2003 Supreme(Guj) 444

Gujarat High Court
Judgename :A.L.DAVE, J.N.Bhatt
STATE OF GUJARAT - Appellant
Versus
RAMESH MOPABHAI RATHOD - Respondent
L.P.A. 444 of 2003
Decided On : 08/06/2003

Headnote:(a) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sec. 2(J) - Industry - Scope of - Respondent workman was being employed in a manufacturing unit established by Forest Department for the purpose of manufacture of polythene bags for self consumption - He can be said to have been engaged in an industry - View taken by labour Court and confirmed by learned Single Judge is, therefore, justified.

       In so far as interpretation of the proposition of law on Sec. 2(j) of the I.D. Act is concerned, in the light of the factual profile which is on record, it is not in controversy that the respondent workman was being employed in a manufacturing unit established by the Forest Department for the purpose of manufacture of polythene bags for self-consumption. The finding of the learned Single Judge upholding the award that in the instant case the workman can be said to have been engaged in an industry and the said work falling within th purview of Sec. 2(j) of the I.D. Act, is sustainable.

       [Para 2]

       (b) Constitution of India, 1950 - Art. 226 - Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sec. 11-A - Jurisdiction - Finding as to the period in a year a workmen has worked - In view of provision under Sec. 11-A of the Act writ Court would be slow to interfere unless founded or based upon no evidence or is running counter to the weight and might of the evidence on record.

       Ordinarily, in view of the statutory power under Sec. 11-A of the I.D. Act, the writ Court would be slow to interfere with such a finding. However, where it is successfully pointed out and spelt out from the record that a finding is founded upon or based upon no evidence or is running counter to the weight and might of the evidence on record, it is always open to mould the relief so as to do complete justice between the parties.

       [Para 4]

       (c) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sec. 25-G - Retrenchment - Statutory procedure - It is based on celebrated doctrine of service jurisprudence last come first go at the time of retrenchment - When retrenchment not established the provision under has no application.

       The retrenchment is circumscribed, subject to the statutory rigors inhabited in the provisions of Sec. 25-G as well as 25-H. Section 25-G provides statutory procedure for retrenchment, which is based on the celebrated doctrine of service jurisprudence last come, first go at the time of retrenchment. When retrenchment is not established, the question of applicability of the provisions of Sec. 25-G obviously would not come into play.

       [Para 5]

       (d) Constitution of India, 1950 - Art. 226 - Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Secs. 25-F, 25- G & 25-H - Retrenchment - Conditions - The first requisite condition to effect retrenchment is that workman must have worked for a period not less that 240 days in a year - Keeping in mind the catalogue of days and events as enumerated in the evidence of workman and witness examined by department the findings of the labour Court is diametrically opposite to the facts - It is rather disproved that workman was engaged for a period of 240 days or more - The provisions of the Act with regard retrenchment are, therefore, not attracted - Consequently award of labour Court and order of Single Judge confirming the award set aside.

       A workman engaged in any industry and who has been in continuous service for not less than one year in an employment shall not be retrenched by the said employer unless he has been served with one months notice in writing, showing the reasons for retrenchment and until the period of such notice has expired or he has been paid wages in lieu of such notice, for the period of notice. It is also a condition precedent that service of such a workman is not terminated or such a workman has been paid the retrenchment compensation which shall be equivalent to 15 days average pay for every completed year of continuous service or any part thereof in cases of six months and such a notice has been served in a manner prescribed. In short, the termination is dependent upon the fulfilment of the aforesaid conditions and that it should not be punitive. The first requisite condition is to show that the workman has worked for a period not less than 240 days in a year. The finding of fact in this regard, with due respect to the labour Court and the learned Single Judge, is not supported as it is not reinforced by the factual profile emerging from the record of the present case.

       [Para 4]

       Keeping in mind the catalogue of days and events as enumerated hereinabove in the evidence of the workman as well as Range Forest Officer as a witness examined by the Department, we have no any hesitation in finding that the award of the labour Court is running diametrically opposite to the factual proposition established, though ordinarily in exercise of power of, or jurisdiction of this Court by way of superintendence, Court cannot remain oblivious to the stark reality that there is manifest error on the record with regard to the finding of fact without any justification from the record. It is in these context that this Court can set aside or even ignore the finding of fact of an inferior Court, or a Tribunal in absence of any evidence to justify such a conclusion, not only that the facts of the case on hand unfold a chronicle of events, which stand on a higher footing than that. In that, it may be mentioned that it has been disproved that the workman was engaged for a period of 240 days or more.

       [Para 7]

       The finding of the labour Court in the award with regard to the applicability and violation of the provisions of Sec. 25-F and affirmation of the Ld. Single Judge is not justified in so far as it relates to the statutory definition of industries is concerned. The finding with regard to the applicability of Sec. 25-G as well as 25-H in the award cannot be upheld as that finding is not justified, which is not at all finding place in the impugned judgment. Apart from that, the attractability or the applicability of Secs. 25-G & 25-H would be dependent on the emergence and existence of the condition precedent of retrenchment, which is absent is the present case as found herein before. Therefore, in Courts opinion, the impugned award of the labour Court and the impugned judgment of the learned Single Judge cannot be sustained.

       [Para 8]