Important Point
Termination of respondent's service in violation of statutory condition/provision would invite and justify direction to reinstate respondent.

K.M. Thaker, J.

1. Heard Mr. Chauhan, learned advocate, for Mr. Munshaw, learned advocate for the petitioner - panchayat, and Mr. Shah, learned advocate for the respondent - workman.

2. The captioned two petitions arise from the same award. The panchayat and the workman both have challenged same award in their respective petitions. The writ petition, being Special Civil Application No. 25413 of 2006, is filed by the panchayat whereas other writ petition, being Special Civil Application No. 10078 of 2007, is filed by the workman.

2.1 In their respective petitions, the panchayat and the workman have challenged the award dated 9.5.2006 passed by the learned Labour Court, Surendranagar, in Reference (LCS) No. 114 of 2005 whereby the learned Labour Court set aside the panchayat's action terminating service of the workman and directed the panchayat to reinstate the workman on his original post without backwages.

2.2 For sake of convenience, the panchayat is referred to as the "petitioner" and the workman is referred to as the "respondent" in this decision.

3. The respondent raised an industrial dispute on the allegation that the petitioner terminated his service w.e.f. 19.12.1985 by an oral order and without following prescribed procedure of law. The respondent alleged that he was continuously working with the petitioner since 1979 and his service came to be terminated w.e.f. 19.12.1985 without payment of compensation and without granting any opportunity of hearing. At the time of termination of his service, the petitioner retained in service persons junior to respondent.

The petitioner opposed the reference and in their written statement, the petitioner claimed that the respondent had worked with the petitioner only until 1982 and that during the tenure for which he was engaged in 1980, 1981 and 1982, the respondent had never worked for 240 days in any one phase of 12 months. It was also claimed that during proceeding 12 months before his termination also, the respondent had not worked for 240 days. According to the petitioner, the respondent was never engaged after 1982 and the allegation that his service was terminated w.e.f. 19.12.1985 by oral order is incorrect.

3.1 After considering the submissions by the panchayat and the workman and upon taking into consideration the evidence on record, learned Labour Court passed the award dated 5.1.1999. The said award was challenged by the panchayat by filing writ petition, being Special Civil Application No. 9079 of 1999. By order dated 28.6.2005, the Court partly allowed the petition and set aside the award and remanded the matter for fresh hearing and decision. In the said order dated 28.6.2005, the Court observed, inter alia, that:--

"3. Mr. Munshaw has contended that though specific contention regarding provisions of Sections 2(oo) (bb) of the Industrial Disputes Act, 1947 was raised before the Labour Court, the same was not taken into consideration by the Labour Court.

5. I have heard the learned advocates for the respective parties and have perused the materials placed on record. Having perused the record, it transpires that the respondent workman had not worked since the year 1982 and thereby had not completed 240 days in a year. However, in view of the decision of the Apex Court in the case of Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan & Anr., (Supra), the contention raised by the learned advocate for the petitioner Panchayat with regard to consideration of Section 2 (oo)(bb) of the Industrial Disputes Act, is required to be adjudicated by the Labour Court. Thus, in view of the aforesaid decision, the impugned order is required to be quashed and set aside and the matter is required to be remanded to the Labour Court for deciding afresh.

6. In the premises aforesaid, the petition is allowed. The order dated 5th January, 1999 passed by the Labour Court, Surendranagar in Reference [L.C.S.] No. 244 of 1990, is quashed and set aside. The matter is remanded to the Lab