that the order  of
\n      transfer  is  not  received  and  subsequently,  they are
\n      saying that the order of transfer has  been  received  by
\n      them  and  they  refused  to  work  on  the  new  project
\n      department.   Therefore,  under  such  circumstances,  no
\n      relief  can  be  granted in favour of the workmen who had
\n      made contradictory statements before  the  labour  court.
\n      He also submitted that if the contention about the breach
\n      of sec.   25-G of the ID Act, 1947 would have been raised
\n      by the workmen concerned, then, the petitioner would have
\n      got an opportunity to satisfy the labour court  concerned
\n      that  there is no violation of the provisions of the said
\n      section by producing necessary material in  that  regard.
\n      According  to  him, since that contention was not raised,
\n      the petitioner has not been able to produce  material  in
\n      that regard.  He also submitted that the labour court has
\n      committed  error  in  coming  to the conclusion that such
\n      termination is amounting to  punishment.    According  to
\n      him,  in  fact,  there  is  no  punishment imposed by the
\n      petitioner.  According to him, this was not the  case  of
\n      the petitioner  before  the  labour  court.  He also read
\n      over the averments made by the workmen in their statement
\n      of claim.  In short, it is his contention that the labour
\n      court has erred in concluding that the impugned order  of
\n      termination is  punitive.  It is also his submission that
\n      the  labour  court  has  erred  in  concluding  that  the
\n      petitioner has committed breach of section 25-G of the ID
\n      Act, 1947.    It  is,  therefore, his submission that the
\n      labour  court  ought  not  to  have  made  the  award  of
\n      reinstatement.   He  submitted  that  after the award was
\n      made  by  the  labour  court,  offer  was  made  by   the
\n      petitioner   without   prejudice   to   the   rights  and
\n      contentions of the workmen to resume the duties  but  the
\n      respondents have  not  resumed  the duties.  According to
\n      him, these  are  the  subsequent  development  which  are
\n      required  to  be considered by this Court while examining
\n      the award made by the labour Court.  This statement  made
\n      by Mr.  Thakar was objected by Mr.  Chauhan by submitting
\n      that  the  workmen  were  ready  to  resume the duties in
\n      response to the offer made by  the  petitioner  but  when
\n      they  had in fact gone for reporting, they were prevented
\n      at the Gate of the premises.  However, this court is such
\n      alleged development, disputed by the other  side  and  is
\n      examining the award made by the labour court on the basis
\n      of the evidence on record.\n<\/p>\n
 2.        This  court  has  to  consider  as to whether the
\n      award made by the labour court is within its jurisdiction
\n      and competence or not.  While this  court  was  dictating
\n      the  oral judgment in the open court, in the midst of the
\n      dictation, learned advocate for the petitioner also  made
\n      a submission after obtaining leave of this Court that the
\n      tracing department  has  been  closed  since  1987.    As
\n      regards this contention about the closure of the  tracing
\n      department  in  the  year  1987,  this  Court  asked  one
\n      question to the learned advocate for the petitioner as to
\n      whether any  such  contention  has  been  raised  by  the
\n      petitioner before the labour court or not at the relevant
\n      point  of  time; whether any assertion in that regard has
\n      been made by the petitioner  or  its  witness  while  the
\n      evidence  was recorded before the labour court or not and
\n      whether such contention  was  raised  by  it  during  the
\n      course of  arguments  or  not.  After consuming about ten
\n      minutes and verifying the record,  learned  advocate  for
\n      the  petitioner clearly submitted that no such contention
\n      has been raised by the petitioner in its pleadings before
\n      the labour court, no such whisper has been  made  by  its
\n      witness  in  his  evidence before the labour court and it
\n      was not submitted even during  the  course  of  arguments
\n      before the  labour  court.  In view of such clear answer,
\n      this contention raised for the  first  time  before  this
\n      court has  to be ignored.  Same is, therefore, ignored by
\n      this Court.  Learned advocate Mr.  Chauhan has  submitted
\n      that the deposition of the witness for the petitioner was
\n      recorded  before  the labour court on 23rd December, 1991
\n      wherein it was admitted  by  him  that  at  the  time  of
\n      termination  of  the  present  workmen,  80  workmen were
\n      working with the company and today also, 80  workmen  are
\n      still working  with  the  company.    In  respect of that
\n      contention of  Mr.    Chauhan,   learned   advocate   Mr.
