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Gujarat High Court
Judgename :H.K.RATHOD
SURAT MAHILA NAGRIK SAHAKARI BANK LIMITED - Appellant
Versus
MAMTABEN MAHENDRABHAI JOSHI - Respondent
S.C.A.8195 of 1999
Decided On : 05/09/2000
Merely because employer has a right to terminate the service of an employee by satisfying the three conditions enunciated under Sec. 25-F of the Act the same cannot give him an unrestricted right. It is the duty of the employer to establish the fact that such termination is justified in the circumstances of the case. So, without justification of such termination, even in case of complying the provisions of Sec. 25-F such termination is bad, malafide, arbitrary and amounts to unfair labour practice.
(b) Bombay Industrial Relations Act, 1946 (Bom. Act 11 of 1947) - Sec. 3(13) - Appointment of - Respondent in 6 separate orders - Put in 240 days service - Whether covered by definition of employee - Held, since the training period is not covered under the provisions of Apprenticeship Act and the number of days during the 12 months of employment is 240, the respondent is an employee under Sec. 3(13) of BIR Act.
The respondent-workman was in service for the period from 13.3.1990 to 21.3.1991 as a Trainee and such training period was not under the provisions of Apprenticeship Act, and during this period of 12 months, the respondent-workman was employed under six separate orders, and thus, she had put in 240 days continuous service, and, therefore, the respondent-workman was an employee within the meaning of Sec. 3(13) of the BIR Act, 1946.
(c) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Termination - Non-renewal of contract - Junior employee continued in service - Whether termination reasonable and not victimization - Held, termination unreasonable, victimization and colourable exercise of power resulting in termination by non renewal of contract.
Once the junior employee continues and the seniors service has been terminated, the said action on the part of the petitioner-Bank cannot be said to be reasonable. This action on the part of the petitioner-Bank appears to be malafide, victimization or colourable exercise of power resulting into termination by non-renewal of the contract.
(d) Bombay Industrial Relations Act, 1946 (Bom. Act 11 of 1947) - Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Award of Labour Court confirmed by Industrial Tribunal challenged - Held, since there is no error committed by both the Courts below, this Court cannot exercise power under Art. 226/227 as Appellate Court - No interference warranted.
The Labour Court has not committed any error and there is no infirmity in the orders passed by both the Courts below. It is also a settled law laid down by the Apex Court and various High Courts that this Court in exercise of the powers conferred under Art. 226 & 227 of the Constitution cannot act as an appellate authority and reappreciate the evidence.
When there is no error apparent on the face of the record committed by both the Courts below, Court dismisses this writ petition. Accordingly, this petition stands dismissed.
(e) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sec. 25-F - Termination - Petitioner a separate branch controlled by Head Office - Whether continuation of junior employee at the time of termination of a senior in other branch will attract operation of Sec. 25-F - Held, yes - In view of the Apex Court, considering functional integrity and direct supervision and control of head office, separate branch would be part and parcel of main establishment.
( 1 ). HEARD the learned Advocates for the respective parties. By means of filing the present writ petition, the peritioner-Surat Mahila nagrik Sahakari Bank Limited [hereinafter referred to as, the petitioner-Bank] seeks to challenge the order passed by the Labour Court, Surat in T-Application No. 249 of 1992 under the provisions of the Bombay Industrial Relations Act, 1946 [hereinafter referred to as, the Act] dated llth February, 1998 wherein the Labour Court has granted reinstatement of respondent-workman in service with continuity and full back wages with consequential benefits and costs of Rs. 500. The said Award of the Labour Court dated llth February, 1998 was challenged by the petitioner-Bank before the Industrial Tribunal, Surat in Appeal (1c) No. 2 of 1998. While dismissing the said appeal, the Tribunal vide Order dated 31st August, 1999 has confirmed the order passed by the Labour Court dated llth February, 1998. Feeling aggrieved and dissatisfied with the said orders of the Courts below, the petitioner-Bank has moved this Court by filing the present writ petition.
( 2 ) THE respondent-workman had filed affidavit-in-reply dated 19th November, 1999 bringing on record copy of the appointment order as a Trainee and orders on temporary appointment as Clerk-cum-Cashier and a copy of application No. 249 of 1992 along with written statement filed by the petitioner-Bank as well as deposition of respondent-workman and witnesses of the petitioner-Bank. The respondent-workman has also annexed copies of some of the appointment orders made in favour of Dharmishtaben, Jigishaben, Punika K. Patel, Asha K. Pachchigar, Vaishali K. Bookseller. Against the said reply, petitioner-Bank had filed affidavit dated 10th January, 2000.
( 3 ). IN the present petition, by an order dated 26th October, 1999, rule has been issued and ad-interim relief in terms of paragraph 14b has been granted subject to compliance of the provisions of Sec. 17b of the Industrial Disputes act. Thereafter, at the request of the learned Advocate, the order made earlier in the day was recalled and the following order has been made. rule. Learned Advocate Mr. J. H. Singh appears and waives service of rule on behalf of the respondent. Notice as to interim relief returnable on 2nd november, 1999. There shall be ad-interim relief in terms of paragraph 14b. when the matter was called out on llth April, 2000, the learned Advocates appearing for the respective parties gave consent for final hearing and disposal of the matter. Hence, Rule returnable today. Learned Advocate Mr. A. K Clerk waives service of rule on behalf of respondent-workman. With the consent of me learned Advocates, this matter is heard and finally decided today.
( 4 ) THE petitioner-Bank is a registered Co-operative Bank under the relevant laws and is governed by the Bombay Industrial Relations Act, 1947 and the model Standing Orders framed for the Banking Industry. The petitioner-Bank has one of its Branches at Bombay Market at Surat. The said Bombay Market branch employs only 19 employees. According to the petitioner-Bank, the respondent-workman was initially appointed as a Trainee on payment of sum fixed between 15th March, 1990 and 21st March, 1991. The said appointment as a Trainee was made under six separate orders issued by the Bank, each for a duration of two months. Later on, the respondent was appointed for a period of one month as a Temporary Junior Clerk-cum-Cashier in the Bombay market Branch on the terms and conditions mentioned therein, due to increase in the workload. On expiry of the said period of one month, fresh appointment order was issued for a further period of one month, and like that, she was given appointment orders on each successive month with a notional break. Her last appointment order was for a period of one month from 4th January, 1992 to 3rd February, 1992. Thus, in all, respondent-workman performed her duties for a period of ten months as a Temporary Cler
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