AI Structured Summary
Not yet generated for this judgment
Judgment
Hon''ble Smt. Justice Abhilasha Kumari
The challenge in this petition, filed under Articles 226 and 227 of the Constitution of India, is to the Award dated 06.02.2012, made by the Labour Court, Godhra, in Reference (L.C.G.) No. 99 of 2002, whereby the said Reference on behalf of the petitioner, has been rejected. The case of the petitioner is that he was working with respondents Nos. 1 and 2 as a driver since 01.10.1999, and was drawing a salary of Rs. 4,400/- per month. The respondents obtained the resignation of the petitioner under threat and his services were terminated with effect from 28.08.2011. The petitioner raised an Industrial Dispute, which was referred to the Labour Court. The petitioner filed his Statement of Claim, the averments made in which were denied by the respondents by filing separate written statements. Respondent No. 1 has stated that the services of the petitioner were purely contractual in nature. Respondent No. 1, who is a labour Contractor, had entered into a contract with the petitioner and the services of the petitioner were placed by respondent No. 1, with respondent No. 2. It was asserted that, as the services of the petitioner were contractual in nature, the provisions of the Industrial Disputes Act, 1947 ("the Act" for short) would not be applicable and the Reference was not maintainable. Respondent No. 2 has stated that there was no relationship of employer and employee between it and the petitioner. Respondent No. 2 has never appointed the petitioner and nor was his salary paid by the said respondent. The averments in the Statement of Claim regarding the resignation of the petitioner having been taken under threat were denied and it was asserted by respondent No. 2 that the Reference was liable to be rejected. The Labour Court, after examining the oral and documentary evidence of the parties, came to the conclusion that the petitioner was a contractual employee of respondent No. 1, who was under an agreement to supply labour to Respondent No. 2. It was found that respondent No. 2 is not the employer of the petitioner, but the services of the petitioner were placed with respondent No. 2 by respondent No. 1, as per the contractual agreement. It was also found that the petitioner got into a quarrel with a co-employee, while his services were placed with respondent No. 2. Respondent No. 1 initiated an inquiry into the incident by issuing a show-cause notice. Before the inquiry could be formally concluded, the petitioner tendered his resignation to respondent No. 1. Thereafter, the petitioner raised the Industrial Dispute. On the above findings, the Labour Court rejected the Reference, which has led to the filing of the present petition.
Mr. P.C. Chaudhary, learned Counsel for the petitioner has submitted that the impugned Award is bad in law, as the Labour Court has failed to appreciate the oral and documentary evidence in its true spirit. The language of the resignation given by the petitioner has not been appreciated. The resignation was a conditional one, but the Labour Court has come to a wrong conclusion that the petitioner has resigned voluntarily. In fact, the said resignation is no resignation in the eyes of law. In fact, the services of the petitioner have been wrongly terminated with effect from 28.08.2010.
It is next submitted that the provisions of Section 2(oo) and 2(bb) of the Act, are not attracted in the case of the petitioner. To attract the said provisions, the contract should be of a specified duration and in a specified project. In the present case, only the time-limit is specified, not the project. The services of the petitioner cannot be said to be contractual in nature and nor has the resignation of the petitioner been tendered voluntarily. The services of the petitioner have been illegally terminated without following due procedure under the Act. The findings of the Labour Court are erroneous and the Award ought to be quashed and set aside.
In support of his submissions, learned Counsel for the petitioner has placed reliance upon a judgment of a Division bench of this Court, in the case of Gujarat Water supply and Sewage Board and Another Vs. Mahavirsinh Balapbha Gohil, reported in 2011 LLR 1259.
No other contentions have been advanced before this Court on behalf of the petitioner.
This Court has heard learned Counsel for the petitioner, perused the contents of the Award and the other documents placed on record.
The terms of the Reference before the Tribunal were whether the services of the petitioner ought to be reinstated "by the respondents and not whether the resignation tendered by the petitioner was voluntary, or not. The petitioner, in his Statement of Claim, has not made any specific averments regarding which of the respondents have appointed him or which of them are liable to reinstate him. This aspect has been noted by the Labour Court in the impugned Award.
There is no dispute regarding the fact that respondent No. 1 is a Contractor, who supplies labour to respondent No. 2, as per the agreement. It has been stated by respondent No. 1 in the written statement filed before the Labour Court that during the subsistence of the contract to supply labour to respondent No. 2, the petitioner made an application to respondent No. 1, seeking appointment as a driver. Accordingly, respondent No. 1 appointed the petitioner on contractual basis with effect from 01.10.1999 to 30.11.1999. Initially, the Contract with respondent No. 2 was in the name of M/s. Gatulal V. Patel and later the name was changed to that of respondent No. 1 as reflected in the cause-title. It was stated that the petitioner was again engaged on contractual basis with effect from 30.11.2000 to 30.11.2011, with a specific stipulation that his services would be terminated at the end of the contractual period, or even before that.