\n      Krishnan  for  the petitioner has clarified that they are
\n      working in the new project department and in view of that
\n      clarification made by  Mr.    Krishnan,  it  was  further
\n      clarified by  Mr.    Chauhan that in the oral evidence of
\n      the  witness  for  the  petitioner,  this  has  not  been
\n      clarified  but  it  was  simply  said that today also, 80
\n      workmen are working with the petitioner company.   Except
\n      these  submissions, no other submissions were made by the
\n      learned advocate  appearing  for  the  petitioner.     No
\n      decision  has  been cited by the learned advocate for the
\n      petitioner for consideration of this Court.   As  regards
\n      grant  of  50  per  cent  back  wages for the intervening
\n      period, no  submission  has  been  made  by  the  learned
\n      advocate for the petitioner.\n<\/p>\n
 3.        While supporting the award  made  by  the  labour
\n      court, learned  advocate  Mr.  Chauhan submitted that the
\n      the order of  termination  passed  by  the  employer  was
\n      violative of section 25-G of the ID Act, 1947 and rule 81
\n      of the  ID (Gujarat) Rules, 1966.  He also submitted that
\n      this order was passed by the employer only on the  ground
\n      that  the  workmen  were  not prepared to work in the new
\n      project department and that is how  the  order  has  been
\n      passed   only  against  the  present  three  workmen  and
\n      excepting the present  workmen,  no  other  workmen  were
\n      retrenched   by   the  employer  and  therefore,  it  was
\n      amounting to punishment by the employer without following
\n      the procedure according to  law  and,  therefore,  labour
\n      court  was  right  in  holding  that  it was violative of
\n      sec.25-G of the ID Act read with rule  81  of  the  Rules
\n      framed under  the  said  Act.  He also submitted that the
\n      labour court was right in appreciating  the  evidence  on
\n      record  produced  by the parties.According to him, before
\n      the  labour  court,  no  documentary  evidence  has  been
\n      produced  by  the  petitioner to justify the reduction in
\n      work  in   tracing   department   and,   therefore,   the
\n      conclusions drawn by the labour court on the basis of the
\n      evidence on record are just and proper and the same would
\n      not require any interference of this court.  According to
\n      him,   unless  it  is  successfully  established  by  the
\n      petitioner  that  the  labour  court  has  committed  any
\n      jurisdictional  error  and\/or any procedural irregularity
\n      or that the  findings  given  by  the  labour  court  are
\n      contrary to the facts on record or that such findings are
\n      perverse,  this court cannot interfere with such findings
\n      of fact while exercising the powers under Article 227  of
\n      the Constitution of India.\n<\/p>\n
 4.       I have considered the  submissions  made  by  the
\n      learned advocates  for  the  parties.  I have perused the
\n      award made by the labour court as well as  the  statement
\n      of  claim  filed by the workmen and the written statement
\n      thereto filed by the petitioner company before the labour
\n      Court.  I have also perused the evidence of three workmen
\n      concerned  and  the  evidence  of  the  witness  for  the
\n      petitioner  as well as the written submissions which were
\n      made by the learned advocates for the parties before  the
\n      labour court.    On 1st October, 1984, transfer order was
\n      passed by the  petitioner  against  these  three  workmen
\n      asking them  to work in the New Project Department.  This
\n      order of transfer was objected  by  these  three  workmen
\n      concerned.   Immediately  within  one month therefrom, an
\n      order of termination has been passed  by  the  petitioner
\n      under  the  guise  that  the work has been reduced in the
\n      tracing department.  For justifying the action of because
\n      of the reduction of work in the tracing  department,  the
\n      petitioner  has  produced  no  material before the labour
\n      court to show that the transfer of  these  three  workmen
\n      was  necessary  and  no other workmen were required to be
\n      transferred.  Looking to the  evidence  of  the  workmen,
\n      there  was  some  union  rivalry  being the basis of such
\n      termination.  Looking to the evidence of the witness  for
\n      the  petitioner,  it  appears  that  there was some union
\n      rivalry indirectly suggested, to some extent, admitted by
\n      the witness    for    the    petitioner.        If    the
\n      non-implementation of the order of transfer is considered
\n      as  disobedience  on  the  part of the workmen concerned,
\n      then, for that, they have to follow the procedure  before
\n      passing  such order but without following such procedure,
\n      services of the workmen concerned were terminated.  It is
\n      very easy way to terminate the services  while  following
\n      the  mandate  of  section  25-F  of  the  ID Act, 1947 by
\n      serving one month’s notice or notice pay in lieu  thereof
\n      and by paying retrenchment compensation.  According to my
\n      opinion,  section  25-F  of the ID Act, 1947 has not been
\n      enacted with a view to give license to  the  employer  to
\n      terminate  the services of the workmen for any reason and
\n      without any justification.  According to my  opinion,  it
\n      is  the  duty  on the part of the employer to show strict
\n      compliance of section 25-F of the ID  Act,  1947  and  to
\n      justify the order of termination before the labour court.
