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2007 Supreme(Guj) 783
2008 (1) GCD 466 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Deputy Executive Engineer [Bharuch]
Versus
Raj Amarsinh Fulsinh
Special Civil Application No. 27731 of 20071—Decided on 13/12/2007
Appearance :
Ms. Sejal K. Mandavia, for the Petitioners.
None, for the Respondents
Conclusion :
The purpose of industrial adjudication is to encourage the industrial peace to be maintained by both the parties.
Decided in Favour of :
Respondents
Petitions Dismissed
Headnote:Point in Issue :
Cancellation of Bail.
Head Note :
Constitution of India, 1950 — Article 227 — Industrial Dispute Act, 1947 (Central Act 14 of 1947) — Section 25-F — Termination of service — Reinstatement with back wages — Interference — Labour Court granted reinstatement to workmen with continuity of service with 15% backwages of interim period — Labour Court has perfectly appreciated the oral and documentary evidence and find out the real nature of appointment after considering the evidence from both the sides — Labour Court recorded finding that there is no purpose to engage respondents for particular period only then on each occasions, extended the period, therefore, Labour Court has come to conclusion that such kind of termination is amounts to retrenchment and Section 25-F is not followed by petitioner — Held, High Court would not interfere with findings of trial Court.
Held :
The Labour Court has rightly considered the question of back wages by not granting the full back wages, because, from the year 1987 to 2007, about 20 years have been passed not due to fault on the part of workmen, but, matter remained pending before the Labour Court from the year 1989 to 2003-04 for no fault of either party and thereafter, the petition is filed by petitioner in one case after three years and in another case, after four years. Meanwhile, the award passed by Labour Court is not implemented by petitioner and workmen is remained without work and without service and without wages though workmen are having the award in their favour enforceable more than 3 or 4 years and petitioner being a State Authority without any fear and having daring not to implement the award passed by Labour Court in favour of respondents and either of respondent is not reinstated by the petitioner though more than 3/4 years have been passed from the date of publication of award in question. The Labour Court has rightly examined the issue of gainful employment and granted only 15% backwages, because, petitioner being a State Authority and time consuming for deciding the reference. According to my opinion that being a reasonable amount which has been decided and granted by the Labour Court, for that, Labour Court has not committed any error which requires interference by this Court. The finding given by Labour Court that such kind of appointment is not bona fide appointments and there is no purpose to engage respondents for particular period only and then on each occasions, extended the period, therefore, Labour Court has come to the conclusion that such kind of termination is amounts to retrenchment and Section 25-F is not followed by the petitioner. Therefore, order of termination is bad and whatever the break is given in each occasions between two period as artificial break, that conclusion has rightly arrived at by Labour Court. For that, Labour Court has not committed any error which requires interference by this Court under Article 227 of the Constitution of India. [Para 21
Therefore, according to Court opinion, the Labour Court has perfectly appreciated the oral and documentary evidence and rightly find out the real nature of appointment after considering the evidence from both the sides, for that, Labour Court has not committed any error which requires any interference by this Court under Article 227 of the Constitution of India.
[Para 22]
This Court cannot exercise the power of judicial review just to find out the fault in the award. The purpose of industrial adjudication is to encourage the industrial peace to be maintained by both the parties. This Court cannot pick the hole of the award while exercising the judicial power under Article 227 of the Constitution of India. [Para 23]
H.K. Rathod, J.—Heard learned Advocate Ms. Sejal K. Mandavia appearing on behalf of petitioner in both the matters.
2. The draft amendment is placed on record in both the matters explaining the delay in filing both the petitions challenging the awards in question.
3. Accordingly, draft amendment is allowed with a direction to the petitioner to carry out the same within a period of two week from today. Accordingly, delay in filing both the petitions are condoned in the interest of justice.
4. It is necessary to note that in Special Civil Application No. 27731 of 2007, the award passed by Labour Court, Bharuch in Reference (LCB) No. 470 of 1990 dated 21.09.2003 is challenged by petitioner being a State Authority after a period of four years. In Special Civil Application No. 27731 of 2007, the name of respondent-workman is Raj Amarsinh Fulsinh. In Special Civil Application No. 27732 of 2007, the name of respondent-workman is Manilal Ratanji Vasava, where, Labour Court has decided the Reference (LCB) No. 270 of 1994 dated 15.05.1994, where, State Authority has taken time to challenge the award after a period of three years. Therefore, just to give identity to both the matters so, confusion may not arise, I refer these both matters in the name of workmen.
5. The Labour Court, Bharuch in both the cases, Shri Raj and Shri Manilal granted reinstatement with continuity of service with 15% backwages of interim period.
6. The contention raised by learned Advocate Mr. Mandavia is that both the workmen were appointed periodically as a work-charge clerk and on each occasions, after completion of period, a separate application was given by workmen and on separate application, a fresh order was issued by petitioner for prescribing a specific period and on each occasions, such periodical orders have been issued by petitioner in favour of respondents giving a date of termination. At the end of termination of service in case of Shri Raj is 17.02.1987 and in case of Manilal is 20.07.1987. The contention raised by learned Advocate Ms. Mandavia is that in both the occasions, no such application was given by both the respondents workmen to issue fresh order and therefore, their services come to end automatically. Therefore, compliance of Section 25-F is not necessary, because such kind of appointment based on periodical duration is not covered by definition of ‘retrenchment’ of Section 2(oo) of the Industrial Disputes Act, 1947, but, such appointments are covered by exception of Section 2(oo)(bb) by the Industrial Disputes Act, 1947. In short, her submission is that such termination is not a retrenchment and therefore, Section 25-F is not to be followed by petitioner. But, Labour Court has come to contrary decision from the records and granted the reinstatement in favour of respondents with 15% backwages of interim period. She read the relevant observations made by Labour Court and she also read the certain decisions which have been considered by Labour Court. There is no dispute by petitioner that on each occasions, a periodical orders were issued. Only one or two days breaks were given in between and thereafter, another order on the same terms and conditions was issued by petitioner. Such contingency remained continue on each occasions till no fresh application is given by the workmen and therefore, their services come to end automatically. She also submitted that there was no artificial break in between two appointment orders. She also submitted that Labour Court has committed gross error in granting such relief by coming to conclusion that Section 25-F is violated. She relied upon the following decisions :
(i) Purshottambhai R. Kachhadia vs. State of Gujarat & Ors., 2000 (2) GLR 1793.
(ii) Gangadhar Pillai vs. Siemens Ltd., 2007 (1) SCC 533.
(iii) Haryana State Agricultural Marketing Board vs. Subhash Chand & Anr., 2006 (2) SCC 794.
(iv) Batala co-op. Sugar Mills Ltd. vs. Sowaran Singh, 2005 (8) SCC 481.
(v) Balubhai G. Makwana vs. State of Gujara
