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2003 Supreme(Guj) 684
Gujarat High Court
Judgename :P.B.MAJMUDAR
EXECUTIVE ENGINEER - Appellant
Versus
ASHOKBHAI J.DESAI - Respondent
S.C.A. 1886 of 1999
Decided On : 12/12/2003
Headnote:(a) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sec. 25-F - Reinstatement - Order of - Specific finding of Labour Court that action of Management cannot be said to be retrenchment of workman - He was not given any appointment order - It was only when some work was available he was called to discharge his duty as a driver - Labour Court has also not given any positive finding as to total period during which he continuously worked - In the circumstance order of Labour Court of reinstatement is without jurisdiction - Constitution of India, 1950 - Art. 227.
It is required to be noted that the Labour Court itself has found that the action of the Management cannot be said to be retrenchment of the respondent-workman. It is also required to be noted that as and when some work was available, the respondent was called to discharge his duty as a driver and that, he was not given any appointment order. The Labour Court has also not given any positive finding as to the total period, during which the respondent has continuously worked. In absence of the said finding, as well as in view of the clear finding of the Court to the effect that there is no retrenchment in the eye of law, in Court view, the Court has no jurisdiction to pass an order of reinstatement, which is ultimately passed by the Labour Court. When the Court itself has found that there is no retrenchment and that the action of the Management cannot be said to be illegal in any manner, and that the respondent was not given any appointment order and without there being any finding by the Labour Court that the respondent has worked for 240 days in a calender year, the Labour Court has no jurisdiction to pass the impugned order of reinstatement and hence, the order of the Labour Court is contrary to law and the same is unsustainable. The Labour Court can grant appropriate relief if it is proved that the action of the management is in breach of the provisions of the I.D. Act. It is also not found that the Management has acted in violation of the provisions of Sec. 25-F of the I.D. Act when the petitioner did not ask the respondent to discharge his duty any further in view of the appointment of the regular driver.
[Para 7]
(b) Constitution of India, 1950 - Art. 227 - Jurisdiction - Unsustainable order - Once the Court came to conclusion that there is no breach of any of the provisions of the Industrial Disputes Act the Court has no jurisdiction to pass an order of reinstatement - Labour Court while passing award of reinstatement has committed grave error of law as well of jurisdiction, therefore, order of Labour Court is required to be corrected.
The order of the Labour Court is absolutely unsustainable and once the Court has come to the conclusion that there is no breach of any of the provisions of the Industrial Disputes Act, the Court has no jurisdiction to pass an order of reinstatement. The Labour Court has, therefore, committed a grave error of law as well as of jurisdiction in passing the impugned order and, therefore, the order of the Labour Court is required to be corrected by this Court under Art. 227 of the Constitution of India.
[Para 14 ]
( 1 ) 1. BY filing this petition, which is in the nature of Article 227 of the Constitution of India, the petitioner has challenged the order passed by the Presiding Judge, Labour Court, Nadiad in Reference (LCN) No. 155 of 1992.
( 2 ) THE respondent-workman had raised an industrial dispute, challenging the decision of the petitioner-Management in not continuing him in service as a daily rated driver. The dispute was referred to the Labour Court, Nadiad and it was numbered as Reference (LCN) No. 155 of 1992. The respondent was appointed as a daily rated driver from 1. 11. 1989. It is his case that he was serving sincerely and satisfactorily, on a daily wage of Rs. 37. 60, and that he had served continuously upto 1. 5. 1991, i. e. the date on which he was relieved from services. According to him, his services were illegally terminated with effect from 1. 5. 1991 and he was told that his services were no longer required. It is also his case that after terminating his services, the petitioner-Department appointed someone else in the aforesaid post of Driver. Under the circumstances, a demand was raised by the concerned workman to the effect that he may be reinstated in service, with continuity of service and such other benefits.
( 3 ) THE demand of the workman was resisted by the petitioner-Department on the ground that the petitioner-institution cannot be said to be an industry, within the meaning of the Industrial Disputes Act, as the Institution is under the control of the Irrigation Department of Sardar Sarovar Narmada Irrigation Scheme. It is further the stand of the Management that the concerned workman was not relieved, but since he was appointed as a casual driver, as and when need of a driver arose, he was asked to perform his duty. It is also the case of the Department that the workman was not recruited as per the Rules and for some intervening days, he was asked to give his services till regular driver was recruited by the Department. On the above and such other grounds, the demand was resisted by the petitioner-Department.
( 4 ) AT page 20 in the compilation, the Labour Court has also considered the say of the petitioner-Department to the effect that no appointment order was given to the respondent-workman and only as a stop-gap arrangement, he was asked to perform his duties as and when there was a need. Evidence of the concerned workman is also discussed by the learned Judge, wherein the concerned workman said that no provident fund was deducted from his salary and as and when the regular driver had taken over, he was not asked to perform his duty thereafter.
( 5 ) AFTER considering the evidence on record, the Labour Court observed that it is not proved that the respondent was retrenched by the Department. It is also found that the workman has failed to prove that after terminating his services, someone else is appointed in his place. A specific finding is given by the Labour Court to the effect that the action of the petitioner-Department in not asking the respondent-workman to discharge his duty further cannot be treated as a retrenchment in any manner whatsoever. However, in spite of this positive finding given by the Labour Court, at page 23 in the compilation, the Labour Court has still passed the order of reinstatement without any benefit for the intervening period. However, in the English translation of the Award which is produced in the compilation, there is no clear mention that it is not a case of retrenchment. Therefore, I have gone through the Gujarati version of the Award, as the original Award of the Labour Court is in Gujarati, and, there is a specific mention in paragraph 5 of the Award by the Labour Court that there is no retrenchment.
( 6 ) ON behalf of the petitioner, it is submitted that when the Court has not given any finding to the effect that the concerned workman has served for 240 days in a calendar year, especially when the Court has also observed that the action of the p