\n      Even  if  there  is  compliance of section 25-F of the ID
\n      Act, 1947 in letter and spirit but  if  the  employer  is
\n      unable  to  justify  the  order  of termination, then,the
\n      Court has to interfere with  such  unjustified  order  of
\n      termination and  to pass appropriate orders.  As per this
\n      Court’s opinion, section 25-F of the ID Act, 1947 is  not
\n      the only section which is required to be complied with by
\n      the employer.    Section  25-F  of  the  ID  Act, 1947 is
\n      attached with section 25-G of the Act and Rule 81 of  the
\n      ID (Gujarat)   Rules,  1966.    These  are  the  combined
\n      provisions.  If the order of termination is in consonance
\n      with these provisions namely sec.    25-F,  Sec.25-G  and
\n      Rule 81 of the Rules, then, such termination would become
\n      legal termination  and  not  otherwise.   If the order of
\n      termination is not in consonance  with  these  provisions
\n      namely sec.    25-F,  Sec.25-G  and Rule 81 of the Rules,
\n      then, it would render such order illegal and bad in  law.
\n      In view of that,the contention raised by Mr.  Thakar that
\n      they  have  strictly  complied  with  the mandate of sec.
\n      25-F of the ID Act and as no such contention about breach
\n      of section 25-G was raised  by  the  workmen,  they  were
\n      unable  to  produce  material and, therefore, findings of
\n      the labour court as regards breach  of  sec.    25-G  are
\n      unwarranted  cannot be accepted simply on the ground that
\n      it is the burden upon he employer to  satisfy  that  they
\n      have followed section 25-G and this court is of the clear
\n      opinion that it is not necessary for the workmen to raise
\n      such contention about breach of sec.  25-G of the ID Act,
\n      1947.   Once  it  is proved by the employer that there is
\n      compliance of sec.  25-F of the ID Act, 1947, then, it is
\n      becoming his  duty  to  justify  the  termination.    The
\n      question  of  justification  of  termination would become
\n      irrelevant once it is proved that the order  is  bad  for
\n      want of compliance  of sec.  25-F.  For appreciating this
\n      aspect of the matter, section 25-G of the ID Act, 1947 is
\n      required to  be  appreciated.     Same   is,   therefore,
\n      reproduced as under:\n<\/p>\n
         “25-G.  Procedure for  retrenchment.-  Where  any
\n              workman  in an industrial establishment, who is a
\n              citizen of India, is  to  be  retrenched  and  he
\n              belongs  to  a  particular category of workmen in
\n              that  establishment  in  the   absence   of   any
\n              agreement between the employer and the workman in
\n              this   behalf,   the  employer  shall  ordinarily
\n              retrench the workman, who was the last person  to
\n              be  employed in that category, unless for reasons
\n              to be recorded by  the  employer  retrenches  any
\n              other workman.”\n<\/p>\n
        Thus, bare perusal of section 25-G of the ID Act,
\n      1947  itself suggests that it is the duty of the employer
\n      to comply with sec.  25-G when they are  retrenching  any
\n      employee.  Therefore, there is no need on the part of the
\n      workman  concerned to raise such contention but it is the
\n      legal obligation on the part of the employer  to  satisfy
\n      it  before  the  Court  where  the  termination  has been
\n      challenged by the workman.  Therefore, the  labour  court
\n      was  right  in  coming  to  the conclusion that there was
\n      breach of section 25-G of the ID Act and  the  petitioner
\n      has  not  justified  and satisfied the labour court about
\n      compliance of section 25-G of the ID  Act,  1947.    This
\n      Court  is  of  the  clear opinion that once the action of
\n      termination is  challenged  by  the  workman  before  the
\n      labour  court or the industrial tribunal, then, it is the
\n      duty of the employer  to  establish  that  the  order  of
\n      termination is  legal and valid on all counts.  Like sec.
