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2012 Supreme(Guj) 440
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hon’ble Mr. Justice Jayant Patel
Executive Engineer
Versus
Pravinsinh Natwarsinh Solanki & Ors.
Special Civil Application No. 92 of 2004—Decided on 17/09/2012
Appearance :
Ms. Sejal K. Mandavia, for the Petitioner No. 1.
Mr. Subramaniam Iyer, for the Respondents No. 1 - 3.
Point in Issue :
Whether in the circumstances and facts of the case termination of petitioner service was legal and sustainable.
Headnote:Head Note :
Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Section 25-F — Artificial break — But workman completed in one year services exceeding 240 days — Termination without notice or without any payment of compensation was rightly held illegal by Labour Court — However considering long period taken in deciding dispute instead of 100% back wages Court awarded 50% back wages from the date of termination until the death of workman.
Held :
If the employer has made a show not in bona fide, but with a mala fide purpose of adopting unfair labour practice and thereby has given artificial break in service, the Labour Court was justified in treating the service of the workman as continuous. Once the service was found to be continuous, the requirement of Section 25F was to be followed, if the termination was to be affected in service. It is an admitted position that no retrenchment compensation was paid at the time when the service of the workman was terminated. Therefore, such termination would be rendered illegal. [Para 10]
Considering the facts and circumstances, it appears that the order of 100% of back wages was not called for, since substantial time was taken in deciding the litigation and, therefore, it would be just and proper to order 50% back wages from the date of termination until the death of the workman. Under these circumstances, the award passed by the Labour Court deserves to be modified only to that extent. [Para 11]
Law Laid Down :
Once the service was found to be continuous the requirement of Section 25F of the Act was to be followed if the termination was to be affected in service.
Jayant Patel, J.—The short facts of the case are that the deceased workman – Natwarsinh Pravinsinh Solanki was appointed as clerk from 1971 in the pay-scale of Rs. 260/400 and his services came to be terminated without any notice or without any payment of compensation. Therefore, he raised dispute under I.D. Act. Such dispute came to be referred to Labour Court for adjudication being No. 773 of 1987 and subsequently, it was renumbered as Reference (LCB) No. 210/1990. The Labour Court, at the conclusion of the Reference, found that by way of artificial break, appointments were given for 29 days on continuous basis, but the workman had completed, in one year, services exceeding 240 days and, therefore, there was breach of the provisions of Section 25-F of the I.D. Act and without giving notice, he was discontinued. The Labour Court also recorded that the workman, pending the petition, has expired and, therefore, the reinstatement was not ordered, but the back wages were ordered from 29.4.1987 i.e. the date on which he was terminated till his death i.e. 4.6.2001 and he directed the payment of salary of the aforesaid period to the legal heirs of the deceased and the award was passed with the cost of Rs. 250/-. The said award is challenged by the petitioners in the present petition.
2. Heard Ms. Mandavia, learned Counsel for the petitioner and Mr. Iyer, learned Counsel for the respondent.
3. The learned Counsel for the petitioner, during the course of the hearing, had made available the record of various appointment orders issued by the petitioner in favour of the workmen. The same is also considered, since such record was part of the proceedings before the lower Court.
4. The learned Counsel for the petitioner raised the contention that if the appointment was for a limited period of 29 days and upon expiry of the period, if the workman was not continued in service, it will not be retrenchment within the meaning of Section 2(OO)(bb) of ID Act and, therefore, the Labour Court has committed error in treating the workman as in continuous employment and the award deserves to be set aside.
5. Whereas, Mr. Iyer, learned Counsel for the respondent submitted that it was a case of artificial break given by the petitioner to the respondent workman’s service in order to deprive him from his legitimate right of continuous service. It is submitted that the Labour Court has also found for such purpose. Under these circumstances, if the artificial break is given, the Labour Court can consider the said aspect and treat the workman as in continuous service and if the continuous service is taken into consideration, the termination cannot be made without payment of retrenchment compensation and if any termination is made without payment of retrenchment, it will be breach of provisions of Section 25-F of ID Act. The Labour Court has rightly found that the termination was illegal. He submitted that as the workman had expired pending the litigation before the Labour Court, Labour Court has not ordered for reinstatement, but had directed for the payment of back wages from the date of termination until the date of death of the workman to the legal heirs of the deceased workman. He submitted that, therefore, the petition deserves to be dismissed.
6. It is not a case where the workman was appointed for a short period and that too, for a limited days and upon expiry of the said period, his service came to an end and he was not engaged further, but it is rather a case where the workman was engaged since 1977 and he was continued till 1987 during the different periods. The Labour Court has found that the artificial break was given in service and, therefore, the appointment orders were issued for 29 days. Otherwise, the service was continuous for the period exceeding 240 days.
7. The learned Counsel for the petitioner, during the course of the hearing, has made available the details of the appointment order issued in favour of the respondent and the perusal t