The Labour Court has taken into consideration, the deposition of the petitioner wherein he has stated that he was engaged as a driver by respondent No. 1 at a salary of Rs. 4,400/- per month, on 01.10.1999. The petitioner has also stated that his services were placed under respondent No. 2 by respondent No. 1 as per the agreement between the respondents, and that his salary was paid by respondent No. 1, Contractor. The petitioner has further deposed that he was relieved from service by respondent No. 1.
It appears that while the services of the petitioner were at the disposal of respondent No. 2, an incident occurred in which the petitioner is alleged to have assaulted a co-worker. An enquiry appears to have been initiated by respondent No. 1, upon the complaint of respondent No. 2. The documents pertaining to the inquiry have been produced on record by respondent No. 1. The petitioner was issued a show-cause notice and a charge-sheet, and was suspended. These aspects are not denied by the petitioner.
The petitioner submitted a letter of resignation dated 17.09.2001 to respondent No. 1 before the final conclusion of the inquiry could be arrived at, which has been produced before the Labour Court. A perusal of this document reveals that the petitioner has addressed respondent No. 1 as "master" and has stated that his resignation be accepted and he may be relieved after making payment of his legal dues. A bare reading of this letter does not show that it is a conditional resignation, as urged by learned Counsel for the petitioner. The Labour Court has recorded a finding that there is no material on record to show that the petitioner made any correspondence with respondent No. 1 regarding withdrawal of the resignation. The Labour Court has concluded, on the basis of the material on record, that there is no relationship of employer and employee between the petitioner and respondent No. 2. The petitioner had been engaged on contractual basis for a specified period of time by respondent No. 1. The terms of his engagement would fall under the provisions of Section 2(oo) and (bb) of the Act. It has further been found by the Labour Court that the petitioner has, himself, tendered his resignation to respondent No. 1 Contractor, therefore, there is no question of it being a case of retrenchment. Even otherwise, the appointment of the petitioner was a purely contractual one, for a specified period of time, therefore, upon its coming to an end, it would not fall under the definition of retrenchment.
Learned Counsel for the petitioner has relied on the judgment in the case of Gujarat Water supply and Sewage Board and Another Vs. Mahavirsinh Balapbha Gohil (Supra). In that case the allegation of the workman was that his services were illegally terminated whereas the employer asserted that the workman had resigned voluntarily. The Labour Court directed reinstatement of the workman and granted 20% back wages. The challenge to this award on behalf of the employer in the High Court was negatived by the learned Single Judge. Dismissing the Letters Patent Appeal of the employer, the Division Bench observed that the workman had not been confronted with the alleged letter of resignation and had deposed that he was ready to resume work. The facts of that case and those obtaining in the present case are absolutely different. In that case the workman who was a daily wager, had been relieved without following the provisions of the Act after continuous service of six and a half years. In the present case, the petitioner was engaged on contractual basis for a specified period of time. The letters of appointment produced on record clearly mention that the appointment is subject to Section 2 (oo) and (bb) for a specific period of time and place. Another dissimilarity in facts is that in that case, the purported resignation of the workman has not been believed. This is not so in the present case where the petitioner has not denied the resignation. Rather, an attempt has been made to assert that the resignation was made under threat and is a conditional one, which aspects could not be substantiated by learned Counsel for the petitioner. The above judgment would, therefore, not be helpful in the case of the petitioner.
This Court finds, after scrutiny of the material on record, that the findings arrived at by the Labour Court in the impugned Award are based upon a proper appreciation of the oral and documentary evidence led by the respective parties. The finding that the petitioner was never employed by respondent No. 2 and there is no relationship of employer and employee between them is supported by material on record. The petitioner was engaged by respondent No. 1 on contractual basis, as has been deposed by the petitioner himself, and his salary was also paid by respondent No. 1. The findings to this effect are borne out from the material on record. There is no denial to these facts on the part of the petitioner. The petitioner has tendered his resignation to respondent No. 1, his contractual employer, which also emerges from the record. The engagement of the petitioner was for a specified period and would fall under the provisions of Section 2 (oo) and (bb) of the Act. It cannot, therefore, be termed as a retrenchment, so as to bring it under the purview of the Act.
This Court does not find any illegality or jurisdictional error in the impugned Award, and nor is there any error in appreciation of evidence, by the Labour Court. Under the circumstances, the challenge to the impugned Award must fail. The petition lacks merit and substance. It is, therefore, rejected.