\n      25-G of the ID Act, 1947, rule 81  of  the  ID  (Gujarat)
\n      Rules   is   also   mandatory   and  is  required  to  be
\n      appreciated.  Same is, therefore, reproduced as under:\n<\/p>\n
         “81.    Maintenance   of   seniority   list    of
\n              Workmen.(1)  The employer shall prepare a list of
\n              all workmen in the particular category from which
\n              retrenchment is contemplated  arranged  according
\n              to   the  seniority  of  their  service  in  that
\n              category and cause a copy thereof tobe posted  on
\n              a  Notice  Board  in  conspicuous  place  in  the
\n              premises of the industrial establishment at least
\n              seven   days   before   the   actual   date    of
\n              retrenchment.”\n<\/p>\n
  5.       Thus,bare  perusal  of  rule 81 of the said Rules
\n      makes it  clear  that  in  case  when  the  occasion  for
\n      retrenchment  arise,  it  is  the duty of the employer to
\n      publish the seniority list of  the  employee  working  in
\n      category where  the retrenchment is necessary.  This rule
\n      has also been held to be  mandatory  and  non  compliance
\n      thereof renders termination bad.  Therefore, according to
\n      my   opinion,   if   the  employer  has  to  prove  legal
\n      termination or retrenchment,  then,  he  is  required  to
\n      satisfy  section  25F  of the ID Act and then, to satisfy
\n      the Court about the compliance of sec.  25-G and  rule  81
\n      of the  ID  Act, 1947.  If either of the section and rule
\n      is not complied with by the  employer,  according  to  my
\n      opinion, order of termination would become bad in law and
\n      void ab initio.  All these sections including rule 81 are
\n      mandatory in   nature.     Therefore,  considering  these
\n      mandatory statutory provisions in light of the facts  and
\n      the  observations  made by the labour court, according to
\n      my opinion, the labour court was right in coming  to  the
\n      conclusion that there was breach of section 25-G and rule
\n      81  of  the  said  Rules  and such findings are legal and
\n      valid and labour court has not  committed  any  error  in
\n      recording such findings.\n<\/p>\n
        From   the   evidence  of  the  witness  for  the
\n      petitioner before the labour court, it  appears  that  at
\n      the time of termination of these three workmen, in all 80
\n      workmen  were working and at the time when the deposition
\n      was given  by  the  witness  for  the  petitioner  namely
\n      23.12.1991,  80 workmen were working and if that evidence
\n      of the witness for the petitioner is correct,  then,  how
\n      the  work  has  been reduced in tracing department and to
\n      what  extent,  the  work  has  been   reduced   requiring
\n      retrenchment or  termination of only three workmen?  This
\n      shows mala fide on the part of the petitioner, means,  it
\n      is  not  fair  action  on  the  part  of  the petitioner.
\n      Therefore, even in case of retrenchment, employer has  to
\n      follow sec.   25F, 25-G and rule 81 of the Rules as stated
\n      above and to justify its action  and  non  compliance  of
\n      these  provisions,  even  in  case  of retrenchment also,
\n      would render such retrenchment as illegal and bad in  law
\n      and void  ab initio.  Therefore, considering the evidence
\n      on the record and the observations  made  by  the  labour
\n      court,  according  to  my opinion, the petitioner was not
\n      justified in terminating the services of three workmen.\n<\/p>\n
        Though it was contended by the  learned  advocate
\n      for the petitioner that as the contention about violation
\n      of  section 25-G was not raised by the workmen before the
\n      labour court, they were unable to produce any material in
\n      that regard, and, therefore, the petitioner was unable to
\n      satisfy the labour court  in  that  regard,  before  this
\n      court  also, the petitioner has not produced any material
\n      for perusal of this court to examine as  to  whether  the
\n      petitioner has complied with the mandate of sec.  25-G and
\n      rule 81  of  the  Rules  or  not.    This  aspect is also
\n      required to be kept in view while examining the  legality
\n      of the  award.    Therefore, according to my opinion, the
\n      award made by the labour court  is  perfectly  all  right
\n      requiring no interference of this court.\n<\/p>\n
        No submissions were made by the learned  advocate
\n      for  the petitioner about the award of 50 per cent of the
\n      back wages  made  by  the  labour  court  while  granting
\n      reinstatement in  favour  of  the  workmen.    Before the
\n      labour  court,  the  petitioner  has  not  produced   any
\n      evidence  to  establish  that  the  workmen  were working
\n      during the  intervening  period  and  were  earning  and,
\n      therefore,  back  wages should not be granted and nothing
\n      has been submitted in that regard before this Court also.
\n      Therefore, looking to the observations made by the labour
\n      court in para 10, the labour court has, after considering
\n      the evidence on record as regards back  wages,  refrained
\n      itself from granting full back wages but has granted only
\n      50 per cent back wages for the intervening period and was
\n      right in granting back wages only to the extent of 50 per
\n      cent considering the evidence on record.  Therefore, that
\n      part  of  the award is also just and proper and would not
\n      require any interference of this court  while  exercising
\n      extra   ordinary   powers   under   Article  227  of  the
\n      Constitution of India.\n<\/p>\n
 6.        Recently, the Apex Court  has  considered
\n      the  scope of Article 227 of the Constitution of India in
\n      case of  The observations made by the apex court in Head Note  [H]
\n      are reproduced as under:\n<\/p>\n
         “Judicial  review  is  permissible  only  to  the
\n              extent of finding whether the process in reaching
\n              the  decision has been observed correctly and not
\n              the decision  itself,  as  such.    Critical   or
\n              independent analysis or appraisal of the material
\n              by  the  Courts  exercising  powers  of  judicial
\n              review unlike the case  of  an  appellate  court,
\n              would neither be permissible nor conducive to the
\n              interests of either the officers concerned or the
\n              system and  institutions.    Grievances  must  be
\n              sufficiently  substantiated  to  have   firm   or
\n              concrete  basis on properly established facts and
\n              further proved to be well justified in  law,  for
\n              being  countenanced  by  the court in exercise of
\n              its powers  of  judicial  review.    Unless   the
\n              exercise  of  power is shown to violate any other
\n              provision of the Constitution of India or any  of
\n              the  existing statutory rules, the same cannot be
\n              challenged  by  making  it  a  justiciable  issue
\n              before Courts.”\n<\/p>\n
        Therefore,  considering  the  entire  evidence on
\n      record and since learned advocate for the petitioner  has
\n      not been able to point out that the findings given by the
\n      labour  court  are  contrary to the evidence on record or
\n      perverse or that  the  labour  court  has  committed  any
\n      jurisdictional   error  and\/or  procedural  irregularity,
\n      according to my opinion, the labour court  was  right  in
\n      granting reinstatement with 50 per cent of the back wages
\n      for the  intervening  period.    Therefore,  there  is no
\n      substance in the petition and  the  same  is,  therefore,
\n      required to be dismissed.\n<\/p>\n
               In the result, this petition is  dismissed.  Rule
\n      is  discharged. Interim relief shall stand vacated. There
\n      shall be no order as to costs.\n<\/p>\n
        In view of this order passed by this Court in the
\n      main matter,  Civil Application NO.  5622 of 1997 as well
\n      as the Misc.  Civil Application No.  454 of 1997 in Civil
\n      Application NO.  9065 of 1996 shall also disposed of with
\n      no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gurjargruvers Pvt. Ltd. vs Akbarkhan Havaldarkhan on 20 January, 2004 Bench: H Rathod JUDGMENT 1. Heard learned advocate Mr. Thakar for the petitioner and Mr. D.G. Chauhan, learned advocate who is appearing for the respondent workman. By means of this petition under Article 227 of the Constitution of India, the petitioner has […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-48728","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGurjargruvers Pvt. 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